Citation Nr: 21065162 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 16-59 789 DATE: October 25, 2021 ORDER Entitlement to a 10 percent rating for the appeal period prior to February 5, 2020 for a hiatal hernia is granted. Entitlement to a 30 percent rating for a hiatal hernia for the appeal period beginning on February 5, 2020 is granted. FINDINGS OF FACT 1. For the appeal period prior to February 5, 2020, the Veteran's hiatal hernia manifested as epigastric distress, dysphagia and pyrosis without symptoms productive of considerable impairment of health. 2. For the appeal period beginning on February 5, 2020, the Veteran's hiatal hernia manifested as recurrent epigastric distress, pyrosis, reflux, regurgitation, substernal pain and sleep disturbance without material weight loss and hematemesis or melena with moderate anemia or other symptom combinations productive of severe impairment of health. CONCLUSIONS OF LAW 1. The criteria for entitlement to a 10 percent rating for the appeal period prior to February 5, 2020 for a hiatal hernia have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1.4 14, 4.114, Diagnostic Code 7346. 2 The criteria for entitlement to a 30 percent rating for a hiatal hernia for the appeal period beginning on February 5, 2020 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1.4 14, 4.114, Diagnostic Code 7346. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from in the United States Army from August 1968 to March 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2016 rating decision issued by a Department of Veterans Affairs Regional Office (RO). This matter previously came before the Board in September 2019 whereupon it was remanded back to RO for additional development, to include obtaining outstanding VA and private records, and to schedule the Veteran for a VA examination to determine the current nature and severity of his hiatal hernia disability. Updated VA treatment records have been associated with the record and a November 2019 letter requested that the Veteran complete an appropriate authorization form to allow VA to obtain treatment records on his behalf. The Veteran was provided a new VA examination for his hiatal hernia condition in February 2020. The Board therefore determines that there has been substantial compliance with its previous remand. Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand by the Board confers the right to compliance with remand orders). The matter has returned to the Board for further appellate action. The Board notes that the Veteran asserted that the instant claim for an increased rating should date back to 1972, when he was discharged from service, in a June 2020 statement. The instant claim for an increased rating stems from a February 1, 2016 claim and an appeal that was subsequently perfected as to an increased rating. The Board is therefore has jurisdiction to consider the appeal period from the date of claim to the present, to include the one-year look back period. See Gaston v. Shinseki, 605 F.3d 979 (Fed. Circ. 2010). If the Veteran desires to file a claim for an earlier effective date, he should contact the Agency of Original Jurisdiction (AOJ) to file such a claim. 1. Entitlement to a 10 rating for the appeal period prior to February 5, 2020 for a hiatal hernia is granted. 2. Entitlement to a 30 percent rating for a hiatal hernia for the appeal period beginning on February 5, 2020 is granted. The Veteran asserts that he is entitled to an increased rating for his hiatal hernia condition, specifically because his symptoms are more severe than contemplated by the currently assigned ratings. In a December 2016 statement, the Veteran reported that he suffered from vomiting and regurgitation with upper chest, arm and shoulder pain and that these symptoms occurred at least two to three times per week. He also reported that he did not really understand what heartburn was at the time of time of his prior VA examination in the December 2016 statement. In a November 2016 statement from S.M., she indicated that Veteran was not able to eat spicy foods or really fatty foods without stomach pains and that you can sometimes hear his stomach gurgling when he laid down. A November 2016 statement from R.M. indicates that the Veteran has had to leave work and miss work due to his stomach problem. Other letters were submitted that describe the Veteran's hiatal hernia condition prior to the appeal period. Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Pyramiding, that is the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when evaluating a veteran's service-connected disability. 38 C.F.R. § 4.14. However, it is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; the critical element in permitting the assignment of several evaluations under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261- 62 (1994). Where there is a question as to which of two evaluations (ratings) shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. VA should interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. 38 C.F.R. § 4.2. Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no obligation to discuss, in detail, the extensive evidence of record. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the Board must review the entire record but does not have to discuss each piece of evidence). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as it relates to the Veteran's claims. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran's hiatal hernia has been evaluated pursuant to Diagnostic Code 7346 under the Schedule of Ratings Digestive System. 38 C.F.R. § 4.114. The formula provides that a 10 percent rating is assigned when there are two or more of the following symptoms: persistently recurrent epigastric distress with dysphagia, pyrosis, and/or regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. A 30 percent rating is warranted when all of the symptoms mentioned in the 10 percent rating are present. A maximum 60 percent rating is warranted for symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health. 38 C.F.R. § 4.114, Diagnostic Code 7346. The Veteran was provided a VA examination for hiatal hernia in March 2016. The examiner made findings that the Veteran did not suffer any manifesting symptoms of his hiatal hernia condition. No incidence of recurrent epigastric distress, pyrosis, reflux, regurgitation, or other symptoms contemplated under Diagnostic Code 7346 were found. The examiner also did not find any esophageal constriction or spasm. Dysphagia was also not found. A March 2017 treatment note documents symptoms of abdominal discomfort and swallowing difficulties. However other symptoms such as persistently recurrent epigastric distress, dysphagia, pyrosis, and/or regurgitation, accompanied by substernal or arm or shoulder pain were not noted at this time. The Veteran's February 2020 VA examination made findings of the following symptoms: recurrent epigastric distress; pyrosis; reflux; regurgitation; substernal pain and sleep disturbance. Pain, vomiting, material weight loss and hematemesis or melena with moderate anemia or other symptom combinations productive of severe impairment of health were not found. Further review of the record shows that the Veteran receives VA treatment from for various disabilities, to include his hiatal hernia. However, there is no indication from the treatment notes of record that the Veteran has reported symptoms that are worse than those noted above. For the appeal period prior to February 5, 2020, the Veteran's hiatal hernia manifested as dysphagia, abdominal discomfort and pyrosis. A March 2016 VA examiner found that there was no dysphagia (difficulty swallowing) or esophageal constriction or spasm on objective examination. In addition, recurrent epigastric distress, pyrosis, reflux, regurgitation, or other symptoms were found. A March 2017 VA treatment note did reflect abdominal discomfort and swallowing difficulties without persistently recurrent epigastric distress, dysphagia, pyrosis, and/or regurgitation, accompanied by substernal or arm or shoulder pain were not noted. In a December 2016 statement, the Veteran reported that he suffered from vomiting and regurgitation with upper chest, arm and shoulder pain and that these symptoms occurred at least two to three times per week. The record does not reflect, and the Veteran has not alleged, considerable impairment of health even when considered the Veteran's report of symptoms two to three times per week. Therefore, a 10 percent rating, but no higher, is warranted. For the appeal period beginning on February 5, 2020, the Veteran's hiatal hernia manifested as recurrent epigastric distress, pyrosis, reflux, regurgitation, substernal pain and sleep disturbance caused by esophageal reflux. The Veteran reported heartburn symptoms that occurred frequently throughout the day and were worse at night in the February 2020 VA examination. The February 2020 VA examiner also found mild esophageal stricture. Additionally, a further reading of the February 2020 examination reveals that the Veteran suffers from constriction of his esophagus and esophagitis, thus making an inference possible that the Veteran suffers from difficulty swallowing as well, despite the lack of specific reference to such in the examination. However, the examination is negative for, and the Veteran has not alleged, material weight loss, hematemesis or melena with moderate anemia or other symptom combinations productive of severe impairment of health. Therefore, a rating of 30 percent, but no higher and earlier, is warranted. In assessing the severity of the Veteran's hiatal hernia condition the Board has given due consideration to the competent lay assertions regarding symptoms experienced and observed. See, e.g., Layno v. Brown, 6 Vet. App. 465, 470 (1994) and Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). However, the criteria needed to support higher ratings involve medical findings that are within the province and purview of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-138 (1994). As such, the Veteran's lay assertions and his witnesses are not considered more persuasive than the objective medical findings which, as indicated above, do not support assignment of any higher rating pursuant to any applicable criteria at any point pertinent to this appeal. While the Veteran is competent to report symptoms and his witnesses are competent to describe symptoms that they had observed, they are not competent to identify a specific level of disability of the Veteran's hiatal hernia according to the appropriate diagnostic codes. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board has also considered whether a further staged rating under Hart, supra, is appropriate for the Veteran's service-connected hiatal hernia; however, the Board finds that his symptomatology has been stable throughout each appeal period. Therefore, assigning a further staged rating for such disability is not warranted. Further, the Veteran and his representative have not raised any other issues, nor have any other issues been reasonably raised by the record, with regard to such claim. Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Finally, the Board is cognizant of the ruling of the Court in Rice v. Shinseki, 22 Vet. App. 447 (2009). In Rice, the Court held that a claim for a total rating based on unemployability due to service-connected disability (TDIU), either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. The Veteran's current employment status is not clear from the record. Moreover, the Veteran has not asserted at any point in time, and the record does not so indicate, that he is unable to secure and maintain employment due to his service-connected hiatal hernia. Therefore, a TDIU has not been raised. (Continued on the next page) Accordingly, the Board finds that a 10 percent rating is warranted for the appeal period prior to February 5, 2020 and a 30 percent rating thereafter is warranted for the Veteran's hiatal hernia. To that extent, the appeal is granted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Kashif I. Ali, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.