Citation Nr: 21075726 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 15-01 793 DATE: December 21, 2021 ORDER A 30 percent rating, but no higher, is granted for hiatal hernia from April 24, 2014 to May 14, 2019, subject to the regulations governing payment of monetary awards; entitlement to ratings in excess of 10 percent prior to April 24, 2014 and in excess of 60 percent from May 14, 2019 is denied. FINDING OF FACT 1. Prior to April 24, 2014, the symptoms of hiatal hernia are not shown to have been manifested by persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, or to have been productive of considerable impairment of health. 2. From April 24, 2014 to May 14, 2019, the Veteran's hiatal hernia is reasonably shown to have been manifested by persistent recurrent epigastric distress, pyrosis, reflux, regurgitation, interference with sleep, nausea, vomiting, and substernal, arm, and shoulder pain and to have been productive of considerable impairment of health; material weight loss and hematemesis or melena with moderate anemia, or other symptom combinations productive of severe impairment of health were not shown 3. From May 14, 2019, the 60 percent rating assigned for hiatal hernia is the maximum schedular rating provided for hiatal hernia; symptoms or impairment not encompassed by schedular criteria are not shown, or alleged. CONCLUSION OF LAW A rating in excess of 10 percent for hiatal hernia prior to April 24, 2014 is not warranted; a 30 percent rating for hiatal hernia is warranted from April 24, 2014 to May 14, 2019; a rating in excess of 60 percent for hiatal hernia from May 14, 2019 is not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321 (b)(1), 4.1, 4.20, 4.21, 4.114, Code 7346. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty from April 1984 to August 1992. This matter is before the Board of Veterans' Appeals (Board) on appeal from an October 2011 Department of Veterans Affairs (VA) rating decision. In November 2017, a videoconference hearing was held before the undersigned; a transcript is in the record. In May 2018, September 2019, August 2020, and July 2021, this matter was remanded for further development. A June 2018 rating decision granted a total disability rating based on individual employability due to service-connected disabilities (TDIU), effective October 17, 2013. Disability evaluations are determined by the application of a schedule of rating, which is based on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). VA regulations allow for the assignment of an increased rating up to one year prior to receipt of a formal claim for increase, when it is factually ascertainable that an increase in disability had occurred. 38 C.F.R. §§ 3.157, 3.400(o)(2). Where there is a question as to which of two ratings shall be assigned, the higher criteria will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability is to be resolved in favor of the claimant. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Hiatal hernia is rated under Code 7346, which provides for a 60 percent (maximum schedular) rating ; 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; a 30 percent rating for persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health; and a 10 percent rating for two or more of the symptoms for the 30 percent evaluation, of less severity. 38 C.F.R. § 4.114. As the instant claim for increase was received April 23, 2010, the evaluation period for consideration is from April 23, 2009 (a year prior to the claim) to the present. Private ENT treatment records note on review of gastrointestinal (GI) symptoms the Veteran reported heartburn or indigestion, swallowing difficulty, painful swallowing, and vomiting. See September, October, and November 2009 private ENT treatment records. A November 23, 2009 private gastroenterology treatment record notes the Veteran was sought treatment for dysphagia. He described choking episodes for the past 10 years. He reported that some types of solid food get stuck, and he must regurgitate the food and a jellyfish like phlegm with the regurgitant, and that in the last three or four years he had at least one choking episode of choking a day and, for many years, has had heartburn. He stated that a year prior he started using aloe vera juice and no longer has any complaints. He denied having nausea or abdominal pain. On review of the gastroenterology symptoms, the Veteran denied painful defecation, a change in bowel habit, difficulty swallowing, heartburn, nausea, constipation, diarrhea, blood in stool, and abdominal pain. He also denied weight loss, fatigue/weakness, and loss of appetite. Dysphagia and GERD were diagnosed. The provider stated the differential diagnoses include esophageal web or stricture, esophagitis, including possible eosinophilic, and opined that, with the history of GERD, Barrett's esophagus should be ruled out, and that the mucus he describes may also be related to his allergies. An esophagogastroduodenoscopy (EGD) was scheduled. A December 2009 private EGD report, lists post-study diagnoses as antral gastritis, grade D esophagitis, and esophageal stricture. A January 2010 private gastroenterology treatment record notes the Veteran reported he has been doing well since the last appointment and much better since he started taking Nexium every day. He denied experiencing abdominal pain, nausea, vomiting, heartburn, or dysphagia. The provider opined he believed that the stricture has improved with resolution of his esophagitis, and stated that the Veteran would continue with Nexium indefinitely. A September 2010 VA treatment record notes symptoms of hiatal hernia and GERD were controlled with Omeprazole. A December 2010 private orthopedic record notes the Veteran reported acid reflux and heartburn on review of symptoms. On June 2011 VA examination, the Veteran reported constantly experiencing dysphagia, epigastric pain, arm pain, nausea, and vomiting. He denied experiencing heartburn, scapular pain, hematemesis, passing of black tarry stools, reflux, and regurgitation of stomach contents. He reported he did not experience any overall functional impairment from this condition. On physical examination, his abdomen was normal. Hiatal hernia was diagnosed. The provider opined there was no change in the diagnosis and the condition was asymptomatic at the time of examination, noting the subjective factors described were historical symptoms and the objective factors were not found on examination. The examiner noted the hiatal hernia/GERD does not cause anemia and there were no findings of malnutrition. Subsequent private treatment records note the Veteran's denials of abdominal pain, heartburn, dysphagia, nausea, and vomiting. See March 2012, April 2013, and July 2013 private treatment records. On August 2013 VA headache examination, it was noted that the Veteran experienced non-headache symptoms of nausea and vomiting associated with headaches. At the April 24, 2014 DRO hearing, the Veteran testified he has severe reflux, experiences regurgitation, and arm and shoulder pain. He testified that the regurgitation occurs with certain foods and that sometimes he has to try to re-eat food two to three times; that pain in his chest radiates to his shoulder and down his arm; and that his provider put him on medication for his hiatal hernia symptoms. On June 11, 2014 VA esophageal conditions examination, hiatal hernia and GERD were diagnosed. The Veteran reported his condition has gradually worsened to severe dysphagia for solids and the current symptoms include dysphagia for solids, odynophagia, recurrent vomiting, chest and arm pain, and intermittent hematemesis and melena. Continuous medication was taken for the condition (a proton pump inhibitor (PPI)). The examiner noted that the Veteran experiences: persistently recurrent epigastric distress; dysphagia; pyrosis (heartburn); reflux; regurgitation; substernal, arm, shoulder pain; sleep disturbances (4 times per year with 10 or more day duration); recurrent nausea (4 or more times per year with a 10 or more day duration); recurrent vomiting (4 or more times per year with a 10 or more day duration); transient hematemesis (4 or more times per year with a duration less than one day); recurrent melena (4 or more times per year with a duration less than one day); and he has an esophageal stricture of the esophagus, noting it is severe. The examiner opined that the hiatal hernia does not impact on the Veteran's ability to work. An April 2016 VA treatment record notes the Veteran had good control of GERD symptoms with diet and medication (Omeprazole). At the November 2017 Board hearing, the Veteran testified that he chokes on food, has arm and shoulder pain, and experiences vomiting. He testified that when he tries to bend or lift something, he has arm and shoulder pain, and cannot function, explaining that bending over makes everything come up and he has to rest for a short period. He testified that there are times he lacks energy and feels weak because of difficulty keeping food down. He testified that his condition has worsened over time, but has been bad for a long time. A February 2019 VA treatment record notes the Veteran has had GERD for more than 5 years and was on Omeprazole (20 mg) and ranitidine. He denied experiencing abdominal pain, nausea, vomiting, dysphagia, odynophagia, and weight loss. An EGD was scheduled. March 2019 VA treatment records notes he missed the scheduled EGD procedure due to an illness. On May 14, 2019 VA esophageal conditions examination, hiatal hernia was diagnosed. The Veteran reported he experiences acid reflux, pyrosis, and substernal pain. He takes continuous medication for the hiatal hernia (a PPI and ranitidine). It was noted that the Veteran experiences: a symptoms combination productive of severe health impairment; persistently recurrent epigastric distress; dysphagia; pyrosis (heartburn); reflux; regurgitation; substernal, arm, shoulder pain; sleep disturbances (4 times per year with a 1 to 9 day duration); nausea (4 or more times per year with a less than one day duration); vomiting (4 or more times per year with a less than one day duration); and, hematemesis (4 or more times per year with a duration less than one day). He did not have esophageal stricture, spasm of esophagus, an acquired diverticulum of the esophagus, or any other pertinent physical findings/complications/conditions. The examiner opined that there was a worsening of the Veteran's symptoms and that the hiatal hernia does impact the Veteran's ability to work, noting he worked as a farmer and had difficulty functioning in this role due to strenuous activity exacerbating symptoms. A June 2019 rating decision increased the rating for hiatal hernia to 60 percent, effective May 14, 2019, based on the May 2019 examination and its finding of a severe health impairment. On January 2020 VA esophageal conditions examination, hiatal hernia and GERD were diagnosed. The provider opined that additional conditions (GERD) were found to be directly related to the hiatal hernia, noting that GERD is known to be caused by hiatal hernia. The Veteran reported his condition has remained the same; he continues to take medication for the conditions (Omeprazole 40 mg daily, ranitidine 150 every bedtime, and Maalox). He reported he continues to experience trouble swallowing/periods of almost chocking, regurgitation, and heartburn. The examiner noted that the Veteran experiences: infrequent episodes of epigastric distress; reflux; substernal, arm, and shoulder pain; sleep disturbances (at least 4 times per year with less than a day duration); and nausea (4 or more times per year with less than a day duration). He did not have esophageal stricture, spasm of esophagus, an acquired diverticulum of the esophagus, or any other pertinent physical findings/ complications/conditions. The examiner opined that hiatal hernia/GERD does not impact on the Veteran's ability to work and that there is no severe impairment of health due to this condition. A September 2020 VA treatment record notes that the Veteran has reflux and that he recently stopped Omeprazole and was started on Famotidine, with good results. He denied regurgitation, bloating, changes in eating habits, loss of appetite, abdominal pain, cramping, dysphagia/odynophagia, nausea, vomiting, or hematemesis. In a November 2020 VA addendum opinion, the January 2020 examiner stated that an opinion could not be provided without resort to mere speculation, as there are no records or subjective reports that the GERD or hiatal hernia severely impacted health. On March 2021 VA esophageal conditions examination, hiatal hernia, GERD, diverticulum of the esophagus were diagnosed. The Veteran reported that his GERD has worsened over the years and he experiences dysphagia, epigastric pain, arm pain, nausea, and episodic vomiting. He takes continuous medication for the diagnosed condition (Omeprazole at night and Pepcid 20 mg in the morning). The examiner noted that the Veteran experiences: persistently recurrent and infrequent episodes of epigastric distress; dysphagia; pyrosis; reflux; sleep disturbances (2 times per year with a duration of 10 days or more); and nausea (4 or more times per year with a duration of 10 days or more). He did have a mild esophageal stricture, spasm of esophagus, an acquired diverticulum of the esophagus, noting that he has a sensation of choking with the spasm. The examiner opined that the hiatal hernia does impact on the Veteran's ability to work, noting that he cannot walk or bend over, and that intermittent vomiting, which lasts up to 0 days, prevents him from going to work. In a September 2021 VA medical advisory opinion (pursuant to the July 2021 Board remand), the provider addressed the retroactive severity levels of the Veteran's service-connected hiatal hernia and when the apparent changes in the severity occurred. He noted that the level of impairment of health is synonymous with the term of dysfunction and that at no time is the impact on health rated as severe. The provider opined that the symptoms noted on the June 11, 2014 VA examination (dysphagia for solids; recurrent nausea; vomiting chest; arm pain; intermittent hematemesis; melena; and sleep disturbances occurred four or more times per year lasting up to 10 days) reflect moderate dysfunction due to the condition. The provider opined that the findings on the 2019 VA examination reflect a mild to moderate dysfunction, observing that the findings were similar though sleep disturbances were of a lesser duration and the symptoms of stricture had abated. The provider opined that the findings on the 2020 VA examination reflect a mild dysfunction, noting that the findings were similar again with sleep disturbances of an even lesser duration and no evidence of stricture. The provider opined that the findings on the 2021 VA examination reflect a mild to moderate dysfunction, noting that the symptoms were somewhat similar but for the increased sleep disturbances and mild stricture-like symptoms. The provider noted these place the emphasis on sleep disturbance in the presence of dysphagia. At the outset, the Board finds there has been substantial compliance with its May 2018, September 2019, August 2020, and July 2021 remand directives pertaining to this matter (which is addressed on the merits). See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). The criteria for rating hiatal hernia are progressive and stated in the conjunctive, and those listed in the criteria for a higher rating that distinguish it from the lower rating must be met to warrant the higher rating. The criteria for a 10 percent rating do not require substernal or arm or should pain or an assessment of the impact of hernia symptoms on health, while a 30 percent rating requires the symptoms to be persistently recurrent and to include substernal or arm or shoulder pain and to be productive of considerable impairment of health. At no time prior to April 24, 2014, is it shown that the Veteran had persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. While he reported to his private gastroenterologist in November 2009 that he had experienced dysphagia and some regurgitation for years, persistently recurrent epigastric distress is not shown. On January 2010 follow up appointment, he reported he has been doing better with the new medication and his provider opined that his condition had improved with the resolution of his esophagitis. His reports on June 2011 VA examination suggest that he had subjective symptoms in the past, was on medication, and was currently asymptomatic. He continued to deny hiatal hernia symptoms to his private treatment providers in 2012 and 2013. As the medical evidence does not indicate that the symptoms of GERD caused considerable impairment of his health prior to April 24, 2014, the criteria for a 30 percent rating were not met prior to that date. From April 24, 2014, the evidence reasonably shows that manifestations of the hiatal hernia were consistent with the criteria for a 30 percent rating under Code 7346. At the April 24, 2014 DRO hearing, the Veteran testified of worsening hiatal hernia symptoms, which were confirmed on June 2014 VA examination. In addition, the 2021 VA consulting provider reviewed the reported symptoms on the June 2014 VA examination (dysphagia for solids, recurrent nausea, vomiting, chest and arm pain, intermittent hematemesis, melena, and sleep disturbances) and opined such symptoms reflect a moderate dysfunction. It was noted he took continuous medication, and a 2016 VA treatment record notes his symptoms were controlled by medication (Omeprazole). Therefore, taking into account the ameliorative effects of medication (McCarroll v. McDonald, 28 Vet. App. 267, 271 (2016) (en banc)), his lay reports, and resolving any reasonable doubt in the Veteran's favor (as required under 38 C.F.R. § 4.3), the Board finds that the frequency and severity of the Veteran's hiatal hernia warrant a 30 percent (but no higher) rating from April 24, 2014. At no time, prior to May 14, 2019, is it shown that the requirements for a 60 percent rating were met. The 2021 VA provider opined, based on a review of the record, that at no time would the impact on health be rated as severe. Notably, the Veteran has never been described as anemic, malnourished, losing significant weight, or in poor health. The Board has no reason to question the Veteran's accounts of continuing hiatal hernia symptoms, including in April and June 2014, and finds them consistent with the treatment records/examination reports of record. Such symptoms, findings, and related impairment do not by their nature, frequency, duration, nature, and severity reflect there is accompanying pain, vomiting, material weight loss, and hematemesis or melena with moderate anemia productive of severe impairment of health. However, the disability picture presented by his hiatal hernia is more consistent with the criteria for a 30 percent rating than those for a 60 percent rating. As the medical evidence does not indicate that the symptoms of GERD caused severe impairment of his health prior to May 14, 2019, a 60 percent rating prior to May 14, 2019 is not warranted. From May 14, 2019, the hiatal hernia is assigned a (maximum schedular) 60 percent rating for hiatal hernia based on the findings on May 2019 VA examination. Although a May 2019 VA examiner noted there was symptoms combination productive of severe health impairment, later (January 2020 and September 2021) VA examiners opined that there was no severe impairment of health due to this condition; however, the Board will not disturb that favorable determination that a 60 percent rating is warranted. The record does not show/the Veteran has not identified any symptoms or impairment due to hiatal hernia that are not encompassed by the schedular criteria for that disability. Considering the foregoing, a rating in excess of 60 percent for hiatal hernia from May 14, 2019 is not warranted, and to that extent the appeal in the matter must be denied. GEORGE R. SENYK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Naumovich, 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.