Citation Nr: 21021464 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 15-41 409 DATE: April 13, 2021 ORDER Entitlement to service connection for hiatal hernia, to include as proximately due to or aggravated by service-connected peptic ulcer disease, is denied. Entitlement to a disability rating in excess of 30 percent for epididymitis and genital tuberculosis is denied. Entitlement to temporary 100 percent evaluation under 38 C.F.R. § 4.30 for surgery requiring convalescence is denied. FINDINGS OF FACT 1. The Veteran’s hiatal hernia is not secondary to service-connected peptic ulcer disease and is not otherwise related to an in-service injury or disease. 2. The Veteran’s epididymitis and genital tuberculosis is manifested by pain and symptomatic infection requiring antibiotic treatments; there is no evidence of poor renal function or renal dysfunction. 3. The record does not contain a hospital discharge or outpatient release report stating that the Veteran required at least one month of convalescence following his September 2010 left-sided epididymectomy surgical procedure, that he experienced severe postsurgical residuals, or that he had immobilization of at least one major joint by a cast (without surgery). CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for hiatal hernia have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for a disability rating in excess of 30 percent for epididymitis and genital tuberculosis are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.115a, 4.115b, 4.88b, 4.88c, Diagnostic Codes 6311, 7525. 3. The criteria for entitlement to a temporary total convalescence rating under 38 C.F.R. § 4.30 following a September 2010 surgical procedure involving the Veteran’s service-connected epididymitis have not been met. 38 U.S.C. § 1156; 38 C.F.R. § 4.30. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1967 to June 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a June 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). This case was previously remanded by the Board in May 2020. A review of the claims file shows that there has been substantial compliance with the Board’s remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The case has been returned to the Board for review. In May 2019 correspondence, the Veteran’s caretaker indicated that the Veteran’s health had declined and would be unable to attend a hearing on these matters. The Board is cognizant of the ruling of the United States Court of Appeals for Veterans Claims (Court) in Rice v. Shinseki, 22 Vet. App. 447 (2009). In Rice, the Court held that a claim for a total rating based on individual unemployability (TDIU) due to service-connected disability, 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. In this case, the Veteran has not argued, and the record does not otherwise reflect, that the disability at issue renders him unemployable. Accordingly, the Board concludes that a claim for TDIU has not been raised. Service Connection Service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To establish service connection for a disability, the Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Secondary service connection is warranted where a claimed disability is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). The threshold legal requirements for a successful secondary service connection claim are evidence of (1) a current disability for which secondary service connection is sought; (2) a disability already service-connected; and (3) competent evidence that the already service-connected disability caused or aggravated the disability for which service connection is sought. Id. 1. Hiatal hernia The Veteran contends that service connection is warranted for hiatal hernia as proximately due to or aggravated by his service-connected peptic ulcer disease. The Veteran’s service treatment records are silent as to any complaints, treatment, or diagnosis of hiatal hernia. Additionally, the Veteran's hiatal hernia was not diagnosed until 2006, more than 30 years after separation from service. The Veteran underwent a hernia VA examination in December 2011. The examiner noted a diagnosis of a hiatal hernia in 2007, per Veteran. The December 2011 VA examiner stated the Veteran’s hiatal hernia was less likely than not proximately due to the Veteran’s peptic ulcer disease. The examiner stated there is no medical literature that supports the claim that the peptic ulcer causes hiatal hernia. Hiatal hernia is the mechanical problem. Furthermore, the associations between gastroesophageal reflux disease and hiatal hernia or lower esophageal pressure no longer achieved statistical significance after considering the effect of inspiratory augmentation in multivariate analysis, suggesting both effects were largely mediated by associated crural diaphragm dysfunction. Transient lower esophageal sphincter relaxations account for essentially all reflux events in individuals with a normal lower esophageal pressure at the time of the reflux. The Veteran underwent a VA hernia examination in December 2020. The Veteran reported increasing heartburn, stomach upset, and discomfort in the upper abdominal region. The examiner noted the onset of a hiatal hernia in 2012. The examiner opined that the Veteran’s hiatal hernia was less likely than not incurred in or caused by service, nor was it caused or aggravated by the Veteran’s service-connected peptic ulcer disease. The examiner explained that a hiatal hernia being caused by a peptic ulcer is not supported by medical literature. Hiatal hernias may cause or aggravate peptic ulcers; however, the inverse is not supported by the medical literature. A hiatal hernia is a separate entity entirely from the peptic ulcer and unrelated to it. A thorough review of medical literature failed to demonstrate a causal relationship. Further, the hiatal hernia was not diagnosed until 2012, approximately 50 years after separation. With respect to a nexus between the current disability and in-service event or secondary to a service-connected disability, the only competent medical opinions of record are the December 2011 and December 2020 VA opinions, which weigh against the Veteran’s claim. The December 2011 and December 2020 VA examiners interviewed the Veteran, reviewed the claims file, and conducted in-person examinations. In addition, the opinions contain thorough rationales. For these reasons, the Board finds that the December 2011 and December 2020 VA examiners’ opinions are due significant probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board notes the December 2011 VA examiner did not provide a rationale as to the question of whether the Veteran’s hiatal hernia was aggravated by his peptic ulcer disability. However, the December 2020 VA examiner’s opinion did adequately explain why the hiatal hernia was not aggravated by the peptic ulcer disability. Further, the Board concedes there is evidence the Veteran was diagnosed with a hiatal hernia in 2006, which is a year earlier than noted by the December 2011 VA examiner and six years earlier than noted by the December 2020 VA examiner. The Board finds the fact that the Veteran’s hiatal hernia was diagnosed six years earlier than the December 2020 VA examiner noted does not undermine the December 2020 VA examiner’s rationale for finding the hiatal hernia was not directly related to service. The December 2020 VA examiner’s negative nexus for direct service connection was predicated on the Veteran’s service treatment records and separation examination being silent for diagnosis or symptoms for a hiatal hernia and the hiatal hernia not being diagnosed for decades after service. The opinion and rationale remain probative and compelling despite this mistake of fact. The only evidence indicating an association between the current hiatal hernia and service are the Veteran’s own assertions. It is well established that a layperson without medical training is not qualified to render a medical opinion regarding the diagnosis or etiology of certain disorders and disabilities. See 38 C.F.R. § 3.159 (a)(1). In certain instances, lay testimony may be competent to establish medical etiology or nexus. See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007). However, as the origin or cause of a hiatal hernia is not a simple question that can be determined based on personal observation by a lay person, the Veteran’s lay testimony is not competent to establish medical etiology or nexus. Id. It is not shown that the Veteran is otherwise qualified through specialized education, training, or experience to offer a medical opinion as to the etiology of his hiatal hernia. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). In light of the above, the preponderance of the evidence is against the claim and the benefit-of-the-doubt doctrine is not for application. The claim therefore must be denied. 38 U.S.C. § 5107 (b); see also Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Increased Rating Disability ratings are determined by the application of VA’s Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and, above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two ratings shall be applied, the higher rating 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. 1. Epididymitis and genital tuberculosis The Veteran’s epididymitis and tuberculosis of the testis is currently assigned a 30 percent disability rating under Diagnostic Code 6311-7525, effective from October 13, 2010. The Veteran’s epididymitis and genital tuberculosis affect the same region of the body and therefore will not be separated for evaluation purposes in efforts to prevent pyramiding. The Veteran’s service-connected latent genital tuberculosis is evaluated under 38 C.F.R. § 4.88b, Diagnostic Code 6311, which provides for a 100 percent disability rating for miliary tuberculosis, as active disease. This diagnostic code provides that inactive tuberculosis should be rated under 38 C.F.R. §§ 4.88c or 4.89, whichever is appropriate. 38 C.F.R. § 4.88c provides ratings for inactive nonpulmonary tuberculosis initially entitled after August 19, 1968, and 38 C.F.R. § 4.89 provides ratings for inactive nonpulmonary tuberculosis in effect on August 19, 1968. Here, the Veteran was not service connected for tuberculosis on August 19, 1968. Thus, 38 C.F.R. § 4.88c would be for application. That section provides that, for one year after date of inactivity, following active tuberculosis, a 100 percent rating is warranted, following which residuals are to be rated under the specific body system or systems affected. No clinical note with initial diagnosis and active treatment is available in the medical records. As the Veteran’s latent tuberculosis currently is inactive, asymptomatic, and does not result in any residual disability, a compensable rating for such disability is not warranted under any potentially applicable diagnostic code. Accordingly, the Board will rate the Veteran’s disability under Diagnostic Code 7525. The Veteran’s epididymitis is currently rated under Diagnostic Code 7525, epididymo-orchitis, chronic only, which provides for rating as a urinary tract infection. See 38 C.F.R. § 4.115b. The criteria for rating a urinary tract infection are in 38 C.F.R. § 4.115a, who provides a 10 percent rating for long term drug therapy, 1-2 hospitalizations per year, and/or requiring intermittent intensive management. A maximum 30 percent rating is provided for recurrent symptomatic infection requiring drainage/frequent hospitalization (greater than two times per year), and/or requiring continuous intensive management. When poor renal function is associated with the urinary tract infection, the condition is to be rated as renal dysfunction. 38 C.F.R. § 4.115a. VA male reproductive systems examination dated December 2011 shows the examiner noted a diagnosis of epididymitis, resolved no residuals. The examiner noted the Veteran does not have a voiding dysfunction. No history of recurrent symptomatic urinary tract or kidney infections. The Veteran does not have a history of chronic epididymitis, epididymo-orchitis or prostatitis. Examination of penis and testes is normal. VA male reproductive systems examination dated March 2016 shows the examiner noted a diagnosis of epididymitis, resolved. The examiner noted the Veteran has a voiding dysfunction not likely due to this diagnosis. No laboratory evidence of urinary tract infection or renal dysfunction. The Veteran has a history of chronic epididymitis, epididymo-orchitis or prostatitis. Examination of penis is normal. The testes were abnormal bilaterally with size smaller than normal and softer than normal. An April 2016 letter from the Veteran’s physician stated the Veteran continues to experience chronic testalgia related to his chronic epididymitis. The Veteran experiences bilateral testicular pain and swelling on a chronic basis, requiring antibiotic treatment despite his previous epididymectomy in 2010. His condition has improved but has not resolved completely. VA male reproductive systems examination dated December 2020 shows the examiner noted diagnoses of epididymitis and unspecified male genital tuberculosis. The Veteran reported a long history of epididymitis with intermittent bilateral testicular tenderness and swelling. No renal dysfunction due to the condition. The Veteran had a voiding dysfunction due to urgency. The Veteran has a history of chronic epididymitis, epididymo-orchitis or prostatitis with no treatment reported. Examination of penis and testes is normal. The epididymis was tender to palpation bilaterally. Past medical history lists unspecified tuberculosis, male genital. No clinical note with initial diagnosis and active treatment was found in medical records.VA medical record indicates history of tuberculosis in 1980s with periodic chest x-rays obtained. The Board acknowledges that the Veteran reports that his testicular symptoms cause difficulty resulting in pain when he exerts himself. As noted above, the Veteran is currently assigned the maximum schedular rating (30 percent) for epididymitis, rated as a urinary tract infection under Diagnostic Code 7525. The Veteran is shown to have been treated for recurrent infection and pain, but poor renal function is not shown. As such, the Veteran is presently assigned the maximum schedular rating, 30 percent, for his epididymitis, rated as urinary tract infection, and the schedular criteria do not provide for a higher rating. 2. Temporary total rating for convalescence The Veteran seeks entitlement to temporary 100 percent evaluation under 38 C.F.R. § 4.30 for surgery requiring convalescence following his September 2010 left-sided epididymectomy surgical procedure. The provisions of 38 C.F.R. § 4.30 pertaining to temporary total evaluations based upon convalescence provide that a total disability rating (100 percent) will be assigned without regard to other provisions of the rating schedule when it is established by report at hospital discharge or outpatient release that entitlement is warranted effective the date of hospital admission or outpatient treatment. See 38 C.F.R. § 4.30. Total ratings will be assigned under this section if treatment of a service-connected disability resulted in: (1) surgery necessitating at least one month of convalescence; (2) surgery with severe postoperative residuals, such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body cast, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches (regular weight-bearing prohibited); or (3) immobilization by cast, without surgery, of one major joint or more. 38 C.F.R. § 4.30 (a). On September 13, 2010 the Veteran underwent a left-sided epididymectomy surgical procedure. The surgery center discharge instructions indicated the following: the use of an ice pack for 24-48 hours for 20 minutes on/off; dressing change in 24 hours or sooner if needed; may shower in 24 hours; scrotal support until doctor discontinues; no heavy lifting until doctor ok; bed rest for 24 hours except to use the bathroom and for meals; and no intercourse until okayed by the doctor. The operative report did not indicate that the Veteran required at least one month of convalescence, and the record does not contain a hospital discharge or outpatient release report indicating that the Veteran required at least one month of post-surgical convalescence. The Veteran returned to the doctor on September 21, 2010 for a post-epididymectomy check-up. The doctor stated the Veteran’s wound appears to be healing nicely, and the Veteran seems to be getting along well. It was recommended the Veteran follow-up for a final wound check in a month. The Veteran has stated he required a 100 percent temporary disability rating for convalescence from his September 2010 epididymectomy. While the Board is sympathetic to the difficulties the Veteran faced after his surgery, 38 C.F.R. § 4.30 is clear that a total temporary rating is only warranted when a report at hospital discharge (regular discharge or release to non-bed care) or outpatient release documents the need for post-surgical convalescence of at least one month, severe postsurgical residuals, or immobilization by cast (without surgery). In the absence of this requisite medical documentation, the Veteran’s claim cannot succeed. In this case, the Veteran’s September 2010 surgical records and follow-up treatment records do not document a required convalescence period of at least one month issued by his medical provider or any severe postsurgical residuals, as defined by the regulation. See 38 C.F.R. § 4.30 (a) (1) and (2). The Veteran underwent a surgical epididymectomy and did not require immobilization by cast of any joints. See 38 C.F.R. § 4.30 (a)(3). For the above reasons, a temporary total disability rating for convalescence is not warranted following the Veteran’s September 2010 epididymectomy. As the preponderance of the evidence weighs against the claim, the benefit-of-the-doubt provisions do not apply. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. St. Laurent, 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.