Citation Nr: 21023747 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 16-48 821 DATE: April 21, 2021 ORDER Entitlement to a disability rating in excess of 30 percent for hiatal hernia with gastroesophageal reflux disease (GERD) from June 4, 2012, to the present is denied. FINDING OF FACT Throughout the rating period on appeal, the Veteran’s hiatal hernia with GERD has been manifested by considerable impairment of health but was not productive of severe impairment of health. CONCLUSION OF LAW The criteria for a disability rating in excess of 30 percent for hiatal hernia with GERD from June 4, 2012, to the present have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.21, 4.114, Diagnostic Code 7346. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty military service from August 1969 to February 1972 and from May 1972 to September 1991, including service in the Republic of Vietnam. This matter was previously before the Board in January 2019 when a 30 percent disability rating was granted effective March 27, 2014, and a higher disability rating as of that date was denied. (See BVA Decision, 01/15/2019). The Veteran then appealed the denial of a disability rating higher than 30 percent to the Court of Appeals for Veterans Claims (Court). The Court issued an order granting a partial Joint Motion for Remand (JMR) in January 2020 which found that the Board had failed to properly consider and account for all the evidence and remanded the matter for additional consideration. (See CAVC Decision, 01/24/2020). In May 2020, the Board issued a decision which granted entitlement to 30 percent as of June 4, 2012, but remanded the question of entitlement to a higher disability rating for additional development. (See BVA, 05/07/2020). On remand, the Board instructed development of an additional VA examination and an opinion covering the entirety of the appeals period was obtained in August 2020 and November 2020. The Board finds that the remand directives have been satisfied and no further development is warranted in this matter. Entitlement to a disability rating in excess of 30 percent for hiatal hernia with GERD from June 4, 2012, to the present The Veteran is currently assigned a 30 percent disability rating for hiatal hernia with GERD and has been given a noncompensable (0 percent) disability rating for esophageal stricture. As noted above, this matter was previously before the Board in 2019 and the denial of entitlement to a rating higher than 30 percent was denied. The matter was appealed to the Court and remanded for further consideration of specific areas of concern: a treatment note from October 2013 that described the Veteran’s symptoms as having “progressively worsened;” uncertainty as to whether the March 2014 VA medical opinion included retrospective information; and consideration of whether the evidence showed that the Veteran’s hernia with GERD was productive of “severe impairment of health.” The Board issued a decision and remand in May 2020 which considered the Court’s concerns and granted an earlier effective date for the 30 percent disability rating and remanded for an opinion regarding whether a higher disability rating was warranted. The Veteran’s hiatal hernia with GERD is rated pursuant to 38 C.F.R. § 4.114, Diagnostic Code 7346, for hiatal hernia. Pursuant to Diagnostic Code 7346, a 30 percent evaluation is warranted for persistently recurring epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. The maximum 60 percent evaluation 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. For reference, “considerable” is defined as “large in extent or degree.” Merriam-Webster’s Collegiate Dictionary 267 (11th ed. 2012). “Severe” is defined as “very painful or harmful.” Id. at 1140. In other words, for the Veteran’s disability to warrant a disability rating higher than 30 percent, the evidence would need to show symptoms which resulted in severe impairment of his health such as symptoms of pain, vomiting, material weight loss and either hematemesis (vomiting blood) or melena (blood in the stool) accompanied by moderate anemia. If the evidence reflects considerable impairment of health, or impairment to a large extent, but not to a harmful extent, a rating in excess of the 30 percent assigned would not be warranted. After considering the evidence, the Board finds that the record does not support a grant of a disability rating in excess of 30 percent for hiatal hernia with GERD at any time since June 4, 2012. In so finding, the Board has considered and accepted the Veteran’s statements regarding his subjective symptoms as well as the medical records and VA examination reports. Nevertheless, the Board finds that severe impairment of health as a result of hiatal hernia with GERD has not been shown. The Veteran was afforded a VA examination in September 2012, at which time the examiner noted that his symptoms of GERD and hiatal hernia included infrequent episodes of epigastric distress, dysphagia, pyrosis, and reflux. The severity of esophageal stricture, spasm, or diverticula was noted as mild. At the VA examination in March 2014, the Veteran reported that he had undergone 4 procedures for esophageal stricture since his hernia repair surgery in 2010 so that he could eat. (See C&P Exam, 03/27/2014). He also reported having experienced vomiting and melena (blood in stool) with moderate anemia which occurred more than 4 times per year but lasted less than a day at a time. The examiner noted “material weight loss,” giving the Veteran’s baseline weight of 210 pounds and his current weight of 196 pounds. A private treatment note from March 2014 described the Veteran’s symptoms related to his hernia and GERD. (See Medical Treatment Records, 01/26/2015). The provider described the GERD as well-controlled but noted recent weight loss by the Veteran. At the June 2016 VA examination, the Veteran reported recurrent nausea with vomiting, difficulty swallowing food and liquid, daily heartburn, recurrent interruptions of his sleep, substernal pain, arm pain, shoulder pain, regurgitation, and reflux. (See C&P Exam, 06/03/2016). These symptoms were experienced more than 4 times per year, with the sleep disturbance lasting more than 10 days at a time, the nausea lasting up to 9 days at a time, and the transient vomiting lasted less than a day at a time. The Veteran noted that because of his recurrent esophageal stricture he had to aggressively chew his food and could not eat certain items which caused flare-ups of pain and vomiting. In January 2017, the Veteran was seen by his private provider and reported experiencing nausea, dysphagia, early satiety, rectal bleeding, and hemorrhoids. (See Medical Treatment Record, 12/07/2017). He denied having any heartburn or indigestion or weight loss. At the November 2017 VA examination, the Veteran reported having daily and constant symptoms of difficulty swallowing, bilateral shoulder pain, burning in the mid chest area, tingling and numbness in the arms, recurrent nausea and vomiting, and sleep disturbance due to GERD. (See C&P Exam, 11/22/2017). The Veteran experienced sleep disturbance, recurrent vomiting, and nausea, each lasting more than 10 days at a time at least 4 times per year. In November 2020, the Veteran was afforded another VA examination with opinion. (See C&P Exam, 11/04/2020). The examiner specifically described the Veteran’s symptoms as resulting in considerable impairment of health and listed them as dysphagia and pyrosis, as well as nausea and vomiting more than 4 times per year lasting less than one day. The examiner offered an explicit opinion on whether the Veteran’s symptoms had resulted in severe impairment of health at any time since June 4, 2012. The examiner considered the evidence of record and acknowledged that in March 2017 the Veteran was shown to have experienced weight loss of about 15 pounds. However, the examiner also noted that subsequent treatment records showed that the Veteran had regained this weight and that nothing in the record had shown a connection between the Veteran’s one-time temporary weight loss and his hiatal hernia with GERD. The examiner specifically noted that there was no objective evidence to support some of the symptoms reported by the Veteran, including arm, shoulder, or substernal pain, reflux, regurgitation, and melena with moderate anemia. The examiner ultimately concluded that the symptoms of the Veteran’s hiatal hernia with GERD were productive of considerable impairment of health. The Board notes that key difference between a 30 percent disability rating and a 60 percent disability rating is the level of impairment of health, rather than any specific symptom or combination of symptoms. The Board acknowledges that the Veteran had a period of weight loss (approximately 15 pounds) in 2014, which is one aspect of the criteria for a 60 percent disability rating and severe impairment of health. The Veteran was also noted to have melena with moderate anemia noted at the March 2014 examination. The Veteran has also been reported to have occasional periods of vomiting; vomiting and melena with moderate anemia are both listed in the criteria for a 60 percent rating. However, the VA examination in November 2020 specifically analyzed the information and found no evidence that the Veteran’s hiatal hernia with GERD was productive of severe as opposed to considerable impairment of health. The examiner specifically noted that the Veteran’s reflux, melena with anemia, and regurgitation were not documented in the medical records but were only reported by the Veteran. The Board finds no reason to doubt the Veteran’s reported symptoms; however, the fact that he did not require medical attention for these symptoms and any residual effects of them means that severe impairment of health was not demonstrated. Based on the considerations set forth above, the Board finds that entitlement to a 60 percent disability rating is not shown. The claim for increased rating is denied. S. Merrick Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Cheryl E. Handy 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.