Citation Nr: 21025462 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 16-14 560 DATE: April 28, 2021 ORDER Entitlement to a greater than 10 percent disability rating for a digestive disorder (hiatal hernia) before March 28, 2014, is denied. Entitlement to a 30 percent disability rating, but no greater, for a digestive disorder (hiatal hernia) from March 28, 2014, is granted. FINDINGS OF FACT 1. Before March 28, 2014, the Veteran’s hiatal hernia was manifested by episodes of epigastric distress with reflux and regurgitation; but it was not manifested by persistently recurrent episodes of epigastric distress with symptoms that were productive of considerable impairment of health. 2. On and after March 28, 2014, the Veteran’s hiatal hernia has been manifested by persistently recurrent epigastric distress with dysphagia, pyrosis, reflux, regurgitation that is accompanied by substernal pain, that is productive of considerable impairment of health; but not pain, vomiting, material weight loss and hematemesis or melena with moderate anemia or other symptom combinations productive of severe impairment of health. CONCLUSIONS OF LAW 1. Before March 28, 2014, the criteria for a greater than 10 percent disability rating for service-connected hiatal hernia were not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.21, 4.114, Diagnostic Code 7346. 2. On and after March 28, 2014, the criteria for a 30 percent disability rating, but no greater, for hiatal hernia have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.3, 4.7, 4.71a, Diagnostic Code 7346. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1987 to September 1996. The matter comes to the Board of Veterans’ Appeals (Board) from a decision of the Agency of Original Jurisdiction (AOJ). In December 2013, the AOJ issued a rating decision declining to increase the disability rating assigned to the Veteran’s service-connected hiatal hernia. As a result, the disability rating under Diagnostic Code (DC) 7346 remained at 10 percent. The Veteran timely disagreed in a December 2013 Notice of Disagreement (NOD) and perfected his appeal in an April 2016 VA Form 9. In April 2018, a Board hearing was conducted. The hearing transcript has been associated with the Veteran’s file. The Veteran’s claim has been remanded several times since the hearing, most recently in December 2020. The claim was remanded to the AOJ for another VA disability examination. In February 2021, a VA disability examination was conducted for the Veterans service-connected hiatal hernia. Then the AOJ re-adjudicated the claim. The Veteran’s claim for a greater than 10 percent disability rating was denied. In April 2021, the Veteran’s case was returned to the Board. 1. Entitlement to a greater than 10 percent disability rating before March 24, 2014, and a rating no greater than 30 percent from March 24, 2014, for a digestive disorder (hiatal hernia). The Veteran contends that the current severity of his hiatal hernia warrants a greater than 10 percent disability rating. See April 2016 VA Form 9. The question for the Board is whether the Veteran’s service-connected hiatal hernia has been manifested by symptomatology that warrants the assignment of a greater than 10 percent disability rating at any time across the appeal period. After a review of the record, the Board concludes that evidence supports the assignment of a 30 percent rating on and after March 28, 2014. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities found in 38 U.S.C. § 1155; 38 C.F.R., Part 4. If there is a question as to which evaluation to apply to the Veteran’s disability, the higher evaluation 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. When service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). If later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, “staged” ratings may be assigned for separate periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The Veteran’s service-connected hiatal hernia is rated as 10 percent disabling under DC 7346, hiatal hernia. Under DC 7346, a 10 percent rating is warranted if two or more of the symptoms required for a 30 percent rating are present but of less severity. The next higher rating, a 30 percent rating, requires persistently recurrent epigastric distress with dysphagia (difficulty swallowing), pyrosis (heartburn), and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. All the criteria must be met for a higher evaluation. Middleton v. Shinseki, 727 F.3d 1172, 1178 (Fed. Cir. 2013) (holding that the conjunctive “and” in a Diagnostic Code as opposed to the disjunctive “or” required that all elements be met). A 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. A 60 percent rating is the highest rating under the DC 7346. 38 C.F.R. § 4.114. Any reasonable doubt regarding a degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Reasonable doubt exists when there is an approximate balance of positive and negative evidence for and against the claim. 38 C.F.R. § 3.102. In October 2013, the Veteran underwent his first VA disability examination to evaluate the severity of his service-connected hiatal hernia for this appeal. He reported that, since his last VA disability examination in 1996, he observed heartburn that occurs daily. See VA Disability Benefits Questionnaire (DBQ) at 2. He described more frequent regurgitation that was causing problems at night. He described an incident when regurgitation lasted through the night and, when he woke up in the morning, he observed what appeared to be an “acid ball” in his throat. He added that the episodes have are usually kept under control through the use of medication. Id. The examiner noted the diagnosis of hiatal hernia. Id. at 1. The examiner noted the Veteran’s disorder includes reflux and regurgitation that occurs at a frequency of four or more times a year. When those episodes occur, they do not last more than a day. Id. at 2. Also, the disorder causes four or more sleep disturbances a year, with the episodes that do not last more than a day. Id. at 3.The examiner did not find the Veteran has hematemesis, melena with moderate anemia, or esophageal stricture, spasm, or diverticula. The examiner also noted the Veteran does not have other complications, conditions, or symptoms related to his service-connected hiatal hernia. Nor does it impact his ability to work. Id. at 3, 4, 5. In March 2014, the VA received at statement from the Veteran and his wife wherein they described symptoms associated with his service-connected hiatal hernia. The Veteran reported he now observes nightly episodes of regurgitation, which have caused him to choke. He added that the episodes cause coughing, hoarseness, and wheezing that will last for weeks. Also, he chokes whenever he laughs. See Statement in Support of Claim. The Veteran’s wife provided her own observations of his night-time episodes of reflux/regurgitation. She reported acid rises into his through and the Veteran tries to clear his throat by swallowing the acid. But the repetitive swallowing interferes with his ability to breathe. She added that it has led to hoarseness and a nagging cough. See March 2014 Statement from Wife. In April 2018, a Board hearing was conducted for the Veteran’s claim. The Veteran reported his sleep is disturbed by nightly episodes of reflux/regurgitation. He described episodes where an acid-like fluid flushes up to his throat and causes him to choke. See Transcript at 19, 21. The Veteran also reported the episodes of reflux caused him to refrain from eating after 6 p.m. Id. at 22. The Veteran’s wife was present at the hearing and provided observations of her own. She indicated she has observed the Veteran at bedtime for several years. Recently, she has observed the him wake up coughing and choking. She reports his episodes are preceded by sounds of splashing and gurgling at his throat. She added that the distress she observes when he has choked has been so severe, she has considered rushing him to the hospital. Id. at 19. In July 2019, the Veteran underwent a VA disability examination to evaluate the severity of his service-connected hiatal hernia. He reported he has to watch what he eats and observes reflux. Also, he observes a burning sensation in his throat that interferes with his sleep. See VA DBQ at 2. The examiner noted the diagnoses of hiatal hernia, gastroesophageal reflux disease (GERD). Id. The examiner noted the Veteran’s disorder includes infrequent episodes of epigastric distress with dysphagia, pyrosis, reflux, regurgitation, and substernal pain. Also, the disorder causes sleep disturbance with a frequency of disturbances of no more than three times a year. And when those episodes occur, they do not last more than a day. Id. The examiner did not find the Veteran has hematemesis, melena with moderate anemia, or esophageal stricture, spasm, or diverticula. The examiner also noted the Veteran does not have other complications, conditions, or symptoms related to his service-connected hiatal hernia. The disability did not impact his ability to work. Id. at 4. Later, in December 2020, the Board found the July 2019 VA DBQ insufficient to decide the claim. The Board could not determine how the examiner concluded the Veteran had less than four episodes of sleep disturbances a year when the Veteran has been reporting episodes occurred every night. The Veteran’s claim was remanded for another VA disability examination that considers the lay evidence of record. In February 2021, the Veteran underwent another VA disability examination that considered his observations. The examiner noted he reviewed the Veteran’s record as well as lay observations noted in the Board’s remand directives. See VA DBQ at 7. The examiner noted the diagnoses of hiatal hernia and GERD. Although two diagnoses were rendered, the examiner indicated there is no change to the service-connected diagnosis. The examiner explained that a hernia plays a role in the development of acid reflux, to include the more chronic form of reflux—GERD. Id. at 2, 7. The examiner noted the Veteran’s disorder includes infrequent episodes of epigastric distress with dysphagia, pyrosis, reflux, regurgitation, and substernal pain. Also, his disorder causes four or more sleep disturbances a year, with episodes that do not last more than a day. Id. at 3. The examiner noted the Veteran’s disorder does not include nausea, vomiting, melena with moderate anemia, nor any other complications. Also, the Veteran’s disorder does not impact his ability to work. Id. at 3, 4, 6. A. Entitlement to a greater than 10 percent disability rating before March 28, 2014. Because the Veteran has reported his service connected hiatal hernia (digestive disorder) got worse than it was when he filed his increased rating claim, the first question is whether an increased rating is warranted for any period of time before he reported it worsened. To answer that question, the first issue is determining the approximate date the record raised the inference his digestive disorder had worsened. The record reflects the first time the Veteran reported his digestive disorder worsened was in a statement received by the VA on March 28, 2014. In that statement, he asserted the night-time episodes of reflux/regurgitation became a “nightly” occurrence, indicating it was now a regular event. See March 2014 Statement in Support of Claim. The medical evidence of record before March 28, 2014, does not indicate the frequency of the Veteran’s night-time episodes of reflux/regurgitation, except for the October 2013 VA disability examination. During his examination, the Veteran did not report his night-time episodes of reflux/regurgitation occurred every night. The only persistently recurring symptom reported at that time was heartburn. See VA DBQ at 12. Because the evidence of record before March 28, 2014, does not indicate the severity of his digestive disorder had worsened, the Board finds the first time the VA became aware of worsening symptoms was on March 28, 2014. The next issue is whether there is sufficient evidence to find a greater than 10 percent disability rating is warranted before March 28, 2014. The only lay statements provided during the relevant period are the Veteran’s reports to the VA examiner during the October 2013 VA disability examination. The Veteran has personal knowledge of burning sensations, like heartburn and an acid-like fluid in his throat at night. So, he is competent to report it. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Here, the Veteran’s statements indicate he observed heartburn every day and night-time episodes of reflux that occurred infrequently. Considering the Veteran reported the frequency of his heartburn as a daily event, the Board finds he would have likely reported his episodes of reflux/regurgitation were also a daily event, if that was the case. He did not. Instead, he indicated it was an infrequent event. See October 2013 VA DBQ at 2. Although the Board acknowledges the Veteran’s use of medication, the Board’s finding was not based on the relief his medication may have provided at the time. The Veteran had asserted his medication does not provide complete relief, so the evaluation of the frequency of his night-time episodes of reflux/regurgitation was made with the recognition that medication did not control it. Also, because he provided a description of his episodes of reflux/regurgitation that suggested it was not a persistently recurring event, the Board has no basis to find that it was. The medical evidence in the record before March 28, 2014, consists of the October 2013 VA DBQ and old medical records. For example, a November 30, 2000, progress note by Dr. M.C.D., noting the diagnosis of hiatal hernia as well as some associated symptoms, to include reflux and wheezing when the Veteran’s heartburn is bad. See Private Record by M.C.D., MD. Considering the October 2013 VA DBQ provides the clearest picture of the Veteran’s disability during relevant period, it was helpful in evaluating the severity of the Veteran’s disability around that time. The October 2013 VA DBQ weighed strongly against a greater than 10 percent rating during the relevant period. In addition to a review of the file, the examiner acknowledged and considered the Veteran’s description of his night-time episodes of reflux/regurgitation. See VA DBQ at 2. So, the Board finds the examiner was informed of the relevant details of the Veteran’s past medical history. Nievez-Rodriguez v. Peake, 22 Vet. App. 295, 300 (2006). The findings show the Veteran’s digestive disorder manifested with regurgitation, reflux, that caused sleep disturbance at a frequency of four or more times a year. See October 2013 VA DBQ at 2, 3. That shows he has at least two, but not all, symptoms required for a 30 percent rating, which meets the criteria for his currently assigned 10 percent rating. Because the findings do not show his digestive disorder had manifested the other specific symptoms required for a 30 percent rating, to include dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health—the October 2013 VA DBQ does not support finding the assignment of a 30 percent rating is warranted. Likewise, the examiner did not find vomiting, material weight loss and hematemesis or melena with moderate anemia, or other symptom combinations productive of severe impairment of health. See October 2013 VA DBQ at 3. In this case, the evidence is not approximately balanced in favor of an increased disability rating before March 28, 2014. The Veteran did not report his night-time episodes had been occurring every night at this time. More importantly, the VA examiner who evaluated his reported symptoms found he manifested some, but not all, the criteria for a 30 percent disability rating. Because the Veteran manifested two or more of the symptoms required for a 30 percent rating, the evidence supports the assignment of 10 percent rating, but no greater. So, doubt could not be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. In sum, the Board finds that a greater than 10 percent disability rating for his service-connected digestive disorder is not warranted at any time before March 28, 2014. Hart, 21 Vet. App. at 509-10. B. Entitlement to a greater than 10 percent disability rating on and after March 28, 2014. Since the VA received a statement that the Veteran on March 28, 2014, indicating his digestive disorder got worse than it was when he filed his increased rating claim, the next question is whether the evidence supports finding a 30 percent disability rating is warranted on and after that date. To answer that question, the first issue is whether the Veteran’s digestive disorder is manifested by the specific symptoms listed in the criteria for a 30 percent rating. The February 2021 VA DBQ found the Veteran’s digestive disorder manifested the specific symptoms listed in the criteria for a 30 percent rating. The specific symptoms listed in the criteria for a 30 percent rating are epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain. 38 C.F.R. § 4.114. Here, the Veteran has asserted his digestive disorder is manifested by night-time episodes of reflux/regurgitation that cause choking and distress as well as daily heartburn (pyrosis). Considering his statements are supported by the ones from his wife, the Board assigned the lay evidence great weight. The medical evidence for the relevant period supports finding the Veteran has met some of the criteria listed in the criteria for a 30 percent rating. The February 2021 VA DBQ notes the Veteran’s digestive disorder is manifested by epigastric distress that include dysphagia, pyrosis, reflux, dysphagia, and regurgitation, accompanied by substernal pain. See VA DBQ at 3. The VA DBQ is medical evidence that weighs strongly in favor of finding the Veteran’s digestive disorder is manifested with the specific symptoms listed in the criteria for the assignment of a 30 percent rating. In this case, the evidence weighs in favor of finding the Veteran’s digestive disorder has been manifested by epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal pain on and after March 28, 2014. Although the evidence supports finding his disorder is manifested by the specific symptoms listed in the criteria for a 30 percent rating, the Veteran must also demonstrate those symptoms were persistently recurring and productive of considerable impairment of health. The next issue is whether the Veteran’s symptomatology recurs at the frequency required for a 30 percent rating. That is, “persistently recurring.” The lay evidence of record weighs strongly in favor of finding persistent recurrence of epigastric distress. Since March 28, 2014, the Veteran has reported his episodes of reflux/regurgitation occur nightly. That means they have occurred every day for that last seven years. A regularly occurring event over the span of seven years is a persistently recurring event. Considering the Veteran’s competent and credible statements on the matter have been consistent and supported by the statements of his wife, they were assigned great weight. Although the examiner who prepared the February 2021 VA DBQ noted the Veteran’s symptoms occur infrequently, she did not indicate how she came to that conclusion. Although the Board is not in the position to question the examiner’s medical conclusions, her conclusion on this matter contradicts the Veteran’s lay statements. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). As discussed above, the Veteran reported night-time episodes of reflux/regurgitation that have been occurring every night for several years. Because the examiner did not indicate how she concluded that amounts to an infrequent recurrence, her finding is of questionable probative value. So, the Board assigned it little weight. In this case, the Board finds the evidence is, at least, approximately balanced on whether his episodes of epigastric distress persistently recur. Although the medical evidence on this matter found it does not, it is not clear if the examiner considered the highly probative statements from the Veteran and his wife. So, doubt was resolved in his favor. 38 C.F.R. § 4.3. Now that the Board has found the Veteran manifested symptoms at the frequency required for a 30 percent rating, the final issue is whether his symptomatology is productive of considerable impairment of health. The February 2021 VA DBQ found the Veteran’s digestive disorder effected his health. The examiner noted the Veteran suffers heartburn, sleep disturbance, and choking. Although the examiner also noted it did not impair his ability to work, it is not clear if her finding was influenced be her conclusion that the Veteran’s epigastric distress occurred infrequently. So, the Board assigned the VA DBQ some, but not significant, weight. The Veteran and his wife have provided lay statements and observations that weigh strongly in favor of finding considerable impairment of health. The Veteran has provided credible evidence that his nightly episodes of sleep disturbance have impacted his health. It has interrupted his ability to sleep through the night over the last seven years. Also, it has led to bouts of coughing and hoarseness that lasts for weeks. Considering he has observed those effects for seven years, the cumulative impact of years of sleep impairment as well as prolonged bouts of hoarseness, coughing, closely approximates considerable impairment of health. In this case, the evidence is approximately balanced on whether the Veteran’s digestive disorder manifests symptoms productive of considerable impairment of health. Although the examiner who prepared the February 2021 VA DBQ concluded it does not, that conclusion may have been made without consideration of the Veteran’s lay observations. Those lay observations include credible statements from the Veteran and his wife that report his digestive disorder impacts his health, to include persistent sleep disturbances and coughing that lasts for weeks. Considering the Veteran has observed those effects since March 28, 2014, those reports weigh heavily in favor of finding considerable impairment of health. So, the Board resolves doubt in the Veteran’s favor. 38 C.F.R. § 4.3. In sum, the evidence in the record supports finding the Veteran’s digestive disorder is manifested by persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal pain, that is productive of considerable impairment of health. So, the Board concludes the criteria for a 30 percent rating are met from March 28, 2014. C. Entitlement to a greater than 30 percent rating on and after March 28, 2014. The lay and medical evidence of record for the relevant does not support the assignment of greater than 30 percent rating. The next higher rating, a 60 percent rating, is warranted for symptoms of pain, vomiting, material weight loss and hematemesis or melena (the passage of dark-colored feces stained with blood pigments or with altered blood) with moderate anemia; or other symptom combinations productive of severe impairment of health. Although the Veteran and his wife have reported symptoms that include includes nightly episodes of reflux/regurgitation, they have not asserted observations that are listed in the criteria for a 60 percent disability rating. Also, the disability examinations performed during the relevant period did not find symptomatology listed in the criteria for a 60 percent rating. See July 2019 VA DBQ at 2, 4; February 2021 VA DBQ at 3, 4. Because the Veteran’s digestive disorder has not been manifested by symptomatology in that criteria, the assignment of a 60 percent rating is not warranted on and after March 28, 2014. The Board notes that this case does not raise a claim for a Total Disability Rating Based Upon Individual Unemployability (TDIU). Although the Veteran has claimed his digestive disorder causes loss of sleep, hoarseness, and bouts of coughing, he has not asserted it prevents him from working. Also, the record reflects he is currently employed. See Transcript dated April 2018 at 10. Thus, there is no indication that he is unable to secure or follow a substantially gainful   occupation as a result of his service-connected disabilities. 38 C.F.R. § 4.16(a); Rice v. Shinseki, 22 Vet. App. 447, 454 (2009). DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Dean, Michael S. 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.