Citation Nr: 22014095 Decision Date: 03/11/22 Archive Date: 03/11/22 DOCKET NO. 17-00 606 DATE: March 11, 2022 ORDER Prior to December 20, 2016, entitlement to a rating of 10 percent, but no greater, for hiatal hernia is granted, subject to the laws and regulations governing the payment of monetary benefits. FINDING OF FACT Prior to December 20, 2016, the Veteran's hiatal hernia is characterized by persistent recurrent epigastric distress and regurgitation. CONCLUSION OF LAW Prior to December 20, 2016, the criteria for a disability rating of 10 percent, but no greater, for hiatal hernia, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.14.14, 4.114, Diagnostic Code 7346. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from March 1983 to December 2002. In November 2019 the Veteran testified before the undersigned Veterans Law Judge at a Travel Board hearing at the above VARO; a transcript is of record. The Board denied the Veteran's claim in a January 21, 2021, decision, and the Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). The parties filed a Joint Motion for Partial Remand (Joint Motion), and a December 2021 Order of the Court vacated the Board's decision that denied entitlement to a compensable evaluation prior to December 20, 2016, for small hiatal hernia with dyspepsia. More specifically, the Joint Motion concluded that the Board failed to address several lay statements submitted by the Veteran describing symptoms of his hiatal hernia, including recurrent epigastric distress and regurgitation. Increased Rating Disability ratings are based upon VA's Schedule for Rating Disabilities as set forth in 38 C.F.R. Part 4. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity in civil occupations. 38 U.S.C. §1155. The disability must be viewed in relation to its history. 38 C.F.R. §4.1. A higher evaluation shall be assigned where the disability picture more nearly approximates the criteria for the next higher evaluation. 38 C.F.R. §4.7. In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, consideration also must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Hiatal Hernia Diagnostic code 7346 provides ratings for hiatal hernia. Hiatal hernia with two or more of the symptoms for the 30 percent rating of less severity is rated 10 percent disabling. Hiatal hernia with persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health, is rated 30 percent disabling. Hiatal hernia with symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health, is rated 60 percent disabling. 38 C.F.R. §4.114. Ratings under Diagnostic Codes 7301 to 7329, inclusive, 7331, 7342, and 7345 to 7348, inclusive, will not be combined with each other. A single rating will be assigned under the diagnostic code that reflects the predominant disability picture, with elevation to the next higher rating where the severity of the overall disability warrants such elevation. 38 C.F.R. §4.114. 1. Entitlement to a compensable evaluation prior to December 20, 2016, for a small hiatal hernia with dyspepsia The Veteran had a VA examination in August 2013 at which the only symptom was noted to be reflux. Furthermore, the examiner noted that the hiatal hernia did not impact the Veteran's ability to work. On his July 2014 Notice of disagreement, the Veteran indicated that he had surgery in 2001 for his small hiatal hernia which had since come undone. He currently took medication twice a day for his condition. The Veteran also recounted symptoms of persistent recurrent epigastric distress and regurgitation for which he took Prilosec twice a day. The Veteran submitted a statement in September 2014 that he had a Lap Nissen for his hiatal hernia but, in 2008, it had come undone, and he had another hernia. He was given medication and he currently still had a hernia. At private treatment in October 2014 the Veteran was diagnosed with esophagitis based on biopsy results. The Board finds the Veteran's lay statements highly credible and concludes that a 10 percent evaluation, but not higher, is warranted for the period prior to December 20, 2016. The evidence reflects that the Veteran's symptoms included persistent recurrent epigastric distress and regurgitation due to his hiatal hernia. The evidence is against a finding that the Veteran's hiatal hernia symptoms are productive of considerable impairment of health so as to support entitlement to a rating of 30 percent or greater prior to December 20, 2016. There is no medical evidence that the Veteran's condition impacted his ability to work and thus, an initial rating in excess of 10 percent for hiatal hernia prior to December 20, 2016, is not warranted. The evidence is neither evenly balanced nor approximately so with regard to whether a rating in excess of 10 percent prior to December 20, 2016, for hiatal hernia, is warranted. Rather, the evidence persuasively weighs against such a finding. The benefit of the doubt doctrine, see 38U.S.C. §5107 (b), is therefore not for application as to this claim. Lynch v. McDonough, No. 2020-2067, 2021 U.S. App. LEXIS 37312 (Fed. Cir. Dec. 17, 2021) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application). Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Daniels, 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.