HIATAL HERNIA

JAMES SPRINGER · 2022 · Case ID: 22026759

DENIED

Summary

The veteran, who served from April 1998 to April 2004, appeals the denial of an increased rating for his service-connected gastroesophageal reflux disease (GERD) and the denial of Total Disability based on Individual Unemployability (TDIU). The Board reviewed the GERD claim for two periods: October 25, 2016, to October 9, 2019, and from October 10, 2019, onward. For the earlier period, the Board considered VA examinations from March 2017 and October 2019, along with the veteran's statements. While the veteran experienced dysphagia and pyrosis, the Board found the evidence did not demonstrate persistent recurrence or considerable impairment of health, warranting only a 10 percent rating, consistent with the March 2017 VA examination. For the period after October 10, 2019, the Board reviewed a VA examination from October 2019. The Board found the veteran's symptoms, including persistent reflux, dysphagia, pyrosis, regurgitation, and substernal pain, were productive of considerable impairment but not severe impairment, thus denying the requested 60 percent rating and upholding the 30 percent rating. Regarding TDIU, the Board acknowledged the veteran's 70 percent rating for a psychiatric disability but denied TDIU. The Board found the veteran's employment history, including voluntary resignation from a job due to transportation issues and statements about getting along with bosses, along with multiple medical opinions (VA and SSA), indicated he was capable of gainful employment, despite some functional limitations and irritability. The Board found the treating physician's assessment of marked functional limitations inconsistent with the overall record and the veteran's own statements about working.

Rationale

GERD rated under DC 7399-7346, analogous to hiatal hernia.; For Oct 2016-Oct 2019, symptoms approximated criteria for 10% rating.; For Oct 2019 onwards, symptoms productive of considerable but not severe impairment.

Special Benefit

TDIU

Diagnostic Code

7399

Docket No.

19-13 270

Full Decision Text

Citation Nr: 22026759
Decision Date: 05/05/22 Archive Date: 05/05/22

DOCKET NO. 19-13 270
DATE: May 5, 2022

ORDER

Entitlement to an initial rating in excess of 10 percent from October 25, 2016, to October 9, 2019, and an increased rating in excess of 30 percent from October 10, 2019, for service-connected gastroesophageal reflux disease (GERD) is denied.

Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is denied.

FINDINGS OF FACT

1. From October 25, 2016, to October 9, 2019, the Veteran's GERD was characterized by dysphagia and pyrosis (heartburn and/or reflux).

2. From October 10, 2019, the Veteran's GERD was characterized by persistent recurrent dysphagia, pyrosis, and regurgitation, accompanied by substernal pain, productive of considerable impairment of health.

3. The Veteran's service-connected disabilities do not prevent him from obtaining and maintaining substantially gainful employment.

CONCLUSIONS OF LAW

1. For the period from October 25, 2016, to October 9, 2019, the criteria for entitlement to a compensable rating in excess of 10 percent for GERD have not been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.20, 4.21, 4.27, 4.114 (2021), Diagnostic Code (DC) 7399-7346.

2. For the period from October 10, 2019, the criteria for entitlement to an increased rating in excess of 30 percent rating for GERD have not been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.20, 4.21, 4.27, 4.114 (2021), Diagnostic Code 7399-7346.

3. The criteria for establishing entitlement to a TDIU due to service-connected disabilities are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.3, 4.16.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active military service from April 1998 to April 2004.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from May 2017 and August 2019 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO).

The Veteran's claim for a TDIU is considered herein as it is part and parcel of his claims for increased ratings.

In a May 2020 decision, the Board continued the initial compensable rating of 10 percent from October 25, 2016, to October 9, 2019, and granted an increased rating of 30 percent from October 10, 2019, respectively for GERD. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In April 2021, the Court issued an order for a Joint Motion for Partial Remand (JMPR) vacating that part of the Board's decision that denied an initial compensable rating in excess of 10 percent from October 25, 2016, to October 9, 2019, and an increase rating in excess of 30 percent from October 10, 2019, for GERD and TDIU and remanded the matters for readjudication by the Board.

Increased Rating

Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate DCs. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, 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. See 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the Veteran. See
the matters for readjudication by the Board.

Increased Rating

In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). A claim such as this one, placed in appellate status by disagreement with the initial rating award and not yet ultimately resolved, is an original claim as opposed to a new claim for increase. Fenderson v. West, 12 Vet. App. 119 (1999). In such cases, separate ratings may be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. Id.

The Veteran's GERD has been rated under the provisions of 38 C.F.R. § 4.114, DC 7399-7346. Hyphenated DCs are used when a rating under one DC (7399) requires the use of an additional DC to identify the basis for the rating assigned (7346). The provisions of 38 C.F.R. § 4.27 provide that when an unlisted disability requires rating by analogy, the code will be "built-up" as follows: the first two digits will be selected from that part of the schedule most closely identifying the body part or system involved, and the last two digits will be "99." Here, the hyphenated DC indicates that an unlisted gastrointestinal condition (DC 7399) is rated under the criteria for hiatal hernia (DC 7346). See 38 C.F.R. § 4.20.

Under DC 7346, a 10 percent rating is assigned when there are two or more of the symptoms for the 30 percent evaluation of less severity; a 30 percent rating is assigned 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 60 percent rating is assigned 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.

The Court has held that "staged" ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Fenderson, 12 Vet. App. 119 (1999). In this case, the Veteran's disability has changed over the course of the appeal period; thus, staged ratings have been assigned accordingly.

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.

A key difference between a 10 percent and 30 percent rating under DC 7346 is the severity of the symptoms, with a 10 percent rating having symptoms of less severity and a 30 percent rating having symptoms productive of considerable impairment of health. A Veteran can have some or all the symptoms listed in the criteria for a 30 percent rating; but if they are not productive of considerable impairment of health, then they do not warrant a 30 percent rating.

For the reasons that follow, the Board finds that the Veteran's GERD from October 25, 2016, to October 9, 2019, manifested in "two or more symptoms for the 30 percent evaluation of less severity," equating to the assignment of a 10 percent disability rating. In doing so, the Board observes that in an October 2019 rating decision, the RO granted the Veteran an increased rating of 30 percent effective October 10, 2019. Thus, the only probative evidence upon which to adjudicate the Veteran's GERD from October 25, 2016,
if they are not productive of considerable impairment of health, then they do not warrant a 30 percent rating.

For the reasons that follow, the Board finds that the Veteran's GERD from October 25, 2016, to October 9, 2019, manifested in "two or more symptoms for the 30 percent evaluation of less severity," equating to the assignment of a 10 percent disability rating. In doing so, the Board observes that in an October 2019 rating decision, the RO granted the Veteran an increased rating of 30 percent effective October 10, 2019. Thus, the only probative evidence upon which to adjudicate the Veteran's GERD from October 25, 2016, to October 9, 2019 are available post-service medical records and a March 2017 VA GERD DBQ examination report.

In March 2017, the Veteran was afforded a VA GERD examination. The March 2017 examination determined that the Veteran's disability was characterized by dysphagia, sleep disturbance caused by esophageal reflux (pyrosis), symptoms occurring 4 or more times per year with a duration of episodes from 1 to 9 days, and nausea 4 or more times per year. Therefore, the Veteran's GERD was productive of dysphagia and pyrosis, although it was not demonstrated to be persistently recurrent, or to include regurgitation and substernal or arm pain. It is noted that a medical report from November 2010 indicates that the Veteran would regurgitate due to his dysphagia, but no medical evidence contemporaneous with the Veteran's October 2016 claim for service connection demonstrates the Veteran experience regurgitation associated with his GERD. Therefore, the evidence establishes that for the Veteran's initial evaluation for GERD, effective October 25, 2016, the disability picture more nearly approximates the criteria for a 10 percent evaluation. Accordingly, a 10 percent rating is warranted for GERD for the period prior of October 25, 2016, to October 9, 2019.

As stated above, a higher evaluation of 30 percent is not warranted for hiatal hernia (GERD) unless the evidence shows persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. (38 C.F.R. § 4.114). Although the Veteran has been shown to have pyrosis and dysphagia, he has not been shown to have regurgitation, substernal pain, arm pain or shoulder pain; nor does the limited evidence show that the Veteran's overall GERD symptoms result in a considerable impairment of health or to a large extent. The Board notes that the key difference between a 10 percent disability rating and a 30 percent disability rating is the level of impairment of health, rather than any specific symptom or combination of symptoms. The March 2017 VA examination specifically analyzed the information and found no evidence that the Veteran's GERD was productive of considerable impairment of health as opposed to having two or more of the symptoms for a 30 evaluation of less severity. Given the examiner's competency as a medical professional, her conclusion that his symptoms did not reflect a considerable impairment to his health is very probative given her training.

Accordingly, the Veteran's GERD from October 25, 2016, to October 9, 2019, manifested in two or more symptoms for the 30 percent evaluation of less severity, corresponding to the criteria for a 10 percent rating under DC 7346. The appeal for an increased disability rating greater than 10 percent from October 25, 2016, to October 9, 2019, must be denied.

As mentioned above, in the May 2020 Board decision, the Board granted the Veteran an increased rating of 30 percent effective October 10, 2019. This award was left undisturbed by the April 2021 JMPR. Since October 10, 2019, the Veteran's GERD has been rated pursuant to 38 C.F.R. § 4.114, DCs 7346-7319.

As discussed previously, DC 7346 provides a 30 percent evaluation based upon evidence of 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. A review of the 30 percent and 60 percent rating criteria in conjunction with one another reveals that a key difference between them is the severity of the symptoms, with a 30 percent rating having symptoms productive of considerable impairment of health and a 60 percent rating having symptoms productive of severe impairment of health. A Veteran can have all the symptoms listed in the criteria for a 60 percent rating; but if they are not productive of severe impairment of health, then they do not warrant a 60 percent rating.

For the reasons discussed below, the Board finds that the Veteran's GERD has not more nearly approximated a combination of symptoms productive of severe impairment of health since October 10, 2019. Therefore, a higher 60 percent rating under DC 7346 is not warranted.

For the period starting October 10, 2019, the evidence shows that the Veteran's disability has been characterized by persistent epigastric distress with dysphagia, pyrosis, reflux, and substernal pain. The Veteran underwent an October 10, 2019, VA GERD examination which noted that the Veteran reported persistent reflux symptoms requiring the use of TUMS. It was also indicated that the Veteran required continuous medication for GERD. The examiner determined that the Veteran's symptoms consisted of dysphagia, pyrosis, reflux, regurgitation, and substernal pain.

To warrant a higher rating, the evidence must show symptoms of pain, vomiting, material weight loss, and hematemesis or melena with moderate anemia, or other symptom combinations productive of severe impairment of health. The evidence does not show these symptoms or other symptom combinations that are productive of severe impairment of health. Instead, the evidence shows that the Veteran's symptoms included persistent epigastric distress with dysphagia, pyrosis, reflux, regurgitation, and substernal pain. While these symptoms were previously deemed to be productive of considerable impairment of the Veteran's health, the Board notes that the key difference between a 30 percent disability rating and a 60 percent disability rating is the severity of symptoms. The October 2019 VA examination specifically analyzed the information and found no evidence that the Veteran's GERD was productive of severe impairment of health as opposed to considerable impairment of health. Given the examiner's competency as a medical professional, his conclusion that the Veteran's symptoms did not reflect a severe impairment to his health is very probative given his training. There is no medical evidence or treatment of vomiting, material weight loss, hematemesis or melena with moderate anemia, or other symptom combinations productive of severe impairment of health.

The Board has considered the Veteran's statements regarding his GERD symptoms. The Veteran's statements are competent evidence as to the symptoms of GERD as this comes to him through his senses. Moreover, his statements are credible to the extent that they are consistent with the medical evidence of the record. However, his statements are not competent evidence as to a specific level of disability according to the appropriate diagnostic codes. See Robinson v. Shinseki, 557 F.3d 1355 (2009). Evidence concerning the nature and extent of the Veteran's GERD has been provided by the medical personnel who have examined him at various times during the current appeal and who have rendered pertinent opinions in conjunction with the physical evaluations. The medical findings as provided in the examination reports directly address the criteria under which this type of disability is evaluated. The Board, therefore, finds the medical findings to be of a greater probative value as to the current severity of the Veteran's GERD than his statements.

Accordingly, 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.

TDIU

The Veteran contends that he is unable to obtain substantial, gainful employment due to his service-connected disabilities.

Accordingly, 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.

TDIU

The Veteran contends that he is unable to obtain substantial, gainful employment due to his service-connected disabilities.

Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities provided that if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. For the purpose of one 60 percent, or one 40 percent disability in combination, disabilities resulting from a common etiology, or a single accident will be considered as one disability. 38 C.F.R. § 4.16(a).

The Veteran meets the schedular criteria for TDIU eligibility, as he has a 70 percent rating for his service-connected psychiatric disability. However, the Board finds that a TDIU is not warranted because the weight of the probative evidence is against a finding that the Veteran's service-connected disabilities render him unable to secure or follow a substantially gainful occupation.

A review of the evidence of record shows that the Veteran graduated high school and had 2 semesters of college. The Veteran worked on tugboats prior to joining the military, and after discharge he worked on tugboats and then worked as an audio/visual technician. The Veteran indicated that he last worked on April 19, 2017, for AVS Installation doing audio/visual installations. The Veteran states that he was laid off by AVS Installation because his car was crushed by a semi-truck, and he did not have transportation to work. He explains that the stress and frustration from this event took him over. However, information from AVS Instillation Human Resources indicates that the Veteran last worked on April 21, 2017, and he voluntarily resigned from the company and provided no reason for his resignation.

The October 2019 VA asthma examination indicates that due to the Veterans asthma he would have difficulty doing heavy physical labor. He would probably need to avoid intense exposure to dust, odors, fumes, and other pulmonary irritants. Nonetheless, the record reveals normal spirometry testing, and that his asthma is controlled with the use of an albuterol inhaler.

Based on the record, the Veteran's GERD does not appear to pose any functional limitations. The March 2017 examiner opined that the Veteran's GERD does not impact his ability to work. Likewise, the October 2019 examiner stated that the Veteran's GERD does not impact his ability to work. Likewise, the Veteran's left knee scar does not have any impact on his functional ability.

It appears the Veteran's primary contention is that his psychiatric disorder renders him unable to work. See April 2019 VA Form 8940, Application for Increased Compensation Based on Unemployability.

The February 2017 VA examiner determined that the Veteran had occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. The examiner indicated that the Veteran's symptoms consisted of anxiety, suspiciousness, panic attacks that occur weekly or less often, chronic sleep impairment, difficulty in adapting to stressful circumstances, including work or a work like setting, and impaired impulse control, such as unprovoked irritability with periods of violence.

In August 2017, the Veteran was afforded a mental status evaluation associated with his claim for Social Security Administration (SSA) disability benefits. The August 2017 SSA examiner determined that the Veteran's mental disorder mildly affected his ability to understand, remember and carry out instructions. Likewise, his mental disorder mildly affected his ability to interact appropriately with supervisors, co-workers, and the public, as well as respond to changes in a routine work setting.

The June 2019 VA examiner opined that the Veteran had occupational and social impairment with occasional decrease in work efficient and intermittent periods of inability to perform occupational task, although generally functions satisfactorily, with normal routine behavior, self-care, and conversation. The examiner determined that the Veteran's symptoms consisted of depressed mood, anxiety, chronic sleep impairment, mild memory loss, such as forgetting names, directions or recent events, impaired judgment, difficulty in establishing and maintaining effective work and social relationships, suicidal ideation, and impaired impulse control, such as unprovoked irritability with periods of violence.

The February 2017 and June 2019 VA examiners,
, and the public, as well as respond to changes in a routine work setting.

The February 2017 and June 2019 VA examiners, as well as the August 2017 SSA examiner, did not indicate that the Veteran was unable to perform gainful employment. It is clear that the Veteran has some limitations and struggles due to his psychiatric disorder, but the psychiatric disorder does not render him incapable of obtaining and performing gainful employment. In fact, the Veteran stated that he got along well with his bosses and co-workers. See February 2017, Mental Disorder Examination. In fact, the February 2017 examiner stated that the Veteran had no problems with his occupational functioning. His impairment is in his social function, where he has a short temper and loses control of his anger. Id. The Veteran stated, "when he is working, he is always busy and focused on what he is doing, which enables him to shut out any of his problems." Id. Based on the record, the Veteran's explosive behaviour appears to occur primarily in his personal setting rather than in a work setting.

The June 2019 examiner explained that "the Veteran's irritability and explosive anger occasionally cause severe social impairment between he and his children, as well as other individuals with whom he is close. His anxiety frequently makes performing tasks difficult but does not preclude him from completing them. He is frequently irritated, anxious, and frustrated by life circumstances and stressors, most of which are related to current financial problems and cause him to feel hopeless and 'stuck' in his current situation. Beyond these impairments, the claimant struggled to identify how his mental health symptoms impact his day to day occupational functioning."

At a SSA hearing the Veteran testified that he can lift and carry 80 pounds, stand, and walk for hours at a time, he denied difficulty sitting but said he prefers to stand, and walk due to his anxiety, and he can climb ladders. See SSA, Notice of Decision, page 7.

A vocational expert testified regarding the Veteran's claim for Social Security benefits that given all the factors, which included consideration of the Veteran's obesity, asthma, and psychiatric disorder, that Veteran would be capable of performing gainful employment. It was stated that the Veteran would be able to perform the requirements of representative occupations such as hand packager, kitchen helper, and a factory helper, all with medium exertional level and unskilled. See id., page 12.

Although the Veteran's treating physician completed a mental impairment questionnaire in February 2018, which indicated that the Veteran's symptoms produced marked functional limitations and opined that the Veteran is not able to hold a job due to the symptoms of his illness, that assessment is not consistent with the record as a whole. It exceeds the severity of the findings demonstrated by the record, including the findings of several other experts. Such severe findings would indicate that the Veteran's mental health has not improved, which is not consistent with the Veteran's own statements. Additionally, if the Veteran's psychiatric limitations produced such marked symptoms it would seem prudent that the Veteran would receive treatment more often than once every 6 to 8 weeks, or when necessary. Such a treatment schedule indicates that overall, the Veteran is coping fairly well but at times may need additional treatment.

Furthermore, the treating physician stated that the Veteran's marked limitations, due to his psychiatric disorder, apply back as far as his military service. That statement is clearly inaccurate, as the Veteran was capable of working, and was indeed working, until April 2017, when, per the Veteran's statement, he no longer had transportation to work. There is no evidence that the cessation of the Veteran's employment was remotely related to his psychiatric disorder. Such an inaccuracy by the treating physician, along with the elevated level of functional limitations indicated by the treating physician in divergence with the record, casts doubt on the reliability of the treating physician's February 2018 assessment.

The record demonstrates that, although there have been ups and downs in his personal life, the Veteran has been able to sustain relationships with his mother, father, sister, girlfriend, and friends. The relationships with his children have been strained, but the Veteran has continued to attempt to foster relationships with them. The Veteran can dress, bathe, and groom himself. He can cook and prepare food, and do general
transportation to work. There is no evidence that the cessation of the Veteran's employment was remotely related to his psychiatric disorder. Such an inaccuracy by the treating physician, along with the elevated level of functional limitations indicated by the treating physician in divergence with the record, casts doubt on the reliability of the treating physician's February 2018 assessment.

The record demonstrates that, although there have been ups and downs in his personal life, the Veteran has been able to sustain relationships with his mother, father, sister, girlfriend, and friends. The relationships with his children have been strained, but the Veteran has continued to attempt to foster relationships with them. The Veteran can dress, bathe, and groom himself. He can cook and prepare food, and do general cleaning, laundry, shopping, manage money, and take public transportation. The Veteran's hobbies include golf, and he engages in hobbies and works around the house. See August 2017, Mental Status Evaluation.

Additionally, the record reveals that the Veteran did not lose his job with AVS Instillation, but he resigned. As mentioned above, there is no indication that the Veteran's psychiatric condition affected his ability to work. The Veteran's statement reveals that the Veteran's job performance was not impacted by his psychiatric disorder, but his increased psychiatric symptoms occurred after he was out of work. See Veteran's Statement, Received November 2019. The Veteran has also stated that working actually improved his mental health. See February 2017, Mental Disorder Examination.

The Veteran also stated that he got along well with bosses and co-workers, and the record demonstrates that he has consistently behaved appropriately, with satisfactory personal hygiene and grooming, normal motor behavior, good eye contact, fluent speech, with clear, expressive, and receptive language, and coherent and goal directed thought processes when seen in therapy or in examinations.

Based on the evidence of record, the Board finds that the Veteran's service-connected disabilities would not render him unable to secure and maintain gainful employment. As such, the issue of entitlement to a TDIU is denied.

James Springer

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board C. Ivan Franklin

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.

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