HIATUS HERNIA

Summary

The Veteran, who served from April 1996 to December 2016, including service in Saudi Arabia, Turkey, Afghanistan, and Bahrain, appeals the denial of service connection for hiatal hernia. The Veteran submitted evidence showing a current diagnosis of hiatal hernia, satisfying the first element for service connection. However, the Board found that the evidence persuasively weighed against the second and third elements: in-service incurrence and a nexus to service. The Veteran's service treatment records did not document any relevant complaints, treatment, or diagnoses related to hiatal hernia, and the Veteran repeatedly reported no history of rupture, stomach trouble, or frequent indigestion in service medical reports and examinations. Post-service treatment records mentioned longstanding mild reflux issues and a hiatal hernia diagnosed in February 2021, but these records did not specifically link the condition to service. The Board also noted that the Veteran, as a layperson, was not competent to opine on the complex medical matter of causation. Applying the benefit of the doubt doctrine was not warranted, as the evidence was persuasively against the claim. The Board also determined there was no pre-decisional duty to assist error regarding a VA examination, as the evidence at the time of the AOJ decision did not meet the threshold for requiring one. Consequently, service connection for hiatal hernia was denied.

Rationale

No in-service complaints, treatment, or diagnosis for hiatal hernia.; Service treatment records and retirement examination documented no issues related to hiatal hernia.; Post-service treatment records did not specifically indicate hiatal hernia began in service or is due to service.

Full Decision Text

Citation Nr: A26032995
Decision Date: 04/09/26	Archive Date: 04/09/26

DOCKET NO. 210813-179549
DATE: April 9, 2026

ORDER

The issue of entitlement to service connection for hiatal hernia is denied.

FINDING OF FACT

The evidence is persuasively against finding that the Veteran's hiatal hernia began during service or is otherwise etiologically linked to an in-service disease, injury, or event.

CONCLUSION OF LAW

The criteria for service connection for hiatal hernia are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from April 1996 to December 2016, with service in Saudi Arabia, Turkey, Afghanistan, and Bahrain. The Veteran also has additional service in the Marine Corps Reserve. The Board of Veterans' Appeals (Board) thanks the Veteran for his many years of service to our country. 

This matter comes before the Board on appeal from a June 2021 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (known as the agency of original jurisdiction (AOJ)). As such, the modernized review system, also known as the Appeals Modernization Act (AMA), applies.

In the August 2021VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Hearing docket. On October 10, 2024, the Veteran withdrew the hearing request.

Generally, the Board may only consider the evidence of record at the time of the June 2021 AOJ decision on appeal, as well as any evidence submitted by the Veteran or representative within 90 days following receipt of the withdrawal of the hearing request. 38 C.F.R. § 20.302(b). If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to receipt of the withdrawal, or (2) more than 90 days following receipt of the withdrawal, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.302(b), 20.801. In addition, the Veteran has not made a clear request to the Board to consider identified evidence submitted to the Board in connection with an earlier AMA appeal. Cash v. Collins, at 7, No. 24-1811, Fed. Cir. (2026).

If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. 

The issue of entitlement to service connection for hiatal hernia.

The Veteran contends service connection is warranted for hiatal hernia due to his time in service. See April 2021 VA Form 21-526EZ. In this case, the Board finds that service connection is not warranted.

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Notwithstanding the lack of evidence of disease or injury during service, service connection may still be granted if all of the evidence, including that pertinent to service, establishes that the disability was incurred in service. See 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503 (1992). The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004).

Congress has specifically limited entitlement to service-connected benefits to cases where there is a current disability. In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223 (1992). The requirement for a current disability is satisfied when the claimant has a disability at the time
 requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004).

Congress has specifically limited entitlement to service-connected benefits to cases where there is a current disability. In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223 (1992). The requirement for a current disability is satisfied when the claimant has a disability at the time a claim for service connection is filed (or close in time to the filing) or during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). A disability under 38 U.S.C. § 1110 refers to functional impairment of earning capacity. Saunders v. Wilkie, 886 F.3d 1356 (2018). However, subjective complaints of pain in the absence of objective evidence of functional impairment are not sufficient to show a current disability for VA purposes. Id. at 1367-68.

The Board is required to analyze the credibility and probative value of the evidence, account for any evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Daye v. Nicholson, 20 Vet. App. 512, 516 (2006). It is noted that competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In determining whether statements are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995).

A claimant bears the evidentiary burden to establish entitlement to the benefit sought. See Fagan v. Shinseki, 573 F.3d 1282, 1287-88 (2009). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The benefit of the doubt applies when the evidence for and against is in "approximate balance" or "nearly equal," but does not apply when the evidence persuasively favors one side or the other. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021).

Turning to the first element of service connection (a current disability), within 90 days following receipt of the hearing withdrawal, the Veteran submitted medical evidence documenting that he had a current diagnosis of hiatal hernia during the pendency of the claim. Specifically, an endoscopy from February 12, 2021, found a hiatal hernia was present. See medical treatment records received in January 2025. At that time, the Veteran was diagnosed with diaphragmatic hernia without obstruction or gangrene. Id. Accordingly, the first element of service connection is met. 

However, with regard to the second element (an in-service incurrence), the Board notes that the Veteran's service treatment records do not document relevant complaints, treatment, or diagnoses related to the claimed disability. Rather, the Veteran repeatedly indicated in reports of medical history that he had no history of rupture/hernia, stomach trouble, or frequent indigestion or heartburn. See service treatment records received in September 2016; service treatment records in received September 2017. Moreover, in-service examinations documented normal abdomen and viscera (including hernia) systems. Id. Further, despite the Veteran noting numerous issues in his retirement report of medical history, the Veteran again reported no history of rupture/hernia, stomach trouble, or frequent ingestion or heartburn, and his retirement examination also documented no issues related to the claimed disability. See service treatment records received
 treatment records do not document relevant complaints, treatment, or diagnoses related to the claimed disability. Rather, the Veteran repeatedly indicated in reports of medical history that he had no history of rupture/hernia, stomach trouble, or frequent indigestion or heartburn. See service treatment records received in September 2016; service treatment records in received September 2017. Moreover, in-service examinations documented normal abdomen and viscera (including hernia) systems. Id. Further, despite the Veteran noting numerous issues in his retirement report of medical history, the Veteran again reported no history of rupture/hernia, stomach trouble, or frequent ingestion or heartburn, and his retirement examination also documented no issues related to the claimed disability. See service treatment records received September 2016.  

Additionally, in terms of the third element needed for service connection (a nexus), the evidence is persuasively against the claim. The Board notes that within 90 days following receipt of the hearing withdrawal, the Veteran's representative submitted April 2021 treatment records, which state that the Veteran "has had longstanding mild reflux issues. He recalls feeling a pressure in his chest a few years ago when he was doing workouts. He occasionally gets dysphagia, globus. He has noticed recently that he gets regurgitation intermittently and has increased throat clearing. He has been on a variety of proton pump inhibitors of the last few years all for short durations...Endoscopy from 2/12/2021 showed 3 cm sliding hiatal hernia grade a esophagitis...." See medical treatment records received in January 2025. However, those treatment records do not specifically indicate that his hiatal hernia began in service or that it is due to service. Furthermore, the record does not include other relevant post-service treatment records or medical opinions finding the Veteran's hiatal hernia is related to service. 

While the Veteran contends that his hiatal hernia is due to service, as a layperson he is not competent to opine as to this complex medical matter. Specialized medical training and expertise are required. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24 Vet. App. 428 (2011). Consequently, the Board can assign no probative weight to his assertions, and the Board finds that the evidence persuasively weighs against finding that the Veteran's hiatal hernia began during service or is otherwise related to an in-service injury, disease, or event. 

Moreover, although VA did not provide a medical examination or medical opinion for his claimed disability, the standard for VA to provide an examination or medical opinion was not satisfied prior to the rating decision on appeal. Specifically, at that time probative evidence did not include competent evidence of a current disability or persistent or recurrent symptoms of a disability and did not establish that the Veteran suffered an in-service event, injury, or disease. Further, the probative evidence at that time did not indicate a relationship between service and the current diagnosis of hiatal hernia. Thus, there was no predecisional duty to assist error with respect to obtaining a VA examination and medical opinion. 38 C.F.R. § 3.159(c)(4)(i); McLendon v. Nicholson, 20 Vet. App. 79 (2006).

Also, under the PACT Act of 2022, VA is required to provide an examination and medical opinion addressing potential toxic exposure risk activity (TERA) when the Veteran submits a claim for compensation, has evidence of a disability, has evidence of participation in a TERA, and such evidence is not sufficient to establish service connection for the disability. See 38 U.S.C. § 1168(a). As the Veteran served in Southwest Asia and has a current diagnosis of hiatal hernia, the AOJ, in accordance with its duty to assist, would likely be required to obtain a medical opinion addressing TERA participation if it were deciding this claim today. However, under the AMA review system, a Board remand is only warranted to correct a duty to assist error committed by the AOJ which occurred prior to the decision on appeal. 38 C.F.R. § 20.802(a). As the June 2021 decision on appeal predates the August 10, 2022, passage of the PACT Act, and evidence of a current disability was submitted after the June 2021 decision on appeal, the Board cannot remand the appeal on this basis. 

In light of the above, the evidence is persuasively against granting entitlement to service connection for hiatal hernia. The Board notes that the Veteran's service treatment records do not document relevant complaints, treatment, or diagnoses related to the claimed disability. Moreover, there is no competent evidence indicating that the Veteran's hiatal hern
 error committed by the AOJ which occurred prior to the decision on appeal. 38 C.F.R. § 20.802(a). As the June 2021 decision on appeal predates the August 10, 2022, passage of the PACT Act, and evidence of a current disability was submitted after the June 2021 decision on appeal, the Board cannot remand the appeal on this basis. 

In light of the above, the evidence is persuasively against granting entitlement to service connection for hiatal hernia. The Board notes that the Veteran's service treatment records do not document relevant complaints, treatment, or diagnoses related to the claimed disability. Moreover, there is no competent evidence indicating that the Veteran's hiatal hernia is etiologically linked to his military service. In reaching the above conclusion, the Board has considered the benefit of the doubt doctrine. However, as the evidence is persuasively against the Veteran's claim, there is not an approximate balance of positive and negative evidence; accordingly, the benefit of the doubt doctrine is not applicable, and service connection for hiatal hernia must be denied. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021).

 

 

M. C. GRAHAM

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	S. Black, 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.