HIATAL HERNIA

Summary

The Veteran served in the United States Navy from August 2000 to December 2006. The Veteran appeals the denial of service connection for obstructive sleep apnea (OSA) and seeks an increased rating for his service-connected irritable bowel syndrome (IBS) with gastroesophageal reflux disease (GERD). The Board granted an initial 60 percent rating for IBS with GERD, finding that the Veteran's symptoms, including melena with moderate anemia, pyrosis, reflux, regurgitation, dysphagia, nausea, vomiting, diarrhea, substernal pain, alternating diarrhea and constipation, and abdominal distention, along with functional impacts like soiling himself and decreased concentration, were productive of severe impairment of health, warranting the higher rating. The Board noted that the Veteran's IBS with GERD symptoms remained consistent in severity throughout the appeal period. The claim for OSA was remanded due to deficiencies in the prior VA medical opinions. The September 2020 opinion was inadequate for failing to consider lay evidence and basing its negative nexus opinion solely on the absence of treatment records. The October 2020 opinion failed to address aggravation by service-connected tinnitus and did not consider the Veteran's theory of secondary service connection due to obesity related to service-connected disabilities. Additionally, the Board found a pre-decisional duty to assist error regarding the lack of opinion on obesity as an intermediate step and the failure to prepare a TERA memorandum or ILER report under the PACT Act, necessitating remand for further development and new medical opinions.

Rationale

Symptoms met criteria for 60% rating under DC 7346; Melena with moderate anemia; Pyrosis, reflux, regurgitation, dysphagia, nausea, vomiting; Diarrhea, substernal pain, alternating diarrhea/constipation, abdominal distention; Functional impact on daily life (soiling, concentration, sleep, lethargy); Resolving reasonable doubt in Veteran's favor

Full Decision Text

Citation Nr: A26040181
Decision Date: 04/29/26	Archive Date: 04/29/26

DOCKET NO. 210726-174860
DATE: April 29, 2026

ORDER

An initial 60 percent rating for irritable bowel syndrome (IBS) with gastroesophageal reflux disease (GERD) is granted.

REMANDED

Entitlement to service connection for obstructive sleep apnea is remanded.

FINDING OF FACT

The Veteran's IBS with GERD is manifested by a symptom combination that is productive of severe impairment of health.

CONCLUSION OF LAW

The criteria for an initial 60 percent rating for IBS with GERD have been met. 38 U.S.C. §§ 1154, 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.14, 4.114, Diagnostic Code 7319-7346.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty in the United States Navy from August 2000 to December 2006.

The Veteran's sleep apnea claim was addressed in rating decisions issued in November and December 2020. His IBS with GERD claim was addressed in a rating decision issued in November 2020. 

In November 2020, the Veteran filed a VA Form 20-0996 Request for Higher-Level Review, seeking review of the November 2020 rating decision as it related to the evaluation assigned for his service-connected IBS with GERD. In February 2021, the Veteran filed a Request for Higher-Level Review seeking review of the December 2020 rating decision which denied service connection for obstructive sleep apnea. In March 2021, the agency of original jurisdiction (AOJ) issued a higher-level review rating decision which considered the record as of the date of respective November and December 2020 decisions, and denied the claims on appeal.

In the July 2021 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Hearing docket. A Board hearing was held in January 2025. Therefore, the Board may only consider the evidence of record at the time of the respective November and December 2020 decisions, which were subsequently subject to higher-level review, as well as any evidence submitted by the Veteran or his representative at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). If evidence was submitted either (1) during the period after the AOJ issued the decision, which was subsequently subject to higher-level review and prior to the Board hearing, or (2) more than 90 days following the hearing, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.302(a), 20.801. 

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. 

However, because the Board is remanding the sleep apnea claim, any evidence the Board could not consider will be considered by the AOJ in the adjudication of those claims. 38 C.F.R. § 3.103(c)(2)(ii).

Entitlement to a rating in excess of 30 percent for irritable bowel syndrome (IBS) with gastroesophageal reflux disease (GERD)

The Veteran contends that a rating in excess of 30 percent is warranted for his service-connected IBS with GERD.

A combined initial 30 percent rating was assigned for the Veteran's disability under 38 C.F.R. § 4.114, Diagnostic Code 7346-7319, effective June 23, 2020. The hyphenated diagnostic code indicates that the Veteran's disability is rated under the criteria for hiatal hernia (Diagnostic Code 7346) and irritable colon syndrome (Diagnostic Code 7319).

Disabilities of the digestive system are rated under 38 C.F.R. § 4.114. As discussed further below, VA amended 38 C.F.R. § 4.114 in 2024, after the issuance of the rating decision on appeal. Accordingly, the discussion herein is based on the regulations in effect while the record was open. Diseases of the digestive system, while differing in the site of
. § 4.114, Diagnostic Code 7346-7319, effective June 23, 2020. The hyphenated diagnostic code indicates that the Veteran's disability is rated under the criteria for hiatal hernia (Diagnostic Code 7346) and irritable colon syndrome (Diagnostic Code 7319).

Disabilities of the digestive system are rated under 38 C.F.R. § 4.114. As discussed further below, VA amended 38 C.F.R. § 4.114 in 2024, after the issuance of the rating decision on appeal. Accordingly, the discussion herein is based on the regulations in effect while the record was open. Diseases of the digestive system, while differing in the site of pathology, produce a common disability picture characterized in the main by varying degrees of abdominal distress or pain, anemia, and disturbances in nutrition. Therefore, certain coexisting diseases of the digestive system do not lend themselves to distinct and separate disability evaluations without violating the fundamental principle relating to pyramiding as prohibited by 38 C.F.R. § 4.14. Both DCs relevant to this claim, 7319 and 7346, are within this prohibition. See 38 C.F.R. § 4.113, 4.114.

DC 7319 addresses irritable colon syndrome. Under DC 7319, a severe case, manifesting in diarrhea, or alternating diarrhea and constipation, with more or less constant abdominal distress, warrants a 30 percent rating. A moderate case, manifesting in frequent episodes of bowel disturbance with abdominal distress, warrants a 10 percent rating. A mild case, manifesting in disturbances of bowel function with occasional episodes of abdominal distress, warrants a noncompensable rating.

DC 7346 addresses hiatal hernia. DC 7346 authorizes a 60 percent rating when hiatal hernia manifests in symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health. It authorizes a 30 percent rating when hiatal hernia manifests in persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. It authorizes a 10 percent rating when hiatal hernia manifests with two or more of the symptoms for the 30 percent rating, of less severity.

As stated above, a Veteran may not receive separate ratings under DCs 7319 and 7346. In such a case, a single evaluation will be assigned under the diagnostic code which reflects the predominant disability picture, with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation. See 38 C.F.R. § 4.114.

The criteria for both DCs contain subjective terms that the Board is required to define before applying. See Rivera-Colon v. McDonough, 35 Vet. App. 221, 223 (2022) (requiring the Board to explain the definition of certain terms in applying DCs for digestive disabilities); Cantrell v. Shulkin, 28 Vet. App. 382, 380-91 (2017) ("Without a definition of [a subjective] phrase there is no standard against which VA adjudicators can assess the facts of a Veteran's case."). The Board finds that it need not address undefined terms within the criteria for DC 7319, as the Veteran is already in receipt of the maximum rating available under that Code.

The subjective terms within DC 7346 are "other symptom combinations productive of severe impairment of health," which can authorize a 60 percent rating; "productive of considerable impairment of health," which is part of the criteria for a 30 percent rating; and "of less severity," part of the criteria for a 10 percent rating.

The Veteran contends that he is entitled to a 60 percent rating under the "other symptom combinations productive of severe impairment of health" criteria within DC 7346. For the following reasons, the Board agrees.

The Veteran was afforded VA examinations to assess his GERD/hiatal hernia in September 2020, October 2020, and January 2021. Collectively, the examination reports show symptoms including dysphagia, pyrosis, reflux, regurgitation, and substernal pain. The examination reports also showed episodes of nausea, vomiting, melena with moderate anemia, and sleep disturbance; all noted to occur four times per year and last less than a day. As to the documented anemia, the January 2021 examiner noted that a complete blood count (CBC) was remarkable for anemia, with hemoglobin level of 12.0 and hematocrit of 39. Additionally, the Veteran reported bleeding when he uses the bathroom, heartburn, gas,
D/hiatal hernia in September 2020, October 2020, and January 2021. Collectively, the examination reports show symptoms including dysphagia, pyrosis, reflux, regurgitation, and substernal pain. The examination reports also showed episodes of nausea, vomiting, melena with moderate anemia, and sleep disturbance; all noted to occur four times per year and last less than a day. As to the documented anemia, the January 2021 examiner noted that a complete blood count (CBC) was remarkable for anemia, with hemoglobin level of 12.0 and hematocrit of 39. Additionally, the Veteran reported bleeding when he uses the bathroom, heartburn, gas, bloating, choking, and chronic cough. He reported taking several different NSAIDs for control of his symptoms.  He also indicated that the condition caused anxiety when he eats, embarrassment when he chokes, lethargy, and decreased production at work.

The Veteran was afforded VA examinations to assess his IBS symptoms in September 2020, October 2020, and January 2021. Collectively, the examination reports show symptoms including diarrhea 3 to 4 times per week; frequent episodes of alternating diarrhea and constipation; frequent episodes of abdominal distention; occasional nausea; and occasional vomiting. He was also noted to have frequent episodes of bowel disturbance with abdominal distress. The Veteran reported depression and anxiety, gas and bloating, headaches, cramping when he uses the bathroom, bloody stools, and occasionally soiling himself. Further, he reported that he cannot concentrate at work due to frequent bathroom usage.

The Board has also considered the lay statements of record, to include the Veteran's January 2025 hearing testimony. He has reported frequently choking on his food, needing to force himself to regurgitate to avoid choking, and always needing a bathroom nearby. He also reported being prescribed iron pills, but that when he does not take the pills, he experiences lack of energy and forgetfulness. 

In light of the circumstances in this case, and resolving reasonable doubt in the Veteran's favor, the Board finds the Veteran's GERD more nearly approximates the 60 percent rating criteria under DC 7346, because the condition manifested in a combination of symptoms including melena with moderate anemia, pyrosis, reflux, regurgitation, dysphagia, nausea, vomiting, diarrhea, substernal pain, alternating diarrhea and constipation, and abdominal distention. In addition to the severity of the Veteran's symptoms, the Board also finds the Veteran's functional impact of symptoms on his everyday life, including soiling himself, decreased focus, decreased concentration, sleep impairment, and lethargy, that impacts every aspect of his life, including his mental and physical health, is productive of severe impairment of health throughout the appeal period, corresponding to the criteria for a 60 percent rating under DC 7346. Additionally, the Veteran's symptoms have remained consistent in severity for the entire period on appeal since June 23, 2020.  38 U.S.C. § 5107(b). Therefore, an initial 60 percent rating is warranted for the Veteran's service-connected IBS with GERD.

REASONS FOR REMAND

Entitlement to service connection for obstructive sleep apnea is remanded.

The Veteran contends that he suffers from obstructive sleep apnea that is related to active service. Several theories have been expressly raised by the Veteran and/or the evidence of record, to include (1) that symptoms of the condition began during active service, (2) that the condition is related to exposure to toxins or asbestos during active service, (3) that the condition is caused or aggravated by a service-connected disability, or (4) that the condition is due to obesity related to his service-connected disabilities.

The AOJ provided favorable findings in its March 2021 rating decision that the Veteran has a current diagnosis of obstructive sleep apnea; that his DD-214 shows a MOS of Machinist Mate, which is probable for exposure to asbestos; and that he had service in Southwest Asia. Under the AMA, the Board is bound by favorable findings by the AOJ in the absence of evidence of clear and unmistakable error. 38 C.F.R. § 3.104(c).

Under the AMA, remand is only appropriate if there has been a pre-decisional duty to assist error committed by the AOJ and/or for correction of any other AOJ error in satisfying a regulatory or statutory duty, if correction of the error would have a reasonable possibility of aiding in substantiating the claim. 38 C.F.R. § 20.802 (a).

The evidence of record includes VA medical opinions obtained in September and October 2020. Unfortunately, both opinions contain deficiencies. The September 2020 opinion addressed only the question of whether the Veteran's sleep apnea
 favorable findings by the AOJ in the absence of evidence of clear and unmistakable error. 38 C.F.R. § 3.104(c).

Under the AMA, remand is only appropriate if there has been a pre-decisional duty to assist error committed by the AOJ and/or for correction of any other AOJ error in satisfying a regulatory or statutory duty, if correction of the error would have a reasonable possibility of aiding in substantiating the claim. 38 C.F.R. § 20.802 (a).

The evidence of record includes VA medical opinions obtained in September and October 2020. Unfortunately, both opinions contain deficiencies. The September 2020 opinion addressed only the question of whether the Veteran's sleep apnea was directly related to active service. The examiner concluded that the condition was not related to active service, offering only that the Veteran's service treatment records (STRs) did not show complaints of sleep apnea. Here, the Board notes that opinions based on absence of treatment records without consideration of the Veteran's reports are inadequate. See Dalton v. Nicholson, 21 Vet. App. 12 (2007). Additionally, the opinion is inadequate as it does not consider the lay evidence of record.

The October 2020 medical opinion addressed only the question of whether the Veteran's sleep apnea was caused by his service-connected tinnitus. The examiner failed to address the necessary inquiry of whether the condition was aggravated by his service-connected tinnitus. Additionally, despite the Veteran specifically contending that his sleep apnea was caused or aggravated by his other service-connected disabilities, no further opinions were obtained. Here, remand is also warranted to obtain opinions which adequately address the Veteran's theories of secondary service connection.

The Board also finds that a pre-decisional duty to assist error was committed in that no medical opinion of record addresses the Veteran's contention that his condition is due to obesity related to his service-connected disabilities. Here, the Board notes that obesity can be an "intermediate step" between a service-connected disability and a current disability for secondary service connection purposes. See 38 C.F.R. § 3.310. In this case, the Veteran's VA treatment records document an elevated BMI. Additionally, the October 2020 VA examiner noted the Veteran's obesity in relation to his sleep apnea. As no examination of record has addressed whether the Veteran's obesity/being overweight is an "intermediate step" between any or all of the Veteran's service-connected disabilities and his claimed sleep apnea, such an opinion must also be obtained on remand.

Finally, the Board also notes that in August 2022, the SFC Heath Robinson Honoring Our PACT Act, Pub. L. 117-168, 136 Stat. 1759 ("PACT Act") was passed. Under the PACT Act, VA is required to provide a disability examination and obtain a medical opinion when a veteran submits a claim for compensation and has (1) evidence of a disability and (2) participation in a toxic exposure risk activity (TERA), but the evidence is not sufficient to establish service connection for the disability. 38 U.S.C. § 1168(a). Moreover, the PACT Act requires an individual longitudinal exposure record (ILER) report for all veterans who were subject to toxic exposure risk activities.

As noted above, the favorable findings suggest that the Veteran was exposed to asbestos and other toxins during active service. However, there was no TERA memorandum or ILER report prepared in this case. Accordingly, the Board finds that remand is needed to satisfy a regulatory or statutory duty to properly develop the Veteran's claim under 38 U.S.C. § 1168 for claimed toxic exposures and to obtain necessary medical opinions.

The matters are REMANDED for the following action:

1. Properly develop the Veteran's claim under 38 U.S.C. § 1168 for claimed toxic exposures, to include completion a TERA Memorandum regarding any and all toxic exposures as a result of the Veteran's period of service and upload that Memorandum regarding toxic exposures to the Veteran's claims file. The AOJ should make specific efforts to corroborate the Veteran's contention that he was exposed to burn pits and toxins while stationed in Southwest Asia, as well as exposure to asbestos.

2. Associate an ILER with the Veteran's claims file.

3. After an ILER has been associated with the claims file, obtain addendum opinion from an appropriate clinician regarding the Veteran's obstructive sleep apnea (OSA). The claims file and a copy of this remand must be made available to the examiner. The need for an examination of the Veteran is left to the discretion of the examining clinician. The examiner should respond to the following:

a) Whether it is at least as likely as not that the Veteran's OSA is related to active service, to include any verified TERA. In form
's contention that he was exposed to burn pits and toxins while stationed in Southwest Asia, as well as exposure to asbestos.

2. Associate an ILER with the Veteran's claims file.

3. After an ILER has been associated with the claims file, obtain addendum opinion from an appropriate clinician regarding the Veteran's obstructive sleep apnea (OSA). The claims file and a copy of this remand must be made available to the examiner. The need for an examination of the Veteran is left to the discretion of the examining clinician. The examiner should respond to the following:

a) Whether it is at least as likely as not that the Veteran's OSA is related to active service, to include any verified TERA. In formulating this opinion, the examiner should consider the total potential exposure through all applicable deployments and the synergistic, combined effect of all TERA involving the Veteran.

The examiner must review all lay statements from the Veteran, his family, and fellow servicemembers contained in the record, and address any contentions related to the onset and persistence of his symptoms.

Secondary Service Connection

b.) Whether it is at least as likely as not that the Veteran's OSA was caused by any service-connected disability.

c.) Whether it is at least as likely as not that the Veteran's OSA was aggravated (worsened beyond normal progression) by any service-connected disability.

The examiner is reminded that causation and aggravation are separate inquiries, and therefore, separate findings and rationales should be provided for each one.

The examiner must address all lay statements of record as they relate to causation or aggravation of the Veteran's OSA by his service-connected disabilities.

Obesity

d.) Is it at least as likely as not that any of the Veteran's service-connected disabilities, or any medications taken for the service-connected disabilities, caused or aggravated the Veteran's obesity?

e.) If yes, is it at least as likely as not that the Veteran's weight gain caused or aggravated the Veteran's OSA? The examiner should opine whether any incremental increase or aggravation-temporary or permanent-of the Veteran's OSA is related to the Veteran's weight gain.

f.) Is it at least as likely as not that the causation or aggravation of the OSA would not have occurred without the obesity caused by the Veteran's service-connected disabilities? 

The examiner is reminded that the Veteran is competent to attest to factual matters of which the Veteran has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation.

 

 

Marcus N. Fulton

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	A. Marsh II, 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.