Citation Nr: 0933022	
Decision Date: 09/02/09    Archive Date: 09/14/09

DOCKET NO.  03-24 768	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. 
Petersburg, Florida


THE ISSUES

1.  Entitlement to an initial compensable disability rating 
for hemorrhoids.

2.  Entitlement to an initial compensable disability rating 
for an anal fissure.


REPRESENTATION

Appellant represented by:	Daniel G. Krasnegor, Attorney


ATTORNEY FOR THE BOARD

S. B. Mays, Counsel





INTRODUCTION

The Veteran served on active military duty from January 1975 
to January 2003.

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal from a March 2003 rating action of the 
Department of Veterans Affairs Regional Office (RO) in St. 
Petersburg, Florida.  The Board remanded this matter in July 
2004.

The original appeal included the issues of entitlement to 
service connection for tinea versicolor, right knee 
disability, residuals of a nerve laceration along the radial 
aspect of the left index finger, and back disability.  
However, the RO granted service connection for each of these 
issues in a May 2006 rating decision.  As such, these issues 
are no longer on appeal.  The claims folder further shows 
that the current combined ratings for the Veteran's service-
connected disabilities total 20 percent from February 1, 
2003.  Accordingly, the issue of entitlement to compensation 
benefits based on multiple noncompensable service-connected 
disabilities pursuant to the provisions of 38 C.F.R. § 3.324 
(2006) is moot.

In May 2007, the Board adjudicated multiple issues, and in 
pertinent part, the Board denied initial compensable ratings 
for anal fissures and hemorrhoids.  The Veteran appealed that 
decision to the United States Court of Appeals for Veterans 
Claims (Court).  Pursuant to a Memorandum Decision, the 
Court, in a January 2009 judgment, vacated the May 2007 
denials of increased ratings for an anal fissure and 
hemorrhoids, and remanded those issues to the Board.


FINDINGS OF FACT

1.  There is no evidence of large or thrombotic hemorrhoids, 
irreducible, with excessive redundant tissue, or impairment 
of sphincter control, but there is evidence of hemorrhoids 
with persistent bleeding and an anal fissure.

2.  The Veteran has not submitted evidence tending to show 
that his service-connected hemorrhoids and anal fissure 
require frequent hospitalization, are unusual, or cause 
marked interference with employment.


CONCLUSION OF LAW

The criteria for an initial 20 percent evaluation, and no 
higher, for service-connected hemorrhoids with persistent 
bleeding and anal fissure are met.  38 U.S.C.A. §§ 1155, 5107 
(West 2002); 38 C.F.R. §§ 3.321, 4.114, Diagnostic Code 7336 
(2008).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Duties to Notify and Assist

The Veteran's increased rating claims arise from his 
disagreement with the initial evaluations assigned following 
the grants of service connection.  Courts have held that once 
service connection is granted the claim is substantiated, 
additional notice is not required and any defect in the 
notice is not prejudicial.  Hartman v. Nicholson, 483 F.3d 
1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 
(2007).

VA has done everything reasonably possible to assist the 
Veteran with respect to his claims for benefits in accordance 
with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) 
(2008).  The claims folder contains numerous service 
treatment records, VA outpatient treatment records, private 
medical records, the Veteran's DD-214, and statements from 
the Veteran in support of his claims.  In addition, the 
Veteran was afforded a VA examination in conjunction with 
this appeal.  The Board finds that VA has satisfied its duty 
to notify and to assist.  All obtainable evidence identified 
by the Veteran relative to his claim has been obtained and 
associated with the claims folder, and neither he nor his 
representative has identified any other pertinent evidence, 
not already of record, which would need to be obtained for a 
fair disposition of this appeal.  

II.  Increased Rating Claims

Disability ratings are determined by applying the criteria 
set forth in the VA Schedule for Rating Disabilities (rating 
schedule), found in 38 C.F.R. Part 4. Disability ratings are 
intended to compensate impairment in earning capacity due to 
a service-connected disorder.  See 38 U.S.C.A. § 1155 (West 
2002).  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 (2008).  At 
the time of an initial rating, separate, or staged, ratings 
can be assigned for separate periods of time based on the 
facts found.  Fenderson v. West, 12 Vet. App. 119 (1999).

Here, service treatment records show clinical findings and 
treatment for small external hemorrhoids on evaluation in May 
1982.  The RO granted service connection for hemorrhoids in a 
March 2003 rating decision, assigning an initial 
noncompensable rating under DC 7336.  See 38 C.F.R. § 4.114.  

Service treatment records also show treatment of anal fissure 
in 2000.  In a rating decision dated in March 2003, the RO 
granted service connection for an anal fissure, assigning an 
initial noncompensable rating under DC 7335.  See 38 C.F.R. 
§ 4.114.

Evidence relevant to the severity of the Veteran's service-
connected hemorrhoids and anal fissure includes a VA 
examination report dated in February 2003.  Rectal 
examination showed no masses and no blood.  Hemorrhoids or 
anal fissures were not seen on examination.  

An October 2004 VA clinical note indicated positive findings 
for internal hemorrhoid, and was described as "pea size."  No 
other post-service medical records reported active 
hemorrhoids on evaluation.  
VA clinical records dated in July 2005 noted complaints of 
frequent bleeding with bowel movements for approximately six 
months.  The Veteran complained of rectal pain, burning, and 
itching.  He was using a rectal foam, ointment, or 
suppository and was taking stool softeners regularly.  
Evaluation revealed 4 external tags, but no external 
hemorrhoids seen.  An anterior anal fissure was identified.  
Digital rectal examination noted normal sphincter with good 
tone, prostate palpable, and no abnormal masses palpated.  
There was also normal rectal and sigmoid mucosa.

A September 2005 VA examination report noted four skin tags 
present and one small anterior anal fissure.  Rectal 
examination showed normal movement and sphincter tone, and no 
abnormal masses were palpated.  There was no evidence of 
active bleeding.  The diagnosis was anal fissure and anal 
skin tags with current symptoms of bleeding on toilet tissue 
with approximately 50 percent of bowel movements.

Turning to the applicable rating criteria, under DC 7336, a 
noncompensable rating for hemorrhoids, external or internal, 
is warranted for mild or moderate hemorrhoids.  A 10 percent 
rating is warranted for large or thrombotic hemorrhoids, 
irreducible, with excessive redundant tissue, evidencing 
frequent recurrences.  A 20 percent evaluation is warranted 
for hemorrhoids with persistent bleeding and with secondary 
anemia, or with fissures. Id.

Under Diagnostic Code 7335, which contemplates fistula in 
ano, ratings are assigned based on the degree of impairment 
of sphincter control.  A noncompensable rating is for 
assignment when there is healed or slight impairment of 
sphincter control without leakage.  A 10 percent rating is 
for assignment when there is constant slight or occasional 
moderate leakage.  A 30 percent rating is for assignment with 
occasional involuntary bowel movements necessitating the 
wearing of a pad.  See DC 7332.

The Veteran's current service-connected anal fissure has been 
rated by analogy under DC 7335.  Such code contemplates a 
fistula in ano, as opposed to an anal fissure.  In any event, 
review of the evidence shows no impairment of sphincter 
control.  As such, a compensable evaluation under DCs 7332, 
7335 is not warranted for service-connected anal fissure.  38 
C.F.R. § 4.114.

Moreover, post-service medical records do not show treatment 
for, or evidence of, large or thrombotic hemorrhoids, 
irreducible, with excessive redundant tissue, evidencing 
frequent recurrences to warrant a 10 percent evaluation for 
service- connected hemorrhoids under DC 7336.  

Resolving all doubt in the Veteran's favor, the Board finds 
that a 20 percent evaluation under DC 7336 is warranted for 
hemorrhoids with persistent bleeding and with secondary 
anemia, or with fissures.  In this case, the medical evidence 
undoubtedly shows that the Veteran has hemorrhoids and an 
anal fissure, and the Board finds that the bleeding 
associated with his disability is considered "persistent," 
as the September 2005 VA examiner noted the Veteran's 
complaints of bleeding 50 percent of the time with bowel 
movements.  Thus, although a compensable evaluation is not 
warranted for either hemorrhoids or the anal fissure when 
considered separately; when combined, the Board finds that 
the criteria for a 20 percent evaluation, the maximum 
available under DC 7336, are met or nearly approximated for 
hemorrhoids with persistent bleeding and an anal fissure.  

As noted, there is no impairment of sphincter control, thus 
an evaluation in excess of 20 percent is not warranted under 
DCs 7332, 7335.  There is also no evidence of a stricture of 
the rectum and anus, or prolapse of the rectum, thus a higher 
evaluation is not warranted under DCs 7333 and 7334.  

Finally, to accord justice in an exceptional case where the 
schedular standards are found to be inadequate, the field 
station is authorized to refer the case to the Chief Benefits 
Director or the Director, Compensation and Pension Service 
for assignment of an extraschedular evaluation commensurate 
with the average earning capacity impairment.  38 C.F.R. § 
3.321(b)(1) (2008).  The criterion for such an award is a 
finding that the case presents an exceptional or unusual 
disability picture with related factors as marked 
interference with employment or frequent periods of 
hospitalization as to render impractical application of 
regular schedular standards. The Court has held that the 
Board is precluded by regulation from assigning an 
extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the 
first instance; however, the Board is not precluded from 
raising this question, and in fact is obligated to liberally 
read all documents and oral testimony of record and identify 
all potential theories of entitlement to a benefit under the 
law and regulations.  Floyd v. Brown, 9 Vet. App. 88 (1996).  
The Court further held that the Board must address referral 
under 38 C.F.R. §3.321(b)(1) only where circumstances are 
presented which the Director of VA's Compensation and Pension 
Service might consider exceptional or unusual.  Shipwash v. 
Brown, 8 Vet. App. 218, 227 (1995).

Here, the evidence does not suggest that this case presents 
an exceptional or unusual disability picture such that the 
Veteran is unable to secure and follow substantially gainful 
employment due to his service-connected hemorrhoids and anal 
fissure, or otherwise render a schedular rating impractical.  
Having reviewed the record with these mandates in mind, the 
Board finds no basis for further action. VAOPGCPREC 6-96 
(1996).


ORDER

A 20 percent evaluation for service-connected hemorrhoids 
with persistent bleeding and fissure is allowed, subject to 
the laws and regulations governing monetary benefits.    



____________________________________________
THOMAS J. DANNAHER
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs