Citation Nr: 0305527 Decision Date: 03/24/03 Archive Date: 04/03/03 DOCKET NO. 99-24 107 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a compensable evaluation for hemorrhoids. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Robert C. Scharnberger, Associate Counsel INTRODUCTION The veteran served on active duty from November 1951 to January 1973. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a November 1998 rating decision of the Little Rock, Arkansas, Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board and was remanded in February 2001 for additional development and for evaluation under the Veterans Claims Assistance Act (VCAA). That development having been completed, the case is now ready for appellate review. FINDINGS OF FACT 1. All evidence necessary for an equitable adjudication of the veteran's claim has been obtained or requested by the RO. 2. The veteran's disability is manifested by thrombotic hemorrhoids with evidence of frequent recurrences. CONCLUSION OF LAW The criteria for a 10 percent disability rating for hemorrhoids are met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. § 4.114 Diagnostic Code 7336 (2002). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Background As an initial matter, the Board notes that there has been a significant change in the law during the pendency of this appeal. On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. § 5100 et seq. (West 2002); see 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2002). This law eliminated the concept of a well-grounded claim, redefined the obligations of VA with respect to the duty to assist, and imposed on VA certain notification requirements. First, VA has a duty to notify the veteran of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102 and 5103 (West 2002); 38 C.F.R. § 3.159(b) (2002); see Quartuccio v. Principi, 16 Vet. App. 183 (2002) (holding that both the statute, 38 U.S.C. § 5103(a), and the regulation, 38 C.F.R. § 3.159, clearly require the Secretary to notify a claimant which evidence, if any, will be obtained by the claimant and which evidence, if any, will be retrieved by the Secretary). Second, VA has a duty to assist the veteran in obtaining evidence necessary to substantiate the claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2002). The November 1998 rating decision, the September 1999 Statement of the Case (SOC), and the July 2002 Supplemental Statement of the Case (SSOC), advised the veteran of the laws and regulations pertaining to his increased rating claim. These documents informed the veteran of the evidence of record and explained the reasons and bases for denial. The veteran was specifically informed that and increased rating for hemorrhoids was being denied because he did not meet the criteria for the next higher rating. The SSOC informed the veteran of the provisions of the VCAA. The SOC and SSOC made it clear to the veteran that in order to prevail on his increased rating claim, he needed to present medical evidence that his condition met the criteria for the next higher rating. The RO obtained the veteran's service medical records and VA outpatient treatment records. The veteran was provided a VA examination in April 2002. The veteran has not identified any other available records. Accordingly, the Board finds that VA has satisfied its duty to notify and to assist under the VCAA. II. Entitlement to a compensable evaluation for hemorrhoids The veteran's service medical records show a long history of hemorrhoids. The veteran was granted service connection for hemorrhoids in a July 1987 rating decision and assigned a noncompensable rating. The veteran filed a claim in April 1998 seeking a higher evaluation for his service-connected hemorrhoids VA treatment records reveal that the veteran underwent proctoscopy and banding surgery for his hemorrhoids in February 1998. The treatment notes also reveal a history of prior surgeries in 1970 and 1989. The VA treatment notes from 1997 and 1998 indicate that the veteran's hemorrhoids were thrombotic and painful with prolapse and that there was fairly extensive bleeding. Later VA treatment notes from 1999 to 2002 do not indicate further treatment for hemorrhoids although they do cite the veteran's history of hemorrhoids. The veteran underwent a VA examination in April 2002. The examiner noted that the service medical records showed a history of thrombosed hemorrhoids. The examiner noted the veteran's history of multiple surgeries for hemorrhoids and for prolapse of tissue. The veteran reports occasional bleeding and difficulty with bowel movements to the examiner. The examination revealed a small external tag and that after digital examination it was not visible. Internal and external sphincter tone was normal. There were no cords palpable in the anal canal, and no evidence of any fissures or hemorrhoids upon examination with an anoscope. The examiner provided a diagnosis of external hemorrhoids with a history of prolapse mucosa. Disability evaluations are determined by the application of a schedule of ratings that is based on average impairment of earning capacity. 38 U.S.C.A. § 1155. Percentage evaluations are determined by comparing the manifestations of a particular disorder with the requirements contained in the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can practically be determined, the average impairment in earning capacity resulting from such disease or injury and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2002). In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2002); Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the current level of the veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2002). Diagnostic code 7336 applies when rating hemorrhoids. A noncompensable rating is assigned for mild or moderate hemorrhoids. 38 C.F.R. § 4.114, DC 7336 (2002). A 10 percent rating is warranted where the hemorrhoids are large or thrombotic, irreducible, with excessive redundant tissue, evidencing frequent recurrence. Id. A 20 percent rating is warranted where there is persistent bleeding and with secondary anemia, or with fissures. Id. Applying the above, the Board finds that a 10 percent rating, and no higher, is warranted for the veteran's service connected hemorrhoids. He has a history of thrombotic hemorrhoids, he has repeated prolapse, and has had at least three surgeries including the most recent in February 1998. There appears to be frequent recurrence and surgery has not been able to completely alleviate the hemorrhoids. The VA examination in April 2002 suggests a milder form of hemorrhoids with no significant findings at that time, but given the veteran's history of multiple surgeries, and the repeated diagnosis of prolapse and thrombotic hemorrhoids, the Board finds that overall, the disability more closely approximates the criteria for a 10 percent rating. Id. This resolves all reasonable doubt in favor of the veteran. The criteria for a higher rating, of 20 percent, is not warranted, because there is no evidence of persistent bleeding, with secondary anemia or fissures. In fact, the April 2002 VA examination specifically found that there were no fissures. Therefore, a 20 percent rating is not warranted under Diagnostic Code 7336. Id. ORDER Entitlement to a 10 percent disability rating for hemorrhoids is granted ____________________________________________ GEORGE E. GUIDO, JR. Acting Veterans Law Judge, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.