Citation Nr: 0811366 Decision Date: 04/07/08 Archive Date: 04/23/08 DOCKET NO. 05-01 071 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to a compensable evaluation for hemorrhoids. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. D. Deane, Counsel INTRODUCTION The veteran had active duty service from December 1964 to December 1968. This appeal comes before the Board of Veterans' Appeals (Board) from a January 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania, which denied entitlement to a compensable evaluation for the veteran's service-connected hemorrhoids. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND As an initial matter, the provisions of the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), and as interpreted by the Court, are applicable to this matter. During the pendency of this appeal, the United States Court of Appeals for Veterans Claims (hereinafter "the Court") in Dingess v. Nicholson, 19 Vet. App. 473 (2006), found that the VCAA notice requirements applied to all elements of a claim. The Court also recently issued a decision in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), concerning increased- compensation claims and finding that section § 5103(a) requires, at a minimum, that the Secretary notify the claimant that, to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life. See Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). Further, if the Diagnostic Code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant. Additionally, the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life. As with proper notice for an initial disability rating and consistent with the statutory and regulatory history, the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation-e.g., competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability. See Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). Unfortunately, the veteran did not receive adequate notice of information concerning the VCAA in reference to the issue on appeal. As the case is being remanded for additional development, appropriate action should be taken to ensure adequate VCAA notice as to the type of evidence necessary to substantiate the veteran's claim for a compensable rating for hemorrhoids is provided. The Board notes that the only VA medical examination in this appeal was conducted in December 2003, over four years ago. In a March 2008 statement, the veteran's representative noted the veteran's contentions that his hemorrhoids have increased in severity enough to be granted an increased rating and contended that it would to impossible for VA to accurately judge the severity of the veteran's current disability. In this regard, the Board concludes that a contemporaneous VA examination is needed in order to make an informed decision regarding the veteran's current level of impairment and to adequately evaluate his current level of disability. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1995) (VA was required to afford a contemporaneous medical examination where examination report was approximately two years old); see also Green v. Derwinski, 1 Vet. App. 121, 124 (1991). VA will provide a medical examination or obtain a medical opinion based upon a review of the evidence of record if the VA determines it is necessary to decide the claim. See 38 C.F.R. § 3.159(c)(4) (2007). Accordingly, the AMC/RO should arrange for the veteran to undergo a VA examination at an appropriate VA medical facility to determine the severity of his service-connected hemorrhoids. Accordingly, in view of the foregoing discussion, the case is REMANDED for the following actions: 1. The AMC/RO is to provide the veteran VCAA notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), that includes an explanation as to the information or evidence needed to substantiate his increased rating claim on appeal, as outlined by the Court in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006) and Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). Concerning Vazquez-Flores, the AMC/RO should provide notice informing the claimant that he may submit evidence showing the effects of the worsening or increase in severity upon the claimant's daily life and employment. The AMC/RO should also provide notice of the specific criteria necessary for entitlement to a compensable disability rating for external or internal hemorrhoids under 38 C.F.R. § 4.114, Diagnostic Code 7336 (2007). 2. The AMC/RO should contact the veteran and obtain the names, addresses and approximate dates of treatment for all medical care providers, VA and non-VA, that treated the veteran for his service- connected hemorrhoids since October 2002. After the veteran has signed the appropriate releases, those records not already associated with the claims folder, should be obtained and associated with the claims folder. All attempts to procure records should be documented in the file. If the AMC/RO cannot obtain records identified by the veteran, a notation to that effect should be inserted in the file. The veteran and his representative are to be notified of unsuccessful efforts in this regard, in order to allow the veteran the opportunity to obtain and submit those records for VA review. 3. Once the foregoing development has been accomplished to the extent possible, the AMC/RO should schedule the veteran for a VA medical examination to assess the severity of his service-connected hemorrhoids. All indicated tests and studies are to be performed. Prior to the examination, the claims folder must be made available to the physician for review of the case. A notation to the effect that this record review took place should be included in the report of the examiner. The examiner is requested to indicate whether the hemorrhoids cause persistent bleeding with secondary anemia, or with fissures; or whether they are large or thrombotic, irreducible, with excessive redundant tissue, evidencing frequent recurrences; or whether the hemorrhoids are mild or moderate in nature. The examiner should also state whether there is any objective evidence of sphincter control problems. Adequate reasons and bases are to be provided in support of any opinion rendered. 4. The veteran must be given adequate notice of the date and place of any requested examination. A copy of all notifications, including the address where the notice was sent must be associated with the claims folder. The veteran is to be advised that failure to report for a scheduled VA examination without good cause shown may have adverse effects on his claim. 5. After completion of the above and any additional development deemed necessary, the issue on appeal should be reviewed with consideration of all applicable laws and regulations. If the benefit sought on appeal remains denied, the veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). _________________________________________________ RENÉE M. PELLETIER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2007).