Citation Nr: 0811748 Decision Date: 04/09/08 Archive Date: 04/23/08 DOCKET NO. 03-32 048 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an initial compensable rating for service- connected hemorrhoids prior to October 7, 2004 and in excess of 10 percent from October 7, 2004, forward. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J.G. Reinhart, Associate Counsel INTRODUCTION The veteran served on active duty from February 1962 to February 1965. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, that granted service connection for hemorrhoids and assigned a noncompensable rating. By rating decision dated in February 2007, the RO changed the initial rating to a noncompensable rating for the period prior to November 17, 2006 and a 10 percent for the period from November 17, 2006, forward. In June 2006, the veteran and H.S. testified at a personal hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. In October 2006, the Board remanded this matter to the RO via the Appeals Management Center (AMC) in Washington DC. to afford the veteran a VA examination. That action completed, the matter was properly returned to the Board for appellate consideration. In June 2007, the Board issued a decision, in which the Board granted an effective date of October 7, 2004 for the 10 percent rating, and otherwise upheld the RO's decision. The veteran appealed that Board decision to the United States Court of Appeals for Veterans Claims (Court). In an ORDER dated in October 2007, the Court granted a joint motion of the veteran and VA's General Counsel to vacate and remand for adjudication by the Board that portion of the Board's decision that determined that a compensable rating was not warranted for the period prior to October 7, 2004 and that a rating higher than 10 percent was not warranted from October 7, 2004, forward. FINDINGS OF FACT 1. Prior to October 7, 2004, the veteran's hemorrhoids were no more than moderate, resulted in pain, but were not large, thrombotic, irreducible with excessive tissue, or of frequent recurrence. 2. From October 7, 2004, forward, the veteran's hemorrhoids have not resulted in persistent bleeding, secondary anemia, or fissures. 3. Prior to October 7, 2004, the veteran's hemorrhoids did not result in any impairment of sphincter control. 4. In October 2004, the veteran underwent surgical treatment for his hemorrhoids. 5. From October 7, 2004, forward, disability resulting from surgical treatment for the veteran's hemorrhoids has included impairment of sphincter control manifested by occasional moderate leakage but not requiring the wearing of a pad. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for the veteran's hemorrhoids have not been met for the period prior to October 7, 2004. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.114, Diagnostic Code 7336 (2007). 2. The criteria for rating in excess of 10 percent for the veteran's hemorrhoids have not been met for the period from October 7, 2004, forward. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.114, Diagnostic Code 7336 (2007). 3. The criteria for a separate 10 percent rating for impairment of sphincter control due to surgical treatment of the veteran's hemorrhoids have been met for the period from October 7, 2004, forward, but no earlier. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.114, Diagnostic Code 7332 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran contends that his service connected hemorrhoids warrant a higher disability evaluation due to symptoms present since prior to October 7, 2004 and due to fecal incontinence suffered since undergoing a hemorrhoidectomy on October 7, 2004. Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the veteran, as well as the entire history of the veteran's disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). Service connection for hemorrhoids was established by the rating decision that is the subject of this appeal. As the veteran has perfected an appeal as to the assignment of an initial rating following the initial award of service connection, the Board must evaluate all the evidence of record reflecting the severity of the veteran's disability from the date of grant of service connection to the present. Fenderson v. West, 12 Vet. App. 119, 126 (1999). This could result in staged ratings; i.e. separate ratings for different time periods. Id. The rating schedule provides for a noncompensable (0 percent) rating for mild or moderate internal or external hemorrhoids. 38 C.F.R. § 4.114, Diagnostic Code 7336. Large or thrombotic hemorrhoids, irreducible, with excessive redundant tissue, evidencing frequent recurrences, are rated 10 percent disabling. Id. Hemorrhoids with persistent bleeding and with secondary anemia, or with fissures, are rated 20 percent disabling. Id. Diagnostic Code 7332 provides ratings based on impairment of sphincter control, with regard to the rectum and anus. Healed or slight impairment of sphincter control, without leakage, is rated as noncompensable. 38 C.F.R. § 4.114, Diagnostic Code 7332. Constant slight impairment of sphincter control, or occasional moderate leakage, is rated 10 percent disabling. Id. Occasional involuntary bowel movements, necessitating wearing of pad, are rated 30 percent disabling. Id. Extensive leakage and fairly frequent involuntary bowel movements are rated 60 percent disabling. Id. Complete loss of sphincter control is rated 100 percent disabling. Id. VA clinical notes contain references to the veteran's hemorrhoids from prior to 1992 and from December 2002, forward. The notes prior to 1992 provide no evidence relevant to rating the veteran's disability due to his hemorrhoids. The December 2002 VA outpatient treatment note refers mainly to lower back pain but also states, under a history and physical section, "ALSO [complains] HEMORRHEADS BURNING LATELY, NEG BLEEDING OR DARK STOOLS". Subsequent VA outpatient records noted the veteran's history of hemorrhoids without comment as to increased symptoms until August 2004, when it is noted that the veteran had recently undergone a colonoscopy which revealed a few small benign polyps, which were removed, and that he had failed medical management and continued to have symptoms of bleeding and burning with standing or sitting for long periods. Rectal physical examination results listed "anus with hemorrhoidal tag right posterior, no evidence of thrombosis, no evidence of fistula or fissure, no masses." VA treatment records reflect that the veteran underwent a hemorrhoidectomy on October 7, 2004. The findings intraoperatively were fairly large, mixed internal and external hemorrhoids, several groups moderately enlarged - three groups removed. That report also contains the veteran's history that he had suffered from hemorrhoids for many years with an increase in pain and bleeding. This evidence shows that the veteran's hemorrhoids are properly evaluated as noncompensable prior to his hemorrhoidectomy in October 2004. As of August 2004, the record contained the above affirmative medical evidence that the veteran's hemorrhoids were not thrombotic. There was no evidence prior to October 2004 that his hemorrhoids were large, irreducible, or had excessive redundant tissue. Nor is there any evidence prior to October 2004 that the veteran had other than slight, or at most, moderate, hemorrhoids. Prior to his October 2004, disability resulting from his hemorrhoids did not approximate the criteria for a 10 percent rating under Diagnostic Code 7336. The regulatory language, "mild or moderate hemorrhoids" contemplates some range of disability resulting from hemorrhoids that, while warranting service connection, does not warrant a compensable rating. The Board finds that this regulatory language encompasses the veteran's report of burning in December 2002, rectal pain in April 2003, and symptoms of bleeding and burning on prolonged standing or sitting, in August 2004, as well as the admitting diagnosis of hemorrhoids with occasional bleeding, found in the October 2004 VA discharge summary. Hence, the preponderance of evidence is against assigning a compensable evaluation for the veteran's hemorrhoids for the period prior to October 7, 2004 and that portion of his claim must be denied. The Board finds that the post-service medical record, and even some of the veteran's statements to medical providers during this time period, provide evidence against the veteran's current contentions. As there are no reports of fecal incontinence prior to October 7, 2004, Diagnostic Code 7332 is not for application prior to October 7, 2004. Subsequent to the October 7, 2004 hemorrhoidectomy, the only other evidence addressing his hemorrhoids, prior to November 2006, are reports of pain and bleeding post-operatively. These reports contain no evidence for increasing the veteran's rating or assigning a separate rating. During the June 2006 hearing, the veteran testified that the primary problem he currently experienced due to his hemorrhoids was fecal incontinence. Hearing transcript at 3. He reported that when he awakes in the morning and has to have a bowel movement, if he is not near the bathroom he risks involuntarily defecation. Id. He further reported that he did not have pain from the hemorrhoids, such as that he experienced prior to the hemorrhoidectomy but that he did defecate on himself, as he described it "[n]ot near frequently but sometimes." Id. at 3-4. During VA examination in November 2006, the veteran reported that multiple episodes of hemorrhoidal bleeding had led him to seek surgical treatment one and one half years earlier. He reported that after his hemorrhoidectomy his symptoms improved, however, approximately one month prior to the date of the VA examination, he began to experience rectal itching and burning. He has not had rectal bleeding since the hemorrhoidectomy. He also reported experiencing approximately 10 episodes of fecal incontinence subsequent to the hemorrhoidectomy. The veteran stated that he has not worn any absorbent materials for the fecal incontinence; rather, he stays home and changes his clothes during periods of loose stools. Examination revealed three external nonreducible hemorrhoids which were not thrombotic. There was excessive redundant tissue around the hemorrhoids but no bleeding was observed. Sphincter tone was normal, no masses were palpated, and there were no fissures. Diagnoses were provided of external hemorrhoids and fecal incontinence, at least as likely as not due to the veteran's hemorrhoidectomy. This evidence shows that the veteran does have irreducible hemorrhoids, and therefore a 10 percent rating is appropriate under Diagnostic Code 7336. However, there is no evidence of persistent bleeding, no evidence of secondary anemia, and the November 2006 examination found no fissures. This is evidence against a rating higher than 10 percent under Diagnostic Code 7336 from October 7, 2004, forward. The Board finds that the post-service medical record, as a whole, provides evidence against this claim, clearly indicating that the next higher criteria are met in this case. As there is no evidence to the contrary, his claim for a higher rating under these criteria, must be denied. Testimony provided by the veteran in June 2006, and the report of 10 instances of fecal incontinence from the November 2006 examination report, is evidence that the veteran suffers from only slight impairment of sphincter control. There is no evidence that he suffers this impairment constantly. Indeed, he testified to the effect that his loss of sphincter control does not occur frequently, but occurs only occasionally. However, he has stated that, at times, he is unable to control defecation, and the November 2006 examiner opined that this is due to his hemorrhoidectomy. The veteran's report of occasional self defecation, construed as occasional moderate leakage, is consistent with the criteria for a 10 percent evaluation under Diagnostic Code 7332. The veteran indicated that he did not wear a pad; this is strong evidence against assigning a 30 percent rating under the criteria found in Diagnostic Code 7332. Based on this evidence, a 10 percent rating, but not higher, for sphincter incontinence due to his hemorrhoidectomy is warranted. Because disability resulting from the veteran's hemorrhoids is currently rated as 10 percent disabling under Diagnostic Code 7336, the only question remaining is whether a separate rating is warranted for sphincter impairment. 38 C.F.R. § 4.14 states that evaluation of the same manifestations of a disability under different diagnoses, a process called "pyramiding", is to be avoided. However, the Court has held that held that in cases where the record reflects that the appellant has multiple problems due to service-connected disability, it is possible for a appellant to have "separate and distinct manifestations", permitting separate ratings. Esteban v. Brown, 6 Vet. App. 259, 261 (1994). The critical element is that none of the symptomatology for any of the conditions is duplicative or overlapping with the symptomatology of the other conditions. Id. Here, the veteran's hemorrhoids result in two manifestations that are not overlapping or duplicative. One manifestation is irreducible hemorrhoids with excessive redundant tissue. The November 2006 examiner stated that impairment of the veteran's sphincter control was a result of the hemorrhoidectomy. This is evidence that the impairment of sphincter control is a separate non-duplicative and non- overlapping manifestation of the veteran's hemorrhoids. Hence, the Board finds that a separate 10 percent evaluation for impairment of sphincter control is not prohibited by 38 C.F.R. § 4.14, and is warranted in this case. Also considered by the Board is whether referral for extraschedular consideration is warranted. The disability picture is not so exceptional or unusual so as to warrant a referral for an evaluation on an extraschedular basis. See 38 C.F.R. § 3.321(b)(1). It has not been shown that the service- connected hemorrhoids have resulted in frequent hospitalizations or caused marked interference in employment. In the absence of such factors, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995). In sum, the preponderance of the evidence is against a compensable evaluation, under Diagnostic Code 7336, or a separate evaluation for sphincter impairment, under Diagnostic Code 7332, due to disability resulting from the veteran's hemorrhoids prior to October 7, 2004; and against an evaluation higher than 10 percent under the criteria found in these diagnostic codes, or any other diagnostic code, for the period from October 7, 2004, forward. To that extent, the veteran's claim must be denied. The evidence shows that a separate 10 percent evaluation, but no higher, for impairment of sphincter control, is warranted for the period from October 7, 2004, forward. To that extent, the veteran's claim is granted. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2007). Duties to notify and assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the Court held that, upon receipt of an application for a service- connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Here, the duty to notify was not satisfied prior to the initial decision on the claim by the RO. Under such circumstances, VA's duty to notify may not be "satisfied by various post-decisional communications from which a claimant might have been able to infer what evidence the VA found lacking in the claimant's presentation." Rather, such notice errors may instead be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (where notice was not provided prior to the RO's initial adjudication, this timing problem can be cured by the Board remanding for the issuance of a VCAA notice followed by readjudication of the claim by the RO) see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as a statement of the case or supplemental statement of the case, is sufficient to cure a timing defect). In this case, the VCAA duty to notify was satisfied subsequent to the initial RO decision by way of a letters sent to the veteran in December 2003, March 2006, and November 2006 that fully addressed all four notice elements. The December 2003 letter informed the veteran of what evidence was required to substantiate a service connection claim. The March 2006 and November 2006 letters informed the veteran as to how VA assigns disability ratings and effective dates. These letters each informed the veteran of the veteran's and VA's respective duties for obtaining evidence and asked the veteran to submit evidence and/or information, which would include that in his possession, to the RO. Although the notice letters were not sent before the initial RO decision in this matter, the Board finds that this error was not prejudicial to the veteran because the actions taken by VA after providing the notice have essentially cured the error in the timing of notice. Not only has the veteran been afforded a meaningful opportunity to participate effectively in the processing of his claim and given ample time to respond, but the RO also readjudicated the case by way of a supplemental statement of the case issued in February 2007, after the notice was provided. For these reasons, it is not prejudicial to the veteran for the Board to proceed to finally decide this appeal as the timing error did not affect the essential fairness of the adjudication. The Board is aware of the Court's recent clarification of VCAA notice required for increased rating claims. See Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). However, although the issue before the Board is whether the veteran's disability resulting from hemorrhoids is properly rated, the appeal arises from a claim for entitlement to service connection, not an increased rating claim. See Fenderson v. West, 12 Vet. App. 119, 125 (1999) (explaining that a disagreement with an initial rating assigned for a disability following a claim for service connection is part of the original claim and technically not a claim for an increased rating). VCAA notice is triggered by receipt of the claim, or application, for benefits. 38 U.S.C.A. § 5103(a). In Wilson v. Mansfield, 506 F.3d 1055 (Fed. Cir. 2007), the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) stated section 5103(a) requires only that the VA give a claimant notice at the outset of the claims process of the information and evidence necessary to substantiate the claim, before the initial RO decision and in sufficient time to enable the claimant to submit relevant evidence. This notice may be generic in the sense that it need not identify evidence specific to the individual claimant's case (though it necessarily must be tailored to the specific nature of the veteran's claim). From this statement, it follows that the notice requirements triggered by VA's receipt of a claim to establish service connection, such as in the instant case, differs in content from notice in response to a claim seeking a higher evaluation for a disability for which service connection has already been established. In Wilson, the Federal Circuit specifically rejected the argument that section 5103(a) notice requirements were altered by the filing of a notice of disagreement. Id. at 1058-1059. In the instant case, VCAA notice requirements were satisfied because the RO provided the veteran with the notice applicable to a claim to establish service connection. In Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007), the United States Court of Appeals for the Federal Circuit held that any error by VA in providing the notice required by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)(1) is presumed prejudicial, and that once an error is identified as to any of the four notice elements the burden shifts to VA to demonstrate that the error was not prejudicial to the appellant. The Federal Circuit stated that requiring an appellant to demonstrate prejudice as a result of any notice error is inconsistent with the purposes of both the VCAA and VA's uniquely pro-claimant benefits system. Instead, the Federal Circuit held in Sanders that all VCAA notice errors are presumed prejudicial and require reversal unless VA can show that the error did not affect the essential fairness of the adjudication. To do this, VA must show that the purpose of the notice was not frustrated, such as by demonstrating: (1) that any defect was cured by actual knowledge on the part of the claimant; (2) that a reasonable person could be expected to understand from the notice what was needed; or (3) that a benefit could not have been awarded as a matter of law. Although not specifically discussed by the court, some other possible circumstances that could demonstrate that VA error did not prejudice the claimant include where the claimant has stated that he or she has no further evidence to submit, or where the record reflects that VA has obtained all relevant evidence. In this case, the Board, based on a review of the appellant's statements in this case, finds that the claimant has demonstrated an understanding of the evidentiary requirements, rebutting any presumption of prejudice. As such, even if there were some type of problem with the notice provided by the RO, the Board finds that there have been no notice errors that have resulted in any prejudice to the appellant or affected the essential fairness of the adjudication. Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). VA has a duty to assist the veteran in the development of the claim. This duty includes assisting the veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained service medical records and VA treatment records. Also of record are treatment reports from prior to 1991 from Kaiser Permanente. The veteran was afforded a VA examination in November 2006 and he had an opportunity to set forth his contentions during the hearing before the undersigned Veterans Law Judge. Significantly, neither the appellant nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the veteran is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER Entitlement to an initial compensable rating for service- connected hemorrhoids prior to October 7, 2004 and in excess of 10 percent from October 7, 2004, forward, is denied. A separate 10 percent rating for impairment of sphincter control resulting from hemorrhoidectomy, for the period from October 7, 2004, forward, is granted. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs