Citation Nr: 0812434 Decision Date: 04/15/08 Archive Date: 05/01/08 DOCKET NO. 05-31 977 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial evaluation in excess of 10 percent disabling for maxillary sinusitis with allergic rhinitis. 2. Entitlement to a initial compensable evaluation for hemorrhoids. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Robert J. Burriesci, Associate Counsel INTRODUCTION The veteran served on active duty from August 1978 to July 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2004 rating decision of the Department of Veterans Affairs (VA) Regional Offices (RO) in St. Petersburg, Florida. The Board notes that the appellant requested a hearing before a decision review officer (DRO) in connection with the current claims. The DRO hearing was scheduled and subsequently held in December 2005 at the St. Petersburg, Florida RO. The appellant testified at that time and the hearing transcript is of record. The Board notes that the veteran's September 2005 VA Form 9, in addition to the above indicated issues, includes the appealed issues of entitlement to service connection for bilateral pes planus and entitlement to service connection for a stomach condition. As a March 2006 rating decision granted the veteran's claims of entitlement to service connection for bilateral pes planus and entitlement to service condition for gastroesophageal reflux disease, claimed as a stomach condition, representing a complete grant of the benefits sought, these issues are no longer in appellate status. The issue of entitlement to an initial evaluation in excess of 10 percent for maxillary sinusitis with allergic rhinitis is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The veteran's hemorrhoids are not manifested by being large or thrombotic, irreducible, with excessive redundant tissue evidencing frequent recurrences and do not manifest persistent bleeding with secondary anemia or fissures. CONCLUSION OF LAW The criteria for a compensable evaluation for hemorrhoids have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 4.1, 4.114, Diagnostic Code 7336 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION I. Initial Compensable Evaluation for Hemorrhoids The veteran seeks a initial compensable evaluation for hemorrhoids. Disability evaluations are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4. The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. 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. Consideration of the whole- recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Generally, the Board has been directed to consider only those factors contained wholly in the rating criteria. See Massey v. Brown, 7 Vet. App. 204, 208 (1994); but see Mauerhan v. Principi, 16 Vet. App. 436 (2002) (finding it appropriate to consider factors outside the specific rating criteria in determining level of occupational and social impairment). Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the veteran. 38 C.F.R. § 4.3. In deciding the veteran's claims, the Board has considered the Court's determination in Fenderson v. West, 12 Vet. App. 119 (1999) and whether he is entitled to an increased evaluation for separate periods based on the facts found during the appeal period. In Fenderson, the Court held that evidence to be considered in the appeal of an initial assignment of a rating disability was not limited to that reflecting the then current severity of the disorder. The Court also discussed the concept of "staging" ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. See id. at 126. The veteran was granted service connection for hemorrhoids in a rating decision dated in August 2004. The RO evaluated the veteran's hemorrhoids as noncompensably disabling under Diagnostic Code (DC) 7336, external or internal hemorrhoids, effective August 1, 2004. 38 C.F.R. § 4.114. Under DC 7336, internal or external hemorrhoids warrant a noncompensable rating if symptoms are mild or moderate. A 10 percent rating is warranted if hemorrhoids are large or thrombotic, irreducible, with excessive redundant tissue, evidencing frequent recurrences. A 20 percent rating is warranted if there is persistent bleeding with secondary anemia or fissures. 38 C.F.R. § 4.114, DC 7336. The Board has considered the full history of the veteran's service-connected hemorrhoids. The evidence of record does not show entitlement to a compensable evaluation under DC 7336. In July 2004, in conjunction with his claims filed prior to separation from service by way of the Benefits Delivery at Discharge Program (BDD), the veteran was afforded an examination by VA. The veteran reported that he had flare ups of his hemorrhoids every week with occasional bleeding. The examiner noted that no hemorrhoids were visualized upon examination. The veteran was diagnosed with hemorrhoids with residual. July and December 2004 treatment records from MacDill, Air Force Base, report in a problem list that the veteran has anal fissure, anal or rectal pain, external hemorrhoids without mention of complication, and unspecified hemorrhoids without mention of complication. At a hearing before a Decision Review Officer in December 2005, the veteran stated that he has flare ups of his hemorrhoids weekly and that he controls the flare ups with prescription cream. The veteran reported that his hemorrhoids bleed and swell. He stated that after application of the prescription cream his hemorrhoids will eventually shrink and resolve. In February 2006, the veteran was afforded a VA Compensation and Pension rectum and anus examination in conjunction with his claim. The veteran reported that he has flare ups at least weekly which are accompanied by pain and bleeding. He stated that prescription hemorrhoid cream helps but that he has to "be still." The veteran indicated that it takes two to three days for his flare ups to resolve. He reported that his hemorrhoids have been getting progressively worse since their onset. The examiner noted internal hemorrhoids on examination. The hemorrhoids were reducible and without prolapse. The size of the internal hemorrhoids was small. No thrombosis, bleeding, or fissures were noted by the examiner. The examiner reported there was no anal or rectal stricture, no anorectal fistula, and no rectal prolapse. The examiner stated that there was no impairment of the sphincter. The examiner diagnosed the veteran with hemorrhoids and noted that they had significant effects on the veteran's usual occupation as he had trouble sitting for long periods of time. The examiner opined that the veteran's hemorrhoids had only a mild effect on the veteran's ability to do chores, shopping, exercise, sports, recreation, and traveling. As discussed above, there is no medical evidence that the appellant has had large, thrombotic, or irreducible hemorrhoids manifested by excessive redundant tissue evidencing frequent recurrences at any time. There is no clinical evidence of any persistent bleeding or anemia. There is no clinical evidence of the existence of any fissures. In the absence of evidence to support a finding of symptomatology equivalent to that associated with a compensable rating, the Board concludes that disability or symptoms due to the hemorrhoids are no more than moderate, and thus are noncompensable. For these reasons, the veteran's claim must be denied because the preponderance of the evidence is against a compensable rating for any period of time covered by the veteran's claim. See 38 C.F.R. § 4.3. The Board finds that this matter need not be remanded to have the RO refer the veteran's claim to the Under Secretary for Benefits or to the Director of the Compensation and Pension Service, pursuant to 38 C.F.R. § 3.321(b), for assignment of an extra-schedular rating. The Board notes the above determination is based on application of pertinent provisions of the VA's Schedule for Rating Disabilities, and there is no showing that the veteran's hemorrhoids reflect so exceptional or so unusual a disability picture as to warrant the assignment of a compensable evaluation on an extra-schedular basis, and indeed, neither the veteran nor his representative have identified any exceptional or unusual disability factors. See 38 C.F.R. § 3.321. In this regard, the Board observes that there is no showing the disability results in marked interference with employment. Moreover, his hemorrhoids have not required any, let alone, frequent periods of hospitalization, or otherwise rendered impractical the application of the regular schedular standards. In the absence of evidence of these factors, the criteria for submission for assignment of an extra-schedular rating are not met. Thus, a remand this claim to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1) is not necessary. See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). II. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Pursuant to the VCAA, upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, the Secretary is required to inform the appellant of the information and evidence not of record that (1) is necessary to substantiate the claim, (2) the Secretary will seek to obtain, if any, (3) the appellant is expected to provide, if any, and to request that the claimant provide any evidence in his possession that pertains to the claim, 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). See 38 U.S.C.A. § 5103(a), Pelegrini v. Principi, 18 Vet. App. 112, 119, 121 (2004); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002), 38 C.F.R. § 3.159(b) (2006). Here, the VCAA duty to notify was satisfied by way of a letter sent to the appellant in June 2004 that fully addressed all four notice elements and was sent prior to the initial AOJ decision in this matter. The letter informed the appellant of what evidence was required to substantiate the claim and of the appellant's and VA's respective duties for obtaining evidence. The appellant was also asked to submit evidence and/or information in her or his possession to the AOJ. In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims 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 veteran is challenging the initial evaluation and effective date assigned following the grant of service connection. In Dingess, the Court of Appeals for Veterans Claims held that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Id. at 490-91. Thus, because the notice that was provided before service connection was granted was legally sufficient, VA's duty to notify in this case has been satisfied. 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 appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained VA outpatient treatment records dated August 2004 to December 2006. The veteran was provided an opportunity to set forth his contentions during the hearing before a Decision Review Officer in December 2005. The appellant was afforded VA medical examinations in July 2004 and February 2006. 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 appellant 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 a initial compensable evaluation for hemorrhoids, is denied. REMAND The veteran seeks entitlement to an initial evaluation in excess of 10 percent disabling for maxillary sinusitis with allergic rhinitis. VA is required to make reasonable efforts to help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody. See 38 U.S.C.A. § 5103A(b)(1) (West 2002); 38 C.F.R. § 3.159(c)(1) (2007). In Bell v. Derwinski, 2 Vet. App. 611 (1992), the United States Court of Appeals for Veterans Claims held that VA has constructive notice of VA generated documents that could reasonably be expected to be part of the record, and that such documents are thus constructively part of the record before the Secretary and the Board, even where they are not actually before the adjudicating body. In the current case, the veteran has been receiving consistent and frequent treatment from VA in Tampa, Florida. The veteran submitted a VA treatment record dated in July 2006 directly to the Board which indicated that sinus surgery was planned. Accordingly, the Board has no discretion and must remand to obtain the VA treatment records pertaining to the veteran's treatment at the VA Medical Center in Tampa, Florida dated from December 28, 2005. As stated above, the veteran was last afforded a VA examination in February 2006. The VA's duty to assist includes the conduct of a thorough and comprehensive medical examination. Robinette v. Brown, 8 Vet. App. 69, 76 (1995). When available evidence is too old for an adequate evaluation of the veteran's current condition, VA's duty to assist includes providing a new examination. Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993); see also Robinette v. Brown, 8 Vet. App. 69, 76 (1995); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (a veteran is entitled to a new examination after a two-year period between the last VA examination and the veteran's contention that the pertinent disability had increased in severity). In addition to the veteran's last VA examination being unduly remote, the veteran's medical records reveal that he was expected to have surgery on his maxillary sinuses since the February 2006 examination, indicating that his condition has changed. Because there may have been a significant change in the veteran's condition, the claim must also be remanded for a new VA examination. Accordingly, the case is REMANDED for the following action: 1. Attempt to obtain VA medical treatment records pertaining to the veteran from the VA Medical Center in Tampa, Florida, since December 28, 2005, and associate them with the claims file. Any additional pertinent records identified by the veteran during the course of the remand should also be obtained, following the receipt of any necessary authorizations from the veteran, and associated with the claims file. 2. After completion of the above development, the veteran should be afforded a VA Compensation and Pension examination to determine the current status of his service-connected maxillary sinusitis with allergic rhinitis. The claims folder and a copy of this remand must be provided to the examiner and reviewed as part of the examination. The examiner must indicate in the examination report that such a review occurred. The examiner must indicate whether or not the veteran's service-connected maxillary sinusitis with allergic rhinitis manifests in: incapacitating episodes of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment and, if so, how many episodes per year since he was discharged from service; non-incapacitating episodes of sinusitis characterized by headaches, pain and purulent discharge or crusting and, if so, how many per year since he was discharged from service; the necessity of radical surgery with chronic osteomyelitis; or; near constant sinusitis characterized by headaches, pain and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries. All indicated studies, tests and evaluations deemed necessary by the examiner should be performed. The rationale for all opinions expressed should be provided in a report. 3. Thereafter, readjudicate the veteran's claim. If the benefit sought on appeal is not granted in full, the RO should issue the veteran and his representative a supplemental statement of the case and provide an opportunity to respond. 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. 2006). ______________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs