Citation Nr: 1007138 Decision Date: 02/26/10 Archive Date: 03/05/10 DOCKET NO. 05-37 829 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an increased rating for hemorrhoids, currently evaluated as 10 percent disabling. 2. Whether the Veteran submitted a timely substantive appeal with respect to the April 2004 rating decision that denied service connection for a bilateral knee disorder. 3. Entitlement to service connection for a bilateral knee disorder. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD N. Snyder, Counsel INTRODUCTION The Veteran had active service from January 1989 to November 1996 with subsequent service in the Air Force Reserve. This matter came before the Board of Veterans' Appeals (Board) on appeal from decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The issue of entitlement to service connection for a bilateral knee disorder 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. FINDINGS OF FACT 1. The Veteran's hemorrhoids have not resulted in the development of anemia or fissures. 2. Correspondence from the Veteran, received by the RO in November 2004, constitutes a substantive appeal of the April 2004 rating decision which denied service connection for a bilateral knee disorder. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for hemorrhoids have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.114, Diagnostic Code 7336 (2009). 2. A timely substantive appeal was submitted with respect to the April 2004 rating decision; the appeal is perfected. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.102, 20.202, 20.302-306 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Notice and Assistance 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, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The notice should also address the rating criteria or effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). For an increased-compensation claim, section 5103(a) requires, at a minimum, that the Secretary (1) 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; (2) provide examples of the types of medical and lay evidence that may be obtained or requested; (3) and further notify the claimant that "should an increase in disability be found, a disability rating will be determined by applying relevant [DC's]," and that the range of disability applied may be between 0% and 100% "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." Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated on other grounds sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (2009). With respect to the claim for an increased rating for hemorrhoids, complete notice was sent in July 2004 and May 2008, and the claim was readjudicated in July 2008 and June 2009 supplemental statements of the case. Mayfield, 444 F.3d at 1333. Furthermore, VA has obtained service treatment records and Reserve medical records, assisted the appellant in obtaining evidence, scheduled the appellant for physical examinations, and afforded the appellant the opportunity to give testimony before the Board. All known and available records relevant to the issues on appeal have been obtained and associated with the appellant's claims file; and the appellant has not contended otherwise. The Board notes that the only examination of record is more than five years old. The age of this examination is not due to any failure on the part of VA, however. Review of the record indicates that the VA scheduled the Veteran for another examination in 2008, but the Veteran failed to report, and he has not provided any good cause for why he failed to report. It is therefore the Board's conclusion that VA has substantially complied with the notice and assistance requirements and the appellant is not prejudiced by a decision on the claim at this time. With respect to the issue of whether the Veteran submitted a timely appeal, the decision below grants the appeal. As such, there is no further need to discuss compliance with the duties to notify and assist. Increased Rating Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Where there is a reasonable doubt as to the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 3.102. 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. 38 C.F.R. § 4.14. While the veteran's entire history is reviewed when assigning a disability evaluation, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). In determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. The Veteran's hemorrhoids are currently rated at 10 percent under Diagnostic Code (DC) 7336. DC 7336 provides a 20 percent rating for hemorrhoids with persistent bleeding and secondary anemia or with fissures. The evidence of record includes the results of a VA examination in October 2004. The October 2004 VA examination record reflects the Veteran's history of rectal bleeding approximately five times each month and itching and burning four to five times each month lasting approximately two to three days each episode. The Veteran reported that he used Tucks, warm sitz baths, and hemorrhoidal suppositories for relief. He also reported having fair sphincter control, though he did have leakage without use of a pad. Examination revealed a normal rectum and anus, no signs of anemia, and no fistula. There was evidence of fecal leakage. There was also a five centimeter hemorrhoid at 12 o'clock, extending up to one o'clock. The hemorrhoid was tender to palpation and slightly thrombosed. There was no evidence of bleeding. A complete blood count was normal. The Veteran was diagnosed with hemorrhoids, status-post hemorrhoidectomy. The evidence also includes VA treatment records and Reserve medical records. These records do not reflect any complaints or finding related to hemorrhoids, however, nor do they suggest that the Veteran had anemia or fissures. See generally VA treatment records; Reserve medical records. After review of the record, the Board finds that a higher rating is not warranted for the Veteran's hemorrhoids at any time during the appellate period. Although the evidence reflects the Veteran's competent history of persistent bleeding, the evidence does not suggest the existence of either fissures or anemia, as required for a 20 percent rating. Thus, a higher rating is not warranted under DC 7337. The Board has also considered whether a higher or separate rating is merited. The Board finds that no other diagnostic criteria is applicable in this case, however, as the evidence does not indicate that the Veteran's hemorrhoids has resulted in any symptoms which are not considered in the present evaluation. Thus, the Board finds that the Veteran's claim for a higher rating must be denied. Timeliness of Appeal An appeal consists of a timely filed notice of disagreement (NOD) in writing and after a statement of the case (SOC) has been furnished, a timely filed Substantive Appeal. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.200. The substantive appeal must be filed within 60 days after mailing of the SOC, or within the remainder of the one year period from the mailing of notification of the determination being appealed. 38 C.F.R. § 20.302. Extensions of time for filing a Substantive Appeal may be granted for good cause. 38 C.F.R. § 20.303. A Substantive Appeal consists of a properly completed VA Form 9 (Appeal to Board of Veterans' Appeals) or another correspondence containing the necessary information. If the SOC or any prior Supplemental Statement of the Case (SSOC) addressed several issues, the Substantive Appeal must either indicate that the appeal is being perfected as to all of those issues or must specifically identify the issues appealed. The Substantive Appeal should set out specific arguments relating to errors of fact or law made by the agency of original jurisdiction in reaching the determination, or determinations, being appealed. To the extent feasible, the argument should be related to specific items in the SOC and any prior SSOC. The Board will construe such arguments in a liberal manner for purposes of determining whether they raise issues on appeal, but the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination, or determinations, being appealed. The Board will not presume that an appellant agrees with any statement of fact contained in an SOC or an SSOC which is not specifically contested. Proper completion and filing of a Substantive Appeal are the last actions the appellant needs to take to perfect an appeal. 38 C.F.R. § 20.202. In the instant case, notification of the rating decision that denied service connection for a bilateral knee condition was mailed to the Veteran's address of record on May 13, 2004. The Veteran filed a timely (received in August 2004) NOD. An SOC addressing the matter was mailed to his address on October 18, 2004. The cover letter to the SOC notified the Veteran that to perfect his appeal in these matters he had to file a Substantive Appeal; notified him of what the Substantive Appeal must contain; advised him of the time limits (60 days from mailing of the letter or 1 year from mailing of the notice of the determination appealed) for filing the Substantive Appeal; and informed him of the requirements for requesting an extension of time to file his Substantive Appeal. 38 C.F.R. § 19.30. On November 15, 2004, the RO received a statement from the Veteran in "reference [to his] pending service connected disability claim." The Veteran indicated that he did not have any additional evidence to add to his claim and requested that VA "continue processing my claim and set up any hearings necessary." The Veteran then submitted another letter in July 2005 (received on July 21, 2005), in which he again requested that VA "continue working on his pending appeal". In the letter, the Veteran reported that the last action on the matter had been his election of the DRO process in October 2004. In August 2005, the RO issued the Veteran a letter in which it informed him that a Statement of the Case had been issued on October 18, 2004, and that, because no Form 9 was received within the requisite period, no further action had been (or could be) taken on his claim. The Veteran subsequently appealed this determination to the Board. Review of the evidence documents that the Veteran did not file a Form 9 with respect to the April 2004 rating decision. The dispositive issue on appeal, therefore, is whether the Veteran submitted other correspondence prior to April 2005 which could be interpreted as a timely substantive appeal. As noted above, the RO received a statement from the Veteran in November 2004, within the requisite period. Upon a liberal construction and sympathetic reading of this statement, the Board finds that the November 2004 letter can be reasonably construed as evidencing disagreement with the RO's April 2004 determination and seeking appellate review of that decision. Accordingly, the Board finds that the November 2004 letter submitted by the appellant constitutes a timely substantive appeal with regard to the RO's April 2004 denial of the claim for service connection for a bilateral knee disorder. ORDER A rating higher than 10 percent for hemorrhoids is denied. The substantive appeal concerning the denial of service connection for a bilateral knee disorder received on November 15, 2004, was timely filed. To this extent, the benefit sought on appeal is granted. REMAND Because the Board has concluded that the substantive appeal received on November 15, 2004 was timely filed concerning the denial of service connection for a bilateral knee disorder, the agency of original jurisdiction should continue the Veteran's appeal as to this issue, and take whatever further development and notice action that may be necessary. 1. Take action to continue the appeal concerning the denial of service connection for a bilateral knee disorder on the basis of the timely filed substantive appeal on November 15, 2004. 2. I f service connection for a bilateral knee disorder remains denied, the appellant and representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. The appellant has the right to submit additional evidence and argument on the matter 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. 2009). ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs