Citation Nr: 1018731 Decision Date: 05/20/10 Archive Date: 06/04/10 DOCKET NO. 07-22 972 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUE Entitlement to an extraschedular rating in excess of 10 percent for service-connected hemorrhoids. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and his fiancée ATTORNEY FOR THE BOARD Timothy D. Rudy, Counsel INTRODUCTION The Veteran served on active duty from October 1984 to February 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, which granted the Veteran's claim for service connection for hemorrhoids and awarded an initial noncompensable disability rating. In his Notice of Disagreement, the Veteran requested a higher initial disability rating. In May 2009, the Veteran and his fiancée testified during a Board hearing in Washington, D.C., before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In July 2009, the Board referred the issue of entitlement to service connection for a psychiatric condition, claimed as depression or anxiety, secondary to service-connected hemorrhoids to the RO for adjudication, increased the Veteran's initial disability rating for hemorrhoids from zero percent to 10 percent, and remanded the issue of an extraschedular rating to the RO via the Appeals Management Center (AMC). In a November 2009 Supplemental Statement of the Case, the RO/AMC denied an extraschedular rating in excess of 10 percent for service-connected hemorrhoids, and returned this issue to the Board for appellate disposition. Later in November 2009, the Veteran submitted additional evidence, including signed statements from the Veteran, his fiancée, his sibling, and his employer. In a May 2010 statement, the Veteran's representative waived initial RO consideration of this new evidence. The Board accepts this additional evidence for inclusion in the record. See 38 C.F.R. § 20.800 (2009). FINDINGS OF FACT 1. Pursuant to a Board remand during this appeal and the provisions of 38 C.F.R. § 3.321(b)(1), the VA's Director of the Compensation and Pension Service denied an extraschedular rating for the Veteran's service-connected hemorrhoids. 2. The Veteran's disability picture from his service- connected hemorrhoids is not so unique as to fall outside of the norm; the Veteran is currently employed and there is no persuasive evidence of record to show that his hemorrhoids causes marked interference in employment or has necessitated frequent hospitalizations; the Veteran's hemorrhoids do not present an exceptional or unusual disability picture and the current ratings adequately compensate the degree of disability shown for the disorder. CONCLUSION OF LAW An extraschedular rating in excess of 10 percent for service- connected hemorrhoids is not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2009); 38 C.F.R. § 3.321(b)(1); Thun v. Peake, 22 Vet. App. 111 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSION VCAA 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 United States Court of Appeals for Veterans Claims (the Court), have been fulfilled by information provided to the Veteran in a letter from the RO dated in September 2005. This letter notified the Veteran of VA's responsibilities in obtaining information to assist the Veteran in completing his original service connection claim for hemorrhoids, and identified the Veteran's duties in obtaining information and evidence to substantiate his claim. (See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), Quartuccio v. Principi, 16 Vet. App. 183 (2002), Pelegrini v. Principi, 18 Vet. App. 112 (2004). See also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), reversed on other grounds, 444 F.3d 1328 (Fed. Cir. 2006), Dingess/Hartman v. Nicholson, 20 Vet. App. 473 (2006); Mayfield v. Nicholson (Mayfield II), 20 Vet. App. 537 (2006)). Thereafter, the Veteran was granted service connection for hemorrhoids and assigned an initial disability rating and effective date. As this claim was more than substantiated in that it was proven, the purpose that the notice was intended to serve has been fulfilled and no additional notice was required when the Veteran sought an increase in his initial disability rating. Dingess, 19 Vet. App. at 490-91. Further, any defect in the notice that was provided was not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The question of an extraschedular rating is a component of a claim for an increased rating. Barringer v. Peake, 22 Vet. App. 242, 243-44 (2008); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). Thus, in this case, as the VCAA did not require the Veteran to receive further notice about the "downstream" issue of an increased initial disability rating, and an extraschedular rating is a component of such an increased rating claim, the Board finds that the Veteran was not prejudiced by letters the RO/AMC sent in July 2009, August 2009 and September 2009 that may have failed to adequately notify him further about the issue of an extraschedular rating. The Board also finds that the Veteran had actual knowledge of the criteria needed to substantiate an extraschedular rating as shown by his May 2009 Board testimony about the effects of his disability on his daily life and his work and his subsequent provision of correspondence from his employer and from family members to the same effect. In view of the above, the Board finds that the notice requirements pertinent to the issue on appeal have been met. The duty to assist also has been fulfilled in this appeal as private medical records relevant to this matter have been requested and obtained, the Veteran was provided with the opportunity to participate in a Board hearing, and he has been provided with a VA examination and an extraschedular evaluation by the Director of the Compensation and Pension Service. The Board finds that the available medical evidence is sufficient for an adequate determination. There has been substantial compliance with all pertinent VA laws and regulations and to move forward with this claim would not cause any prejudice to the Veteran. Extraschedular consideration - Legal criteria Disability ratings are determined by applying criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. In this case the Veteran's service-connected disability is evaluated under Diagnostic Code 7336. The Rating Schedule provides that a noncompensable rating is warranted for internal or external hemorrhoids that are mild or moderate. A 10 percent rating is warranted for internal or external hemorrhoids that are large or thrombotic, irreducible, with excessive redundant tissue evidencing frequent recurrences. A 20 percent rating is warranted for hemorrhoids with persistent bleeding and with secondary anemia, or with fissures. Diagnostic Code 7336. 38 C.F.R. § 4.114, Diagnostic Code 7336 (2009). Under the approach prescribed by VA, the threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular ratings for that service- connected disability are inadequate. Thun v. Peake, 22 Vet. App. 111 (2008). If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the Rating Schedule, the assigned schedular rating is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular rating does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. § 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the Rating Schedule is inadequate to evaluate a claimant's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step--a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. In this case, the Veteran's case was referred to the Director of the Compensation and Pension Service for completion of the third step. Factual Background and Analysis The Veteran argues that he is entitled to extraschedular consideration because his bleeding hemorrhoids and fecal leakage affect his ability to sit for long periods and work as a truck driver. An August 2005 private treatment record showed that the Veteran reported symptoms including bright red blood per rectum. His hemorrhoids had recently become exacerbated and had not responded to local care. It was noted that the Veteran was a truck driver and that this activity seemed to exacerbate the hemorrhoids. The Veteran underwent a VA examination in January 2006. He reported some seepage or leakage with expelling flatus at times. He said that he had chronic pain, and reported bleeding with almost every bowel movement. Current treatment was with local measures, such as Preparation H, Cool Gel and Anusol suppositories, which were difficult to use due to pain. He used Tucks wipes and carried a kit with him with all of his necessary items while he was on the road as a truck driver. He found being a truck driver difficult and he had to use a donut pillow to sit on. He had liners to wear under his undershorts, which he used as needed, about twice a week. He could tell he needed one by excessive bleeding that stained his undershorts or any leakage. On physical examination, there was no evidence of fecal leakage. He had external hemorrhoids, covered by Anoderm, that were tender and mostly on the superior margin of the anus. There were no signs of anemia and no fissures were seen. There was tenderness and discomfort on insertion of the digital finger and a tight anal sphincter. He did not have evidence of bleeding at that time. The hemorrhoids were external. They measured 3/4 cm. and were not thrombosed but were very tender on digital examination of the anal canal. Diagnosis was external hemorrhoids. A September 2006 private record noted that the Veteran had exhausted conservative care, including Anusol HC suppositories, sitz baths, Tucks and Preparation H. Pain was limiting his ability to sit and was causing difficulties with his ability to perform at work as a truck driver. On examination, he had external, non-thrombosed hemorrhoids that were quite tender. A February 2009 private medical record noted that the Veteran still had difficulty with hemorrhoids. The Veteran's mother submitted a May 2009 statement in which she described the Veteran as very self-conscious due to his hemorrhoids and concerns about personal hygiene. She had observed his hemorrhoids curtail many of his activities. During the May 2009 hearing, the Veteran and his fiancée testified as to the Veteran's symptoms. The Veteran testified to his daily problems with bleeding hemorrhoids and fecal leakage. He claimed that his over-the-counter medications were no longer working. He said that he tried to work as a correctional officer for five years post-service, and currently was employed as a truck driver, but had difficulty sitting for long periods of time due to his hemorrhoids. He related that the condition resulted in great embarrassment as well as social problems due to his concerns about personal hygiene. He noted that he had to carry a special pillow and his hygiene kit with him at all times. His fiancée testified as to the effects of the Veteran's hemorrhoids on their personal life. She also noted that the Veteran's hemorrhoids prevented him from doing any physical labor. She, or one of their children, had to do the physical chores. She made sure his hygiene kit was ready with extra clothes, baby wipes, ointments, suppositories and anything else that could help him. In its July 2009 remand, the Board directed the RO/AMC to consider whether this matter should be referred to the Director of VA's Compensation and Pension Service for an extraschedular rating under the provisions of 38 C.F.R. § 3.321(b) and suggested that the RO/AMC, prior to that determination, should undertake any necessary additional development of the claim. The matter was referred to the Director, and review of the claims file indicates that no further development of the claim was undertaken. In an October 2009 memorandum, the Director of VA's Compensation and Pension Service reported that he had reviewed the claims folder, including the May 2009 Board testimony, and found that the 10 percent schedular rating was not inadequate. The office of the Director, Compensation and Pension Service denied extraschedular consideration finding there was no exceptional or unusual disability picture in the Veteran's case, with such related factors as marked interference with employment or frequent periods of hospitalizations rendering the regular schedular standards impractical. In November 2009, correspondence from the Veteran's employer was submitted to the effect that the Veteran most likely was not going to be able to continue his career as a tractor trailer driver for too many more months and would most likely need to seek employment elsewhere. Correspondence submitted by the Veteran and his fiancée and his sibling explain the discomfort and embarrassment the Veteran endures due to his hermorrhoids and are largely repetitive of testimony elicited during his Board hearing. His fiancée wrote that the couple had decided not to proceed with marriage plans at any time in the near future. Based upon a review of the evidence, the Board determined in its July 2009 decision that the Veteran was entitled to an initial disability rating of 10 percent rather than the noncompensable rating the RO had assigned when service connection was granted. It found that private treatment records reflected that the Veteran's external hemorrhoids have frequent recurrences and are irreducible, entitling him to the 10 percent rating. However, the VA examination disclosed no sign of anemia and no fissures. There has been no additional evidence added to the record since which would show the Veteran met the criteria outlined above for a 20 percent rating. Upon review of the record, it is also apparent that the Veteran has not submitted any evidence which would show a marked interference with employment or that his hemorrhoids require frequent hospitalization. See Bagwell, 9 Vet. App. at 337, Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). The claim for an extraschedular rating was remanded to afford the Veteran an opportunity to submit evidence in support of his claim. In response, as noted above, the Veteran submitted correspondence from his employer, his fiancée, his sibling, and himself. A vice-president for Driver Services and Human Resources at the Veteran's employer wrote to VA in November 2009 that the company understood that the Veteran's medical condition caused him considerable pain and discomfort when he performed his duties as a regional commercial tractor trailer driver as he had to sit for long periods of time each day behind the wheel. G.K., the company vice president, noted that the tight schedule for drivers (up to 11 hours driving every shift plus customer appointment times) did not regularly allow for frequent breaks. G.K. also noted that the Veteran was a valued employee and top performer in the company who required some additional latitude in his work schedule. Medical appointments meant days off from work. G.K. noted that the Veteran was paid by the mile and had exhausted his vacation time and personal days. The vice president concluded that the Veteran was most likely not going to be able to continue his career as a tractor trailer driver for too many more months in view of his service-connected disorder and his long term prognosis. He opined that the Veteran would need to seek future employment not associated with the rigors of driving. The Board notes that G.K.'s letter is only a prediction about the Veteran's possible future with his employer. At the time of its writing, the Veteran was still a full-time employee with benefits. While the employer's correspondence showed some effects of the Veteran's service-connected disorder on his employment (i.e., vacation time exhausted because of medical and administrative appointments), marked interference with employment was not indicated in view of his continued full-time employment. The Board is aware that the Veteran does have to undertake inconvenient, uncomfortable, and even embarrassing procedures and preparations in order undertake his occupation. However, under the regulatory scheme for consideration of extraschedular ratings, the Board does not find such circumstances meet the standard of an unusual or exceptional disability picture contemplated by 38 C.F.R. § 3.321(b)(1). Even as the Board is sympathetic to the Veteran, his family, and to their difficulties in this matter, the Board finds that the medical and lay evidence of record does not show that the Veteran's hemorrhoids present an unusual or exceptional disability picture; the hemorrhoid disorder is not so unique as to be outside of the norm. The Board concurs with the finding of the Director of the Compensation and Pension Service that an extraschedular rating is not warranted for hemorrhoids. 38 C.F.R. § 3.321(b)(1); Thun, supra. Therefore, given that the Veteran received an increase in his initial disability rating from noncompensable (zero percent) to 10 percent, the Board finds that an extraschedular rating is not warranted for the Veteran's hemorrhoids. In reaching this determination, the Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is not applicable in this case because the preponderance of the evidence is against the Veteran's claims. 38 U.S.C.A. § 5107(b); see also Ortiz v. Principi, 274 F.3d 1361, 1364, 1365 (Fed. Cir. 2001) (holding that "the benefit of the doubt rule is inapplicable when the preponderance of the evidence is found to be against the claimant"); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). [Continued on Next Page] ORDER Entitlement to an extraschedular rating in excess of 10 percent for service-connected hemorrhoids is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs