Citation Nr: 1045096 Decision Date: 12/02/10 Archive Date: 12/10/10 DOCKET NO. 05-20 733 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi THE ISSUE Entitlement to a compensable rating for hemorrhoids. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Matthew Blackwelder, Counsel INTRODUCTION The Veteran retired from active military duty in June 2003, after serving 20 years. This appeal comes to the Board of Veterans' Appeals (Board) from a March 2004 rating decision. In January 2006, the Veteran testified at a hearing before a Decision Review Officer (DRO) seated at the RO. A transcript is of record. FINDINGS OF FACT 1. Prior to his second hemorrhoid surgery on March 2, 2006, the medical and lay evidence tends to show that the Veteran's hemorrhoids were more symptomatic than would be represented by a classification of "mild" or "moderate" hemorrhoids, with symptoms reasonably characterized as evidencing frequent recurrences. 2. Since his surgery on March 2, 2006, the Veteran's hemorrhoids have not been shown to be productive of symptoms evidencing frequent recurrences. CONCLUSION OF LAW Criteria for a 10 percent rating were met until March 2, 2006, but the criteria for a compensable rating for hemorrhoids were not met after March 2006. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.114, DC 7336 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Increased Rating Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. In Fenderson v. West, 12 Vet. App. 119, 126 (1999), it was held that where, as in this case, an initial grant of service connection has been challenged, consideration of the appropriateness of "staged rating" is required. See Fenderson, 12 Vet. App. at 126. The Veteran currently receives a noncompensable rating for his hemorrhoids under 38 C.F.R. § 4.114, DC 7336. Under DC 7336, external or internal hemorrhoids are assigned a noncompensable rating when they are mild or moderate. A 10 percent rating is assigned when external or internal hemorrhoids are large or thrombotic, irreducible, with excessive redundant tissue, evidencing frequent recurrences. A 20 percent rating is assigned when the external or internal hemorrhoids have either persistent bleeding with secondary anemia, or have fissures. Service treatment records indicate that the Veteran was treated for hemorrhoids during service. In a December 2002 VA pre- discharge examination record, the Veteran reportedly stated that he had internal hemorrhoids that would be present when he forced his stool. He also gave a history of rectal bleeding once per month. The examiner's diagnosis was internal hemorrhoids. In a VA treatment record from August 2004 it was noted that no external hemorrhoids were visible. Nevertheless, the Veteran's hemorrhoids did continue following separation, as the Veteran indicated at a VA examination in September 2004 that he still had problems with externalization of his internal hemorrhoids following bowel movements and with occasional bleeding. He stated that he treated his hemorrhoids symptomatically by internalizing them post-bowel movement. He denied any difficulties with rectal sphincter control or fecal incontinence. Upon examination, the examiner noted that the Veteran had internal hemorrhoids without gross bleeding and with normal sphincter tone. In October 2005 the Veteran underwent a colonoscopy which revealed numerous internal hemorrhoids. The hemorrhoids were classified as "Grade II" hemorrhoids with no gross blood or fissures. Another treatment record from October 2005 noted that the Veteran had been having uncomfortable hemorrhoids despite topical steroid cream. The Veteran reported having bright red blood per rectum approximately twice monthly that sometimes filled the commode. A flexible sigmoidoscopy in October 2005 showed large internal hemorrhoids, which the Veteran reported reducing manually. In early November 2005 the Veteran underwent a stapled hemorrhoidectomy. In January 2006, the Veteran testified at a hearing before the RO that the evidence should document that he had large and prolapsed hemorrhoids. The Veteran underwent a VA examination in February 2006 at which he reported having three to four bowel movements every day. He reported noticing bright blood with each bowel movement. He reported having weak sphincter control, noticing fecal leakage since his surgery in November 2005, and he noted feeling a recurrence of hemorrhoidal swelling, especially with flatus and bowel movements. The Veteran did not however require pads. The examination, however, was physically limited because the Veteran was scheduled for an additional hemorrhoid surgery in March 2006 and he surgeon had requested that no internal examination be conducted prior to that time. In March 2006 the Veteran underwent an open hemorrhoidectomy of a left lateral hemorrhoid and a rubber band ligation of a right anterior hemorrhoid. The stapled hemorrhoidectomy procedure was noted to be used for prolapse and for hemorrhoids. It was noted that the Veteran presented with a several month history of anorectal bleeding and tissue prolapsing from his anus. On examination the Veteran was noted to have "Grade III" internal hemorrhoids as well as external hemorrhoids. The operation found a large left lateral hemorrhoid (which was removed) and a small right anterior hemorrhoid. The Board initially reviewed the Veteran's claim in 2009, but found that additional development was warranted before a decision on the merits could be issued. Specifically, it was noted that the Veteran had not received a VA examination subsequent to his last hemorrhoid surgery. Since the claim was remanded, hundreds of pages of VA treatment records have been associated with the Veteran's claims file. These records described the Veteran's hemorrhoid surgeries in November 2005 and March 2006. However, in the years following the March 2006 procedure, very few hemorrhoid related complaints were documented and it does not appear that the Veteran has received much medical treatment for his hemorrhoids since his second surgery. In July 2007, the Veteran indicated that he was doing well, and no blood was noted in the Veteran's stool. Similarly, in May 2009, the Veteran was evaluated at a VA medical center where he was noted to have bronchitis, allergic rhinitis, hypertension, back and neck problems, and anxiety/depression. However, there was no mention of hemorrhoids, and there was again no blood noted in the Veteran's stool. The Veteran was provided with another VA examination in November 2009. The examiner noted that the Veteran had not had a prescription of stool softeners since 2005 and had not been prescribed Proctafoam since 2003. She also noted that the February 2006 treatment records noted protruding hemorrhoids, but did not mention any sphincter weakness; and a follow-up note several weeks after the March 2006 surgery noted that the Veteran was doing very well with no pain and no problem with bowel movements. The Veteran reported being happy with his operation. The examiner noted that since that surgery, the Veteran had generally been followed in the GI clinic for liver disease and the only references to his hemorrhoids were historical in nature. She also noted that it was questionable whether the Veteran had a history of rectal prolapse. At the examination, the Veteran reported having anal itching, diarrhea, pain, difficulty passing stool, but he denied any burning. The Veteran indicated that he still had hemorrhoids approximately four times per year with associated bleeding; but the examiner noted that while there had been thrombosis historically, there had been no recurrence of thrombosis. The Veteran indicated that he had a history of fecal leakage that was described as moderate, but which did not require the use of pads, and the Veteran indicated that he had an occasional involuntary bowel movement. On examination, the examiner found no hemorrhoids were present, there were no anorectal fistula or anal or rectal stricture present; and there was no rectal prolapse present. One external hemorrhoidal tag was identified. A colonoscopy was performed, but neither internal hemorrhoids nor fissures were detected. The examiner concluded that the Veteran had a tiny external hemorrhoid that was not thrombosed and normal sphincter tone without fissures. The examiner stated that while the Veteran reported frequent bleeding and fecal incontinence, there was no medical documentation that he had been treated in the past year for either condition. The examiner added that it was less likely than not that any bleeding the Veteran was experiencing was secondary to his hemorrhoids. The Board has reviewed the entirety of the medical and lay evidence that has been advanced in support of the Veteran's claim. Since his hemorrhoid surgery in March 2006, the evidence shows that the Veteran has continued to have hemorrhoids, but the only recur several times per year. Furthermore, at the Veteran's recent VA examination in 2009 the examiner specifically found that no thrombosis was present. There has also been no indication that the Veteran's hemorrhoids have been irreducible at any time since his second surgery. The Veteran has continued to complain about bleeding, and his representative argued that a compensable rating was warranted because the Veteran had persistent bleeding. However, at the Veteran's VA examination in 2009, the examiner specifically concluded that the bleeding was not attributable to the Veteran's hemorrhoids. The Board acknowledges that a Veteran is competent to report seeing blood in his stool, as that is a symptom that is capable of lay observation. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, in adjudicating this claim, the Board must assess not only competency of the Veteran's statements, but also their credibility. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Board has reviewed the numerous treatment records from 2006 to 2009 but finds that since the Veteran's second hemorrhoids surgery in March 2006, he has voiced almost no complaints about his hemorrhoids, and the few times hemorrhoids were mentioned, it was found that there was no blood in the Veteran's stool. Furthermore, given the VA examiner's conclusion that the Veteran's bleeding is not the result of his hemorrhoids, the Board does not need to address the credibility of the Veteran's assertions, as this determination is medical in nature, and the Veteran lacks the appropriate medical qualification. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-495 (1992). The record shows that since the March 2006 surgery, the Veteran's hemorrhoids have not been of such severity as to meet the schedular criteria for a compensable rating. They have been infrequent, and not shown to be irreducible. While the Veteran continues to experience hemorrhoids and their associated symptoms, the fact remains that a noncompensable rating is provided for mild or moderate hemorrhoids. Thus, the mere presence of hemorrhoids is insufficient to warrant a compensable schedular rating. Nevertheless, while a compensable rating has not been shown to be warranted since the second hemorrhoid surgery in March 2006, the Board cannot miss the fact that prior to the second surgery, the Veteran's hemorrhoids were of such severity that not one, but two surgeries were required to correct them. As noted above, the second surgery appears to have adequately addressed the Veteran's hemorrhoids in that the Veteran now receives at most minimal treatment for them. However, prior to the first surgery, the Veteran's hemorrhoids were of sufficient severity to warrant surgery, as a flexible sigmoidoscopy in October 2005 showed large internal hemorrhoids; and it is clear that the Veteran's first surgery did not correct his problem, as a second surgery was required only four months later at which time, the surgeon identified "Grade III" hemorrhoids. The Veteran's representative also pointed out in a September 2010 statement that the Veteran surgeries were preceded by months of increased symptoms. Given these findings, the Board concludes that the Veteran's symptoms prior to the second hemorrhoid surgery in March 2006 where of such persistence and severity that they should be considered to be more than moderate with sufficient symptoms to reasonably conclude that they frequently recurred. As such, prior to March 2006, entitlement to a 10 percent schedular rating was warranted, and to that extent, the Veteran's claim is granted. However, as discussed above, a compensable rating is not warranted after the March 2006 surgery and to that extent, the Veteran's claim is denied. Although the Board noted in the June 2009 remand that there was possibly some loss of anal sphincter control, the examiner at the November 2009 VA examination found no abnormal sphincter tone or any fecal incontinence. As such, a separate rating based on loss of anal sphincter control is not warranted. The Board has also considered whether an extraschedular rating is warranted, noting that if an exceptional case arises where ratings based on the statutory schedules are found to be inadequate, consideration of an "extra-schedular" evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities will be made. 38 C.F.R. § 3.321(b)(1). The Court has held that the determination of whether a claimant is entitled to an extraschedular rating under § 3.321(b) is a three-step inquiry, the responsibility for which may be shared among the RO, the Board, and the Under Secretary for Benefits or the Director, Compensation and Pension Service. Thun v. Peake, 22 Vet. App. 111. The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. This means that initially there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. 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 evaluation is adequate, and no referral is required. If the criteria do not reasonably describe the claimant's disability level and symptomatology, a determination must be made 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"). See id. In this case, no evidence has been advanced to show either that the Veteran's hemorrhoids are unique or unusual, or that the schedular criteria are inadequate. The schedular criteria for hemorrhoids address the size, reducibility, and bleeding that is caused by hemorrhoids, and these are precisely the symptoms about which the Veteran has complained. Therefore, the schedular criteria are adequate and an extraschedular rating is not warranted. II. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Notice must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits and must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). With respect to service connection claims, a section 5103(a) notice should also advise a claimant of the criteria for establishing a disability rating and effective date of award. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). In the present case, required notice was provided by a letter dated in June 2009, which informed the Veteran of all the elements required by the Pelegrini II Court as stated above. The Board finds that any defect concerning the timing of the notice requirement was harmless error. Although the notice provided to the Veteran was not given prior to the first adjudication of the claim, the Veteran has been provided with every opportunity to submit evidence and argument in support of his claim and ample time to respond to VA notices. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). Additionally, the Veteran's claim was readjudicated following completion of the notice requirements. Voluminous VA treatment records have been obtained, and there is no evidence that the Veteran has received private treatment for his hemorrhoids. The Veteran was also provided with several VA examinations (the reports of which have been associated with the claims file). Additionally, the Veteran testified at a hearing before the RO, and was offered the opportunity to testify at a hearing before the Board, but he declined. VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER A 10 percent rating for hemorrhoids prior to March 2, 2006 is granted, subject to the laws and regulations governing the award of monetary benefits. A compensable rating for hemorrhoids after March 2, 2006 is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs