Citation Nr: 1114195 Decision Date: 04/08/11 Archive Date: 06/14/11 Citation Nr: 1114195 Decision Date: 04/11/11 Archive Date: 04/21/11 DOCKET NO. 03-32 048 ) DATE APR 08 2011 ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Whether vacatur of the decision of the Board of Veterans Appeals issued on October 22, 2010 is warranted. 2. Entitlement to an initial compensable disability rating for service-connected hemorrhoids prior to October 7, 2004. 3. Entitlement a disability rating higher than 10 percent for impairment of sphincter control resulting from hemorrhoidectomy, after October 7, 2004. REPRESENTATION Appellant represented by: Daniel G. Krasnegor, Attorney WITNESSES AT HEARING ON APPEAL Veteran and H.S. ATTORNEY FOR THE BOARD James G. Reinhart, 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. 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) to afford the Veteran a VA examination. That action completed, the matter was properly returned to the Board for appellate consideration. 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 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 (Veterans Court). In October 2007, the Veterans Court granted a joint motion of the Veteran and the Secretary of Veterans' Affairs (the Parties) 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. In an April 2008 decision, the Board granted a separate 10 percent disability rating for impairment of sphincter control due to hemorrhoidectomy, for the period from October 7, 2004, forward. The Board also denied the appeal as to a compensable rating for disability due to hemorrhoids prior to October 7, 2004 and a rating higher than 10 percent for disability due to hemorrhoids after October 7, 2004. The Veteran appealed the April 2008 decision and in a March 2010 decision, the Veterans Court set aside the Board's April 2008 assignment of an initial noncompensable rating for hemorrhoids prior to October 7, 2004 and the Board's assignment of a 10 percent rating for impairment of sphincter control resulting from hemorrhoidectomy after October 7, 2004. These, then, are the only issues currently before the Board. The issue of whether a rating higher than 10 percent for disability due to hemorrhoids (as opposed to disability due to a hemorrhoidectomy) after October 7, 2004, is not before the Board. In August 2010, the Board received a VA FORM 21-526b from the Veteran requesting reopening of claims for benefits for back injury, sinusitis, and left foot pain. These matters have not yet been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action 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, or with excessive tissue. 2. Prior to October 7, 2004, the Veteran's hemorrhoids did not result in any impairment of sphincter control. 3. From October 7, 2004, forward, disability resulting from hemorrhoidectomy has included impairment of sphincter control manifested by occasional moderate leakage but has not resulted in involuntary bowel movements necessitating wearing of a pad. CONCLUSIONS OF LAW 1. The criteria for vacating the Board decision issued on October 22, 2010 have been met. 38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. § 20.904 (2010). 2. 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 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.114, Diagnostic Code 7332, 7336 (2010). 3. The criteria for a disability rating higher than 10 percent for impairment of sphincter control resulting from hemorrhoidectomy have not been met for the period after October 7, 2004. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.114, Diagnostic Code 7332 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Vacatur The Board may vacate an appellate decision at any time upon request of the appellant or his or her representative, or on the Board's own motion, when an appellant has been denied due process of law. 38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. § 20.904 (2010). On October 22, 2010, the Board issued a decision adjudicating the second and third issues listed on the title page of the instant decision. In a February 21, 2011 letter, the Veteran's representative informed the Board that on September 10, 2010, he had submitted a letter providing argument in support of the Veteran's appeal. He stated that an incorrect claim number was used in that correspondence and because of this error, the argument was not before the Board when it rendered its decision. That September 10, 2010 argument, together with additional argument provided in the February 21, 2011 letter, is now associated with the claims file. Additionally, in the October 22, 2010 decision, the Board noted that the Texas Veterans Commission was the Veteran's representative. This was consistent with the VA Form 21-22 Appointment of Veterans Service Organization as Claimant's Representative, executed in November 2002, which was the most recent VA Form appointing a representative that was associated with the claims file at that time. In January 2011, the Veteran's attorney submitted a VA Form 21-22a, Appointment of Individual as Claimant's Representative, executed by the Veteran on June 30, 2010. In light of the above, the Board will vacate the decision issued on October 22, 2010, so as to ensure that the Veteran is not denied due process. Merits 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). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Service connection for hemorrhoids was established by the rating decision that is the subject of this appeal. As the Veteran has perfected an appeal with regard 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 provide, 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 he 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 discharge summary contains the Veteran's history that he had suffered from hemorrhoids for many years with an increase in pain and bleeding. The October 7, 2004 operative note listed findings of "FAIRLY LARGE MIXED INTERNAL AND EXTERNAL HEMORRHOIDS, SEVERAL GROUPS MODERATELY ENLARGED - THREE GROUPS REMOVED." The Board has considered whether the August 2004 reference to a hemorrhoidal tag meets one of the criterion for the 10 percent rating under Diagnostic Code 7336, that of "excessive redundant tissue," but concludes that it does not. The reference does not state the size of the tag. While one could contend that without reference to the size of the tag the tag could be "excessive redundant tissue," the use of the word "excessive" modifying "redundant" indicates to the Board a situation that would draw comment from a medical professional. That nowhere in the record is there any mention of the size of the tag is evidence that the tag was not "excessive" redundant tissue. This finding is supported in the context of the record. Importantly, this is not a record devoid of size descriptions. In the October 7, 2004 operative report, the surgeon twice commented on the size of the hemorrhoids, using the words "fairly large" and "moderately enlarged." The Board finds that as he bothered to comment on the size of the hemorrhoids, but said nothing of the size of the tag, is evidence that the tag did not constitute "excessive redundant tissue" or that there indeed was excessive redundant tissue. There is no evidence of record that the tag was excessive redundant tissue or that the Veteran's hemorrhoids were manifested by excessive redundant tissue. In the September 10, 2010 letter, the Veteran's representative argued that because the October 2004 operative report referred to the Veteran's hemorrhoids as "fairly large," the hemorrhoids must have been large before that time. In the February 11, 2011 letter, the Veteran's representative contended that it was immaterial that there was no evidence prior to October 2004 that the Veteran's hemorrhoids were large because "Hemmorhoids do not suddenly become large overnight; at least there is no evidence in the record that they do." Regardless of the time frame for enlargement of hemorrhoids, there simply is no evidence to support a rating based on large hemorrhoids at an earlier date. While one could speculate as to when the Veteran first had large hemorrhoids there is no basis for assigning a rating based on such clear speculation. In that letter, the representative also argued that "medical professionals who had nothing to do with the choice of regulatory phrasing" should not be expected to comment on the size of a hemorrohidal tag. This argument is totally without merit. The rating schedule is based on medical knowledge and necessarily contemplate that physicians who did not take part in developing the regulations will provide medical evidence. Here, the Board would expect some comment from a physician, who, by training and experience, would be familiar with the range of tissue present in hemorrhoids. The Board is not saying that it expects a direct quote from the regulation, but it would expect some comment in analogous terms. Here, the examination by the physician with no comment analogous to excessive redundant tissue the Board finds to be probative of a finding that excessive redundant tissue was not present. Hence, the Board finds as fact that the Veteran's hemorrhoids were not manifested by excessive redundant tissue prior to October 7, 2004. There is no evidence, prior to October 7, 2004, that the Veteran's hemorrhoids were irreducible. There is no evidence prior to October 7, 2004, that the Veteran's hemorrhoids were large. There is affirmative evidence, as stated above, that the prior to October 7, 2004, the Veteran's hemorrhoids were not thrombotic; there is no evidence prior to October 7, 2004, that his hemorrhoids were thrombotic. This evidence shows that the veteran's hemorrhoids are properly evaluated as noncompensable prior to his hemorrhoidectomy in October 2004. There is no 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. 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 the June 2006 hearing, are reports of pain and bleeding post-operatively. These reports contain no evidence for assigning a rating higher than 10 percent for sphincter impairment due to hemorrhoidectomy. 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 had not had rectal bleeding since the hemorrhoidectomy. He also reported experiencing approximately 10 episodes of fecal incontinence, specifically as noted by the examiner "if he had loose stools he would have some amount of stool that would leak onto his clothes." He reported that this happened if he could not get to the restroom in time. He also reported that as long as his bowel movements are formed he does not have any problems with incontinence. The Veteran reported that he has not worn any absorbent materials for the fecal incontinence; rather, he reported that if he is having a period of loose stools he just stays at home and then changes his stays home and changes his clothes if he has an accident. Following physical examination, the examiner stated in the report that "[t]here is normal sphincter tone". Diagnoses were provided of external hemorrhoids and fecal incontinence, at least as likely as not due to the Veteran's hemorrhoidectomy. 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. In this context, the Board must address a highly atypical issue brought up by the Court and that it has asked the Board to address: The criterion for a 30 percent rating is that the disability is one "necessitating wearing a pad." The plain meaning of the word "necessitate" is "1. To make necessary or unavoidable. 2. To compel or require. WEBSTER'S II NEW COLLEGE DICTIONARY (2001) pg. 731. In this case, the Veteran states that he does not wear pads, but that his disability nevertheless necessitates the wearing of a pad. This is contrary to the plain language of the law. If he does not wear a pad then he is not compelled to wear a pad. If he is able to avoid wearing a pad, as he states, then the wearing of a pad is not unavoidable, and, again, his sphincter impairment does not necessitate the wearing of a pad. The law is usually clear on this point and the Veteran's claim must fail. In any event, notwithstanding the above, even if one does not accept the finding that he must wear a pad in order to obtain a 30 percent evaluation, and irrespective of the dictionary definition of "necessitate," the Board finds that the Veteran is not credible in his assertion that his sphincter impairment necessitates the wearing of a pad but that he has simply chosen to not wear a pad. Although the regulation does not state that the Veteran must wear pads in order warrant the 30 percent rating, the fact that he does not wear pads is compelling evidence that his sphincter impairment is not one "necessitating wearing a pad." As between that evidence and his statement that his sphincter impairment does necessitate the wearing of pads, the Board finds his not wearing of pads to be more probative of whether or not his sphincter impairment necessitate the wearing of pads. His explanation of his sphincter impairment as one necessitating the wearing of a pad is flawed and lacks all credibility. The Board recognizes the Veteran's argument that he simply chooses not to wear pads and to instead stay at home when he has less than solid bowel movements and that, therefore, he meets the requirements for a 30 percent rating. The regulation does not specify that the necessity of wearing pads applies only to leaving the home. An involuntary bowel movement, by the inclusion of the word "involuntary" means that the bowel movement would occur despite efforts at maintain control and thus result in soiling regardless of whether the Veteran was at home or away from home (unless the Veteran remained not only at home, but sitting on the commode). The Board finds that it is not believable that he remains seated on the commode for the duration of time that he has less than solid stools, which would reasonably be for hours. There is no evidence of record that the Veteran has ever displayed any behavior so out of the norm as to be consistent with not wearing pads if pads are necessary but instead choosing to remain seated on a commode for hours at a time or defecate in his clothes, furniture, and bedding. Simply stated, the picture presented from the Veteran's argument is that of an extremely idiosyncratic individual who has involuntary bowel movements, but chooses to remain seated on the commode for hours at a time and/or to involuntarily defecate in his clothing, and on his bedding and furniture rather than wearing an absorbent pad. The Board finds this unbelievable and makes the factual determination that this is not credible testimony from the Veteran, undermining all of his claims with the VA. The Board finds the Veteran's assertion that his sphincter impairment is such as to necessitate the wearing of a pad but that he simply chooses not to wear a pad to be not credible. The Board has not failed to consider that a person could be so situated as to have sphincter impairment necessitating the wearing of a pad but not wear a pad. This would certainly be the case in an individual whose financial situation was such as to preclude purchasing pads. Such a person would not have the option of wearing pads, and would have little choice but to endure the problems inherent in involuntary bowel movements, including soiled clothing, bedding, and furniture. This is not the case here. The Veteran has had the opportunity to ask VA for pads to treat his service connected disability at no cost. There is no evidence of record that he has done so and been denied or that he is so financially destitute to prevent the purchase of pads. The disability picture painted by the Veteran is one of a person with sphincter impairment resulting in occasional moderate leakage and his impairment of sphincter control is appropriately rated as 10 percent disabling, at best. His disability does not approximate the criteria for a higher schedular rating. The Veteran's statements to the contrary are found to be not credible and clearly outweighed by extensive evidence against this claim. Also considered by the Board is whether referral is warranted for a rating outside of the schedule. To accord justice in an exceptional case where the scheduler standards are found to be inadequate, the field station is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1) (2010). The criterion for such an award is a finding that the case presents an exceptional or unusual disability picture with related factors as marked interference with employment or frequent periods of hospitalization as to render impractical application of regular schedular standards. 38 C.F.R. § 3.321(b). Extraschedular consideration involves a three step analysis. Thun v. Peake, 22 Vet. App. 111 (2008). First, the Board or the RO must determine whether the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe the Veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. Id. If the RO or the Board finds that the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the Veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. All symptoms and the level of disability resulting from the Veterans hemorrhoids and his sphincter impairment are addressed by criteria found in the rating schedule. Therefore, the first prong of the Thun test is not satisfied and referral for extraschedular consideration is not warranted. 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 assigning a disability rating higher than 10 percent for impairment of sphincter control for the period after October 7, 2004. Hence, the appeal must be denied. 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 (2010). Duties to notify and assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), 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. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010). 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; and (3) that the claimant is expected to provide. 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). For service-connection claims, this notice must address the downstream elements of disability rating and effective date. Dingess v. Nicholson, 19 Vet. App. 473 (2006). 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 required 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 his and VA's respective duties for obtaining evidence and asked the him to submit evidence and/or information 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. See 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). Furthermore, the Veteran has presented detailed argument and testimony which shows that he knows what is needed to substantiate his claim. For these reasons, it is not prejudicial to the Veteran for the Board to proceed to finally decide this appeal because any error in the notice did not affect the essential fairness of the adjudication. See generally Shinseki v. Sanders 129 S.Ct. 1696 (2009) (explaining application of the rule of prejudicial error in the context of claims for VA benefits). 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 and other 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 and VA treatment records. Also of record are treatment reports from prior to 1991 from Kaiser Permanente. The Veteran was afforded an adequate VA examination in November 2006. Neither the Veteran 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 under the VCAA. 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 The Board's October 22, 2010 decision is vacated. Entitlement to an initial compensable disability rating for service-connected hemorrhoids prior to October 7, 2004 is denied. Entitlement a disability rating higher than 10 percent for impairment of sphincter control resulting from hemorrhoidectomy, after October 7, 2004 is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs Citation Nr: 1039592 Decision Date: 10/22/10 Archive Date: 10/27/10 DOCKET NO. 03-32 048 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an initial compensable disability rating for service-connected hemorrhoids prior to October 7, 2004. 2. Entitlement to assignment of a disability rating higher than 10 percent for impairment of sphincter control resulting from hemorrhoidectomy after October 7, 2004. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Veteran and H.S. ATTORNEY FOR THE BOARD James G. Reinhart, 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. 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. 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 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 (Veterans Court). In October 2007, the Veterans Court granted a joint motion of the Veteran and the Secretary of Veterans' Affairs (the Parties) 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. In an April 2008 decision, the Board granted a separate 10 percent disability rating for impairment of sphincter control due to hemorrhoidectomy, for the period from October 7, 2004, forward. The Board also denied the appeal as to a compensable rating for disability due to hemorrhoids prior to October 7, 2004 and a rating higher than 10 percent for disability due to hemorrhoids after October 7, 2004. The Veteran appealed the April 2008 decision and in a March 2010 decision, the Veterans Court vacated the Board's April 2008 decision as to the issues of whether a disability rating higher than 10 percent is warranted for the Veteran's hemorrhoids prior to October 7, 2004 and whether a disability rating higher than 10 percent is warranted for impairment of sphincter control resulting from hemorrhoidectomy after October 7, 2004. These then are the only issues currently before the Board. The issue of whether a rating higher than 10 percent for disability due to hemorrhoids (as opposed to disability due to a hemorrhoidectomy) after October 7, 2004, is not before the Board. In August 2010, the Board received a VA FORM 21-526b from the Veteran requesting reopening of claims for benefits for back injury, sinusitis, and left foot pain. These matters have not yet been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action 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, or with excessive tissue. 2. Prior to October 7, 2004, the Veteran's hemorrhoids did not result in any impairment of sphincter control. 3. From October 7, 2004, forward, disability resulting from hemorrhoidectomy has included impairment of sphincter control manifested by occasional moderate leakage but has not resulted in involuntary bowel movements necessitating 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 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.114, Diagnostic Code 7332, 7336 (2010). 2. The criteria for a disability rating higher than 10 percent for impairment of sphincter control resulting from hemorrhoidectomy have not been met for the period after October 7, 2004. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.114, Diagnostic Code 7332 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS This is a decision primarily about a mild case of hemorrhoids that has been ongoing for seven years. The Board will attempt to fully address this issue. 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). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Service connection for hemorrhoids was established by the rating decision that is the subject of this appeal. As the Veteran has perfected an appeal with regard 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 provide, 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 he 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 discharge summary contains the Veteran's history that he had suffered from hemorrhoids for many years with an increase in pain and bleeding. The October 7, 2004 operative note listed findings of "FAIRLY LARGE MIXED INTERNAL AND EXTERNAL HEMORRHOIDS, SEVERAL GROUPS MODERATELY ENLARGED - THREE GROUPS REMOVED." The Board has considered whether the August 2004 reference to a hemorrhoidal tag meets one of the criterion for the 10 percent rating under Diagnostic Code 7336, that of "excessive redundant tissue," but concludes that it does not. The reference does not state the size of the tag. While one could contend that without reference to the size of the tag the tag could be "excessive redundant tissue," the use of the word "excessive" modifying "redundant" indicates to the Board a situation that would draw comment from a medical professional. That nowhere in the record is there any mention of the size of the tag is evidence that the tag was not "excessive" redundant tissue. This finding is supported in the context of the record. Important for both the Court and the Veteran to understand, this is not a record devoid of size descriptions. In the October 7, 2004 operative report, the surgeon twice commented on the size of the hemorrhoids, using the words "fairly large" and "moderately enlarged." That he bothered to comment on the size of the hemorrhoids, but said nothing of the size of the tag is evidence that the tag did not constitute "excessive redundant tissue" or that there indeed was excessive redundant tissue. There is no evidence of record that the tag was excessive redundant tissue or that the Veteran's hemorrhoids were manifested by excessive redundant tissue. Hence, the Board finds as fact that the Veteran's hemorrhoids were not manifested by excessive redundant tissue prior to October 7, 2004. There is no evidence, prior to October 7, 2004, that the Veteran's hemorrhoids were irreducible. There is no evidence prior to October 7, 2004, that the Veteran's hemorrhoids were large. There is affirmative evidence, as stated above, that the prior to October 7, 2004, the Veteran's hemorrhoids were not thrombotic; there is no evidence prior to October 7, 2004, that his hemorrhoids were thrombotic. This evidence shows that the veteran's hemorrhoids are properly evaluated as noncompensable prior to his hemorrhoidectomy in October 2004. There is no 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. 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 the June 2006 hearing, are reports of pain and bleeding post-operatively. These reports contain no evidence for assigning a rating higher than 10 percent for sphincter impairment due to hemorrhoidectomy. 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 had not had rectal bleeding since the hemorrhoidectomy. He also reported experiencing approximately 10 episodes of fecal incontinence, specifically as noted by the examiner "if he had loose stools he would have some amount of stool that would leak onto his clothes." He reported that this happened if he could not get to the restroom in time. He also reported that as long as his bowel movements are formed he does not have any problems with incontinence. The Veteran reported that he has not worn any absorbent materials for the fecal incontinence; rather, he reported that if he is having a period of loose stools he just stays at home and then changes his stays home and changes his clothes if he has an accident. Following physical examination, the examiner stated in the report that "[t]here is normal sphincter tone". Diagnoses were provided of external hemorrhoids and fecal incontinence, at least as likely as not due to the Veteran's hemorrhoidectomy. 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. In this context, the Board must address a unusual issue brought up by the Court: The criterion for a 30 percent rating is that the disability is one "necessitating wearing a pad." The plain meaning of the word "necessitate" is "1. To make necessary or unavoidable. 2. To compel or require. WEBSTER'S II NEW COLLEGE DICTIONARY (2001) pg. 731. In this case, the Veteran states that he does not wear pads, but that his disability nevertheless necessitates the wearing of a pad. This is contrary to the plain language of the law. If he does not wear a pad then he is not compelled to wear a pad. If he is able to avoid wearing a pad, as he states, then the wearing of a pad is not unavoidable, and, again, his sphincter impairment does not necessitate the wearing of a pad. The law is usually clear on this point and the Veteran's claim must fail. In any event, even if the Court does not accept the finding that he must wear a pad in order to obtain a 30 percent evaluation, and irrespective of the dictionary definition of "necessitate," the Board finds that the Veteran is not credible in his assertion that his sphincter impairment necessitates the wearing of a pad but that he has simply chosen to not wear a pad. Although the regulation does not state that the Veteran must wear pads in order warrant the 30 percent rating, the fact that he does not wear pads is compelling evidence that his sphincter impairment is not one "necessitating wearing a pad." As between that evidence and his statement that his sphincter impairment does necessitate the wearing of pads, the Board finds his not wearing of pads to be more probative of whether or not his sphincter impairment necessitate the wearing of pads. His explanation of his sphincter impairment as one necessitating the wearing of a pad is flawed and lacks credibility. The Board recognizes the Veteran's argument that he simply chooses not to wear pads and to instead stay at home when he has less than solid bowel movements, and that, therefore, he meets the requirements for a 30 percent rating. The regulation does not specify that the necessity of wearing pads applies only to leaving the home. An involuntary bowel movement, by the inclusion of the word "involuntary" means that the bowel movement would occur despite efforts at control and thus result in soiling regardless of whether the Veteran was at home or away from home, unless the Veteran remained not only at home, but sitting on the commode. The Board finds that it is not believable that he remains seated on the commode for the duration of time that he has less than solid stools, which would reasonably be for hours. There is no evidence of record that the Veteran has ever displayed any behavior so out of the norm as to be consistent with not wearing pads if pads are necessary but instead choosing to remain seated on a commode for hours at a time or defecate in his clothes, furniture, and bedding. The picture presented from the Veteran's argument is that of an extremely idiosyncratic individual who has involuntary bowel movements, but chooses to remain seated on the commode for hours at a time and/or to involuntarily defecate in his clothing, and on his bedding and furniture rather than wearing an absorbent pad. The Board finds this unbelievable. The Board finds the Veteran's assertion that his sphincter impairment is such as to necessitate the wearing of a pad but that he simply chooses not to wear a pad, to be not credible. The Board has not failed to consider that a person could be so situated as to have sphincter impairment necessitating the wearing of a pad but not wear a pad. This would certainly be the case in an individual whose financial situation was such as to preclude purchasing pads. Such a person would not have the option of wearing pads, and would have little choice but to endure the problems inherent in involuntary bowel movements, including soiled clothing, bedding, and furniture. This is not the case here. The Veteran has had the opportunity to ask VA for pads to treat his service connected disability. There is no evidence of record that he has done so and been denied or that he is so financially destitute to prevent the purchase of pads. The disability picture painted by the Veteran is one of a person with sphincter impairment resulting in occasional moderate leakage and his impairment of sphincter control is appropriately rated as 10 percent disabling. His disability does not approximate the criteria for a higher schedular rating. Also considered by the Board is whether referral is warranted for a rating outside of the schedule. To accord justice in an exceptional case where the scheduler standards are found to be inadequate, the field station is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1) (2010). The criterion for such an award is a finding that the case presents an exceptional or unusual disability picture with related factors as marked interference with employment or frequent periods of hospitalization as to render impractical application of regular schedular standards. 38 C.F.R. § 3.321(b). Extraschedular consideration involves a three step analysis. Thun v. Peake, 22 Vet. App. 111 (2008). First, the Board or the RO must determine whether the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe the Veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. Id. If the RO or the Board finds that the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the Veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. All symptoms and the level of disability resulting from the Veterans hemorrhoids and his sphincter impairment are addressed by criteria found in the rating schedule. Therefore, the first prong of the Thun test is not satisfied and referral for extraschedular consideration is not warranted. 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 assigning a disability rating higher than 10 percent for impairment of sphincter control for the period after October 7, 2004. Hence, the appeal must be denied. 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 (2010). Duties to notify and assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), 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. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010). 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; and (3) that the claimant is expected to provide. 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). For service- connection claims, this notice must address the downstream elements of disability rating and effective date. Dingess v. Nicholson, 19 Vet. App. 473 (2006). 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 required 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 his and VA's respective duties for obtaining evidence and asked the him to submit evidence and/or information 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. See 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). Furthermore, the Veteran has presented detailed argument and testimony which shows that he knows what is needed to substantiate his claim. For these reasons, it is not prejudicial to the Veteran for the Board to proceed to finally decide this appeal because any error in the notice did not affect the essential fairness of the adjudication. See generally Shinseki v. Sanders 129 S.Ct. 1696 (2009) (explaining application of the rule of prejudicial error in the context of claims for VA benefits). 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 and other 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 and VA treatment records. Also of record are treatment reports from prior to 1991 from Kaiser Permanente. The Veteran was afforded an adequate VA examination in November 2006. Neither the Veteran 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 under the VCAA. 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 The appeal is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs