Citation Nr: 1119299 Decision Date: 05/18/11 Archive Date: 05/26/11 DOCKET NO. 04-30 396 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an initial compensable evaluation for hemorrhoids effective from August 20, 2004. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD K. Marenna, Associate Counsel INTRODUCTION The appellant had active service from May 1955 to January 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In July 2009, a hearing was held before the undersigned. This case was previously before the Board in October 2009 and remanded for further development. For reasons discussed below, the Board finds that the RO substantially complied with the mandates of the October 2009 remand and will proceed to adjudicate the appeal. See Dyment v. West, 13 Vet. App. 141 (1999) (noting that a remand is not required under Stegall v. West, 11 Vet. App. 268 (1998) where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). FINDINGS OF FACT 1. Prior to May 9, 2008, the preponderance of the competent and credible evidence of record did not show that the Veteran's service-connected hemorrhoids were at least large or thrombotic, irreducible, with excessive redundant tissue, evidencing frequent recurrences and/or caused persistent bleeding, secondary anemia, or fissures. 2. From May 9, 2008, the preponderance of the competent and credible evidence of record showed that the Veteran's service-connected hemorrhoids were manifested by persistent bleeding and an anal fissure. CONCLUSIONS OF LAW 1. Prior to May 9, 2008, the criteria for entitlement to a compensable disability evaluation for the Veteran's service-connected hemorrhoids were not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.114, Diagnostic Code 7336 (2010). 2. From May 9, 2008, the criteria for entitlement to a disability evaluation of 20 percent, but no higher, for the Veteran's service-connected hemorrhoids have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.114, Diagnostic Code 7336 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the appellant's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, each piece of evidence of record. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. Veterans Claims Assistance Act (VCAA) VA has met all statutory and regulatory notice and duty to assist provisions as to the appellant's claim. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2010). Duty to Notify Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2010). The United States Court of Appeals for Veterans Claims (Court) held that 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. Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Court observed that a claim of entitlement to service connection consists of five elements, of which notice must be provided prior to the initial adjudication: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490 (2006); see also 38 U.S.C. § 5103(a). Compliance with the first Quartuccio element requires notice of these five elements. See id. Because the January 2007 rating decision granted the appellant's claim for service connection for hemorrhoids, such claim is now substantiated. His filing of a notice of disagreement as to the January 2007 rating decision does not trigger additional notice obligations under 38 U.S.C.A. § 5103(a). 38 C.F.R. § 3.159(b)(3); Dingess/Hartman, supra. Rather, the appellant's appeal as to the initial rating assignment here triggers VA's statutory duties under 38 U.S.C.A. §§ 5104 and 7105, as well as regulatory duties under 38 C.F.R. § 3.103. As a consequence, VA is only required to advise the appellant of what is necessary to obtain the maximum benefit allowed by the evidence and the law. This has been accomplished here, as will be discussed below. The May 2008 letter set forth the relevant diagnostic code (DC) for rating the disability at issue (38 C.F.R. § 4.114, DC 7336) and included a description of the rating formulas for all possible schedular ratings under this diagnostic code. The appellant was thus informed of what was needed not only to achieve the next- higher schedular rating, but also to obtain all schedular ratings above that assigned. Therefore, the Board finds that the appellant has been informed of what was necessary to achieve a higher rating for the service-connected disability at issue. Furthermore, even if the above letter did not provide adequate notice, the Board finds that this notice problem does not constitute prejudicial error in this case because the record reflects that a reasonable person could be expected to understand what was needed to substantiate the claim after reading the above letter as well as the rating decision, the statement of the case, and the supplemental statements of the case. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009). Duty to Assist As to the duty to assist, the Board finds that VA has secured all available and identified pertinent post-service evidence, including the Veteran's records from the Dallas and Fort Worth VA Medical Centers, which development substantially complied with the mandates of the October 2009 remand. See Dyment, supra; Stegall, supra. The record also shows that the Veteran was afforded VA examinations in January 2007 and June 2010 which are adequate to adjudicate the claim, and as to the 2010 examination substantially complied with the mandates of the October 2009 remand, because after a review of the record on appeal and an examination of the claimant the examiners provided findings as to the severity of the claimant's adverse symptomatology that allows VA to rate his disability under all applicable rating criteria. See 38 U.S.C.A. § 5103A(d); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate); Dyment, supra; Stegall, supra. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007). II. Legal Criteria Disability evaluations are determined by comparing a veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2010). When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7 (2010). Otherwise, the lower rating will be assigned. Id. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the appellant. 38 C.F.R. § 4.3 (2010). An appeal from the initial assignment of a disability rating, such as the appeal in this case, requires consideration of the entire time period involved, and contemplates staged ratings where warranted. See Fenderson v. West, 12 Vet. App. 119 (1999). The appellant's service-connected hemorrhoids are evaluated under 38 C.F.R. § 4.114, Diagnostic Code 7336. Diagnostic Code 7336 provides that external or internal hemorrhoids will be rated as noncompensable when they are mild or moderate. Hemorrhoids are rated as 10 percent disabling when they are large or thrombotic, irreducible, with excessive redundant tissue, evidencing frequent recurrences. A 30 percent evaluation is warranted with persistent bleeding and with secondary anemia, to include fissures. 38 C.F.R. § 4.114, Diagnostic Code 7336 (2010). In evaluating the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006); Charles v. Principi, 16 Vet. App. 370 (2002); Klekar v. West, 12 Vet. App. 503, 507 (1999); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Evans v. West, 12 Vet. App. 22, 30 (1998); Owens v. Brown, 7 Vet. App. 429, 433 (1995). III. Analysis Prior to May 9, 2008 A January 2007 rating decision granted entitlement to service connection for hemorrhoids with a noncompensable evaluation effective August 20, 2004. At the January 2007 VA examination the appellant reported that he has continued to have pain in the rectum and hard or constipated stool. He stated that it gives him rectal pain as well as causes itching and burning, but no bleeding. He had no rectal incontinence. Current treatment was just that of taking enemas periodically, Preparation-H, and Colace twice a day. On physical examination, there were small hemorrhoids at 4, 6, 8, and 10 o'clock without current evidence of bleeding. The hemorrhoids were small. He did not have any thrombosis of his hemorrhoids. There was no recent bleeding. There was no anemia and no fissure. The impression was hemorrhoids dating to 1962 with status postoperative repair in 1983 with recurrent hemorrhoids and symptoms of pain secondary to constipation, moderate disability with slight progression. In March 2007 the Veteran had an endoscopy because of chronic constipation, intermittent rectal bleeding, and a previous history of colon polyps. A digital rectal examination revealed small hemorrhoids and no other pathology. The colonic mucosa showed some changes consistent with melanosis coli. A retroflexed view of the rectum showed external hemorrhoids and no additional pathology. A September 2007 VA treatment record indicates the appellant had a provisional diagnosis of anemia. However, there is no indication that the anemia was related to the appellant's service-connected hemorrhoids and the anemia was never confirmed. In fact, at the earlier March 2007 colonoscopy it was specifically opined that anemia was not found. Based on the above evidence, the Board finds that an initial compensable evaluation for hemorrhoids is not warranted under Diagnostic Code 7336 prior to May 9, 2008. The January 2007 VA examination report indicates that the appellant's hemorrhoids were small and there was no recent bleeding. The March 2007 VA treatment record also indicated that the hemorrhoids were small. Likewise, the record was negative for objective evidence that the hemorrhoids were large, thrombotic, irreducible, and/or had excessive redundant tissue. In fact, they were characterized as small. Similarly there was no evidence that the appellant's hemorrhoids caused persistent bleeding or fissures. Furthermore, while anemia was suspected on one occasion it was never confirmed. Consequently, the Board finds that the appellant's symptoms during this period did not amount to hemorrhoids that are large or thrombotic, irreducible, with excessive redundant tissue, evidencing frequent recurrences and therefore the criteria for a compensable evaluation under Diagnostic Code 7336 have not been met. 38 C.F.R. § 4.114. This is true throughout at all times before May 9, 2008, and therefore further consideration of staged ratings is not warranted. Fenderson, supra. In reaching the above conclusion, the Board has not overlooked the Veteran and his representative's written and oral statements in support of his claim. Moreover, the Board acknowledges that the appellant and his representative is competent to report on the symptoms they can see and the Veteran is also competent to report on the symptoms that he can feel. See Davidson, supra; Buchanan, supra; Jandreau, supra; Charles, supra. Nonetheless, the Board finds more competent the opinions by the medical experts at the VA examination and in the treatment records discussed above, regarding the severity of the claimant's adverse symptomatology, than these lay claims. See Black v. Brown, 10 Vet. App. 297, 284 (1997) (in evaluating the probative value of medical statements, the Board looks at factors such as the individual knowledge and skill in analyzing the medical data). From May 9, 2008 A May 9, 2008, VA treatment record reported that the appellant had a rectal fissure with rectal bleeding with possible internal hemorrhoids but no abscess, anemia, or induration. Possible internal hemorrhoids were also noted. In a June 2008 VA treatment record, the appellant reported that he had two bowel movements weekly which were associated with bright red blood. Another June 2008 VA treatment record indicated the appellant had non-bleeding internal hemorrhoids. A November 2008 VA treatment record indicated the appellant had a single small rectal hyperplastic polyp removed, which was not an adenoma, following a colonoscopy report. A March 2009 VA treatment record reported that the appellant had a rectal fissure. In a July 2009 VA treatment record the appellant complained of rectal pain for several days with streaks of blood on the tissue after bowel movements. A rectal examination showed no external hemorrhoids but did show pain at the anal sphincter and a fissure. The appellant was instructed to start ProctoFoam and docusate. Another July 2009 VA treatment record indicates the appellant had a rectal fissure but no abscess. At the July 2009 Board hearing, the appellant stated that sitting for a long time creates excruciating pain at times and painful bowel movements. See July 2009 Board Hearing Transcript (Tr.) at p. 3). He stated that he has a throbbing sensation that is usually quenched by a hot towel, some sort of heat applied to the area, or suppository. The appellant stated that he has noticed bleeding. See Tr. at p. 3-4. He stated that he is going to be evaluated for another surgery. He stated that a VA physician told him there was a lesion, which was not protruding, and was extremely sensitive and causing bleeding. See Tr. at p. 4. He stated that he takes pain pills and several suppositories for the condition. See Tr. at p. 5. He also stated that he sometimes cannot control his bowel movements. At the June 2010 VA examination the appellant stated that in the last year he had had weekly episodes of burning and protruding hemorrhoids with trace of blood on toilet tissue. He takes Dulcolax to keep the stool soft and uses Preparation-H ointment or suppositories, which causes the hemorrhoids to go down in two or three days. He reported that the symptoms flare up about once a week but he had no anemia or thrombosis. The appellant reported that several years ago he had an anal fissure. He has had no persistent swelling in the anal area. He does not try and reduce the hemorrhoids. On physical examination, there was a mild amount of hemorrhoids tags and there was a small fissure at 6 o'clock. There were no external hemorrhoids. Digital rectal examination revealed no masses in the rectum, bleeding, or tenderness. The diagnoses were episodic external hemorrhoids with bleeding and a small, asymptomatic, anal fissure. Based on the above evidence, the Board finds that a staged initial evaluation of 20 percent is warranted from May 9, 2008, the date of the record first showed that the appellant had a rectal fissure with bleeding. The evidence following May 9, 2008, thereafter documents a continued problem with a fissure and bleeding. In this regard, the Board notes that the record includes both the appellant's competent and credible statements regarding bleeding because it is observable by a lay person (see Layno v. Brown, 6 Vet. App. 465 (1994)) and numerous VA treatment records as well as the July 2010 VA examination report documenting the bleeding as well as the fissure. Under Diagnostic Code 7336, a 20 percent evaluation is warranted for hemorrhoids with persistent bleeding and with secondary anemia or with fissures. As the appellant had symptoms of recurrent bleeding and a fissure, an initial staged evaluation of 20 percent is warranted at all times from May 9, 2008, the date treatment records first documented the bleeding and the fissure. 38 C.F.R. § 4.114; Fenderson, supra. However, there is no basis for assignment of any higher schedular rating. As 20 percent is the highest rating available under Diagnostic Code 7336, a higher rating is not assignable under this diagnostic code. While the Board has considered the applicability of other diagnostic codes for evaluating the disability, because the appellant is service-connected for hemorrhoids, and the rating schedule clearly calls for rating internal and external hemorrhoids under Diagnostic Code 7336, there is no basis for assigning a scheduler rating under an alternative Diagnostic Code under 38 C.F.R. § 4.114. Based on the foregoing, the Board finds that the criteria for an evaluation of 20 percent, but no higher, for the appellant's service-connected hemorrhoids are met, effective May 9, 2008. IV. Other Considerations Under Thun v. Peake, 22 Vet App 111 (2008), there is a three- step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto 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 to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected disability is inadequate. A comparison between the level of severity and symptomatology of the Veteran's condition with the established criteria shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. The Board further observes that, even if the available schedular evaluation for the disability is inadequate (which it manifestly is not), the Veteran does not exhibit other related factors such as those provided by the regulation as "governing norms." The record does not show that the Veteran has required frequent hospitalizations for his hemorrhoids. The Board finds that the evidence does not demonstrate an exceptional or unusual clinical picture beyond that contemplated by the rating criteria. In short, there is nothing in the record to indicate that the service-connected disability on appeal causes impairment with employment over and above that which is contemplated in the assigned schedular ratings. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired). The Board, therefore, has determined that referral of this case for extra-schedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted In adjudicating the current appeal for increased ratings, the Board has also not overlooked the Court's recent holding in Rice v. Shinseki, 22 Vet. App. 447 (2009) (per curiam) (holding that claims for higher evaluations also include a claim for a total rating based on individual unemployability (TDIU) when the appellant claims he is unable to work due to a service connected disability). However, the Board finds that Rice is inapplicable to the current appeal because the Veteran has not claimed and the record does not show that his hemorrhoids cause unemployability. ORDER Entitlement to an initial compensable evaluation for hemorrhoids, prior to May 9, 2008, is denied. Entitlement to an initial staged evaluation of 20 percent for hemorrhoids, from May 9, 2008, is granted. ____________________________________________ NEIL T. WERNER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs