Citation Nr: 1120484	
Decision Date: 05/26/11    Archive Date: 06/06/11

DOCKET NO.  08-30 645	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Diego, California


THE ISSUES

1.  Entitlement to service connection for disability exhibited by loss of sexual sensation including erectile dysfunction.

2.  Entitlement to an increased rating for hemorrhoids, currently rated 10 percent disabling.

3.  Entitlement to an increased rating for right knee chondromalacia, currently rated 10 percent disabling.

4.  Entitlement to an increased rating for left knee chondromalacia, currently rated 10 percent disabling.

5.  Entitlement to an increased rating for varicose veins, right leg, currently rated 10 percent disabling.



REPRESENTATION

Veteran represented by:	Disabled American Veterans 


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

M.W. Kreindler, Counsel


INTRODUCTION

The Veteran served on active duty from March 1969 to September 1991.

This matter comes to the Board of Veterans' Appeals (Board) from rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO).

A September 2006 rating decision denied entitlement to compensable ratings for service-connected bilateral knee disability, and denied entitlement to service connection for "loss of sensation for sex," and disability exhibited by pain in legs with numbness, and determined that new and material evidence had not been received to reopen the claim of entitlement to service connection for back pain.  An October 2006 rating decision denied entitlement to a compensable rating for varicose veins, right leg.  The Veteran filed a notice of disagreement in November 2006 with regard to the disability ratings assigned to the knees and varicose veins, right leg, and the denial of service connection for erectile dysfunction and disability exhibited by pain and numbness in the legs, and the determination that new and material evidence had not been received to reopen the claim of entitlement to service connection for back disability.  A statement of the case was issued in September 2007, and a substantive appeal was received in December 2007.  

In an August 2008 rating decision, the RO granted entitlement to service connection for degenerative diskogenic disease, thoracic spine, assigning a 20 percent disability rating; radiculopathy, left lower extremity, assigning a 10 percent disability rating; and, radiculopathy, right lower extremity, assigning a 10 percent disability rating.  Service connection was established effective February 14, 2006, the date of receipt of the claim for compensation.  The grant of service connection constituted a full award of the benefit sought on appeal as to the issues of entitlement to service connection for back disability and disability exhibited by pain in legs with numbness.  See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997).  Neither the Veteran nor his representative submitted a jurisdiction-conferring notice of disagreement as to the down-stream elements of effective date or compensation level within the applicable time period.  Thus, those matters are not currently in appellate status.  Id.

In an August 2008 supplemental statement of the case, the RO assigned separate 10 percent disability ratings to chondromalacia patella, left and right knees, effective February 3, 2006.  Although an increased rating has been granted, the issue remains in appellate status, as the maximum schedular rating has not been assigned.  AB v. Brown, 6 Vet. App. 35 (1993). 

In a March 2009 supplemental statement of the case, the RO assigned a 10 percent rating for varicose veins, right leg, effective January 5, 2009.  Although an increased rating has been granted, the issue remains in appellate status, as the maximum schedular rating has not been assigned and such rating has not been assigned during the entire appeal period.  Id.

An August 2008 rating decision denied entitlement to a compensable rating for service-connected hemorrhoids.  At the January 2009 RO hearing, the Veteran expressed disagreement with the rating assigned.  In a June 2009 statement of the case, the RO assigned a 20 percent disability rating, effective June 20, 2007, and a 10 percent disability rating, effective October 8, 2007.  A substantive appeal was received in July 2009.  Although an increased rating has been granted, the issue remains in appellate status, as the maximum schedular rating has not been assigned and such rating has not been assigned during the entire appeal period.  Id.

The issues of entitlement to service connection for a disability exhibited by loss of sexual sensation including erectile dysfunction; and, increased ratings for bilateral knees and varicose veins, right leg are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.  VA will notify the Veteran if further action is required.


FINDINGS OF FACT

1.  From June 20, 2007 through February 20, 2008, the Veteran's hemorrhoid disability was exhibited by no more than persistent bleeding and secondary anemia; it was not exceptional and exhibited symptomatology was contemplated by the schedular criteria.  

2.  From February 21, 2008, the Veteran's hemorrhoid disability is not manifested by persistent bleeding, anemia or fissures.


CONCLUSIONS OF LAW

1.  From June 20, 2007 through February 20, 2008, the criteria for a disability rating of 20 percent, but no more, are met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. § 4.114, Diagnostic Code 7336 (2010).

2.  From February 21, 2008, the criteria for a disability rating in excess of 10 percent for hemorrhoids have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. § 4.114, Diagnostic Code 7336 (2010).



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126; see also 38 C.F.R. §§ 3.102, 3.156(a), and 3.326(a), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).  

The United States Court of Appeals for Veteran Claims' (Court's) decision in Pelegrini v. Principi, 17 Vet. App. 412 (2004), held, in part, that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits.  This decision has since been replaced by Pelegrini v. Principi, 18 Vet. App. 112 (2004), in which the Court continued to recognize that typically a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits.  

In this case, VA satisfied its duties to the Veteran in a VCAA letter issued in January 2008 with regard to his increased rating for hemorrhoids.  The letter notified the Veteran of what information and evidence is needed to substantiate his claim, the information and evidence that must be submitted by the claimant, what information and evidence will be obtained by VA, and the information necessary to support an effective date.  Id.; but see VA O.G.C. Prec. Op. No. 1-2004 (Feb. 24, 2004); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  

The Court in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), purported to clarify VA's notice obligations in increased rating claims.  The Court held that a notice letter must inform the Veteran that, to substantiate a claim, he must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life.  The Court also held that where the claimant is rated under a diagnostic code that contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life, the notice letter must provide at least general notice of that requirement.

The Board points out that the U.S. Court of Appeals for the Federal Circuit reversed the Court's holding in Vazquez, to the extent the Court imposed a requirement that VA notify a Veteran of alternative diagnostic codes or potential "daily life" evidence.  See Vazquez-Flores v. Shinseki, No. 08-7150 (Fed. Cir. Sept. 4, 2009).  Reviewing the January 2008 correspondence in light of the Federal Circuit's decision, the Board finds that the Veteran has received 38 U.S.C.A. § 5103(a) compliant notice as to his increased rating claim.

The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claim, and is not prejudiced by any technical notice deficiency along the way.  See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004).  In any event, the Veteran has not demonstrated any prejudice with regard to the content of any notice.  See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.)  See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006).  

In Bryant v. Shinseki, 23 Vet App 488 (2010), the Court held that 38 C.F.R. 3.103(c)(2) requires that the Veterans Law Judge who chairs a hearing has the duty to fully explain the issues and suggest the submission of evidence that may have been overlooked.  Here, during the hearing, the Veterans Law Judge outlined the issue on appeal and suggested that evidence tending to show that pertinent disability had increased in severity would be helpful in establishing the claim.  Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2); they have not identified any prejudice in the conduct of the Board hearing.  

The Board also finds that VA has complied with all assistance provisions of VCAA.  The evidence of record contains private treatment records pertaining to his treatment for hemorrhoids.  Additionally, the evidence of record contains VA examination reports dated in February 2008, April 2009, and August 2010.  The examination reports are thorough and contain sufficient information to decide the hemorrhoid increased rating issue on appeal.  See Massey v. Brown, 7 Vet. App. 204 (1994).  

For all the foregoing reasons, the Board concludes that VA's duties to the Veteran have been fulfilled with respect to the hemorrhoid increased rating issue on appeal.

Increased rating

The Veteran's service-connected hemorrhoids are rated pursuant to Diagnostic Code 7336.  As detailed hereinabove, the RO has rated his hemorrhoids as 20 percent disabling, effective June 20, 2007, and 10 percent disabling, effective October 8, 2007.  Under 38 C.F.R. § 4.114, Diagnostic Code 7336, a zero percent rating is warranted for hemorrhoids (external or internal) where there is evidence of mild to moderate symptomatology.  A 10 percent rating is warranted where there is evidence of large or thrombotic hemorrhoids, which are irreducible, with excessive redundant tissue, and frequent recurrences.  A 20 percent evaluation, the maximum allowed, is warranted where hemorrhoids are present, with persistent bleeding and secondary anemia, or with fissures.

Thus, for the period from June 20, 2007, to October 7, 2007, the Veteran is in receipt of the maximum assignable rating for hemorrhoids.  See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997).  Such 20 percent disability rating was assigned in consideration of symptomatology shown following his July 30, 2007 hemorrhoidectomy, which included a postoperative diagnosis of prolapsed, bleeding external and internal hemorrhoids.  

From October 8, 2007, the Board has reviewed the medical evidence on file to determine whether a 20 percent disability rating is warranted.  The effective date corresponds to an October 8, 2007, private treatment record which reflects that the Veteran had sought follow-up of iron deficiency anemia.  The examiner noted that the Veteran had significant hemorrhoidal bleeding for many years.  He underwent hemorrhoidal surgery in July 2007.  There were no further bleeding symptoms, and he reported feeling better at the time of the examination.  Upon physical examination and review of systems, the examiner noted that he had anemia due to iron deficiency, and that since his surgery he had experienced no further bleeding symptoms.  A December 10, 2007 treatment record from the same medical provider reflects similar findings.  While persistent bleeding had stopped, the Veteran continued to exhibit residual anemia and resolving all doubt in his favor, the criteria for a 20 percent rating were still nearly approximated.  

A February 21, 2008 VA examination report notes that in 2006 the Veteran had anemia secondary to bleeding hemorrhoids and he used iron injection once a week for 8 weeks and then once a month until the present time with his primary care provider.  In November 2007, his hemoglobin was 12.9.  On anoscopic and rectal examination, he had normal sphincter tone.  There was no bleeding or tenderness.  There was no mass, but mild to moderate, internal hemorrhoids and moderate external hemorrhoids with a skin tag attached.  Laboratory testing revealed hemoglobin and hematocrit within normal limits.  The examiner diagnosed hemorrhoids status post hemorrhoidectomy in August 2007; mild to moderate external hemorrhoid; and, moderate external hemorrhoid with a skin tag attached, with no thrombosis and he is asymptomatic.  Thus, in consideration of the diagnostic criteria, such examination report does not reflect persistent bleeding due to hemorrhoids, anemia or fissures and a 20 percent rating is not warranted.

The April 2009 VA examination report reflects that the Veteran had two external hemorrhoids measuring 0.5 centimeters.  There was no mass and no internal hemorrhoid.  The anoscope showed no internal hemorrhoid, no active bleeding, and guaiac was negative.  There was no sign of fecal leakage.  The size of the lumen and rectum was normal.  There was no sign of anemia, fissure, and the hemorrhoid was not thrombosed.  There was no evidence of active bleeding, and no signs of rectal prolapsed.  There was good sphincter tone and no mass.  Thus, in consideration of the diagnostic criteria, such examination report does not reflect persistent bleeding due to hemorrhoids, nor anemia or fissures.  Thus, a 20 percent disability rating is not warranted.  

An August 2010 VA examination report reflects complaints of fecal leakage, but no involuntary bowel movement and no history of thrombosis.  There was no history of recent bleeding but there had been some in the past.  On examination, there was no evidence of fecal leakage, colostomy, anemia, fissure, bleeding, or rectal prolapsed.  The size of the lumen of the rectum and anus was normal.  The sphincter tone was normal.  There was diffuse external hemorrhoids of small to moderate size and internal hemorrhoids of small size.  The examiner diagnosed internal and external hemorrhoids of small to moderate size with a minimal to mild degree of functional impairment and limitation of his ability to perform normal activities of daily living.  Thus, in consideration of the diagnostic criteria, such examination report does not reflect persistent bleeding due to hemorrhoids, nor anemia or fissures.  Thus, a 20 percent disability rating is not warranted.  

Thus, the criteria for a disability rating in excess of 10 percent under Diagnostic Code 7336 for the period from February 21, 2008, have not been met.

The Board has also considered the potential application of other various provisions, including 38 C.F.R. § 3.321(b)(1), for exceptional cases where schedular evaluations are found to be inadequate.  See Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  The Veteran has provided statements that during work he has to carry wipes and has to take extra breaks to take care of his hemorrhoids.  

The Board acknowledges the Veteran's contentions; however, the Board finds the severity of the Veteran's service-connected hemorrhoids are fully contemplated by the rating criteria.  There is nothing exceptional about the Veteran's service-connected disability.  The degree of disability exhibited is contemplated by the rating schedule.  Thus, the Board finds that the threshold test is not met for referral for extraschedular consideration. 38 C.F.R. § 4.16(b); Thun v. Peake, 22 Vet. App. 111 (2008).

The Court has held that a request for a total disability based on individual unemployability (TDIU), whether expressly raised by Veteran or reasonably raised by the record, is not a separate "claim" for benefits, but rather, can be part of a claim for increased compensation.  Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009).  In other words, if the claimant or the evidence of record reasonably raises the question of whether the Veteran is unemployable due to a disability for which an increased rating is sought, then part and parcel with the increased rating claim is the issue of whether a TDIU is warranted as a result of that disability.  Id.  It has not been shown or suggested that there has been interference with employment or that gainful employment is precluded due to his hemorrhoids.  In fact, on VA examination in August 2010, it was noted that the hemorrhoids result in no more than a minimal to mild functional impairment.  The Board does not find that a claim for a TDIU has been reasonably raised by the record with regard to his increased rating claim for hemorrhoids, and thus the Board finds it unnecessary to consider entitlement at this juncture.


ORDER


For the period from June 20, 2007 through February 20, 2008, a disability rating of 20 percent for hemorrhoids is allowed, subject to the regulations governing the award of monetary benefits.

For the period from February 21, 2008, entitlement to a disability rating in excess of 10 percent for hemorrhoids is denied.


REMAND

Erectile dysfunction

The Board notes that service connection is in effect for history of right middle and lower lobe pneumonia with emphysema, rated zero percent disabling, effective October 1, 1991, and residuals of removal of right adrenal mass with scar, rated 10 percent disabling, effective April 26, 2002.  The November 2002 rating decision which granted service connection for residuals of removal of right adrenal mass with scar, determined that based on a July 2002 VA opinion of record, the excision of the right adrenal mass in October 1998 was related to the right costovertebral angle tenderness in the 1980's shown in service treatment records, and calcified nodes and right jabbing pain in 1991.

The Veteran asserts that he sustained loss of sensation for sex, to include erectile dysfunction following the October 1998 surgery.  The Veteran has testified that he takes Cialis for erectile dysfunction.  The Veteran should be afforded a VA examination to assess whether he has a disability manifested by loss of sensation for sex, to include erectile dysfunction, and the examiner should opine whether any such disability is due to or aggravated by a service-connected disability, to include residuals of right adrenal mass.  

Bilateral knees and varicose veins

The Board notes that the Veteran most recently underwent a VA examination on August 2, 2010, pertaining to the knees and varicose veins.  At the time of such examination, the Veteran reported employment as a greeter at Costco, and stated that he had lost about 10 days of work due to his varicose veins.  Despite his symptomatology and limitations, he reported being able to work.  

At the January 2011 Board hearing, however, the Veteran reported that he went on state disability leave on August 25, 2010, mainly due to his back, but also due to his knees and varicose veins, and he was scheduled to return to work on February 9, 2011.  The Veteran was instructed to submit evidence from the state disability board regarding his disability leave; however, no further evidence was submitted by the Veteran.  After obtaining an appropriate release from the Veteran, an attempt should be made to obtain the Veteran's records from the California State Disability Board, and any records from Costco regarding his disability leave.  
	
At the Board hearing, the Veteran also testified that he continues to seek treatment with several private medical providers.  Updated treatment records from Llantada and Mar Professional Chiropractic Corporation, specifically Dr. Rumel M. Llantada, D.C., should be obtained for the period January 11, 2011, to the present.  Updated treatment records should also be obtained from Dr. Merritt S. Matthews for the period July 11, 2007, to the present.  The Veteran should also be requested to identify any other medical providers pertaining to the knees and varicose veins and such treatment records should be associated with the claims folder.

The Board notes that while VA has a duty to assist the Veteran in the development of his claim, the Veteran has a duty to cooperate with VA.  See Wood v. Derwinski, 1 Vet. App. 190 (1991).  The law also provides that a claimant for VA benefits has the responsibility to present and support the claim.  38 U.S.C. § 5107(a).

In light of the Veteran's state disability leave status, the Veteran should be afforded another VA examination to assess the severity of his bilateral knee and varicose vein disabilities.

Accordingly, the case is REMANDED for the following actions:

1.  After obtaining an appropriate release from the Veteran, the following records should be requested:

a) records from the California State Disability Board;

b) records from Costco pertaining to the Veteran's disability benefits;

c) updated treatment records from Llantada and Mar Professional Chiropractic Corporation, specifically Dr. Llantada, for the period January 11, 2011, to the present;

d) updated treatment records from Dr. Matthews, for the period July 11, 2007, to the present;

e) records from any other medical provider identified by the Veteran.  

2.  Schedule the Veteran for a VA examination with a physician with appropriate expertise in order to determine the nature and etiology of his claimed disability manifested by loss of sexual sensation with erectile dysfunction.  It is imperative that the claims file be made available to the examiner in connection with the examination.  Any medically indicated special tests should be accomplished, and all special test and clinical findings should be clearly reported.  After reviewing the claims file and examining the Veteran, the examiner should opine as to the following:

a) Please state whether the Veteran has a disability manifested by loss of sexual sensation with erectile dysfunction;

b) For any disability identified, is it at least as likely as not (a 50 percent or higher degree of probability) proximately due to the Veteran's removal of adrenal mass (surgery performed in October 1998) or to any other service-connected disability (history of right middle and lower lobe pneumonia with emphysema; chondromalacia, bilateral knees; varicose veins, bilateral legs; degenerative diskogenic disease, thoracic spine; radiculopathy, bilateral lower extremities; hemorrhoids);

c) If not, has it at least as likely as not (a 50 percent or higher degree of probability) undergone a permanent increase in its severity due to the Veteran's removal of adrenal mass or to a service-connected disability, and if so, what measurable degree of any such disability is due to removal of adrenal mass or to a service-connected disability?

All opinions and conclusions expressed must be supported by a complete rationale in a report.  If the examiner determines that the requested opinion cannot be provided without resort to mere speculation, then please discuss why an opinion is not possible.  

3.  The Veteran should be afforded an orthopedic examination to determine the current severity of his chondromalacia of the right and left knees.  It is imperative that the claims file be made available to and reviewed by the examiner in connection with the examination.  All indicated studies, including X-rays, should be performed.  

The examiner should undertake range of motion studies of the knees, noting the exact measurements for flexion and extension, specifically identifying any excursion of motion accompanied by pain.  The examiner should identify any objective evidence of pain and attempt to assess the extent of any pain.  Tests of joint motion against varying resistance should be performed.  The extent of any incoordination, weakened movement and excess fatigability on use should be described.  To the extent possible, the functional impairment due to incoordination, weakened movement and excess fatigability on use should be assessed in terms of additional degrees of limitation of motion.  If this is not possible, the examiner should so state.  The examiner should also express an opinion concerning whether there would be additional limits of functional ability on repeated use or during flare-ups (if the Veteran describes flare-ups), and, if feasible, express this in terms of additional degrees of limitation of motion on repeated use or during flare-ups.  If this is not possible, the examiner should so state.  The examiner should provide an opinion concerning the degree of severity of any instability or subluxation of the knee.  The examiner should also determine if the knees lock and if so the frequency of the locking.  The examiner should comment on the presence of any severe painful motion or weakness in the knees.

4.  The Veteran should be afforded an examination to determine the current severity of his varicose veins, right leg.  It is imperative that the claims file be made available to and reviewed by the examiner in connection with the examination.  All indicated studies, including X-rays, should be performed.  

The examiner should comment on the presence of edema, intermittent or persistent; whether edema is relieved by elevation of extremity; the presence of stasis pigmentation, eczema, ulceration, intermittent or persistent; the presence of subcutaneous induration; and, whether there is massive board-like edema with constant pain at rest.  

5.  After completion of the above, review the expanded record and readjudicate the increased rating issues in appellate status.  If any of the benefits sought are not granted in full, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded an opportunity to respond.  Thereafter, the case should be returned to the Board for appellate review.

No action is required of the veteran until he is notified by the RO; however, the veteran is advised that failure to report for any scheduled examination may result in the denial of his claim.  38 C.F.R. § 3.655 (2010).  The Veteran and his representative have the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010).



____________________________________________
THOMAS J. DANNAHER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs