Citation Nr: 1223060	
Decision Date: 07/03/12    Archive Date: 07/13/12

DOCKET NO.  08 26-676	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUE

1.  Entitlement to service connection for a left shoulder disability.

2.  Entitlement to an initial rating greater than 10 percent for a low back disability.

3.  Entitlement to an initial compensable rating prior to May 6, 2009, and to an initial rating greater than 20 percent thereafter, for a right shoulder disability.

4.  Entitlement to an earlier effective date than May 6, 2009, for a 10 percent rating for hemorrhoids.


REPRESENTATION

Appellant represented by:	The American Legion



WITNESSES AT HEARING ON APPEAL

The Veteran and his wife


ATTORNEY FOR THE BOARD

Michael T. Osborne, Counsel


INTRODUCTION

The Veteran had active service from February 1977 to January 1995, from February 2002 to May 2007, and additional U.S. Army Reserve (USAR) service.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia, as part of the Benefits Delivery at Discharge (BDD) program.  In the June 2007 rating decision, the RO granted the Veteran's claims of service connection for a low back disability, assigning a 10 percent rating effective June 1, 2007, for a right shoulder disability, assigning a zero percent rating effective June 1, 2007, and for hemorrhoids, assigning a zero percent rating effective June 1, 2007.  

The purpose of the BDD program is to help ensure a smooth transition from military to civilian status by allowing service members to file pre-discharge claims for disability compensation with VA.  In order to facilitate the quick processing of claims under the BDD program, the Virtual VA paperless claims processing system is utilized.  Instead of paper, a highly secured electronic repository is used to store and review every document involved in the claims process.  The use of this system allows VA to leverage information technology in order to more quickly and accurately decide a Veteran's claim for benefits.  

Because the current appeal was processed as part of the Virtual VA system, any future consideration of this appellant's case should take into consideration the existence of this electronic record. 

In a June 2009 rating decision, the RO assigned a higher initial 20 percent rating effective May 6, 2009, for the Veteran's service-connected right shoulder disability and assigned a higher initial 10 percent rating effective May 6, 2009, for the Veteran's service-connected hemorrhoids.  The Veteran subsequently testified at the July 2011 Board hearing that he was seeking an earlier effective date for the 10 percent rating assigned for his service-connected hemorrhoids and was not appealing the disability ratings.  Thus, these issues are as stated on the title page of this decision.  

This matter also is on appeal from a December 2009 rating decision in which the RO denied, in pertinent part, the Veteran's claim of service connection for a left shoulder disability.  A videoconference Board hearing was held at the RO in July 2011 before the undersigned Veterans Law Judge and a copy of the hearing transcript has been added to the record.

The issues of entitlement to service connection for a left shoulder disability, entitlement to an initial rating greater than 10 percent for a low back disability, and entitlement to an initial compensable rating prior to May 6, 2009, and to an initial rating greater than 20 percent thereafter, for a right shoulder disability, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.  VA will notify the Veteran if further action is required on his part.

Finally, in a statement of March 2009, the Veteran indicated his intent to file a claim for the residuals of an extraction of a tooth on the bottom left side of his mouth.  This matter is referred to the RO for appropriate action.  



FINDINGS OF FACT

1.  The Veteran's original claim of service connection for hemorrhoids was filed on a VA Form 21-526 which was date-stamped as received by the RO on March 26, 2007.

2.  The Veteran was discharged from active service on May 31, 2007.

3.  In a rating decision dated on June 18, 2007, and issued to the Veteran and his service representative on July 5, 2007, the RO granted service connection for hemorrhoids, assigning a zero percent rating effective June 1, 2007.

4.  In a rating decision dated on June 18, 2009, and issued to the Veteran and his service representative on July 2, 2009, the RO assigned a higher initial 10 percent rating effective May 6, 2009, for hemorrhoids.

5.  The competent evidence shows that the Veteran has experienced the same level of disability due to his service-connected hemorrhoids since he was discharged from active service.


CONCLUSION OF LAW

The criteria for an effective date of June 1, 2007, for a 10 percent rating for hemorrhoids have been met.  38 U.S.C.A. §§ 5101(a), 5110, 5111 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.1, 3.4(b)(1), 3.31, 3.105(a), 3.151(a), 3.400 (2011).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify the appellant of information and evidence necessary to substantiate the claim and redefined its duty to assist him in obtaining such evidence.  38 U.S.C.A. §§ 5102, 5103, 5103A, and 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156, 3.159, 3.326 (2011).  Given the favorable disposition of the action here, which is not prejudicial to the Veteran, the Board need not assess VA's compliance with the VCAA.  See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992).

The Veteran contends that he is entitled to an effective date earlier than May 6, 2009, for a 10 percent rating for hemorrhoids.  He specifically contends that, because his service treatment records show that he was treated for a large internal hemorrhoid in March 2007 prior to his separation from active service in May 2007, and because he has prosecuted his currently appealed claim continuously since the date that he filed his original service connection claim for hemorrhoids on March 26, 2007, while he still was on active service, he is entitled to an effective date as of the day after his date of discharge from active service on May 31, 2007 (or June 1, 2007).

In general, except as otherwise provided, the effective date of an evaluation of an award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later.  38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400.

A "claim" is defined broadly to include a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit.  38 C.F.R. § 3.1(p); Brannon v. West, 12 Vet. App. 32, 34-35 (1998); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992).  Any communication indicating an intent to apply for a benefit under the laws administered by the VA may be considered an informal claim provided it identifies, but not necessarily with specificity, the benefit sought.  See 38 C.F.R. § 3.155(a).  To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim.  See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992).

Upon receipt of an informal claim, if a formal claim has not been filed, the RO will forward an application form to the claimant for execution.  If the RO receives a complete application from the claimant within one year from the date it was sent, the RO will consider it filed as of the date of receipt of the informal claim.  38 C.F.R. § 3.155 (2008).

A report of examination or hospitalization which meets the requirements of this section will be accepted as an informal claim for benefits under an existing law or for benefits under a liberalizing law or VA issue, if the report relates to a disability which may establish entitlement.  38 C.F.R. § 3.157.  Once a formal claim for compensation has been allowed, receipt of a report of examination by VA or evidence from a private physician will be accepted as an informal claim for benefits.  In the case of examination by VA, the date of examination will be accepted as the date of receipt of a claim.  The provisions of the preceding sentence apply only when such reports relate to examination or treatment of a disability for which service-connection has previously been established, or when a claim specifying the benefit sought is received within one year from the date of such examination.  In the case of evidence from a private physician, the date of receipt of such evidence by VA will be accepted as the date of the claim.  Id.

For an increase in disability compensation, the effective date will be the earliest date as of which it is factually ascertainable that an increase in disability had occurred if the claim is received within 1 year from such date; otherwise, the effective date is the date of receipt of claim.  38 U.S.C.A. § 5110; 38 C.F.R. § 3.400(o)(2).  See Hazan v. Gober, 10 Vet. App. 511 (1997); Servello v. Derwinski, 3 Vet. App. 196 (1992).

In VAOPGCPREC 12-98, VA's General Counsel noted that 38 C.F.R. § 3.400(o)(2) was added to permit payment of increased disability compensation retroactively to the date the evidence establishes the increase in the degree of disability had occurred. VA's General Counsel said this section was intended to be applied in those instances where the date of increased disablement can be factually ascertained with a degree of certainty.  It was noted that this section was not intended to cover situations where disability worsened gradually and imperceptibly over an extended period of time.

With respect to hemorrhoids, a 10 percent rating is assigned under DC 7336 for internal or external hemorrhoids that are large or thrombotic, irreducible, with excessive redundant tissue, evidencing frequent occurrences.  A maximum 20 percent rating is assigned for internal or external hemorrhoids with persistent bleeding and with secondary anemia or with fissures.  See 38 C.F.R. § 4.114, DC 7336 (2011).

The Board finds that the evidence supports assigning an earlier effective date of May 1, 2007, for the 10 percent rating for hemorrhoids.  The Veteran has contended that he is entitled to an earlier effective date for the initial 10 percent rating for service-connected hemorrhoids because he has prosecuted his service connection claim continuously since the date that he filed it as part of the BDD in March 2007 several months prior to his discharge from active service in May 2007.  He also has contended that he is entitled to an earlier effective date as of the day after his date of discharge from active service (in this case, June 1, 2007) for the initial 10 percent rating currently assigned for his service-connected hemorrhoids because he has experienced the same level of disability due to hemorrhoids since he originally filed his service connection claim.  The Board agrees.  

The Veteran filed his original service connection claim for hemorrhoids on a VA Form 21-526, "Veteran's Application For Compensation Or Pension" that was date-stamped as received by the RO on March 26, 2007.  The Veteran specifically contended that he had incurred hemorrhoids during active service.

A review of the Veteran's Service Record available on Virtual VA shows that he was discharged from active service on May 31, 2007.

A review of the Veteran's service treatment records available on Virtual VA demonstrates that, on a March 2007 colonoscopy, a large prolapsed internal hemorrhoid was noted.

On VA pre-discharge physical examination in April 2007, the Veteran's complaints included hemorrhoids.  He reported that he had been diagnosed as having hemorrhoids 3 years earlier.  He also reported that he would be having surgery to treat his hemorrhoids in 2 weeks.  He had no problems with stools, was not under treatment for hemorrhoids, and was not aware of any functional limitations due to hemorrhoids.  A rectal examination showed erythema with 2 tender external hemorrhoids 0.4 and 0.5 centimeters (cm) in diameter, no fissures, vesicles, ulcers, or fistulas, and mild tenderness.  The diagnoses included external hemorrhoids, surgical procedure pending.

In a rating decision dated on June 18, 2007, and issued to the Veteran and his service representative on July 5, 2007, the RO granted service connection for hemorrhoids, assigning a zero percent rating effective June 1, 2007.  Although the RO acknowledged that the Veteran had filed his claims as part of a pre-discharge program, it concluded that June 1, 2007, was the appropriate effective date for the zero percent rating for the Veteran's service-connected hemorrhoids because that was the day after his discharge from active service.  The RO also concluded that a zero percent rating was appropriate because only 2 small hemorrhoids had been found on VA pre-discharge examination in April 2007.

In statements on a VA Form 21-4138 dated on August 23, 2007, and date-stamped as received by the RO on August 27, 2007, the Veteran disagreed with the initial zero percent rating assigned for his service-connected hemorrhoids.

In statements on his VA Form 9 (substantive appeal) dated on August 12, 2008, and date-stamped as received by the RO on August 15, 2008, the Veteran essentially contended that his March 2007 in-service colonoscopy demonstrated his entitlement to an initial compensable rating for service-connected hemorrhoids.  He also stated that his hemorrhoids "swell 2 out of every 3 bowel movements."

On VA rectum and anus examination in May 2009, the Veteran's complaints included weekly flare-ups of hemorrhoids or flare-ups every 3 out of 4 bowel movements, pain, burning, tenesmus, and swelling.  His history included hemorrhoids since active service and frequent rectal bleeding and rectal prolapse.  His history also included recurrent hemorrhoids without thrombosis 4 times a year and recurrent hemorrhoids with thrombosis 4 times a year.  His hemorrhoids had worsened recently.  He treated his hemorrhoids with a high fiber diet.  He stated that the high recurrence of his hemorrhoids prevented him from having surgery to treat them.  His last colonoscopy in March 2007 had shown large prolapsed hemorrhoids.  He denied any history of fecal incontinence or perianal discharge.  Physical examination showed large, irreducible internal hemorrhoids with thrombosis and prolapse, no evidence of bleeding, fissures, excessive redundant tissue, and no fistulas, anal or rectal stricture, impaired sphincter, or rectal prolapse.   The Veteran reported that he had been employed full-time for the past 1-2 years and had lost 3 weeks of work due to his service-connected hemorrhoids in the previous year.  The diagnosis was large active thrombosed prolapsed internal hemorrhoids.

The Veteran's service representative clarified at the Veteran's July 2011 Board hearing that the Veteran was appealing for an earlier effective date for the initial 10 percent rating assigned for his service-connected hemorrhoids.  See Board hearing transcript dated July 25, 2011, at pp. 3.  The Veteran testified that he wanted an earlier effective date of June 1, 2007, for the initial 10 percent rating for his service-connected hemorrhoids.  Id., at pp. 21-22.  He also testified that he had experienced the same level disability due to his service-connected hemorrhoids since he filed his original service connection claim.  Id., at pp. 22.  

The Board acknowledges the Veteran's lay assertions and hearing testimony that he is entitled to an effective date earlier than May 6, 2009, for the initial 10 percent rating assigned for his service-connected hemorrhoids.  The competent evidence supports these assertions.  It demonstrates that the Veteran's service-connected hemorrhoids have been manifested by large or thrombotic, irreducible hemorrhoids that have recurred frequently (i.e., a 10 percent rating under DC 7336) since he first was diagnosed as having them following an in-service colonoscopy in March 2007.  See 38 C.F.R. § 4.114, DC 7336 (2011).  The Board concludes that the Veteran has prosecuted his currently appealed claim continuously since he filed his original service connection claim for hemorrhoids on a VA Form 21-526 which was date-stamped as received on March 26, 2007 (as noted above).  As also noted above, because the Veteran was not discharged from active service until May 31, 2007, no VA compensation can be awarded prior to the day after the date of his discharge (i.e., June 1, 2007).  The Board also concludes that, although it appears that the Veteran's service treatment records (to include the March 2007 colonoscopy) were not scanned in to Virtual VA until October 2007, several months after his claim was filed and after he was discharged from active service, because this is a Virtual VA claims file that was electronically transmitted to VA, all of the Veteran's service treatment records were constructively of record as of the date that he filed his original claim for VA benefits.  See, for example, Bell v. Derwinski, 2 Vet. App. 611 (1992) (finding VA on constructive notice of all documents generated by VA even if documents not part of the record), and Murincsak v. Derwinski, 2 Vet. App. 363, 372-73 (1992) (finding that "[t]he Court cannot accept the Board being 'unaware' of certain evidence, especially when such evidence is in possession of the VA, and the Board is on notice as to its possible existence and relevance.")  In summary, because the currently appealed claim has been prosecuted continuously since the Veteran filed his original service connection claim for hemorrhoids on March 26, 2007, and because the Veteran was discharged from active service on May 31, 2007, the Board finds that June 1, 2007, is the appropriate effective date for the initial 10 percent rating for hemorrhoids.  See 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2).


ORDER

Entitlement to an earlier effective date of June 1, 2007, for a 10 percent rating for hemorrhoids is granted, subject to the laws and regulations governing the payment of monetary benefits.


REMAND

Inasmuch as the Board sincerely regrets the additional delay of the adjudication of this matter, a remand is necessary before the Veteran's claims of service connection for a left shoulder disability, for an initial rating greater than 10 percent for a low back disability, and for an initial compensable rating prior to May 6, 2009, and to an initial rating greater than 20 percent thereafter, for a right shoulder disability can be adjudicated.

With respect to the Veteran's claim of service connection for a left shoulder disability, the Veteran has contended that he incurred a left shoulder disability during active service.  He has contended specifically that he tore his left shoulder rotator cuff during active service and continues to experience a left shoulder disability related to his original in-service injury.  He also has contended specifically that his in-service duties as a paratrooper, including participating in multiple parachute jumps, caused or contributed to his current left shoulder disability.  He testified to this effect at his July 2011 Board hearing.  A review of the Veteran's DD Form 214 confirms that he was awarded the Parachutist Badge and the Combat Infantryman Badge (CIB).

The Board observes that VA's duty to assist under the VCAA includes obtaining an examination or medical opinion when necessary.  To date, the Veteran has not been scheduled for VA examination to determine the nature and etiology of his left shoulder disability.  Given the foregoing, the Board finds that, on remand, the Veteran should be scheduled for appropriate VA examination for a left shoulder disability.  38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4) ; McLendon v. Nicholson, 20 Vet. App. 79 (2006).

With respect to the Veteran's higher initial rating claims for a low back disability and for a right shoulder disability, the Veteran has contended that both of these disabilities are more disabling than currently evaluated.  The Board notes that the Veteran's most recent VA examinations for his service-connected low back and right shoulder disabilities occurred in May 2009.  More recent private outpatient treatment records dated in September 2009 (available on Virtual VA) suggest that both of these disabilities may have worsened since his VA examination.  The Veteran also testified at his Board hearing that he currently experiences peripheral neuropathy in both of his lower extremities which, in his view, is attributable to his service-connected low back disability.  See Board hearing transcript dated July 25, 2011, at pp. 13-14.

The Board notes that VA's duty to assist under the VCAA includes obtaining an examination or medical opinion when necessary.  The Court has held that when a Veteran alleges that his service-connected disability has worsened since he was examined previously, a new examination may be required to evaluate the current degree of impairment.  See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997).  Given the Veteran's contentions, and given the length of time which has elapsed since his most recent VA examination in May 2009, the Board finds that, on remand, he should be scheduled for updated VA examinations to determine the current nature and severity of his service-connected low back disability and right shoulder disability.  38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159.

The RO/AMC also should attempt to obtain the Veteran's up-to-date VA and private treatment records.  Because this is a Virtual VA claim, a copy of any request(s) for medical records sent to the Veteran and any private medical records obtained, to include a negative reply, should be scanned in to Virtual VA.  A copy of any updated VA outpatient treatment records also should be associated with the Veteran's Virtual VA claims file.

Accordingly, the case is REMANDED for the following action:

1.  Contact the Veteran and his service representative and ask them to identify all VA and non-VA clinicians who have treated him for a left shoulder disability, a low back disability, or for a right shoulder disability since his separation from active service.  Obtain all VA treatment records which have not been obtained already.  Once signed releases are received from the Veteran, obtain all private treatment records which have not been obtained already.  Because this is a Virtual VA claim, a copy of any request(s) sent to the Veteran and any private records obtained, to include a negative reply, should be scanned in to Virtual VA.  A copy of any updated VA outpatient treatment records also should be associated with the Veteran's Virtual VA claims file.

2.  Schedule the Veteran for appropriate examination to determine the nature and etiology of his left shoulder disability.  The claims file and a copy of this remand must be provided to the examiner for review.  All appropriate testing should be conducted.  The Veteran should be asked to provide a complete medical history, if possible.  Based on a review of the Veteran's claims file and the results of his physical examination, and the Veteran's statements regarding the development and treatment of his claimed disorder, the examiner is asked to opine whether it is at least as likely or not (i.e., a 50 percent or greater probability) that a left shoulder disability, if diagnosed, is related to active service or any incident of service.  The examiner also should be asked to opine whether a service-connected disability, to include a right shoulder disability, caused or aggravated (permanently worsened) a left shoulder disability, if diagnosed.  The examiner is advised that the Veteran was a U.S. Army paratrooper and participated in multiple parachute jumps during active service.  The examiner must consider the Veteran's lay statements about how the left shoulder was injured and comment on whether his descriptions make sense from a medical perspective.  A complete rationale must be provided for any opinions expressed.

3.  Schedule the Veteran for appropriate VA examination to determine the current severity of his service-connected low back disability.  All pertinent symptomatology and findings must be reported in detail.  Any indicated diagnostic tests and studies must be accomplished.  As to all information requested below, a complete rationale for all opinions must be provided.

The examiner should identify any low back disability/ies currently experienced by the Veteran, if possible.  The examiner also should identify whether the Veteran experiences any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment and peripheral neuropathy of the bilateral lower extremities.  If peripheral neuropathy is present, then the examiner is asked to opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's service-connected low back disability caused or aggravated (permanently worsened) any peripheral neuropathy, if diagnosed.  The examiner should state whether the Veteran experiences forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, a combined range of motion of the thoracolumbar spine not greater than 120 degrees, or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.  The level at which pain occurs must be recorded on each range of motion test.  The examiner also should state whether the Veteran experiences forward flexion of the thoracolumbar spine 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine.  The examiner also should state whether the Veteran experiences unfavorable ankylosis of the entire thoracolumbar spine or the entire spine.  

4.  Schedule the Veteran for appropriate VA examination to determine the current severity of his service-connected right shoulder disability.  All pertinent symptomatology and findings must be reported in detail.  Any indicated diagnostic tests and studies must be accomplished.  As to all information requested, a complete rationale for all opinions must be provided.  The examiner should identify any right shoulder disability/ies currently experienced by the Veteran, if possible.  The examiner also should identify whether the Veteran experiences limitation of motion of the right arm midway between the side and shoulder level.  The examiner should identify further whether the Veteran experiences limitation of motion of the right arm to 25 degrees from the side.

5.  The Veteran should be given adequate notice of the requested examinations, which includes advising him of the consequences of his failure to report to the examinations.  If he fails to report to the examinations, then this fact should be noted in the claims file and a copy of the scheduling of examination notification or refusal to report notice, whichever is applicable, should be obtained by the RO and scanned in to the Veteran's Virtual VA claims file. 

6.  Review all evidence received since the last prior adjudication and readjudicate the Veteran's claims.  If the determination remains unfavorable to the Veteran, then the RO should issue a supplemental statement of the case that contains notice of all relevant actions taken, including a summary of the evidence and applicable law and regulations considered pertinent to the issue.  An appropriate period of time should be allowed for response by the Veteran and his service representative.  Thereafter, the case should be returned to the Board for further appellate consideration, if in order.

The appellant has the right to submit additional evidence and argument on the matter or 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. 2011).



______________________________________________
MARJORIE A. AUER
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs