Citation Nr: 1300844 Decision Date: 01/09/13 Archive Date: 01/16/13 DOCKET NO. 08-00 074 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to an initial rating in excess of 10 percent for hemorrhoids. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD David S. Nelson, Counsel INTRODUCTION The Veteran had active service from September 1963 to September 1985. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a February 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. Jurisdiction of the case belongs to the RO in North Little Rock, Arkansas. This case was previously before the Board in June 2010. The Veteran testified before the undersigned Veterans Law Judge in August 2009. A transcript of the hearing is of record. A May 2011 rating decision granted service connection for right knee degenerative arthritis and assigned a rating of 10 percent, effective March 27, 2006. The Veteran has not expressed disagreement with the May 2011 RO decision. A claim for entitlement to a total rating based on individual unemployability due to service-connected disability (TDIU) is part of an increased rating issue when such claim is raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board notes that the Veteran is currently in receipt of a TDIU, effective August 20, 2007. FINDING OF FACT For the entire initial rating period, the Veteran's hemorrhoids are manifested by complaints of persistent bleeding with secondary anemia. CONCLUSION OF LAW The criteria for an initial rating of 20 percent for hemorrhoids have been me for the entire appeal period. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.114, Diagnostic Code 7336 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VCAA The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The VCAA applies in the instant case. Duty to Notify As the February 2007 rating decision granted service connection for the Veteran's hemorrhoids disability, that claim is now substantiated. VA's General Counsel has clarified that no additional VCAA notice is required in this circumstance concerning a "downstream" issue, such as the rating or effective date assigned for a service-connected disability and that a Court decision suggesting otherwise is not binding precedent. VAOPGCPREC 8-2003. The filing of a notice of disagreement as to the disability ratings assigned does not trigger additional notice obligations under 38 U.S.C.A. § 5103(a). 38 C.F.R. § 3.159(b)(3). Instead of issuing an additional VCAA notice letter in this situation concerning the "downstream" disability-rating and/or earlier-effective-date elements of the claim, the provisions of 38 U.S.C.A. § 7105(d) require VA to instead issue a SOC if the disagreement concerning the downstream issue is not resolved. And since the RO issued an SOC in November 2007 addressing the downstream increased rating claim, which included citation to the applicable statutes and regulations and a discussion of the reasons and bases for not assigning a higher rating, no further notice is required. See Goodwin v. Peake, 22 Vet. App. 128 (2008) and Huston v. Principi, 17 Vet. App. 195 (2003). During the August 2009 Board hearing, to assist the Veteran, the undersigned asked questions to help direct the Veteran's testimony concerning the medical history of his disability on appeal and its current symptomatology. Further, the undersigned, after considering the Veteran's August 2009 Board hearing testimony, determined that an additional examination to ascertain the current severity of the Veteran's hemorrhoids disability was necessary. These actions fulfilled the duties under 38 C.F.R. § 3.103 (2012). See Bryant v. Shinseki, 23 Vet. App. 488 (2010). Duty to Assist The Veteran's service treatment records are associated with the claims file, as are VA and private medical records. No outstanding evidence has been identified that has not otherwise been obtained. Indeed, as a part of the June 2010 Remand, updated VA medical records were procured. The Veteran has undergone adequate VA examinations that addressed the matters presented by this appeal. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The aforementioned examinations were thorough, and well reasoned, and took into account the Veteran's personal history/complaints. The Board therefore finds that the examinations were adequate for rating purposes. The Board recognizes that the Veteran's last VA hemorrhoid examination is over two years old. The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate examination was conducted. VAOPGCPREC 11-95. Here, there is no objective evidence, much less contention, indicating that there has been a material change in the severity of the Veteran's hemorrhoid disability since the September 2010 VA examination was conducted. VA's duty to assist with respect to obtaining a VA examination with respect to the initial rating issue on appeal has been met. The Board finds that there has been substantial compliance with its June 2010 remand instructions. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). The Veteran has not referenced any other pertinent, obtainable evidence that remains outstanding. VA's duties to notify and assist are met, and the Board will address the merits of the claim. Legal Criteria Disability evaluations are determined by comparing a veteran's present symptoms with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Because the instant appeal is from the initial rating assigned with the grant of service connection, the possibility of "staged" ratings for separate periods during the appeal period, based on the facts found, must be considered. See Fenderson v. West, 12 Vet. App. 119 (1999). When a question arises as to which of two ratings applies under a particular code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. The February 2007 rating decision, in pertinent part, granted service connection for hemorrhoids and assigned a noncompensable rating, effective March 27, 2006. A May 2011 rating decision assigned a rating of 10 percent for the Veteran's hemorrhoids disability, also effective March 27, 2006. Such created a staged rating. Under Diagnostic Code 7336, large or thrombotic, irreducible hemorrhoids, with excessive redundant tissue, evidencing frequent recurrences, are rated as 10 percent disabling. Hemorrhoids which cause persistent bleeding with secondary anemia, or with fissures are rated as 20 percent disabling. At an August 2006 VA examination the Veteran complained of frequently recurring hemorrhoids which he treated with topical cream. Physical examination revealed no evidence of ulceration, fissures, or reduction of lumen. Both external and internal hemorrhoids were present and not reducible. There was no evidence of bleeding at the time, although the Veteran complained of bloody stools. Thrombosis was absent, and the examiner found no evidence of frequent recurrence. The examiner further found that the hemorrhoids did not cause significant anemia or malnutrition. In September 2008 correspondence the Veteran's spouse indicated that she had purchased absorbent pads, creams, and suppositories to treat the Veteran's hemorrhoids and frequently cleans soiled underwear, bed sheets, and mattress pads as a result of the condition. In November 2008 the Veteran submitted photographs of his internal hemorrhoids taken during a private colonoscopy. A January 2009 VA primary care note contained an assessment that included anemia that was linked, at least in part, to the Veteran's hemorrhoids disability. At the August 2009 Board hearing the Veteran essentially indicated that he would have bleeding following bowel movements. The Veteran stated that he would have to wear pads to stop the bleeding, usually for 20-30 minutes. At a September 2010 VA examination the Veteran indicated that he had bleeding and spotting with each bowel movement. Physical examination revealed a complete rosette of fluid hemorrhoidal tissue around the anal verge. The hemorrhoidal mass was so large that it had become confluent. Distraction on the external hemorrhoidal masses revealed an abundance of exuberance internal hemorrhoidal tissue. Rectal sphincter tone was good. There was no bleeding and no evidence of anal fissure or fistula. The diagnosis was rectal hemorrhoids external and internal grade 4/4. The examiner advised the Veteran to seek surgical consultation to deal with his hemorrhoidal bleeding. The evidence of record clearly reflects that the Veteran's hemorrhoids are manifested by persistent bleeding. In fact, the September 2010 VA examiner advised the Veteran to seek surgical intervention to address that problem. Further, the Veteran and his wife have provide credible and competent reports concerning the bleeding associated with his hemorrhoids. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). While the September 2006 VA examiner noted no "significant" anemia, a review of blood testing that was undertaken with that examination revealed a "low"' hemoglobin level. A similar finding was revealed in a January 2009 VA primary care note. As such, and resolving all doubt in his favor, the Board finds that the Veteran's hemorrhoids are productive of persistent bleeding with secondary anemia. An initial evaluation of 20 percent for hemorrhoids is warranted for the entire rating period on appeal. 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. As for extraschedular consideration, the threshold determination is whether the disability picture presented in the record is adequately contemplated by the rating schedule. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Court clarified the analytical steps necessary to determine whether referral for extra-schedular consideration is warranted. Either the RO or the Board must first determine whether the schedular rating criteria reasonably describe or contemplate the severity and symptomatology of the Veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If so, then the assigned schedular evaluation is adequate, referral for extra-schedular consideration is not required, and the analysis stops. If the RO or the Board finds that the schedular evaluation fails to reasonably describe or contemplate the severity and symptomatology of the Veteran's service-connected disability, 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 or frequent periods of hospitalization. Id. at 116. If additional factors are found, 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 to determine whether justice requires assignment of an extra-schedular rating. Id. The evidence of record does not reveal that the Veteran's disability picture is so unusual or exceptional in nature as to render the schedular rating inadequate. The Veteran's disability on appeal is not one that is rated by analogy, but, instead, has been evaluated under the applicable diagnostic code pertaining to hemorrhoids that have specifically contemplated the level of occupational and social impairment caused by the service-connected hemorrhoids disability. The rating criteria specifically provide for ratings based on the presence of such symptoms as persistent bleeding. Therefore, referral for assignment of an extra-schedular evaluation in this case is not in order. Floyd v. Brown, 9 Vet. App. 88, 95 (1996); Bagwell v. Brown, 9 Vet. App. 337 (1996). ORDER An initial rating of 20 percent for hemorrhoids, for the entire period on appeal, is granted, subject to the applicable law governing the award of monetary benefits. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs