Citation Nr: 1301013 Decision Date: 01/10/13 Archive Date: 01/16/13 DOCKET NO. 11-02 258 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to an increased (compensable) disability evaluation (rating) for residuals of a hemorrhoidectomy. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Hallie E. Brokowsky, Counsel INTRODUCTION The Veteran, who is the appellant in this case, had active duty service from April 1943 to January 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The Board has not only reviewed the Veteran's physical claims file, but also the Veteran's file on Virtual VA, to ensure a total review of the available evidence. The Board notes that, pursuant to his request in his January 2011 substantive appeal, the Veteran was scheduled for a videoconference hearing before a Veterans Law Judge of the Board at the RO in October 2012; however, he failed to report for that hearing. As he has not provided cause for his failure to appear or requested another hearing, the Veteran's hearing request is deemed withdrawn, and the Board will proceed with its review on the present record. See 38 C.F.R. § 20.704(d), (e) (2012). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. Throughout the rating period on appeal, the Veteran has not experienced large, irreducible hemorrhoids with excessive redundant tissue or frequent recurrences. 2. The Veteran's incontinence is not related to his service-connected hemorrhoids including hemorrhoidectomy. 3. Throughout the rating period on appeal, the Veteran's hemorrhoidectomy scar has been superficial, and not depressed, adherent, or productive of skin breakdown, and makes up less than one percent of his total body surface area. CONCLUSION OF LAW The criteria for an increased, compensable rating for hemorrhoids have not been met. 38 U.S.C.A. § 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.10, 4.114, Diagnostic Code 7336, 4.118, Diagnostic Codes 7802-7805 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Assist and Notify The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). In this case, the agency of original jurisdiction (AOJ) issued notice letters to the Veteran in April 2010 and July 2010. The April 2010 and July 2010 letters explained the evidence necessary to substantiate the claim for an increased rating, as well as the legal criteria for entitlement to such benefits. The letters also informed him of his and VA's respective duties for obtaining evidence. The AOJ decision that is the basis of this appeal was decided after the issuance of an initial, appropriate VCAA notice. As such, there was no defect with respect to timing of the VCAA notice. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). VA also has a duty to assist claimants with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of "relevant" records in the custody of a Federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim. 38 C.F.R. § 3.159(c)(4). In this case, the claims file contains the Veteran's service treatment records and reports of VA post-service treatment, as well as the Veteran's own statements in support of his claim. In April 2010 and October 2010, the Veteran was examined by VA in connection with the claim. The Board has reviewed the examination reports, and finds that they are adequate for the purpose of deciding the issue on appeal. The examination reports contain all the findings needed to rate the disability on appeal, including claims file review, history and complaints from the Veteran, examination with clinical findings, identification of symptomatology related to the service-connected disability, and assessment of impact of the disability on occupation and daily activities. The Board has reviewed the Veteran's statements and medical evidence of record and concludes that there is no outstanding evidence with respect to the claim. The Veteran has been afforded an adequate examination on the issue decided herein. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). VA treatment records also show complaints and findings that reflect on the severity of disability for the rating period. In the Veteran's case currently on appeal to the Board, there is no evidence of worsening of his residuals of a hemorrhoidectomy since the most recent VA examination in October 2010, including no assertion by the Veteran of worsening since the last VA examination. The Veteran in this case does not assert that his residuals of a hemorrhoidectomy have worsened since the October 2010 VA examination; he merely asserts entitlement to a higher disability evaluation. As there is no evidence of worsening since the last VA examination, a remand for a new VA examination is not warranted, and is not required by the VCAA. See Palczewski v. Nicholson, 21 Vet. App. 174, 182 (2007) (mere passage of time does not require VA to provide a new medical examination); VAOPGCPREC 11-95 (interpreting that a new examination is appropriate when there is an assertion of an increase in severity since the last examination). For these reasons, the Board finds that the VCAA duties to notify and assist have been met. Legal Criteria for Rating of Residuals of a Hemorrhoidectomy Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3. When an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20 (2012). A disability rating may require re-evaluation in accordance with changes in a veteran's condition. Thus, it is essential that the disability be considered in the context of the entire recorded history when determining the level of current impairment. See 38 C.F.R. § 4.1. See also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Nevertheless, where the veteran is appealing the rating for an already established service-connected condition, his present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board notes that staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's hemorrhoids are rated noncompensable (0 percent) pursuant to 38 C.F.R. § 4.114, DC 7336. Under DC 7336, a noncompensable rating is warranted for mild or moderate external or internal hemorrhoids. To warrant a higher, 10 percent rating, there must be evidence of large or thrombotic hemorrhoids, irreducible, with excessive redundant tissue, evidencing frequent recurrences. To warrant a 20 percent rating, there must be evidence of hemorrhoids with persistent bleeding and with secondary anemia, or with fissures. See 38 C.F.R. § 4.114, Diagnostic Code 7336. Analysis of Rating for Residuals of a Hemorrhoidectomy The Veteran contends that a higher, compensable disability rating for residuals of a hemorrhoidectomy is warranted. He has reported complaints of incontinence, and that he frequently uses Preparation H ointment for treatment. After a review of all the evidence, lay and medical, the Board finds that for the entire rating period on appeal the Veteran's service-connected residuals of a hemorrhoidectomy more nearly approximates the criteria for a noncompensable (0 percent) disability evaluation under Diagnostic Code 7336. The evidence shows that, throughout the rating period on appeal, the Veteran has not experienced large, irreducible hemorrhoids with excessive redundant tissue, or that recur frequently. Additionally, the schedular diagnostic criteria adequately describe the severity and symptomatology of the Veteran's service-connected hemorrhoids, which include residuals of a hemorrhoidectomy. Throughout the rating period on appeal, the Veteran's residuals of a hemorrhoidectomy have been characterized by no more than mild external hemorrhoids. According to the April 2010 VA examination report, the Veteran complained of incontinence, and reported use of Preparation H for hemorrhoids at the October 2010 VA examination. The evidence shows that the Veteran's reported incontinence is not a symptom of the service-connected hemorrhoid or status post hemorrhoidectomy disability. With regard to the cause of the reported incontinence, the April 2010 VA examiner opined that the Veteran's incontinence was unrelated to the service-connected residuals of a hemorrhoidectomy, and noted that there was no evidence of current hemorrhoids. The April 2010 VA examiner also noted that the Veteran had a sacral wound and anemia, both of which were unrelated to the Veteran's residuals of a hemorrhoidectomy. The Veteran was noted to have a skin tag of the rectal area. The October 2010 VA examination report reflects that the Veteran had external hemorrhoids, but the evidence does not show that they are irreducible, thrombotic, or frequently recurrent, with excessive recurrent tissue. There is no evidence of fistula, persistent bleeding, or anal fissure upon either examination. There was also no evidence of anal or rectal stricture; both VA examiners noted that the Veteran took laxatives and stool softeners, which resulted in diarrhea, but no association was made to his residuals of a hemorrhoidectomy. Furthermore, the Board observes that the Veteran's available VA treatment records for the period on appeal do not show any treatment for hemorrhoids or residuals of a hemorrhoidectomy. For these reasons, an increased (compensable) evaluation for residuals of a hemorrhoidectomy is not warranted for any period. Additionally, although the Veteran has a surgical scar from the hemorrhoidectomy, the October 2010 VA examiner indicated that the scar is superficial. Upon examination, the scar was not depressed or unstable, and was not greater 39 square centimeters; the scar was 2 centimeters by 4 centimeters. Likewise, the VA examiner found that the Veteran did not have skin breakdown, and that there was no evidence of inflammation, edema, or keloid formation. As such, the Veteran is not entitled to a separate, compensable disability evaluation for a scar. See 38 C.F.R. § 4.118, Diagnostic Codes 7802-7805. Extraschedular Considerations The Board has considered whether referral for an extraschedular evaluation is warranted for residuals of a hemorrhoidectomy. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2012). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." See 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has 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 for completion of the third step-a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. Turning to the first step of the extraschedular analysis, the Board finds that the symptomatology and impairment caused by the Veteran's residuals of a hemorrhoidectomy are specifically contemplated by the schedular rating criteria, and no referral for extraschedular consideration is required. The schedular rating criteria, Diagnostic Codes 7336 and 7802-7805, specifically provide for disability ratings based on a combination of history and clinical findings. In this case, considering the lay and medical evidence, the Veteran's residuals of a hemorrhoidectomy have manifested a superficial scar and mild external hemorrhoids, easily treated with Preparation H. These symptoms are part of the schedular rating criteria. The disability rating schedule is intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. See 38 U.S.C.A. § 1155. "Generally, the degrees of disability specified [in the rating schedule] are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." 38 C.F.R. § 4.1. In this case, the problems reported by the Veteran are specifically contemplated by the criteria discussed above, including the effect on his daily life. In the absence of exceptional factors associated with residuals of a hemorrhoidectomy, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER An increased (compensable) disability rating for hemorrhoids is denied. ____________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs