Citation Nr: 1301362 Decision Date: 01/14/13 Archive Date: 01/23/13 DOCKET NO. 10-06 921 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to a compensable evaluation for hemorrhoids. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Jennifer R. White, Counsel INTRODUCTION The Veteran served on active duty from March 1953 to March 1957. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. The Board notes that the Veteran withdrew his Travel Board hearing request in an August 2012 memorandum from his representative; indicating that he did not wish to reschedule such hearing at a future time. Accordingly, his request for a Board hearing is deemed withdrawn. See 38 C.F.R. § 20.704(d) (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). FINDING OF FACT The preponderance of the evidence indicates that the Veteran has occasional moderate leakage of fecal matter but has not had large or thrombotic hemorrhoids, irreducible hemorrhoids, hemorrhoids with excessive redundant tissue, fissures, or persistent bleeding with secondary anemia. CONCLUSION OF LAW An evaluation of 10 percent, but no higher, for hemorrhoids is warranted. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.114 Diagnostic Codes 7332, 7336 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay 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. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In a claim for increase, the VCAA requires only generic notice as to the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). Here, the Veteran was sent a letter in August 2008 that provided information as to what evidence was required to substantiate the claim and of the division of responsibilities between VA and a claimant in developing an appeal. The letter also explained what type of information and evidence was needed to establish a disability rating and effective date. Accordingly, no further development is required with respect to the duty to notify. Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the Veteran in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Regulations and Analysis Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012). Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2 (2012); resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3 (2012); where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7 (2012); and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10 (2012). See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In general, the degree of impairment resulting from a disability is a factual determination and generally the Board's primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994); Solomon v. Brown, 6 Vet. App. 396, 402 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The Board has reviewed all the evidence in the claims file, which includes: his contentions, service treatment records, VA treatment records, private treatment reports, and VA examination reports. Although there is an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the veteran or obtained on his behalf be discussed in detail. Rather, the analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The rating schedule provides for a noncompensable (0 percent) rating for mild or moderate internal or external hemorrhoids. 38 C.F.R. § 4.114, Diagnostic Code 7336. Hemorrhoids with persistent bleeding and with secondary anemia, or with fissures, are rated 20 percent disabling. Large or thrombotic hemorrhoids, irreducible, with excessive redundant tissue, evidencing frequent recurrences, are rated 10 percent disabling. Diagnostic Code 7332 provides ratings based on impairment of sphincter control, with regard to the rectum and anus. 38 C.F.R. § 4.114, Diagnostic Code 7332. Complete loss of sphincter control is rated 100 percent disabling. Extensive leakage and fairly frequent involuntary bowel movements are rated 60 percent disabling. Occasional involuntary bowel movements, necessitating wearing of pad, are rated 30 percent disabling. Constant slight impairment of sphincter control, or occasional moderate leakage, is rated 10 percent disabling. Healed or slight impairment of sphincter control, without leakage, is rated as noncompensable. The Veteran was afforded a VA examination in September 2008. His symptoms included weekly diarrhea, daily pain, a small amount of fecal leakage biweekly with the need for a pad on a daily basis with stool and blood on the pad. The Veteran indicated that he did not have anal itching, tenesmus, swelling or a perianal discharge. The Veteran had no current treatment and no rectal prolapse. On objective examination, there was a small amount of fecal leakage on the pad; the lumen, rectum and anus were within normal limits; there were no signs of anemia or fissures; there were several external hemorrhoids which were small; and the sphincter tone was normal. The examiner noted that the Veteran was unemployable due to his Parkinson's disease. The Board notes that the examiner did not review the claims file, however the history provided by the Veteran was accurate and the claims file adds nothing to the disability picture for the relevant period as the question is one of current disability and there were no treatment records relevant to the current appeal. VA treatment records indicate no record of treatment for the Veteran's hemorrhoids. The Veteran's spouse submitted a statement dated December 2009. She indicated that the Veteran has constipation but not all the time for which he receives enemas. She also indicated that he has drainage or seepage which was noted at the time of the VA examination. The Veteran is currently rated as noncompensable under Diagnostic Code 7336 for hemorrhoids. Considering Diagnostic Code 7332 for impairment of sphincter control, the Board notes that the VA examiner indicated that the Veteran had normal sphincter control. However, the Veteran clearly has chronic leakage of fecal material, of small amounts. It's unclear as to how he could have leakage without some impairment of sphincter control. Thus, affording the Veteran the benefit of the doubt, the Board resolves that his condition warrants a 10 percent disability rating for constant slight or occasional moderate leakage. However, there is no indication that the Veteran has occasional involuntary bowel movements. Although the Veteran did report diarrhea, this was not indicated as being equivalent to an involuntary bowel movement. He also indicated only a small amount of leakage on a biweekly basis. Additionally, the Veteran's spouse indicated that he has constipation for which he receives enemas. Thus, the Board finds that the Veteran's current disability warrants a 10 percent rating under Diagnostic Code 7332. Concerning a possible 30 percent rating under Diagnostic Code 7336 for hemorrhoids, the Veteran notes that the examiner indicated that the Veteran does not have secondary anemia or fissures. Thus, the Veteran's current disability picture is not consistent with a 30 percent rating under this Diagnostic Code. The Board additionally notes that the Veteran does not have rectal prolapse (Diagnostic Code 7334) or rectal or anal stricture (Diagnostic Code 7333). Thus, those Diagnostic Codes are not applicable in the instant case. Taking into all evidence of record, the Board finds that the preponderance of the evidence indicates that the Veteran is entitled to a 10 percent disability rating under Diagnostic Code 7332 due to his recurrent leakage of fecal matter. The Board must also determine whether the schedular evaluation is inadequate, thus requiring that the RO refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." 38 C.F.R. § 3.321(b)(1) (2012). An extra-schedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture. An exceptional or unusual disability picture occurs where the diagnostic criteria do not 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 there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment or frequent periods of hospitalization. Id. at 115-116. When either of those elements has been satisfied, the appeal must be referred for consideration of the assignment of an extraschedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116. In this case, the schedular evaluation is not inadequate. An evaluation in excess of that assigned is provided for certain manifestations of the service-connected hemorrhoids but the medical evidence reflects that those manifestations are not present in this case. Additionally, the diagnostic criteria adequately describe the severity and symptomatology of the Veteran's disorder. As the rating schedule is adequate to evaluate the disability, referral for extraschedular consideration is not in order. ORDER Entitlement to a 10 percent evaluation for hemorrhoids is granted, subject to the regulations governing monetary awards. ____________________________________________ J.A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs