Citation Nr: 1301649 Decision Date: 01/15/13 Archive Date: 01/23/13 DOCKET NO. 09-04 064 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to a compensable rating for residuals of hemorrhoidectomy (hemorrhoids). 2. Entitlement to a total disability rating based upon individual unemployability (TDIU). REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Jeng, Counsel INTRODUCTION The Veteran served on active duty from January 1962 to March 1969. The Veteran is the recipient of a Combat Infantryman Badge and Purple Heart, among other awards. This matter comes before the Board of Veterans' Appeals (Board) from a March 2008 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which, in part, continued a compensable rating for hemorrhoids. In October 2011, the Veteran testified before the undersigned at a hearing held at the RO. A copy of the hearing transcript is contained in the claims file. In March 2012, the Board remanded this matter for further development, which has been completed, and the case has been returned to the Board for appellate consideration. As noted in the March 2012 decision/remand, the issue of entitlement to a TDIU was not certified for appeal. However, pursuant to Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009), such issue is considered "part and parcel" of an increased rating claim where evidence of unemployability is submitted during the course of an appeal. Therefore, as the evidence of record reflects that the Veteran has been unemployed since 2009, and he contends that his unemployability is due to his service-connected disabilities, the issue of entitlement to a TDIU is properly before the Board. In that regard, the Board finds that further development is necessary as to the TDIU aspect of the increased rating claim. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. The Board has reviewed the relevant documents in the electronic file in conjunction with rendering a decision in this appeal. FINDINGS OF FACT 1. The Veteran's residuals of hemorrhoidectomy (hemorrhoids) are not manifested as large or thrombotic, irreducible, with excessive redundant tissue, evidencing frequent recurrences. 2. The Veteran is service-connected for posttraumatic stress disorder (PTSD), evaluated as 70 percent disabling; chronic posttraumatic headaches, evaluated as 30 percent disabling; tinnitus, evaluated as 10 percent disabling; chronic right shoulder tendinitis, evaluated as 10 percent disabling; right elbow strain with degenerative changes, evaluated as 10 percent disabling; diffuse degenerative joint disease of the cervical spine, evaluated as 10 percent disabling; residuals of hemorrhoidectomy, evaluated as noncompensable; and degenerative joint disease of the right long finger, evaluated as noncompensable; none of which, individually or in combination, render him unable to secure or follow substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for residuals of hemorrhoidectomy (hemorrhoids) have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002);38 C.F.R. §§ 4.1, 4.2, 4.7, 4.114, Diagnostic Code 7336 (2012). 2. The criteria for entitlement to a TDIU have not been met. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. §§ 3.340, 4.16(a), (b) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Stegall Considerations As noted above, the Board remanded this matter for further development in March 2012. The Board specifically instructed the RO to request that the Veteran identify any outstanding treatment records relevant to his claim for increased rating for hemorrhoids and for a TDIU and make reasonable efforts to obtain any identified evidence, provide the Veteran with an examination to determine the current nature and severity of his hemorrhoids, and to readjudicate the claims. Subsequently, the Appeals Management Center (AMC) sent the Veteran a letter in March 2012 requesting that he identify any pertinent treatment records by returning the enclosed VA Form 21-4142, Authorization and Consent to Release Information to the Department of Veterans Affairs. To date the Veteran has not returned a VA Form 21-4142. Additionally, he was provided an examination for his service-connected hemorrhoids in April 2012, and his claim was readjudicated in an October 2012 supplemental statement of the case. Thus, there is compliance with the Board's remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting that where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). Duties to Notify and Assist In correspondence dated in March 2008, prior to the May 2008 rating decision, the RO satisfied its duty to notify the Veteran under 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2012). Specifically, the RO notified the Veteran of: information and evidence necessary to substantiate the claims; information and evidence that VA would seek to provide; and information and evidence that the Veteran was expected to provide. Both letters notified the Veteran of the process by which disability ratings and effective dates are established. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The letter informed the Veteran that in order to establish a higher rating, the evidence would need to show that his service-connected hemorrhoids had increased in severity. He was informed of the type of evidence that could be submitted to support his increased rating claim. VA has done everything reasonably possible to assist the Veteran with respect to his claims for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2012). Service treatment records have been associated with the claims file. All identified and available treatment records have been secured. As the Board will discuss in detail in its analysis below, the Veteran was provided with VA examinations throughout the appeal period. The reports of these examinations reflect that the examiners reviewed the Veteran's past medical history, recorded his current complaints, conducted appropriate evaluations of the Veteran, and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record. Additionally, the Veteran has not stated nor is there evidence indicating that there has been a material change in the severity of his hemorrhoids since he was last examined in April 2012. See 38 C.F.R. § 3.327(a) (2012). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. See VAOPGCPREC 11-95 (April 7, 1995). The Board concludes that the examination reports of record are adequate for purposes of rendering a decision in the instant appeal. See 38 CF.R. § 4.2 (2012); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran and his representative have not contended otherwise. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c) (4) (2012); Barr, 21 Vet. App. at 312. The Board additionally observes that all appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2012). The Veteran has been accorded the opportunity to present evidence and argument in support of his claims. As noted above, he presented testimony before the undersigned in October 2011. Therefore, the duties to notify and assist have been met. Hemorrhoids The Veteran essentially contends that his hemorrhoids are more disabling than contemplated by the current non-compensable evaluation. Disability evaluations are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. Each disability must be viewed in relation to its history, with an emphasis on the limitation of activity imposed by the disabling condition. Medical reports must be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7 (2012). While the Veteran's entire history is reviewed when assigning a disability evaluation, 38 C.F.R. § 4.1 , where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). The United States Court of Appeals for Veterans Claims (Court) has held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. The Veteran's service-connected hemorrhoids have been evaluated under Diagnostic Code 7336. Hemorrhoids that are mild or moderate warrant a 0 percent (i.e., non-compensable) rating and ones that are large or thrombotic, irreducible, with excessive redundant tissue, evidencing frequent recurrences, warrant a 10 percent rating. 38 C.F.R. § 4.114, Diagnostic Code 7336 (2012). On VA examination in March 2008, the Veteran complained of anal itching, diarrhea, pain, and tenesmus and denied fecal incontinence. Specifically as to hemorrhoids, the Veteran reported bleeding one to two times a year last one to two days in the last eight months without thrombosis. He treated this with over-the-counter Preparation H as needed, which helped and did not result in any side effects. There was no rectal prolapse; or history of trauma to the rectum or anus, spinal cord injury, rectal bleeding, anal infections, proctitis, fistula in ano, neoplasm. The Veteran had to take three to four days off in the last 12 months from work as a truck driver due to rectal pain with no effect on his activities of daily living. On evaluation, the examiner noted no colostomy, evidence of fecal leakage, signs of anemia, fissures, evidence of bleeding, rectal prolapse, . Additionally, it was observed that the size of lumen was normal and sphincter tone was good. He had two hemorrhoids tags at the nine o'clock position in the rectum. A diagnosis of hemorrhoids was noted. On VA examination in April 2012, the Veteran reported stools with bloody streaks or small drops about once a month for one day. He used proctofoam daily as needed for hemorrhoid flare up and tucks twice a day as need to keep the anal area clean. The Veteran indicated that these treatments helped. On evaluation, the examiner found that there were no internal or external hemorrhoids but only a flat skin tag at the five o'clock position without blood, fissures, or pain during rectal examination. Additionally, there was no soiling, blood, visible or palpable internal or external hemorrhoids. There was also good anal tone. There were no scars or other findings/complications. The examiner noted that the hemorrhoids were mild in severity given the history provided by the Veteran and no finding of any hemorrhoids on examination. Additionally, the examiner found that there was no effect on the Veteran's occupation or ability to obtain or maintain substantial employment. VA treatment records dated throughout the appeal show that the Veteran has been treated for his hemorrhoids. Based on the evidence, the Board finds that the Veteran is not entitled to a compensable rating for hemorrhoids because the medical evidence of record does not indicate that his hemorrhoids are large or thrombotic, irreducible, with excessive redundant tissue, evidencing frequent recurrences. Therefore, a compensable rating is unwarranted. The Board further finds that, since the effective date of service connection, there were no distinct periods of time during which the veteran's disability was compensable. He is accordingly not entitled to receive a "staged" rating. Hart, supra. In reaching the above conclusion, the Board has not overlooked the Veteran's statements with regard to the severity of his disability. The Veteran is competent to report on factual matters of which he had firsthand knowledge, e.g., self-medicating with Preparation H; and the Board finds that the Veteran's reports have been credible. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Any lay evidence in this case was provided during the Veteran's VA examination, clinical evaluations, and at his October 2011 haring. He is competent to provide statements regarding his current symptomatology, and the Board finds that the Veteran's statements are credible. The Board has considered the Veteran's reports along with findings from the Veteran's VA examination and various treatment reports. The Board notes, with respect to the Rating Schedule, where the criteria set forth therein require medical expertise which the Veteran has not been shown to have, the objective medical findings provided by the Veteran's treatment reports and his VA examination reports have been accorded greater probative weight. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992); Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). The Board has also considered whether this case should be referred to the Director of the VA Compensation and Pension Service for extra-schedular consideration under 38 C.F.R. § 3.321(b)(1). The Court has held that the threshold factor for extra-schedular consideration is a finding on part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular evaluations for the service-connected disability at issue are inadequate. Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for the disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluation is therefore adequate, and no referral for extra-schedular consideration is required. Thun v. Peake, 22 Vet. App. 111 (2008). In the case at hand, the record reflects that the Veteran has not required any hospitalizations for his disability. Additionally, the manifestations of the Veteran's disability are not in excess of those contemplated by the schedular criteria and there is no indication that the average industrial impairment from the disability would be in excess of those contemplated by the assigned rating. Furthermore, the April 2012 VA examiner specifically indicated that the Veteran's hemorrhoids would have no effect on his occupation or ability to obtain or maintain substantial employment. Accordingly, the Board has determined that referral of this case for extra-schedular consideration is not in order. As the preponderance of the evidence is against the claim for an increased rating, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). TDIU It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16 (2012). A finding of total disability is appropriate "when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation." 38 C.F.R. §§ 3.340(a) (1), 4.15 (2012). "Substantially gainful employment" is that employment "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). "Marginal employment shall not be considered substantially gainful employment." 38 C.F.R. § 4.16(a) (2012). The Court noted the following standard announced by the United States Court of Appeals for the Eighth Circuit in Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir. 1975): It is clear that the claimant need not be a total 'basket case' before the courts find that there is an inability to engage in substantial gainful activity. The question must be looked at in a practical manner, and mere theoretical ability to engage in substantial gainful employment is not a sufficient basis to deny benefits. The test is whether a particular job is realistically within the physical and mental capabilities of the claimant. Marginal employment, for example, as a self-employed worker or at odd jobs or while employed at less than half of the usual remuneration, shall not be considered "substantially gainful employment." 38 C.F.R. § 4.16(a) (2012). That is, a Veteran may be considered as unemployable upon termination of employment that was provided on account of disability or in which special consideration was given on account of the same. See 38 C.F.R. § 4.18 (2012). A claim for a total disability rating based upon individual unemployability "presupposes that the rating for the (service-connected) condition is less than 100%, and only asks for TDIU because of 'subjective' factors that the 'objective' rating does not consider." See Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994). In Hatlestad v. Derwinski, 1 Vet. App. 164 (1991), the Court referred to apparent conflicts in the regulations pertaining to individual unemployability benefits. Specifically, the Court indicated there was a need to discuss whether the standard delineated in the controlling regulations was an "objective" one based on the average industrial impairment or a "subjective" one based upon the veteran's actual industrial impairment. In a pertinent precedent decision, the VA General Counsel concluded that the controlling VA regulations generally provide that veterans who, in light of their individual circumstances, but without regard to age, are unable to secure and follow a substantially gainful occupation as the result of service- connected disability shall be rated totally disabled, without regard to whether an average person would be rendered unemployable by the circumstances. Thus, the criteria include a subjective standard. It was also determined that "unemployability" is synonymous with inability to secure and follow a substantially gainful occupation. See VAOPGCPREC 75-91. In determining whether unemployability exists, consideration may be given to the veteran's level of education, special training and previous work experience, but not to his age or to any impairment caused by non service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2012). A total disability rating for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more. If there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and the combined rating must be 70 percent or more. 38 C.F.R. § 4.16(a) (2012). In this case, the Veteran is service-connected for posttraumatic stress disorder (PTSD), evaluated as 70 percent disabling; chronic posttraumatic headaches, evaluated as 30 percent disabling; tinnitus, evaluated as 10 percent disabling; chronic right shoulder tendinitis, evaluated as 10 percent disabling; right elbow strain with degenerative changes, evaluated as 10 percent disabling; diffuse degenerative joint disease of the cervical spine, evaluated as 10 percent disabling; residuals of hemorrhoidectomy, evaluated as noncompensable; and degenerative joint disease of the right long finger, evaluated as noncompensable. Therefore, the Veteran meets the basic percentage requirements for eligibility for consideration for the grant of TDIU under 38 C.F.R. § 4.16(a). The remaining question before the Board is whether the Veteran is unemployable by reason of his service-connected disabilities alone, taking into consideration his educational and occupational background. A review of the record reveals that the Veteran completed two years of high school and has worked primarily as a truck driver. On the December 2009 application for a TDIU, the Veteran indicated that he was the owner and operator of his own trucking business. At that time, he also indicated that he last worked full-time in September 2009. During his February 2010 VA examination for his PTSD, the Veteran stated that he worked full-time as a truck driver which he had done for more 20 years. He stated that he lost four months of work in the last four months. During the February 2010 VA examination for a TDIU, the Veteran indicated to the examiner that for the last year he had been employed full-time as a truck driver. It was noted that he missed 14 weeks of work in the last year due to problems with his knees, shoulder, and elbow. Most recently, a June 2012 VA treatment record showed that the Veteran continued to work part-time as a long distance truck driver. As noted above, there is no indication that the Veteran's residuals of hemorrhoidectomy (hemorrhoids) affect his ability to work. As to his other service-connected disabilities, the February 2010 VA examiner noted that the right elbow disorder would result in decreased manual dexterity, decreased strength in the upper extremity, pain; bilateral knee disorder would result in decreased mobility and strength in the lower extremity, and pain. The cervical spine disorder would result in difficulty reaching and pain, the lumbar spine disorder would result in problem with lifting and carrying, and pain. In an August 2010 addendum report, the examiner indicated that the service-connected right elbow, bilateral knees, cervical and lumbar spine disorders were not additionally limited after three repetitive movements in range of motion testing. He found that the Veteran was not totally physically impaired due to his service-connected right elbow or cervical spine, and most of the disability was due to his back and knee problems which were not service-connected. The examiner further noted that the Veteran was not totally occupationally impaired due to his service-connected disabilities but that he was able to work with limitations. The primary service-connected disability was the right elbow which affected his ability to lift, push, pull, carry, and prolonged work on a keyboard for more than 30 minutes in an hour. On VA examination in February 2010 for his PTSD, the examiner noted that problems associated with the Veteran's occupational functioning were pain and swelling in the right elbow, pain in his neck with associated headaches, and pain in the knees. The examiner also noted that there was not total occupational and social impairment due to PTSD, however, there were deficiencies in thinking (concentration was impaired to a degree as the Veteran was overwhelmed with PTSD symptoms often on a daily basis), family relationships (Veteran was isolated from family and he reported that his wife was scared to wake him up due to his aggressive reaction to nightmares), work (the Veteran's concentration was impaired due to insomnia and other symptoms, and worsening pain added to this), and mood (depressed and irritable on a daily basis). On VA examination in January 2012 for service-connected headaches, the examiner indicated that the disorder affected the Veteran's ability to work. The Veteran indicated to the examiner that as a long distance truck driver he had to pull over a lay down for a couple of hours. On review of all evidence, the Board finds that the preponderance of the evidence is against entitlement to a TDIU. Although the Veteran exhibits some employment impairment due to his various service-connected disabilities, namely his right elbow, however, the Board finds that the level of impairment to the Veteran's employment is adequately reflected in the disability evaluations the Veteran currently receives. Significantly, the February 2010 VA examiner opined that the Veteran's non-service connected back and knee problems were his most limiting disorder. Furthermore, none of the VA examiners have found that any disability, either alone or in combination with any other disability impacted the Veteran's ability to secure or maintain a gainful occupation. Thus, the overall evidence does not support the Veteran's contention that he is totally unemployable due to his service-connected disabilities. To the extent that the Veteran himself believes that his disabilities entitle him to a TDIU, the Board notes that the Veteran is competent to provide testimony concerning factual matters of which he has first-hand knowledge. However, the Board finds that the Veteran's contentions of a total inability to work are not supported by the objective evidence of record. The Board has placed greater probative weight on the VA examiners' findings. The RO determined that the Veteran was not unemployable due to his service-connected disabilities alone and decided not to refer the case to the Director of Compensation and Pension for an extra-schedular determination. The Board is in agreement with that assessment. Because a preponderance of the evidence is against assigning a TDIU in this case, the benefit of the doubt doctrine is not applicable. See 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER Entitlement to a compensable rating for residuals of hemorrhoidectomy (hemorrhoids) is denied. Entitlement to a TDIU is denied. ____________________________________________ C. TRUEBA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs