Citation Nr: 1303022 Decision Date: 01/30/13 Archive Date: 02/05/13 DOCKET NO. 08-13 173A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to service connection for peptic ulcer disease. 2. Entitlement to an initial compensable disability rating for non-thrombosed hemorrhoidal tissue, status post hemorrhoidectomy. 3. Entitlement to an initial disability rating in excess of 10 percent for the residuals of a right fifth finger injury status post volar plate procedure with surgical scar. 4. Entitlement to a temporary total convalescent rating based on post-surgical convalescence for a right fifth finger disability. 5. Entitlement to an initial compensable disability rating for chronic gastritis. WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD J. W. Kim, Counsel INTRODUCTION The Veteran had active service from April 1988 to August 1992, February 1995 to March 1995, November 1995 to January 1996, and December 2003 to June 2005. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. In a September 2006 rating decision, the RO granted service connection for the residuals of a right fifth finger injury status post volar plate procedure and for non-thrombosed hemorrhoidal tissue status post hemorrhoidectomy, assigning each a noncompensable disability rating effective June 6, 2005; and denied service connection for an ulcer condition. The Veteran timely perfected an appeal for higher initial ratings and for service connection for an ulcer condition. In January 2009, the Veteran testified during a hearing before a Decision Review Officer (DRO) at the RO. In a July 2009 rating decision, the RO added a surgical scar to the residuals of a right fifth finger injury but continued the noncompensable rating. In a May 2010 rating decision, the RO increased the rating for the right fifth finger disability to 10 percent effective June 6, 2005. As this increase does not represent the maximum rating available, the issue remains in appellate status. AB v. Brown, 6 Vet. App. 35 (1993). In a December 2011 rating decision, the RO granted service connection for chronic gastritis, assigning a noncompensable disability rating effective January 12, 2009. In March 2012, the Veteran filed a notice of disagreement (NOD) to the initial disability rating. In March 2012, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge (VLJ) at the RO. As the appeal involves a request for a higher initial rating following the grant of service connection, the Board has characterized the rating issues as stated on the title page. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). In March 2012, the Veteran filed a claim for a temporary total convalescent rating based on post-surgical convalescence for a right fifth finger disability. As will be discussed, this claim is inextricably intertwined with the claim for a higher initial rating for a right fifth finger disability. Thus, the Board takes jurisdiction over it. The issues of entitlement to an initial disability rating in excess of 10 percent for the residuals of a right fifth finger injury status post volar plate procedure with surgical scar, a temporary total convalescent rating based on post-surgical convalescence for a right fifth finger disability, and an initial compensable disability rating for chronic gastritis 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 appellant if additional action is required on her part. FINDINGS OF FACT 1. On the record during the March 15, 2012, Board hearing, the Veteran requested that her appeal with respect to the claim for service connection for peptic ulcer disease be withdrawn. 2. Since the June 6, 2005, effective date of service connection, the evidence is in relative equipoise as to whether the Veteran's hemorrhoid disability has been manifested by mild or moderate hemorrhoids, or by large or thrombotic hemorrhoids with excessive redundant tissue, evidencing frequent recurrences. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal by the Veteran with respect to the claim for service connection for peptic ulcer disease have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002 & Supp. 2012); 38 C.F.R. § 20.204 (2012). 2. Resolving reasonable doubt in the Veteran's favor, the criteria for an initial 10 percent disability rating, but no higher, for a hemorrhoid disability have been met during the entire appeal period. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.3, 4.114, Diagnostic Code 7336 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Withdrawn Claim Under 38 U.S.C.A. § 7105 (West 2002 & Supp. 2012), the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. A substantive appeal may be withdrawn on the record during a hearing, and at any time before the Board promulgates a decision. See 38 C.F.R. §§ 20.202, 20.204 (2012). Withdrawal may be made by the veteran or by his or her authorized representative. See 38 C.F.R. § 20.204. On the record during the March 15, 2012, Board hearing, the Veteran requested withdrawal of the appeal with respect to the claim for service connection for peptic ulcer disease. Hence, there remain no allegations of errors of fact or law for appellate consideration with respect to this claim. Accordingly, the Board does not have jurisdiction to review the appeal as to this claim, and it must be dismissed. Duties to Notify and Assist Before addressing the merits of the issue of entitlement to an initial compensable rating for a hemorrhoid disability, the Board notes that VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.326(a) (2012). The Veteran's claim arises from an appeal of the initial evaluation following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Thus, no further notice is needed. Next, VA has a duty to assist the veteran in the development of the claim. This duty includes assisting him or her 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. In this case, 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 treatment and examination. The Veteran's statements in support of the claim are of record. 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 claim. VA has provided the Veteran with examinations in June 2006, August 2009, and September 2011 to determine the nature and severity of her disability. 38 C.F.R. § 3.159(c)(4). To that end, when VA undertakes to provide an examination or obtain an opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). Although a rectal examination was deferred at the June 2006 examination, the VA examiner cited to recent examination findings in VA medical records. Similarly, although a rectal examination was not completed in August 2009 or September 2011, the VA examiner noted in each report that one was not necessary as the findings in the VA medical records were sufficient. Thus, the Board finds the VA examination reports to be thorough and adequate upon which to base a decision on the claim. The VA examiners interviewed the Veteran, eliciting a history from the Veteran, and provided the information necessary to evaluate the Veteran's disability under the applicable rating criteria. Given the above, no further assistance is required to fulfill VA's duty to assist. 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). Initial Disability Rating Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability. Separate diagnostic codes identify the various disabilities. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012). However, the Board has been directed to consider only those factors contained wholly in the rating criteria. See Massey v. Brown, 7 Vet. App. 204 (1994). But see Mauerhan v. Principi, 16 Vet. App. 436 (2002) (finding it appropriate to consider factors outside the specific rating criteria in determining level of occupational and social impairment). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for the higher evaluation; otherwise, the lower evaluation will be assigned. See 38 C.F.R. § 4.7 (2012). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2012). A veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). When the veteran has disagreed with the initial rating assigned, evaluation of the medical evidence since the effective date of the grant of service connection and consideration of the appropriateness of "staged" ratings (i.e., assignment of different ratings for distinct periods of time, based on the facts found) is required. See Fenderson v. West, 12 Vet. App. 119 (1999). The analysis below is therefore undertaken with consideration of the possibility that different "staged" ratings may be warranted for different time periods. The Veteran's non-thrombosed hemorrhoidal tissue, status post hemorrhoidectomy, has been assigned a noncompensable rating under 38 C.F.R. § 4.114, Diagnostic Code 7336 (2012). For reasons that will become clear below, the Board will refer to the Veteran's disability simply as a hemorrhoid disability. Under Diagnostic Code 7336, a noncompensable rating is warranted for mild or moderate hemorrhoids; a 10 percent rating is warranted for large or thrombotic, irreducible hemorrhoids with excessive redundant tissue, evidencing frequent recurrences; and a maximum 20 percent rating is warranted for hemorrhoids with persistent bleeding and with secondary anemia, or with fissures. After a careful review of the record, the Board finds that an initial 10 percent disability rating is warranted for the Veteran's hemorrhoid disability. The Veteran's service treatment records reflect that she developed an external thrombosed hemorrhoid and underwent a thrombectomy, and that a subsequent hemorrhoidectomy was needed. Records from the Pittsburgh VA Medical Center (VAMC) reflect ongoing problems with hemorrhoids. Treatment notes dated as early as May 2005 reflect a history of external hemorrhoids. A January 2009 treatment note shows complaints of frequent swelling and a finding of mild hemorrhoids. December 2009 and December 2010 treatment notes continue to show complaints of frequent swelling. During a June 2006 VA examination, the Veteran complained of rectal pain at times but with no trace of blood, and a history of a thrombectomy and hemorrhoidectomy during service. She reported using hydrocortisone cream, with relief. A rectal examination was deferred. The examiner noted that a February 2006 examination at the Pittsburgh VAMC showed redundant non-thrombosed hemorrhoidal tissue with no internal hemorrhoids and normal rectal tone. In a September 2007 statement, the Veteran indicated that she suffers from recurring hemorrhoids. During the January 2009 DRO hearing, the Veteran indicated that she has recurrences of her hemorrhoids, noting that she had just been seen by her VA primary care physician for a recurrence and had been prescribed medication. During an August 2009 VA examination, the Veteran complained of rectal irritation about once per month that she treats with hydrocortisone cream to shrink the tissue and soothe the area. She also noted feeling some hemorrhoidal tissue protruding at times when performing lifting activities. The examiner noted that VA medical records show that the Veteran has had redundant non-thrombosed hemorrhoidal tissue and that mild hemorrhoidal tissue was found in January 2009. The examiner noted that the Veteran has not had chronic anal infections or proctitis, or a fistula. The examiner noted that a rectal examination was not necessary as physical findings were already documented in the VA medical records. The examiner provided a diagnosis of non-thrombosed external hemorrhoidal tissue. A July 2010 VA examination report on digestive disorders reflects a history of hemorrhoidectomy and a diagnosis of a thrombosed hemorrhoid. During a September 2011 VA examination, the Veteran complained of feeling hemorrhoidal tissue periodically and noticing flecks of blood on toilet paper at times. She denied bloody diarrhea. She complained of some irritation and itching of the rectum due to hemorrhoids that she treats with hydrocortisone cream. The examiner noted that the Veteran has not been found to have any incidents of anal infection or proctitis, or a fistula. The examiner noted that the Veteran sees her VA primary care physician regularly and no further rectal examination was necessary. The examiner provided a diagnosis of chronic non-thrombosed hemorrhoidal tissue. During the March 2012 Board hearing, the Veteran testified that she has recurrences of her hemorrhoids at least two or three times per month with bleeding and pain, and that by the time she can be seen by her physician they have resolved. Given the above, the Board finds that, since the June 6, 2005, date of service connection, the evidence is in relative equipoise as to whether the Veteran's hemorrhoid disability has been manifested by mild or moderate hemorrhoids, or by large or thrombotic hemorrhoids with excessive redundant tissue, evidencing frequent recurrences. On one hand, the evidence shows a finding of mild hemorrhoids and diagnoses of non-thrombosed hemorrhoidal tissue. The above supports a noncompensable rating. On the other hand, the evidence shows complaints of protruding hemorrhoidal tissue, indicating large hemorrhoids, complaints of frequent swelling, and a finding of redundant hemorrhoidal tissue. The Board also notes the in-service history of thrombosed hemorrhoids. The above supports a 10 percent rating. Resolving reasonable doubt in the Veteran's favor, the Board finds that her hemorrhoid disability has been manifested by large or thrombotic hemorrhoids with excessive redundant tissue, evidencing frequent recurrences. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 4.3 (2012). Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, an initial 10 percent disability rating is warranted. The Board notes that there is no evidence as to whether the Veteran's hemorrhoids have been irreducible; however, the Board observes that not all of the criteria must be met to warrant a certain rating. An even higher 20 percent disability rating is not warranted as the Veteran's hemorrhoid disability has not been manifested by persistent bleeding and secondary anemia, or fissures. The Board has also considered whether any other applicable rating criteria may enable a higher evaluation. However, after review, the Board finds that no other diagnostic code provides for a higher rating. In conclusion, the Board has applied the benefit-of-the-doubt doctrine in granting an initial 10 percent disability rating for the Veteran's hemorrhoid disability; however, the preponderance of the evidence is against an even higher rating. Extra-Schedular 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 (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 115-16. When either of those elements has been satisfied, the appeal must be referred for consideration of the assignment of an extra-schedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1); Thun v. Peake, 22 Vet. App. 111 (2008). In this case, the schedular evaluation is adequate. An evaluation in excess of that assigned is provided for certain manifestations of the service-connected hemorrhoid disability, 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 extra-schedular consideration is not in order. Finally, although the Veteran has submitted evidence of a medical disability, and made a claim for the highest rating possible, she has not submitted evidence of unemployability, or claimed to be unemployable. In fact, she reported working full time during each VA examination. Therefore, the question of entitlement to a total disability rating based on individual unemployability due to a service-connected disability has not been raised. See Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). ORDER The appeal with respect to the claim for service connection for peptic ulcer disease is dismissed. An initial 10 percent disability rating for a hemorrhoid disability is granted, subject to the provisions governing the award of monetary benefits. REMAND As indicated in the introduction, the Veteran has filed a claim of entitlement to a temporary total convalescent rating based on post-surgical convalescence for the right fifth finger disability. As the rating for the right fifth finger disability could be impacted by the claim for a temporary total convalescent rating, these issues are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180 (1991); Holland v. Brown, 6 Vet. App. 443 (1994); Henderson v. West, 12 Vet. App. 11 (1998). As such, prior to readjudication of the Veteran's claim for a higher initial rating for the residuals of a right fifth finger injury status post volar plate procedure with surgical scar, the RO should adjudicate the claim for a temporary total convalescent rating. Also as indicated in the introduction, the Veteran has filed a timely NOD with the initial rating assigned for chronic gastritis in the December 2011 rating decision. A statement of the case has not been issued. Thus, the Board is required to remand the issue to the RO for the issuance of a statement of the case. See Manlincon v. West, 12 Vet. App. 238 (1999). Lastly, the Veteran receives treatment from the Pittsburgh VAMC, and the record, including the Veteran's Virtual VA file, contains treatment notes dated through November 2011. Thus, the RO should obtain any outstanding treatment notes since that time. In this regard, the Veteran indicated during the September 2011 VA examination of her right little finger that she had an appointment on November 18, 2011. Thus, the RO should ensure that the report of that visit is obtained. Accordingly, the case is REMANDED for the following actions: 1. Obtain all outstanding records of treatment from the Pittsburgh VAMC since November 2011, to include the report of the scheduled November 18, 2011, appointment. 2. Send the Veteran a statement of the case on the issue of entitlement to an initial compensable disability rating for chronic gastritis. 3. After completing the above, adjudicate the claim of entitlement to a temporary total convalescent rating based on post-surgical convalescence for a right fifth finger disability. Provide the Veteran with notice thereof, with appellate rights. Then, readjudicate the claim for an initial disability rating in excess of 10 percent for the residuals of a right fifth finger injury status post volar plate procedure with surgical scar. If any claim on appeal remains denied, a statement of the case/supplemental statement of the case should be provided to the Veteran. After an adequate opportunity to respond, all issues for which a timely and adequate substantive appeal has been filed should be returned to the Board for further appellate review. 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. 2012). ______________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs