Citation Nr: 1305002 Decision Date: 02/11/13 Archive Date: 02/21/13 DOCKET NO. 07-26 342 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to a compensable disability rating for service-connected hemorrhoids. 2. Entitlement to service connection for degenerative disc disease of the cervical spine, to include as secondary to service-connected disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. M. Kreitlow INTRODUCTION The Veteran had active military service from June 1978 to August 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in February 2009 by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The Veteran appeared and testified at a Board hearing held at the RO before the undersigned Veterans Law Judge in May 2011. A copy of the transcript of this hearing has been associated with the claims file. A review of the transcript demonstrates that the Veterans Law Judge complied with the requirements set forth in Bryant v. Shinseki, 23 Vet. App. 488, 491-93 (2010). Thereafter, the Board issued a decision on the Veteran's appeal in August 2011 in which it granted service connection for pes planus and posttraumatic stress disorder (PTSD) and remanded to the Appeal Management Center (AMC) the claims for service connection for degenerative disc disease of the cervical spine and for a compensable disability rating for service-connected hemorrhoids for additional development. These remanded issues have been returned to the Board from the AMC. The Board finds that, as to the claim for a compensable disability rating for service-connected hemorrhoids, the prior remand has been substantially complied with; therefore, the Board may proceed forward with adjudicating the Veteran's claim. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). As for the claim for service connection for degenerative disc disease of the cervical spine, that issue is discussed in further detail in the Remand portion of this decision. By letter dated in September 2012, the Veteran's representative claimed, on his behalf, that clear and unmistakable error (CUE) was made in a rating decision issued on August 20, 2011, regarding the date of claim for PTSD. The issue of CUE in the August 2011 rating decision has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The issue of entitlement to service connection for degenerative disc disease of the cervical spine, to include as due to service-connected disability, is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the AMC in Washington, DC. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran's favor, the evidence of record demonstrates the Veteran had both external and internal hemorrhoids with excessive redundant tissue evidencing frequent recurrences, evidence of bleeding without signs of significant anemia, and a fissure, but that were reducible and non-thrombosed, from February 14, 2008, to no later than June 21, 2010. 2. As of June 22, 2010, the evidence clearly demonstrates that the Veteran's hemorrhoids were not large or thrombosed, were not irreducible, and were not productive of excessive redundant tissue evidencing frequent recurrences, persistent bleeding with secondary anemia, or fissures. CONCLUSION OF LAW 1. The criteria for a disability rating of 20 percent for service-connected hemorrhoids were met from February 14, 2008, through June 21, 2010. 38 U.S.C.A. §§ 1155 (West 2002); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.3, 4.7 and 4.114, Diagnostic Code 7336 (2012). 2. The criteria for a compensable disability rating for service-connected hemorrhoids have not been met since June 22, 2010. 38 U.S.C.A. §§ 1155 (West 2002); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.3, 4.7 and 4.114, Diagnostic Code 7336 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Notice and Assistance Requirements 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 and 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) describe VA's duties to notify and assist claimants in substantiating a claim for VA benefits. Upon receipt of a complete or substantially complete application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and notify the claimant and his or her representative, if any, of what information and evidence not already provided, if any, is necessary to substantiate, or will assist in substantiating, each of the five elements of the claim including notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Sufficient notice must inform the claimant (1) of any information and evidence not of record that is necessary to substantiate the claim; (2) of the information and evidence that VA will seek to provide; and (3) of the information and evidence that the claimant is expected to provide. Notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). For a claim seeking increased compensation for an already service-connected disability, 38 U.S.C.A. § 5103(a) requires, at a minimum, that VA notify the claimant that he/she must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment in order to substantiate the claim. Vazquez-Flores, 22 Vet. App. 37 (2008). VA must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation. Id. It is noted that, on September 4, 2009, the Federal Circuit vacated and remanded Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), and Schultz v. Peake, No. 03-1235, 2008 WL 2129773, at 5 (Vet. App. Mar. 7, 2008). Specifically, the Federal Circuit concluded that "the notice described in 38 U.S.C. § 5103(a) need not be veteran specific." In addition, the Federal Circuit determined that "while a veteran's 'daily life' evidence might in some cases lead to evidence of impairment in earning capacity, the statutory scheme does not require such evidence for proper claim adjudication." Thus, the Federal Circuit held, "insofar as the notice described by the Veterans Court in Vazquez-Flores requires the VA to notify a veteran of alternative diagnostic codes or potential 'daily life' evidence, we vacate the judgments." In this case, notice was sent to the Veteran in August 2008, prior to the initial adjudication of his claim, that informed him of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. He was also advised that should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life. Id., see also Dingess v. Nicholson, 19 Vet. App. 473 (2006). He was also advised on what evidence and/or information is necessary to establish entitlement to an effective date should benefits be granted. The Board finds that the notice letter sent to the Veteran in August 2008 was fully compliant with the laws and regulations relating to notice as set forth above. Consequently, there is no prejudice to the Veteran in the Board proceeding to adjudicate his claim. With respect to VA's duty to assist, VA is only required to make reasonable efforts to obtain relevant records that the Veteran has adequately identified to VA. 38 U.S.C.A. § 5103A(b)(1). All efforts have been made to obtain relevant, identified and available evidence. The duty to assist includes providing the Veteran a thorough and contemporaneous examination. Green v. Derwinski, 1 Vet. App. 121 (1991). The Veteran was afforded VA examinations in September 2008, June 2010, and September 2011. Significantly, the Board observes that he does not report that the condition has worsened since he was last examined, and thus a remand is not required solely due to the passage of time. See Palczewski v. Nicholson, 21 Vet. App. 174, 182-83 (2007); VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995). The reports of these examinations reflect that the examiners reviewed the Veteran's past medical history, recorded his current complaints, conducted appropriate physical examinations, and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record. The Board, therefore, concludes that these examination reports are adequate for purposes of rendering a decision in the instant appeal. See 38 C.F.R. § 4.2; see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran and his representative have not contended otherwise. Thus, the Board finds that VA has satisfied its duties to inform and assist the Veteran. Additional efforts to assist or notify him would serve no useful purpose. Therefore, he will not be prejudiced as a result of the Board proceeding to the merits of his claim. II. Analysis Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C.A. § 1155. Separate diagnostic codes identify the various disabilities. Id. Evaluation of a service-connected disorder requires a review of the veteran's entire medical history regarding that disorder. 38 C.F.R. §§ 4.1 and 4.2. It is also necessary to evaluate the disability from the point of view of the veteran working or seeking work, 38 C.F.R. § 4.2, and to resolve any reasonable doubt regarding the extent of the disability in the veteran's favor, 38 C.F.R. § 4.3. If there is a question as to which evaluation to apply to the veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. While the regulations require review of the recorded history of a disability by the adjudicator to ensure an accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the present level of the veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, staged ratings are appropriate for an increased rating claim whenever 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). After considering all the evidence of record, the Board finds that a staged rating pursuant to Hart is warranted in the present case as the evidence shows that, at the time the Veteran filed his claim, his service-connected hemorrhoids exhibited symptoms that warrant a 20 percent disability rating through June 21, 2010; however, subsequent evidence shows that his hemorrhoids improved such that a compensable disability rating is not warranted based on evidence subsequent to June 22, 2010. The Veteran filed his claim for a compensable disability rating for his service-connected hemorrhoids in June 2008. The Board notes that it may look at evidence up to a year prior to the submission of a claim for increase in ascertaining that an increase in disability has occurred. See 38 C.F.R. § 3.400(o)(2) (The effective date of an award of increased compensation can be the earliest date as of which it was ascertainable that an increase in disability has occurred, if the application is received within one year from such date.); see also VAOGCPREC 12-98. A VA treatment record dated February 14, 2008, demonstrates that the Veteran complained that his hemorrhoids had worsened. He reported having bright red rectal bleeding during bowel movements over the past few weeks and had had associated painful, prolonged prolapsing rectal mass that reduced spontaneously after bowel movement. He related having significant relief after using over the counter suppositories. It does not appear that an actual rectal examination was conducted. The assessment was recurrent external hemorrhoids, and he was provided with hemorrhoidal suppositories to be used twice a day until symptoms resolved. The Veteran was seen again with complaints relating to his hemorrhoids in August 2008. At that time, he reported having intermittent perianal pain. The assessment continued to be hemorrhoids, and he was given hemorrhoidal suppositories to be used as needed. In addition, in support of his claim, he submitted a statement from his spouse dated in September 2008 in which she relates that the Veteran often complained of hemorrhoid pain and that she had seen on many occasions swelling and excessive bleeding from his hemorrhoids with tissue exposed. She also stated that his hemorrhoids sometimes affect his sleep because of pain, and that he had difficulty sitting, standing or lying down too long without discomfort. In September 2008, the Veteran underwent a VA examination for his hemorrhoids at which he reported having symptoms of anal itching, diarrhea, pain, a nagging feeling to empty bowel, swelling, perianal discharge and bleeding. He also described leakage of stool. He related his hemorrhoids are always present, and he treated them with Preparation H. He reported the following functional impairments: unable to stand, sit or lie in one position too long; increased swelling after sexual intercourse; constant pain; and having to change pads during the eight hour work day (worn for stool leakage). On examination of the rectum, there was a slight reduction of lumen. There was a fissure present at the 6:00 position. There were both external and internal hemorrhoids located at the 9:00 and 4:00 positions, which were reducible. There was evidence of bleeding with no signs of significant anemia. There was also evidence of frequent recurrence, with excessive redundant tissue. Examination did not, however, demonstrate any loss of sphincter control, rectal tonus, ulceration, trauma, rectal bleeding, anal infections, proctitis, spinal cord injury, protrusions or thrombosis. Hemorrhoids are evaluated under Diagnostic Code 7336. Under Diagnostic Code 7336, external or internal hemorrhoids are assigned a noncompensable rating when they are mild or moderate. A 10 percent disability rating is assigned when external or internal hemorrhoids are large or thrombotic, irreducible, with excessive redundant tissue, evidencing frequent recurrences. A maximum 20 percent disability rating is assigned when there are external or internal hemorrhoids with persistent bleeding and with secondary anemia, or with fissures. 38 C.F.R. § 4.114. Consequently, based on the September 2008 VA examiner's finding that the Veteran had a fissure in addition to external and internal hemorrhoids, the Board finds that the Veteran's disability picture meets the criteria for a 20 percent disability rating. In determining when the evidence shows that the Veteran's hemorrhoids had worsened, the Board finds that the February 14, 2008, VA treatment note is the first evidence of an increase in the severity of the Veteran's hemorrhoids such that a compensable disability rating is warranted. Although it is not clear from this treatment records that the Veteran had a fissure at that time, the Board will given him the benefit of the doubt given the symptoms reported at that time. 38 C.F.R. § 4.3. The Board finds, however, that subsequent medical evidence demonstrates that the Veteran's disability picture improved such that the criteria for a compensable disability rating were no longer met. On June 22, 2010, the Veteran underwent a VA examination in which his rectum was examined. The Board acknowledges that this examination was in relation to claims the Veteran had pending at that time for bowel and bladder incontinence; however, as a rectal examination was conducted, the findings are highly relevant as to the current level of disability of the Veteran's service-connected hemorrhoids. In fact, the examiner noted upon rectal examination that there was no evidence of hemorrhoids or fissures even though the Veteran reported that his hemorrhoids are constantly present and cause anal itching, pain, and swelling. Consequently, the Board finds that, as of June 22, 2010, the Veteran's service-connected hemorrhoids were not productive of a disability picture consistent with any of the rating criteria that provides a compensable disability rating. This finding is supported by both the VA treatment records and the September 2011 VA examination findings. A February 2011 colonoscopy showed the Veteran had only small external hemorrhoids. In addition, the September 2011 VA examination demonstrated that the Veteran only had a very small external hemorrhoid without sign of inflammation. For the foregoing reasons, the Board finds that a disability rating of 20 percent is warranted for the Veteran's service-connected hemorrhoids from February 14, 2008, to June 21, 2010, because the evidence shows he had hemorrhoids with a fissure; however, a compensable disability rating is not warranted as of June 22, 2010, and thereafter because the evidence fails to show the Veteran continued to have a fissure or that his hemorrhoids were large or thrombosed, irreducible, with excessive redundant tissue evidencing frequent recurrences or were productive of persistent bleeding with secondary anemia. ORDER Entitlement to a disability rating of 20 percent for service-connected hemorrhoids is granted from February 14, 2008, to June 21, 2010, subject to controlling regulations governing the payment of monetary benefits. Entitlement to a compensable disability rating for service-connected hemorrhoids is denied as of June 22, 2010 and thereafter. REMAND The Board finds that remand of the Veteran's claim for service connection for degenerative disc disease of the cervical spine is warranted because the medical opinion obtained in February 2012 from the VA examiner who conducted the September 2011 VA spine examination is not adequate. Specifically, the examiner was asked to consider evidence under "Tab A," which consisted of copies of service treatment records and various positive medical opinions submitted by the Veteran. The examiner clearly indicated in the addendum that he could not find "Tab A." The Board notes that it appears that "Tab A" was the Veteran's statement with attached evidence submitted in December 2011. Consequently, the Board finds that the claims file needs to be returned to the VA examiner to obtain an adequate medical opinion. Furthermore, the Board notes that the examiner was asked to render an opinion as to whether the Veteran's current cervical spine disorder is either (1) due to or the result of his active military service or (2) due to or aggravated by his service-connected disabilities of degenerative joint disease of the lumbar spine, a bilateral knee disability, sensory deficits in the bilateral lower extremities, and pes planus. In his February 2012 addendum, however, the examiner only addressed the first question, i.e., whether the current cervical spine disorder is due to or the result of the Veteran's active military service. In that respect, the VA examiner's addendum was noncompliant with the examination request. Hence, the Board finds that remand is necessary for the claims file to be returned to the VA examiner who conducted the September 2011 VA spine examination. Accordingly, the case is REMANDED for the following action: 1. Return the Veteran's claims file to the VA examiner who conducted the September 2011 VA spine examination and who provided the February 2012 addendum. The examiner should reconsider his previous medical opinions in light of the Veteran's December 2011 statement with attached evidence (previously referred to as "Tab A"), especially the positive medical opinions submitted by the Veteran. As a reminder, the VA examiner is asked to opine whether it is at least as likely as not (i.e., a 50 percent probability or better) that the Veteran's current cervical spine disorder is either (1) due to or the result of his active military service or (2) due to or aggravated by service-connected disabilities, to include, but not limited to, degenerative joint disease of the lumbar spine, a bilateral knee disability, sensory deficits in the bilateral lower extremities, and pes planus. The examiner should not invoke the phrase "without resort to mere speculation" without explaining the basis for such an opinion. If the examiner sustains his previously provided medical opinions, then he should provide a detailed explanation, with citation to evidence of record, as to why he does not find the positive medical opinions submitted by the Veteran to be persuasive in determining whether his current cervical spine disorder is due to or the result of his active military service or due to or aggravated by any or all of his service-connected disabilities. 2. Thereafter, the Veteran's claim should be readjudicated. If such action does not resolve the claim, a Supplemental Statement of the Case should be issued to the Veteran and his representative. An appropriate period of time should be allowed for response. Thereafter, this claim should be returned to this Board for further appellate review, if in order. The Veteran has the right to submit additional evidence and argument on the matter 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 or by the Court 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). ______________________________________________ ROBERT E. SULLIVAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs