Citation Nr: 1310690 Decision Date: 04/01/13 Archive Date: 04/11/13 DOCKET NO. 10-09 533 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to a compensable rating for hemorrhoids status post hemorrhoidectomy. (The issue of entitlement to an effective date earlier than November 17, 2009 for the award of service connection for decreased sphincter tone is addressed in a separate decision). REPRESENTATION Appellant represented by: Mississippi Veterans Affairs Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C.L. Krasinski, Counsel INTRODUCTION The Veteran served on active duty from December 1978 to August 1985, and from December 1990 to May 1991. He had additional service in the Army National Guard until April 2002. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. A March 2005 rating decision granted service connection for hemorrhoids status post a hemorrhoidectomy and assigned a zero percent rating from November 24, 2004. In February 2008, the RO denied the Veteran's claim for a compensable rating for hemorrhoids. The Veteran disputed that determination, and the appeal was perfected to the Board through a March 2010 substantive appeal VA Form 9. The Veteran testified at a hearing before the undersigned Veterans Law Judge at a hearing via videoconference from the RO in September 2011. A transcript of that hearing is associated with the claims file. This matter was remanded to the RO in August 2012 for additional development. In December 2012, the Veteran submitted additional pertinent evidence with a waiver of agency of original jurisdiction consideration pursuant to 38 C.F.R. § 20.1304. Therefore, the Board finds that the solicitation of a waiver and/or remand for the RO's initial consideration of this evidence is not required. 38 C.F.R. § 20.1304(c). FINDING OF FACT The Veteran's service-connected hemorrhoids have been manifested by pain, swelling, and recurrent bleeding and there is no evidence of large or thrombotic irreducible hemorrhoids, excessive redundant tissues, fissures, persistent bleeding, or anemia. CONCLUSION OF LAW The criteria for a compensable evaluation for hemorrhoids have not been met at any time during the appeal period. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.114, Diagnostic Code 7336 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Duty to Assist 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. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and 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 in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction, in this case the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). VCAA notice requirements apply to all five elements of a service connection claim (1) veteran status; (2) existence of disability; (3) connection between service and the disability; (4) degree of disability; and (5) effective date of benefits where a claim is granted. Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). The Board concludes that the Veteran has been afforded appropriate notice under VCAA. The RO provided a VCAA notice letter to the Veteran in July 2007, prior to the initial adjudication of the claim, and in January 2009. The letters notified the Veteran of what information and evidence must be submitted to substantiate a claim for an increased rating, as well as what information and evidence must be provided by the Veteran and what information and evidence would be obtained by VA. The Veteran was also told to inform VA of any additional information or evidence that VA should have, and was told to submit evidence in support of his claim to the RO. The content of the letters complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). The requirements of VCAA also include notice of a disability rating and an effective date for award of benefits if service connection is granted. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The July 2007 letter provided the Veteran with notice of the laws regarding degrees of disability or effective dates. The Board finds that all relevant evidence has been obtained with regard to the Veteran's claim, and the duty to assist requirements have been satisfied. All available service treatment records were obtained. The VA treatment records dated from 2001 to August 2012 and records from the Social Security Administration are associated with the claims folder and virtual VA file. Private medical records from B.M. Hospital and N.C.F.M.C. are associated with the claims folder. There is no identified evidence that needs to be addressed. The Veteran was given VA medical examinations in November 2009 and September 2012 in order to determine the nature and severity of the service-connected disability. The VA examinations were conducted by a medical professional based on review of claims file, solicitation of history and symptomatology from the Veteran, and a thorough examination of the Veteran. The examination reports are accurate and fully descriptive. The VA examination reports provide an opinion as to the effects of the service-connected disability on the Veteran's ordinary activity and occupational impairment. The Board finds that the Veteran has been afforded adequate examinations of the hemorrhoids. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board is satisfied there was substantial compliance with the August 2012 remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Under the circumstances, the Board finds that there is no reasonable possibility that further assistance would aid the Veteran in substantiating the claim. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Legal Criteria Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Where entitlement to compensation 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. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. §§ 4.1 and 4.2 (2012). Also, the entire rating period is considered for the possibility of staged ratings. Consideration will be given to the possibility of separate ratings for separate periods of time based on the facts found. Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007). Hemorrhoids are evaluated under the provisions of 38 C.F.R. § 4.114, Diagnostic Code 7336. A 20 percent evaluation is assigned for external or internal hemorrhoids, with persistent bleeding and with secondary anemia, or with fissures. A 10 percent evaluation is assigned for hemorrhoids, large or thrombotic, irreducible, with excessive redundant tissue, evidencing frequent recurrences. A noncompensable evaluation is assigned for mild or moderate hemorrhoids. 38 C.F.R. § 4.114, Diagnostic Code 7336. The Board must analyze the credibility and probative value of the evidence, account for the persuasiveness of the evidence, and provide reasons for rejecting any material evidence favorable to the claimant. Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996). With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence. In addressing lay evidence and determining its probative value, if any, attention is directed to both competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). See Layno v. Brown, 6 Vet. App. 465, 469 (1994). In terms of competency, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot). As a general matter, a layperson is not capable of opining on matters requiring medical knowledge. See 38 C.F.R. § 3.159(a)(2). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. See generally Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); but see Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim). Once the evidence has been assembled, it is the Board's responsibility to evaluate the evidence. 38 U.S.C.A. § 7104(a). The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3. Analysis The Veteran contends that he is entitled to a higher rating for the hemorrhoids because he has pain and bleeding. See the Veteran's testimony at the hearing before the Board in August 2011. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the claim for a compensable disability rating for the service-connected hemorrhoids. In order for a compensable rating to be assigned under Diagnostic Code 7336, the evidence must establish large or thrombotic, irreducible hemorrhoids with excessive redundant tissue, evidencing frequent recurrences. The evidence of record does not show that at any time during the appeal period, the Veteran had hemorrhoids that were large, thrombotic, or irreducible, or that had excessive redundant tissue. The competent and credible medical evidence shows that the Veteran's hemorrhoids are internal and have been described as mild, moderate, and small. The weight of the competent and credible lay and medical evidence shows that the service-connected hemorrhoids cause recurrent or episodic bleeding, not persistent bleeding. There is no evidence of anemia or fissures. The January 2005 VA examination report indicates that the Veteran reported having pain and bleeding due to the hemorrhoids. He reported having bleeding per rectum from time to time and the last time was about one week ago. The Veteran reported that the last time he bled, he bled for three weeks. He was unable to estimate exactly how much he noticed it at every bowel movement. He reported that he had blood on the toilet tissue. The Veteran treated the hemorrhoids with suppositories. Physical examination revealed no evidence of fecal leakage. Rectal examination revealed a normal external examination and normal anal tone. There was some tenderness to palpation in the posterior midline. The examiner indicated that there were no external hemorrhoids and he could not feel any internal hemorrhoids. A stool blood was done and was negative. The diagnosis was history of rectal bleeding and past history of hemorrhoids with no evidence of significant disease at that time insofar as hemorrhoids were concerned. The examiner indicated that there was some evidence of pain in the midline posteriorly but the Veteran did not have significant anal pain with bowel movement as reported by the Veteran. A February 2006 VA examination report indicates that the Veteran reported that he had rectal bleeding weekly and his last episode was two weeks ago. He reported using hemorrhoid suppositories every other day since 1999 with minimal effect. He denied having pain. Physical examination revealed no evidence of fecal leakage. There were no visible external hemorrhoids. There were no obvious signs of bleeding, thrombosis, or fissures. There was normal rectal tone. There were no internal hemorrhoids. The impression was normal rectal exam. An August 2007 colonoscopy report indicates that the Veteran had small internal hemorrhoids with irritation of the anal verge. The report indicates that the hemorrhoids were not large enough for bleeding, were not actively bleeding, and were not markedly inflamed. The report notes that there was no significant pathology of concern at that point. A September 2007 VA treatment record indicates that the Veteran reported that the hemorrhoids were inflamed now and then. A February 2009 VA treatment record notes that the Veteran denied having problems with bowel movements. An April 2009 colonoscopy report indicates that the Veteran had small internal hemorrhoids. There was no active bleeding or residual bleeding. VA treatment records dated in April 2009 indicate that the Veteran reported that he saw blood drips in the toilet when he had bowel movements. He denied having pain. He also reported having sporadic rectal bleeding. The record shows that the Veteran underwent a rubber band ligation of the internal hemorrhoids on June 1, 2009. Follow-up treatment records for the surgery dated June 12, 2009 indicate that the Veteran reported having one episode of bleeding since the hemorrhoid surgery. A July 2009 VA treatment record indicates that the Veteran had no internal hemorrhoids and no blood per rectum. A November 2009 VA examination report indicates that the Veteran reported having surgery earlier that year for continuous bleeding of his hemorrhoids with externalization. The Veteran stated that once he had healing after the surgery, he still had some discomfort with bowel movements and some post bowel movement soilage requiring the changing of his underwear approximately twice a date. He used Anusol suppositories every other day. He stated that he had a feeling like a knot in his rectum when he sits down and he tended to sit on one cheek or the other. He reported having pain with defecation when constipated. He took stool softeners for this. The Veteran reported that he did not have any bleeding since surgery though occasionally he has wondered if he had some blood on his stool. He stated there was no discoloration of the water and no complaint of blood on the toilet paper. He did not wear a pad. Physical examination revealed no evidence any skin breakdown. There was no evidence of external hemorrhoids or bleeding. Digital examination revealed extreme tenderness with some dilation of hermorrhoidal tissue internally. Rectal sphincter control was 3/5. There was no evidence of fissures, bleeding, or stricture. There was no physical evidence of anemia and he did not give a history of a significant amount of bleeding for any anemia related to any hemorrhoidal condition. The diagnosis was hemorrhoidectomy and decreased sphincter tone due to the hemorrhoidectomy. The examiner indicated that the Veteran continued to have symptoms of internal hemorrhoids manifested by pain with defecation and requiring the use of suppositories on an every other day basis and he did have the inconvenience of post bowel movement stool leakage requiring the change of his underwear twice a day. VA treatment records dated in January 2010 indicate that the Veteran reported having blood on toilet paper which was worsening. Examination revealed no fissures or internal hemorrhoids. The impression was rectal bleeding likely secondary to constipation and hard stools. A February 2010 VA treatment record notes that the Veteran reported doing better with fiber and Proctoform. A March 2010 VA treatment record notes that the Veteran reported that he had bleeding but it was now better. Examination revealed small hemorrhoids. A November 2010 VA treatment record indicates that the Veteran had episodic rectal bleeding. A December 2010 VA treatment record notes that the Veteran had mild to moderate internal hemorrhoids with no active bleeding. VA treatment records dated in June 2011 indicate that the Veteran had mild internal hemorrhoids. There were no fissures. No surgery was required at that time. September 2011 private emergency room records indicate that the Veteran had rectal bleeding off and on for 10 days. A January 2012 VA treatment record notes that the Veteran was doing better with the hemorrhoids and he did not require surgery at that time. A September 2012 VA examination report indicates that the Veteran took preparation H cream daily for the hemorrhoids. The examiner indicated that the Veteran had internal and external hemorrhoids that were mild to moderate with a report of persistent bleeding. Examination revealed dilated tender internal hemorrhoids without blood but with stool in the canal. Complete blood cell count did not show anemia. The competent and credible lay and medical evidence shows that the service-connected hemorrhoids more closely approximate mild to moderate impairment and disability. The weight of the evidence shows that the Veteran has small, mild to moderate internal hemorrhoids that cause pain with bowel movements and occasional or episodic bleeding. There is no evidence of large or thrombotic or irreducible hemorrhoids with excessive tissue and evidencing frequent recurrences. The VA examinations in 2005, 2006, 2009, and 2012 did not identify any large or thrombotic or irreducible hemorrhoids. There is no evidence of persistent bleeding, fissures, or anemia. The record shows that blood work in May 2004, February 2006, May 2009, and September 2012 were normal and did not show anemia. Examinations did not detect any fissures at any time during the appeal period. The September 2012 VA examination indicates that the Veteran reported having persistent bleeding due to the hemorrhoids. The Veteran also reported having persistent bleeding in August 2007. However, while competent, the Board finds the Veteran's statements to have limited credibility. The Veteran's statements that he has had persistent bleeding due to the hemorrhoids are inconsistent with his own statements made to health care providers and with the examination and medical findings. The VA examination reports, VA treatment records, and private medical records show that during the time period of the appeal, the Veteran has had episodic bleeding due to the hemorrhoids, not persistent bleeding. The Veteran himself reported episodic bleeding to the health care providers. Statements made for the purposes of medical treatment may be afforded greater probative value because there is a strong motive to tell the truth in order to receive proper care. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997); see also Caluza v. Brown, 7 Vet. App. 498 (1995) (VA may consider factors including interest, bias, and inconsistent statements in determining the credibility of a witness). These statements for medical purposes are more probative, as they were made for treatment purposes and were contemporaneous with the symptoms. Bleeding was not detected upon examination at any time during the course of the appeal. The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); but see Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim). The weight of the competent and credible lay and medical evidence of record shows that the Veteran has had episodic bleeding due to the hemorrhoids. He reported less bleeding after the surgery in 2009. Upon VA examinations in 2005, 2006, 2009, and 2012, blood was not detected upon physical examination. The private medical records do not document persistent bleeding. Consequently, the Board finds that the manifestations of the Veteran's service-connected hemorrhoids do not meet the criteria for a compensable rating under Diagnostic Code 7336 for the entire appeal period. The preponderance of the evidence is against the claim for an increased rating. The benefit of the doubt rule is not applicable and the appeal is denied. The Board notes that a separate 10 percent rating is assigned for the finding of decreased sphincter tone under Diagnostic Code 7332, and this separate rating is not subject to the current appeal. The Board has also considered whether an extraschedular rating is warranted for the service-connected hemorrhoids. 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. 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. Thun v. Peake, 22 Vet. App. 111, 115 (2008); aff'd Thun v. Peake, 572 F.3d 1366 (Fed. Cir. 2009). Here, the rating criteria for the disability at issue reasonably describe and assess the Veteran's disability level and symptomatology. The rating criteria provides for higher ratings for additional or more severe symptoms than currently shown by the evidence. (CONTINUED ON NEXT PAGE) Thus, the demonstrated manifestations are contemplated by the provisions of the rating schedule. As the Veteran's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is adequate. 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. ORDER A higher compensable rating for the service-connected hemorrhoids is denied for the entire appeal period. ____________________________________________ C. TRUEBA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs