Citation Nr: 1311461 Decision Date: 04/08/13 Archive Date: 04/19/13 DOCKET NO. 06-11 585 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for diabetes mellitus. 2. Entitlement to an evaluation for major depression in excess of 30 percent prior to May 3, 2012, and in excess of 50 percent from May 3, 2012. 3. Entitlement to a compensable initial evaluation for hemorrhoids. 4. Entitlement to an extension beyond February 29, 2008, of a temporary total rating, pursuant to 38 C.F.R. § 4.29 (2012). 5. Entitlement to a total rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Davitian, Counsel INTRODUCTION The Veteran had active service from November 1990 to April 1998. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a March 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona, that denied an evaluation in excess of 30 percent for major depression. It is also on appeal from a May 2005 rating decision from that RO that granted service connection for hemorrhoids, evaluated as noncompensable. In addition, it is on appeal from a February 2008 rating decision from the Chicago, Illinois, RO that assigned a temporary total rating for service-connected major depression from January 20, 2008, to February 29, 2008, pursuant to 38 C.F.R. § 4.29 (2012). Finally, it is on appeal from an April 2009 rating decision from the Waco, Texas, RO that denied a TDIU and held that new and material evidence had not been received to reopen a claim for service connection for diabetes mellitus. During the pendency of the appeal, an August 2012 rating decision assigned a 50 percent evaluation for major depression, effective May 3, 2012. The issues of whether new and material evidence has been received to reopen a claim for service connection for diabetes mellitus; and entitlement to an evaluation for major depression in excess of 30 percent prior to May 3, 2012, and in excess of 50 percent from May 3, 2012 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. FINDINGS OF FACT 1. The competent medical, and competent and credible lay, evidence of record does not show that the Veteran's hemorrhoids are large, thrombotic or irreducible, or have excessive redundant tissue evidencing frequent recurrences. 2. The competent medical, and competent and credible lay, evidence of record does not show that the Veteran required convalescence after a VA hospitalization from January 1 to February 1, 2008, for treatment of her service-connected major depression. 3. The record shows that the Veteran is employed. CONCLUSIONS OF LAW 1. The criteria for a compensable initial evaluation for hemorrhoids have not been met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.114, Diagnostic Code 7336 (2012). 2. The criteria for an extension beyond February 29, 2008, of a temporary total rating, pursuant to 38 C.F.R. § 4.29 (2012), have not been met. 38 U.S.C.A. §§ 1155 , 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102 , 3.159, 4.29 (2012). 3. The criteria for a TDIU have not been met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Notice and Assistance VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). In an increased rating claim, VA must notify the Veteran to submit evidence showing (1) a worsening or increase in severity of the disability and (2) the effect that worsening has on the claimant's employment. Vazquez-Flores v. Shinseki, 24 Vet. App. 94 (2010). Turning to notice for the Veteran's increased initial evaluation claim, in cases such as this where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service connection claim has been more than substantiated, it has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess, 19 Vet. App. at 473; Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The appellant bears the burden of demonstrating any prejudice from defective notice with respect to the downstream elements. Goodwin v. Peake, 22 Vet. App. 128 (2008). There has been no allegation of such error in this case. Turning to the Veteran's temporary total rating claim, the Veteran was not provided VCAA notice. Nevertheless, the Board finds that this defect did not affect the essential fairness of the adjudication of this claim, and that the Veteran was not prejudiced thereby. In this regard, the Board notes that a February 2009 Statement of the Case provided the criteria for extension of temporary total rating claims and the claim was subsequently readjudicated in an August 2012 supplemental statement of the case. Mayfield, 444 F.3d at 1333. In addition, the Veteran has been represented by a service organization during the appeal. Overton v. Nicholson, 20 Vet. App. 427, 438 (2006) (appellant's representation by counsel "is a factor that must be considered when determining whether that appellant has been prejudiced by any notice error"). Turning to the Veteran's TDIU claim, notice was provided in December 2008 correspondence. With regard to the duty to assist, the claim's file contains the Veteran's service treatment records, VA and private medical records, the Veteran's statements and the transcript of a January 2013 hearing before the undersigned Veterans Law Judge. The Board has carefully reviewed the record and concludes that there has been no identification of further available evidence not already of record. VA examinations with respect to the Veteran's hemorrhoids were conducted in March 2006 and April 2011. Although the March 2006 VA examination did not include a review of the Veteran's claims file, the purpose of the evaluation was to assess the current level of the disability. In this regard, the examiner did consider the Veteran's medical history, including her lay reports of symptomatology. The April 2011 examination included a review of the Veteran's claims file. Moreover, the report of each examination described the Veteran's disability in sufficient detail and fully described the functional effects caused by the Veteran's disability. Stefl v. Nicholson, 21 Vet. App. 120 (2007). Thus, there is adequate medical evidence of record to make a determination in this case, and additional development by way of another examination would be redundant and unnecessary. See 38 C.F.R. §§ 3.326 and 3.327 and Green v. Derwinski, 1 Vet. App. 121 (1991). The Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to her claim. Legal Analysis With respect to the Veteran's claims, the Board has reviewed all of the evidence in the claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Court of Appeals for the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims. Compensable Initial Evaluation for Hemorrhoids Disability evaluations are determined by comparing a veteran's present symptoms with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Because this appeal is from the initial rating assigned with the grant of service connection, the possibility of "staged" ratings for separate periods during the appeal period, based on the facts found, must be considered. See Fenderson v. West, 12 Vet. App. 119 (1999). When a question arises as to which of two ratings applies under a particular code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3. The Rating Schedule provides that a noncompensable evaluation is warranted for internal or external hemorrhoids that are mild or moderate. A 10 percent rating is warranted for internal or external hemorrhoids that are large or thrombotic, irreducible, with excessive redundant tissue evidencing frequent recurrences. A 20 percent evaluation is warranted for hemorrhoids with persistent bleeding and with secondary anemia, or with fissures. Diagnostic Code 7336. During the January 2013 hearing, the Veteran testified that she had problems with hemorrhoids once or twice a year. She described those problems as mild. She would use a cream for two or three days when she had them and then they would go away. The May 2005 rating decision on appeal explained the noncompensable evaluation for hemorrhoids by noting that there were no current objective findings. The report of the March 2006 VA examination sets forth the Veteran's subjective complaints and examination results. The Veteran complained of flare-ups after bowel movements, frequent burning, and occasional bleeding that was mostly after bowel movements. The hemorrhoids did not inhibit her ability to ambulate or perform the duties of her job. On physical examination, the Veteran had two small, flat hemorrhoids externally that were not inflamed or bleeding. The rectal vault was without palpable hemorrhoids and there were no palpable masses. There were no signs of fissures. The diagnosis was hemorrhoids with intermittent flare-ups, burning and occasional bleeding. In April 2011, the Veteran underwent a VA examination for anal incontinence. The report provides that the examiner reviewed the Veteran's claims file, and sets forth medical history, subjective complaints and examination results that are relevant to the Veteran's hemorrhoids claim. The Veteran had a history of hemorrhoids with occasionally bleeding, with no recurrence or history of thrombosis. On physical examination, the Veteran had a 0.5 cm. by 0.5 cm. internal hemorrhoid, and a 1 cm. by 1 cm. external hemorrhoid. They were reducible. There was no evidence of thrombosis or excessive, redundant tissue. There were no fissures present. Based on a thorough review of the record, the Board finds that the preponderance of the evidence is against a compensable initial evaluation for hemorrhoids. The forgoing evidence simply does not show that the Veteran has internal or external hemorrhoids that are large or thrombotic, irreducible, or with excessive redundant tissue evidencing frequent recurrences. The foregoing evidence also fails to show persistent bleeding or fissures. Diagnostic Code 7336. The Board acknowledges that the Veteran, in advancing this appeal, believes that her hemorrhoid disability has been more severe than the initially assigned disability rating reflects. There are no clinical findings congruent with the next higher (10%) evaluation. Lay assertions may serve to support a claim by supporting the occurrence of lay-observable events or the presence of symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). See also Davidson v. Shinseki, 581 F.3d 1313 (Fed Cir. 2009). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In this case, the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to her through her senses. Layno, 6 Vet. App. at 470. She is not, however, competent to identify a specific level of disability of her hemorrhoids according to the appropriate diagnostic code. See Robinson v. Shinseki, 557 F.3d 1355 (2009). Such competent evidence concerning the nature and extent of the Veteran's hemorrhoid disability has been provided by the medical personnel who have examined her during the current appeal. The medical findings (as provided in the examination reports) directly address the criteria under which hemorrhoid disabilities are evaluated. The Board has carefully considered the appellant's contentions and arguments; however, the competent medical evidence offering detailed descriptions of the hemorrhoid symptoms and specialized determinations pertinent to the rating criteria are the most probative evidence with regard to evaluating whether a compensable initial evaluation is warranted. The Veteran's lay statements have been considered together with the probative medical evidence clinically evaluating the severity of the hemorrhoid symptoms. The preponderance of the most probative evidence does not support assignment of any higher rating. The findings needed for the next higher evaluation are not currently demonstrated. Additionally, the record contains no indication that the rating criteria are inadequate to rate the Veteran's disability. The discussion above reflects that the symptoms of the Veteran's hemorrhoids are contemplated by the applicable rating criteria. The competent medical evidence of record shows that the Veteran's hemorrhoids are primarily mild or moderate. Diagnostic Code 7336 provides a rating based on mild or moderate hemorrhoids. Therefore, the Veteran's disability picture is contemplated by the rating schedule, the assigned evaluation is adequate, and no referral for extraschedular consideration is required. See Thun v. Peake, 22 Vet. App. 111 (2008). In sum, the preponderance of the evidence demonstrates that the Veteran is not entitled to a compensable initial evaluation for hemorrhoids. Thus, the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). Temporary Total Rating A temporary total disability rating will be assigned without regard to other provisions of the rating schedule when it is established that a service-connected disability has required VA hospital treatment for a period in excess of 21 days. 38 C.F.R. § 4.29. If convalescence is required, the total rating may be continued for period of 1, 2 or 3 months. 38 C.F.R. § 4.29(e). The Court of Appeals for Veterans Claims (Court) has defined convalescence as the stage of recovery following an attack of disease, a surgical operation, or an injury. Recovery is defined as the act of regaining or returning toward a normal or healthy state. Felden v. West, 11 Vet. App. 427, 430 (1998). The Court held that notations in the medical record as to the veteran's incapacity to work after surgery must be taken into account in the evaluation of a claim brought under the provisions of 38 C.F.R. § 4.30. Id.; Seals v. Brown, 8 Vet. App. 291, 296-297 (1995). Furthermore, the Court has noted that the term "convalescence" does not necessarily entail in-home recovery. Based on a thorough review of the record, the Board finds that the preponderance of the evidence is against an extension beyond February 29, 2008, of a temporary total rating, pursuant to 38 C.F.R. § 4.29. The record shows that the Veteran was admitted to the Hines VA Medical Center on January 10, 2008, for treatment of service-connected depression. She was discharged on February 1. During her January 2013 hearing, the Veteran testified that after her hospitalization she was unable to return to the same job as there was an ongoing issue with a privacy violation, and her employer (incidentally, VA) could not provide a reasonable accommodation requested by her VA physician. January 2013 Hearing Transcript (T.) at page 9. She stated that she did not work until August 2008. Nevertheless, the record contains no evidence that the Veteran required convalescence after her hospitalization. 38 C.F.R. § 4.29(e). A February 1, 2008, VA Nursing Discharge Note makes no indication that the Veteran required any type of convalescence. Although the Veteran's claim concerns 38 C.F.R. § 4.29, not 38 C.F.R. § 4.30, the Board finds it significant that there is no evidence that the Veteran was under any incapacity to work after her hospitalization. See Felden, supra. In fact, in two February 2008 letters to the Veteran's employer concerning her request for a change in work detail, a VA physician stated that in his or her clinical opinion the Veteran would be "able to return to work in full capacity from immediate effect, provided her job detail/series are changed." The VA physician explained that the symptoms leading to the Veteran's hospitalization had been triggered by multiple stressors, including interpersonal problems with her immediate supervisor. The VA physician pointed out that returning to her current work environment might lead to decompensation of the Veteran. A change in her job detail/series would assist in resolving her symptoms of depression. The Board finds that these letters do not show that the Veteran required convalescence after her hospitalization. Rather, they make it clear that she was able to return to work at any job other than her previous position. They make it clear that the change in the Veteran's work detail was not to provide convalescence but to prevent future interpersonal problems with the Veteran's supervisor that might lead to another decompensation. The Board acknowledges that 38 C.F.R. § 4.30 provides temporary total ratings for convalescence following hospital treatment of a service-connected disability. However, such ratings require that treatment of the service-connected disability results in (1) surgery necessitating at least one month of convalescence; (2) surgery with severe postoperative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body cast, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches (regular weight-bearing prohibited); or (3) immobilization by cast, without surgery, of one major joint or more. Thus, section 4.30 does not apply to the present case. In sum, the preponderance of the evidence demonstrates that the Veteran is not entitled to an extension beyond February 29, 2008, of a temporary total rating, pursuant to 38 C.F.R. § 4.29. Thus, the benefit of the doubt doctrine is not for application. See generally Gilbert, supra; Ortiz, supra. TDIU A TDIU rating may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Where these percentage requirements are not met, entitlement to the benefit on an extraschedular basis may be considered when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and consideration is given to the veteran's background including his employment and educational history. 38 C.F.R. §§ 3.321(b), 4.16(b). In this case, the Veteran conceded during the January 2013 hearing that she is employed. She stated that she was not asking for unemployability, but that she would let the Board decide the TDIU issue rather than withdraw it. T. at pp. 11-12. As the Veteran is employed, the Board finds that she is not entitled to a TDIU. 38 C.F.R. §§ 4.16(a) and 4.19. In an issue such as this one, where the law and not the evidence is dispositive of the issue before the Board, the claim should be denied because of the absence of legal merit or the lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Accordingly, entitlement to a TDIU is denied. ORDER A compensable initial evaluation for hemorrhoids is denied. An extension beyond February 29, 2008, of a temporary total rating, pursuant to 38 C.F.R. § 4.29, is denied. A TDIU is denied. REMAND A preliminary review of the record indicates that the Veteran's application to reopen the claim for service connection for diabetes mellitus, and her claim for an increased evaluation for major depression, require additional development. With respect to her diabetes mellitus, during the January 2013 hearing the Veteran credibly testified that she underwent numerous blood tests while at Walter Reed Army Hospital and was told that her glucose level was borderline. The Board has carefully reviewed the Veteran's service treatment records but has found no blood tests. In light of the Veteran's credible testimony, the Board finds that such blood tests are necessary in this case. Even in applications to reopen claims for service connection, there are heightened obligations to assure that the record is complete with respect to Federal Government records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Further, the additional service treatment records could be relevant under 38 C.F.R. § 3.156 (c). With respect to the Veteran's service-connected major depression, a December 2005 letter from the Social Security Administration (SSA) informed her that it found that her disability was continuing. The record before the Board contains medical records received from SSA that concern the Veteran's psychiatric treatment and diagnoses. However, the record does not contain any determinations from SSA. The Board finds that the SSA determinations appear relevant to the Veteran's increased evaluation claim. See Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010). The Court has interpreted the duty to assist to include requesting information and records from SSA which were relied upon in any disability determination. Hayes v. Brown, 9 Vet. App. 67, 74 (1996) (VA is required to obtain evidence from SSA, including decisions by the administrative law judge, and give the evidence appropriate consideration and weight); Murincsak v. Derwinski, 2 Vet. App. 363, 373 (1992); Collier v. Derwinski, 1 Vet. App. 413, 417 (1991). In addition, as noted above, there are heightened obligations to assure that the record is complete with respect to Federal Government records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). Bell, supra. Accordingly, the case is REMANDED for the following action: 1. Using all available sources, obtain and associate with the claims file all service treatment records that reflect blood tests conducted at Walter Reed Army Hospital. Document the efforts made to obtain these records along with any negative responses. 2. Contact SSA and request a copy of all determinations granting, denying or confirming an award of any type of SSA benefits, as well as all medical and employment records relied upon in making the determination(s) that have not already been provided to VA. Document the efforts made to obtain these records along with any negative responses. 3. Then, readjudicate the Veteran's claim. If either benefit sought on appeal remains denied, the appellant and her representative should be provided a supplemental statement of the case and afforded an opportunity to respond. The case should be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the 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). ______________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs