Citation Nr: 1318014 Decision Date: 06/03/13 Archive Date: 06/11/13 DOCKET NO. 09-27 684A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to an initial compensable evaluation for hypertension. 2. Entitlement to an initial compensable evaluation for hemorrhoids. 3. Entitlement to an initial compensable evaluation for ganglion cyst of right foot. ATTORNEY FOR THE BOARD C.A. Skow, Counsel INTRODUCTION The Veteran served on active duty from October 1985 to April 2006. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia, which granted service connection for hypertension, hemorrhoids and ganglion cyst of the right foot. The Board notes that, in addition to the paper claims files, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims files or are irrelevant to the issues on appeal. The REMAND portion of the decision below addresses the issue of entitlement to a compensable evaluation for ganglion cyst of the right foot. As a claim for bilateral foot disorders and ganglion cyst of the left foot has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ), it is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. Throughout the appeal period, the Veteran's hypertension was not manifested by diastolic pressure readings predominantly 100 or more or systolic pressure readings predominantly 160 or more; and, the record does not reflects a past history of diastolic pressure predominantly 100 or more. 2. Throughout the appeal period, the Veteran's hemorrhoids are manifested by not more than mild to moderate symptoms; the hemorrhoids have not been large or thrombotic, irreducible with excessive redundant tissue, evidencing frequent recurrences; and persistent bleeding with anemia or anal fissures has not been present. CONCLUSIONS OF LAW 1. The criteria for an initial compensable evaluation for hypertension are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.104, Diagnostic Code 7101 (2012). 2. The criteria for an initial compensable evaluation for hemorrhoids are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.104, Diagnostic Code 7336 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. Although the regulation previously required VA to request that the claimant provide any evidence in the claimant's possession that pertains to the claim, the regulation has been amended to eliminate that requirement for claims pending before VA on or after May 30, 2008. The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held the plain language of 38 U.S.C.A. § 5103(a) requires notice to a claimant pursuant to the VCAA be provided "at the time" or "immediately after" VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The Veteran filed his claim in March 2006. The record includes a VCAA response form signed and dated by the Veteran indicating receipt of a VCAA letter. However, a copy of the VCAA letter is not included in the claims files. Notwithstanding, because the Veteran's increased rating claims arise from his disagreement with the initial evaluations assigned following the grant of service connection and because he was given a letter dated in March 2006 informing him of how VA determines disability ratings and effective dates, the Board finds that he has not been prejudiced in the establishment of his claims. In fact, Courts have held that, in cases where service connection has been granted and an initial rating and effective date have been assigned, the typical service connection claim has been more than substantiated, it has been proven. As a result, no additional 38 U.S.C.A. § 5103(a) notice is required because the purpose that the notice is intended to serve has been fulfilled. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Also, the Board notes that the Statement of the Case dated in July 2009 included the rating criteria for the disabilities on appeal and the basis for the assigned disability evaluation, and following provision of this information, the originating agency readjudicated the claim in March 2013. The United States Supreme Court has held that an error in VCAA notice should not be presumed prejudicial, and that the burden of showing harmful error rests with the party raising the issue, to be determined on a case-by-case basis. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). Here, the Veteran has not demonstrated any prejudicial or harmful error in VCAA notice. VA further met its duty assist the Veteran. All relevant medical records have been obtained and associated with the record. VA afforded the Veteran VA medical examinations. The Board previously reviewed the record, determined that the VA examinations of record were inadequate, and remanded the case for the purpose of affording the Veteran appropriate VA examinations. The Veteran was afforded VA examinations in December 2012. The Board has reviewed the examination reports and finds substantial compliance with the requirements articulated in the Board's prior remand decision. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999). These examination reports along with the remainder of the evidentiary records include sufficient findings to rate the Veteran's hypertension and hemorrhoids under the applicable rating criteria. Accordingly, the Board will address the merits of the claim. II. Claims for Increase The Veteran seeks an initial compensable evaluation for hypertension, hemorrhoids, and ganglion cyst of the right foot. Following his VA examiner in October 2007, the Veteran averred that his disabilities had worsened since that examination. The Veteran specified that he now receives medication for his hypertension, whereas he denied taking any medication for hypertension at the October 2007 VA examination. He also indicated that that he now had to use a cane to walk and has a limp due to his ganglion cyst of the right foot. Lastly, the Veteran reported frequent reoccurrence of hemorrhoids with itching, burning, and pain. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. 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 (West 2002); 38 C.F.R. § 3.102 (2011); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. A. General Legal Criteria Disability evaluations are determined by the application of the VA 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 their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. However, the evaluation of the same "disability" or the same "manifestations" under various diagnoses is prohibited. 38 C.F.R. § 4.14. The Court has held that a veteran may not be compensated twice for the same symptomatology as "such a result would over compensate the claimant for the actual impairment of his earning capacity." Brady v. Brown, 4 Vet. App. 203, 206 (1993). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. The Court has acknowledged, however, that when a veteran has separate and distinct manifestations attributable to the same injury, he should be compensated under different Diagnostic Codes. Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225 (1993). Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be "staged." Hart v. Mansfield, 21 Vet. App. 505 (2007) (staged ratings are appropriate when the factual findings show distinct period where the service- connected disability exhibits symptoms that would warrant different ratings.); see also Fenderson v. West, 12 Vet. App. 119, 126 (2001). A disability may require re-evaluation in accordance with changes in a veteran's condition. It is thus essential, in determining the level of current impairment, that the disability be considered in the context of the entire recorded history. 38 C.F.R. § 4.1. In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. The Board is required to analyze the credibility and probative value of the evidence, account for any evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Daye v. Nicholson, 20 Vet. App. 512, 516 (2006). It is noted that 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 determining whether statements are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995). B. Hypertension Report of VA examination dated in April 2006 reflects a history of hypertension since 1991 with symptoms of headache and dizziness without medication. He currently takes anti-hypertensive medication with good results. Three blood pressure readings were: 135/85; 140/80; and 135/80. The examiner indicated that there was no functional impairment from this condition or lost time from work. Report of VA examination dated in October 2007 reflects, by history, that the Veteran took anti-hypertensive medication for a period of about 4 months a year ago and current took no medication for hypertension. Three blood pressure readings were: 130/92; 134/92; 140/96. Report of VA examination dated in December 2012 reflects that the Veteran takes anti-hypertensive medication daily. Three blood pressure readings were: 140/80; 142/84; 140/82. Non-VA treatment (Tricare) records reflect that vitals were taken during various treatment dates. In March 2003, blood pressure was 140/80. Between 2005 and 2006, the highest diastolic reading was 95, with the majority of the readings less than 90, and the highest systolic reading was 158. In January 2006, the Veteran's blood pressure was described as mildly elevated. A May 2009 blood pressure reading was 111/74. Hypertension warrants a 10 percent rating where diastolic pressure is predominately 100 or more; systolic pressure predominately 160 or more, or if there is a history of diastolic pressure predominately 100 or more and the individual requires continuous medication for control. A 20 percent disability evaluation for hypertension requires diastolic pressure predominantly 110 or more, or systolic pressure predominantly 200 or more. 38 C.F.R. § 4.101, Diagnostic Code 7101. Having carefully considered all the evidence of record, the Board finds that the preponderance of the evidence is against the assignment of an initial compensable evaluation for hypertension. Throughout the appeal period, the Veteran's hypertension was not manifested by diastolic pressure readings predominantly 100 or more or systolic pressure readings predominantly 160 or more. Furthermore, while the recent medical evidence shows that the Veteran has been prescribed medication for his hypertension, the record does not reflects a past history of diastolic pressure predominantly 100 or more. Thus, the above clinical findings do not more nearly reflect the criteria for a compensable evaluation. 38 C.F.R. § 4.7. While the Veteran is competent to report symptoms that are perceivable to him, he is not competent to assign particular blood pressure readings to his disability. Whether a disability meets the schedular criteria for the assignment of a higher evaluation is a factual determination by the Board based on the Veteran's complaints coupled with the medical evidence. Here, although the Veteran may believe that he meets the criteria for the next higher disability rating, the medical findings do not meet the schedular requirements for a higher evaluation, as explained and discussed above. The Board has concluded that the medical evidence, prepared by skilled professionals, is more probative of the degree of disability. Furthermore, there is no basis for a staged rating. Neither the lay nor the medical evidence reflects that the disability met the criteria for a compensable evaluation at any time during the appeal period. As such, the Board finds that a uniform disability rating is appropriate. See Fenderson, supra. Accordingly, the claim is denied. As the evidence of record is not roughly in equipoise, there is no doubt to resolve. See Gilbert, supra. C. Hemorrhoids Report of VA examination dated in April 2006 reflects a history of hemorrhoids since 2005. The Veteran complained of stool leakage occurring less than 1/3 of the day in slight amounts not requiring a pad. He reported hemorrhoids that frequently recur, treated with suppositories. He denied functional impairment or lost time from work. Rectal exam showed no evidence of ulceration, fissures, or reduction of lumen. External hemorrhoids were seen at 9 o'clock, which are not reducible. There was no evidence of bleeding. Thrombsis was absent. There was no evidence of frequent recurrence, without excessive redundant tissue. The diagnosis was hemorrhoids manifested by pain without significant anemia or causing malnutrition. Report of VA examination dated in October 2007 reflects onset of hemorrhoids in 2006 with now some blood on toilette paper every 3 to 4 weeks. The Veteran complained of hemorrhoid burning, pain, and itching. He reported increasing his fiber intake but no other treatment. No rectal examination was performed. Report of VA examination dated in December 2012 reflects a diagnosis for hemorrhoids. No exam was performed as the Veteran denied symptoms. In the absence of any hemorrhoid symptoms, the examiner characterized the hemorrhoids as mild in severity. Non-VA treatment (Tricare) records reflect that the Veteran presented in February 2006 with complaint of rectal bleeding. Exam showed hemorrhoids, described as internal, tender, swollen, and firm. There was no anal ulcer or fissure found. There was no mass. He was treated with a trial of Anusol. The Veteran's hemorrhoids are currently rated as noncompensable under 38 C.F.R. § 4.114, Diagnostic Code 7336. A noncompensable rating is warranted for mild or moderate hemorrhoids. A 10 percent rating is warranted for large or thrombotic hemorrhoids that are irreducible, with excessive, redundant tissue, evidencing frequent occurrences. A 20 percent evaluation is warranted for hemorrhoids with persistent bleeding, and with secondary anemia, or with fissures. 38 C.F.R. § 4.114, Diagnostic Code 7336. Having carefully considered all the evidence of record, the Board finds that the preponderance of the evidence is against the assignment of an initial compensable evaluation for hemorrhoids. Throughout the appeal period, the Veteran's hemorrhoids have not been manifested by more than mild to moderate symptoms; the hemorrhoids have not been large or thrombotic, irreducible with excessive redundant tissue, evidencing frequent recurrences; and persistent bleeding with anemia or anal fissures has not been present. Neither the lay nor the medical evidence more nearly reflects the criteria for a higher evaluation. 38 C.F.R. § 4.7. While the Veteran is competent to report perceivable symptoms such as pain and rectal bleeding and the Veteran may believe that he meets the criteria for the next higher disability rating, the medical findings do not meet the schedular requirements for a higher evaluation. Although the Board fully accepts the symptoms of pain, burning, itching, and occasional blood on paper as reported by the Veteran, these symptoms do not more nearly reflect the presence of large or thrombotic hemorrhoids that are irreducible, with excessive, redundant tissue, evidencing frequent occurrences as is required for the minimum compensable evaluation for hemorrhoids. Neither the lay nor the medical evidence shows symptoms that approximate those required for a compensable evaluation. The Board finds that both the lay and medical evidence in this case are highly probative of the symptomatology associated with the Veteran's hemorrhoids. However, as to the overall severity of the hemorrhoid disability, the Board has concluded that the medical evidence, prepared by skilled professionals, is more probative of the degree of disability. Furthermore, there is no basis for a staged rating. Neither the lay nor the medical evidence reflects that the disability met the criteria for compensable evaluation at any time during the appeal period. As such, the Board finds that a uniform disability rating is appropriate. See Fenderson, supra. Accordingly, the claim is denied. As the evidence of record is not roughly in equipoise, there is no doubt to resolve. See Gilbert, supra. D. Extraschedular Consideration The Board has also considered whether the case should be referred to the Director of the VA Compensation and Pension Service for extra-schedular consideration under 38 C.F.R. § 3.321(a). In determining whether a case should be referred for extra-schedular consideration, the Board must compare the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluation is therefore adequate, and no referral for extra-schedular consideration is required. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). In this case, the record reflects that the manifestations of the disabilities herein adjudicated are specifically contemplated by the schedular criteria. Accordingly, the Board has concluded that referral of this case for extra-schedular consideration is not in order. Thun v. Peake, 22 Vet. App. 111, 115 (2008). ORDER A compensable evaluation for hypertension is denied. A compensable evaluation for hemorrhoids is denied. REMAND The Veteran seeks an initial compensable evaluation for ganglion cyst of the right foot. The record shows that he did not originally file a claim for this disorder but for bilateral pes planus. Notwithstanding, service connection was established for ganglion cyst of the right foot, and service connection for pes planus was not adjudicated but listed on the rating decision as a condition not service connected. The Veteran referenced ganglion cyst of the right foot on both his notice of disagreement dated in August 2007 and substantive appeal dated in August 2009. However, notably, on VA examination in December 2012, the Veteran denied having ever had a ganglion cyst of the right foot, but rather reported that he has always had a ganglion cyst of the left foot. Report of VA examination dated in April 2006 reflects findings for ganglion cyst of the right foot. Physical examination showed no evidence of limitation of motion with standing or walking. Gait was normal. The right foot and toes had no painful motion, edema, no disturbed circulation, and no weakness or atrophy of the musculature. The examiner described the ganglion cyst as round, measuring 0.5 x 0.5 centimeters on the extensor tendon of the right 4th toe. There was tenderness, but no adherence. Texture was soft and elevated. The condition's effect on the Veteran's usual occupation and daily activity is limited activity. Report of VA examination dated in October 2007 reflects, by history, onset of right foot ganglion cyst 2 year earlier. Symptoms were tenderness to palpation, pain, and stiffness. The Veteran treats occasionally with over the counter insert with some relief. He used no cane or crutch. He was unable to run. He has no job restrictions or flares. Objectively, the Veteran walked without a limp using no assistive devices. There was a 0.5 ganglion cyst between the 1st and 2nd metatarsals, tender to palpation. Motor strength was 5/5 in all planes of the ankle. Dorsiflexion was from 0 to 20 degrees; plantar flexion was from 0 to 40 degrees; and there was good inversion and eversion. There was no pain or reduced range of motion with repetitive testing. The impression was ganglion cyst on the dorsum of the right foot. Report of VA examination dated in December 2012 reflects a diagnosis for ganglion cyst of the left foot along with other foot disorders (hallux valgus and bunion deformity). The examiner stated that the Veteran's bunion could be related to the cyst. The Veteran reported daily pain in the dorsum of the left foot with every step, worse in the morning and gradually improving as the day progresses. It was noted that the Veteran walked with a cane. An x-ray study showed arthritis of the left foot. After reviewing the evidence of record, the Board finds that remand is necessary for clarification of the record. The record incongruously shows complaints and diagnoses for ganglion cyst of the right foot, which was service-connected, and more recently both findings and history of left foot ganglion cyst only. Therefore, a VA examination should be conducted to identify all foot disorders manifested during the appeal period; to identify whether the Veteran has or had during the appeal period a ganglion cyst of the right foot and, if so, all symptoms and clinical manifestations associated with that condition; and to ascertain whether it is as likely as not (50 percent probability or greater) that any foot disorder shown within the appeal period was incurred in service or is proximately due to or aggravated by service-connected disability to include right foot ganglion cyst. Accordingly, the case is REMANDED to the RO or the Appeals Management Center (AMC) for the following action: 1. The RO or AMC should provide the Veteran with VCAA notice on the evidence or information necessary to establish his claim for increase for ganglion cyst of the right foot as well as for service connection for bilateral foot disorders to include as secondary to service-connected disability. 2. The RO or the AMC should obtain all updated VA treatment records and any other outstanding records pertinent to the Veteran's claims. 3. The RO should contact the Veteran and request clarification from him directly as to whether he has a ganglion cyst of either or both the right and left foot and, if he denies a ganglion cyst of the right foot, an explanation as to why he did not notify VA of the error in the grant of service connection for the ganglion cyst of the right foot and why he appealed the right foot ganglion cyst disability rating. 4. The RO should schedule the Veteran for a VA foot examination by a podiatrist or other qualified health care provider. The examiner should review the claims files along with any pertinent medical records located in the Veteran's Virtual VA file. The examiner should: (a) identify all foot disorders manifested during the appeal period; (b) identify whether the Veteran has or had during the appeal period a ganglion cyst of the right foot and, if so, all symptoms and clinical manifestations associated with that condition; and (c) ascertain whether it is as likely as not (50 percent probability or greater) that any foot disorder shown within the appeal period was incurred in service or is proximately due to or aggravated by service-connected disability to include right foot ganglion cyst. A complete rationale for any opinions provided. The examiner should identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., that he or she relied upon in reaching his or her conclusion(s). If an opinion cannot be expressed without resort to speculation, the examiner should so indicate and discuss why an opinion is not possible. 5. Then, the RO or AMC should also undertake any other development it determines to be warranted. 6. After the development requested above has been completed to the extent possible, the RO or AMC should readjudicate the matter on appeal with consideration of whether service connection is warranted for any other foot disorder shown during the appeal period. If the benefit sought on appeal is not granted to the Veteran's satisfaction, he should be furnished a Supplemental Statement of the Case and given the requisite opportunity to respond before the claims files are returned to the Board for further appellate action. The Veteran 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). ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs