Citation Nr: 1318651 Decision Date: 06/07/13 Archive Date: 06/11/13 DOCKET NO. 09-11 511 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to an initial compensable rating for hemorrhoids. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD D. M. Casula, Counsel INTRODUCTION The Veteran had active service from November 1985 to July 1994, and from October 2001 to June 2003. This matter comes before the Board of Veterans' Appeals (Board) from a December 2006 rating decision of the above Regional Office (RO) of the Department of Veterans Affairs (VA) which, in pertinent part, granted service connection for hemorrhoids and assigned a non-compensable (0 percent) disability rating, effective from April 27, 2006. In May 2011, the Veteran and his spouse testified at a Travel Board hearing, at the RO, before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the record. In October 2011, the Board remanded this matter for further development, to include obtaining updated pertinent treatment records and scheduling the Veteran for a VA examination. The Board is satisfied there has been substantial compliance with the October 2011 remand. Stegall v. West, 11 Vet. App. 268 (1998). FINDING OF FACT The Veteran's hemorrhoids have basically been manifested by intermittent flare-ups with rectal bleeding, swelling, and pain, and have been objectively characterized as mild to severe, creating a reasonable doubt as to whether a higher disability rating is warranted under the Rating Schedule; there has been no findings of persistent bleeding, anemia, or fissures. CONCLUSION OF LAW Giving the benefit of the doubt to the Veteran, the criteria for a 10 percent rating for hemorrhoids have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.114 , Diagnostic Code 7336 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating a claim for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative 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. 38 C.F.R. § 3.159(b)(1), as amended, 73 Fed. Reg. 23,353 (April 30, 2008). This notice must be provided prior to an initial decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The 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). If complete notice is not provided until after the initial adjudication, such a timing error can be cured by subsequent legally adequate VCAA notice, followed by readjudication of the claim, as in a Statement of the Case (SOC) or Supplemental SOC (SSOC). Moreover, where there is an uncured timing defect in the notice, subsequent action by the RO which provides the claimant a meaningful opportunity to participate in the processing of the claim can prevent any such defect from being prejudicial. Mayfield v. Nicholson, 499 F.3d 1317, 1323-24 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) held that any error in VCAA notice should be presumed prejudicial, and that VA bears the burden of proving that such an error did not cause harm. Sanders v. Nicholson, 487 F.3d 881 ( Fed. Cir. 2007). However, the U.S. Supreme Court reversed that decision, finding it unlawful in light of 38 U.S.C.A. § 7261(b)(2). The Supreme Court held that - except for cases in which VA failed to meet the first requirement of 38 C.F.R. § 3.159(b) by not informing the claimant of the information and evidence necessary to substantiate the claim - the burden of proving harmful error rests with the party raising the issue, the Federal Circuit's presumption of prejudicial error imposed an unreasonable evidentiary burden upon VA and encouraged abuse of the judicial process, and determinations on the issue of harmless error should be made on a case-by-case basis. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). In a claim for increase, the requirement is for generic notice, or the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed.Cir. 2009). In this case, the VCAA duty to notify was satisfied by way of letters sent to the Veteran in October 2006 and in October 2011, that fully addressed the notice elements in this matter. Since the appellate issue herein (entitlement to assignment of an initial compensable rating) is a downstream issue from that of service connection (for which the October 2006 VCAA letter was duly sent), another VCAA notice is not required. VAOPGCPREC 8-2003. This appeal is from the initial rating assigned with the grant of service connection. The statutory scheme contemplates that once a decision awarding service connection, disability ratings, and effective dates has been made, statutory notice has served its purpose, and its application is no longer required because the claim has already been substantiated. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490-91 (2006). The Veteran is exercising his right to appeal the rating assigned. In addition, the December 2008 statement of the case (SOC) properly provided him notice of the criteria for rating hemorrhoids, including what the evidence showed, and why the current rating was assigned. The Veteran has had ample opportunity to respond and supplement the record, and, in addition, provided testimony in this matter in May 2011. He is not prejudiced by this process; notably, he does not allege that notice in this case was less than adequate or that he is prejudiced by any notice deficiency. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Goodwin v. Peake, 22 Vet. App. 128 (2008). The Board also notes that in the October 2006 VCAA letter, the Veteran was advised of how disability ratings and effective dates are assigned. See Dingess v. Nicholson, supra. He has not demonstrated any error in VCAA notice, and therefore the presumption of prejudicial error as to such notice does not arise in this case. See Sanders v. Nicholson, supra. Thus, the Board concludes that all required notice has been given to the Veteran. The Board finds VA has satisfied its duty to assist the Veteran in the development of the claim. VA has obtained all identified and available service and post-service treatment records. Further, he underwent VA examinations in October 2006 and in November 2011, each of which included a review of the claims folder and a history obtained from the Veteran, and examination findings were reported, along with diagnoses/opinions, which were supported in the record. The examination reports are adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303, 310-11 (2007). It appears that all obtainable evidence identified by the Veteran relative to his claim has been obtained and associated with the claims folder, and that neither he nor his representative has identified any other pertinent evidence, not already of record, which would need to be obtained for a fair disposition of this appeal. The Board concludes that 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), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, supra. The Board concludes that VA has satisfied its duty to assist the Veteran in apprising him as to the evidence needed, and in obtaining evidence pertinent to his claim under the VCAA. No useful purpose would be served in remanding this matter for yet more development. Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit flowing to the Veteran. The United States Court of Appeals for Veterans Claims (Court) has held that such remands are to be avoided. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). II. Factual Background On a VA examination in October 2006, the Veteran reported he was diagnosed with internal hemorrhoids in service and since then he had bleeding and thrombosis intermittently. He reported that his hemorrhoids were generally painful, swollen, and bleeding, that he had occasional or infrequent fecal leakage but did not wear a pad. He reported that in an average year, for 8 out of 12 months, he had episodes of rectal bleeding, which may last from 1-2 or up to 3 weeks. For treatment he used OTC hemorrhoids suppositories, soothing wipes, and a stool softener. Examination revealed no evidence of fecal leakage in his underwear or in the anal area, no fissures, internal hemorrhoids at 12 o'clock and 10 o'clock, non-thrombosed, but tender to palpation, and an external skin tag at 1 o'clock. A hemoccult card was negative for bleeding. The diagnosis was hemorrhoids. A CBC was performed which showed decreased hemoglobin 12.2 and hematocrit 37.2. A private record dated in November 2006, showed that the Veteran reported having blood in the stool, and a recheck was needed as it was getting worse. VA treatment records showed that in August 2007, the Veteran reported that in past year his hemorrhoids had been bleeding more often. A colonoscopy in November 2007 revealed no fissures and no obvious internal or external hemorrhoids. In February 2008, he underwent hemorrhoid ligation for internal hemorrhoids. In May 2011, the Veteran testified at a Travel Board hearing that he underwent a banding procedure that involved banding three or four hemorrhoids, that had come back and were worse and were bleeding. He testified that when he had bowel movements, he had to "push them back in". He testified that he was examined again by the surgeon, who recommended he undergo the banding procedure again, but he claimed that the first banding surgery was painful and humiliating, and did not work because he had hemorrhoids return and be worse. Received in May 2011 was a statement from the Veteran in which he claimed that since the banding surgery he experienced numerous more problems with his hemorrhoids, claiming that they constantly bleed and protrude outside his rectum. He claimed he was in constant pain from the hemorrhoids, and had to push them back in after every bowel movement. He indicated he had contacted doctor at the VAMC surgical unit, who rated his hemorrhoids as grade 2, and that he was contemplating surgery again. He also claimed he recently tried to get life insurance, but was placed into the high risk category due to his blood results from his VA medical records, which reportedly said he was "borderline anemic", which he believed was due to the constant bleeding from his hemorrhoids. He claimed he used suppositories and hydrocortisone creams. On a November 2011 VA disability benefits questionnaire (DBQ) examination it was noted that the Veteran had internal or external hemorrhoids. For the medical history, it was noted that the Veteran had noticed bright red blood per rectum in service, reported to sick call, and was diagnosed with hemorrhoids. He was treated with stool softeners and sitz baths, and reported having problems with hemorrhoids ever since then. It was noted that a colonoscopy in 1995 showed internal and external hemorrhoids, and he reported having bleeding in the toilet bowl, usually two weeks out of every month. It was noted that the Veteran's treatment plan included taking continuous medication, listed as stool softeners daily and Preparation H ointment. His signs and symptoms were noted to include internal or external hemorrhoids which were mild or moderate. It was also noted that the Veteran reported that on occasion his hemorrhoids protrude from the rectum, with bowel movements and straining. Examination of the rectal/anal area was noted to be normal, with no external hemorrhoids, anal fissures, or other abnormalities. He underwent a CBC in November 2011, to be conducted if anemia due to an intestinal condition was suspected, which revealed hemoglobin 14.3 and hematocrit 40.4. A private report of a colonoscopy dated in October 2012, showed findings of moderate internal hemorrhoids. Received from the Veteran in October 2012 was a statement in which he indicated that on the VA examination in November 2011, he discussed all his current symptoms with the attending examiner, including that his hemorrhoids had been bleeding that morning and continually for the past week, that blood was spraying out when he used the toilet, and that the hemorrhoids were popping out and that he had to push them back in frequently. The Veteran also claimed he advised the VA examiner that he had frequent episodes of blood and fecal matter leaking out during the day while he was at work. He claimed that the examiner only did a quick look at his anus, and did no physical examination. The Veteran could not believe that this was considered an appropriate examination because every other examination conducted for his hemorrhoids consisted of an internal examination. He claimed that in February 2008, he had a hemorrhoid banding procedure, which involved multiple internal hemorrhoids being banded. The Veteran described the procedure as painful and horrific. He claimed that in June 2009, he went for a surgical consultation because his hemorrhoids had worsened after the banding procedure, and it was recommended he again undergo banding of them again. He also indicated that in October 2012 he went for a colonoscopy, during which Dr. Muthunayagam reportedly found his hemorrhoids to be much worse than mild, and recommended that he be seen by a surgeon to undergo a surgical deep suturing procedure to help with the hemorrhoids. The Veteran believed his hemorrhoids should be rated at 20 percent, due to his reports of excessive bleeding, borderline anemia due to constant bleeding, frequent spraying of blood with bowel movements, and constant leaking of blood and fecal matter. In a statement dated in November 2012, the Veteran reported he underwent an anal ultrasound in November 2012, for a nodule that was discovered in a colonoscopy. He claimed that after the procedure, Dr. Muthunayagam advised the Veteran's wife that the nodule was no longer visible, but that his hemorrhoids were very severe and bleeding badly, and that he needed further treatment to manage them. The Veteran claimed he had been stating for the past 6 1/2 years what Dr. Muthunayagam stated, and also claimed he suffered from severe hemorrhoids which continually bleed. In a November 2012 letter, Dr. Muthunayagam reported that the Veteran had come for an office visit, colonoscopy, and rectal endoscopic ultrasound, which revealed he had severe hemorrhoids. Dr. Muthunayagam opined that the Veteran would benefit from surgical management of his significant and symptomatic hemorrhoids. III. Analysis Disability evaluations are determined by application of the VA Schedule for Rating Disabilities, which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3 . In general, when 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). However, when the current appeal arose from the initially assigned rating, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). Staged ratings are appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). By December 2006 rating decision, the RO granted service connection for hemorrhoids and granted a 0 percent (non-compensable) rating, effective from April 27, 2006, pursuant to 38 C.F.R. § 4.114, Diagnostic Code (DC) 7336. Pursuant to DC 7336, a non-compensable rating is warranted where hemorrhoids are mild or moderate in degree. A 10 percent rating is warranted where they are large or thrombotic, irreducible, with excessive redundant tissue, evidencing frequent recurrences. A 20 percent rating is warranted where there is persistent bleeding with secondary anemia, or with fissures. 38 C.F.R. § 4.114, DC 7336. After carefully reviewing the evidence of record, and affording the Veteran the benefit of the doubt, the Board concludes that in considering all of the Veteran's reported and documented symptomatology attributed to his hemorrhoids, that his service-connected disorder more closely resembles the criteria for a compensable, 10 percent, rating under DC 7336. 38 C.F.R. §§ 4.7, 4.114. In that regard, the objective evidence of record has shown that the Veteran has had internal and external hemorrhoids at various points during the appeal period, that have ranged in severity from mild to (most recently) severe, and that he underwent hemorrhoid banding surgery in February 2008. The objective evidence of record, however, has also shown that at least at one point, in November 2007, a colonoscopy showed no obvious internal or external hemorrhoids. Further, the objective evidence of record has not specifically shown that the Veteran's hemorrhoids have been large or thrombotic, or irreducible, with excessive redundant tissue. Nonetheless, on VA examinations in 2006 and 2011, he was shown to have internal and external hemorrhoids, that were mild to moderate, and in 2012, a private doctor described the Veteran's hemorrhoids as severe and significant. Further, the Veteran has complained of bleeding due to hemorrhoids, as well as pain and tenderness, swelling, fecal leakage, and that bowel movements and straining have caused his hemorrhoids to protrude such that he had to push them back in. Thus, although objective examinations have not specifically shown large hemorrhoids or thrombosis, applying the doctrine of reasonable doubt and considering the Veteran's testimony and statements, along with complaints on VA evaluations and clinical findings, the Board concludes that the Veteran's condition more nearly approximates the criteria for a 10 percent rating than for a noncompensable rating. 38 C.F.R. § 4.7. Thus, a 10 percent rating for the service-connected hemorrhoids is warranted, effective from April 27, 2006. Fenderson v. West, supra. The Board finds that an even higher rating of 20 percent is not warranted, because although the Veteran has reported having frequent bleeding due to his hemorrhoids, and claimed that he was found to be borderline anemic, and laboratory findings have show decreased hematocrit and hemoglobin counts, there have been no findings of persistent bleeding, secondary anemia, or fissures. Thus, the Board concludes that a rating in excess of 10 percent for the Veteran's service-connected hemorrhoids is not warranted under DC 7336. Id. Finally, the Board notes that the rating schedule represents as far as practicable, the average impairment of earning capacity. Ratings will generally be based on average impairment. 38 C.F.R. § 3.321(a),(b). To afford justice in exceptional situations, an extraschedular rating can be provided. 38 C.F.R. § 3.321(b). The Court has clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). First, the RO or the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. The Board also notes that the Veteran's hemorrhoids and related symptoms would impact his ability to do certain activities; however, such symptoms/impairment are already contemplated and adequately compensated by the applicable rating criteria. Further, the rating criteria reasonably describe his disability and provide for a higher rating for more severe symptoms. In addition, the Veteran has not alleged marked interference with employment due to his hemorrhoids, nor has he been frequently hospitalized for this disability. Thus, the Board concludes that referral for consideration of an extraschedular rating is not warranted. ORDER A 10 percent rating for hemorrhoids is granted, subject to the regulations governing the payment of monetary awards. ____________________________________________ FRANK J. FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs