Citation Nr: 1319634 Decision Date: 06/18/13 Archive Date: 06/27/13 DOCKET NO. 98-01 962 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an effective date prior to July 23, 1981, for the assignment of a 20 percent rating for internal and external hemorrhoids with history of anal fissure. 2. Entitlement to a rating in excess of 20 percent for internal and external hemorrhoids with history of anal fissure. 3. Entitlement to a separate rating for fistula in ano and/or impairment of sphincter control associated with internal and external hemorrhoids with history of anal fissure. REPRESENTATION Veteran represented by: Daniel Krasnegor, Attorney at Law WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Jeanne Schlegel, Counsel INTRODUCTION The Veteran had active duty service from March 1976 to June 1978. Initially, this matter came before the Board of Veterans' Appeals (Board) on appeal from a July 1997 Department of Veterans Affairs (VA) rating decision in which the Regional Office (RO) in Montgomery, Alabama, granted an increased rating of 20 percent for hemorrhoids with history of anal fissure, and assigned an effective date of November 12, 1996, for the increased rating. In a May 2001 decision, the Board denied a rating in excess of 20 percent for hemorrhoids with history of anal fissure, and granted an earlier effective date of March 12, 1996, for the 20 percent rating. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (formerly known and the United States Court of Veterans Appeals, hereinafter referred to as the Court). In July 2002, the Court granted a joint motion for remand (JMR) of the Board's May 2001 decision. The May 2001 decision was vacated in a Court Order issued in July 2002, and remanded to the Board. In June 2003, the Board remanded this matter for further development and to ensure compliance with the duty to assist and notification requirements of the Veterans Claims Assistance Act of 2000 (VCAA). In April 2004, the case was remanded again for additional evidentiary development; namely, to request treatment records from the VA outpatient clinic in Huntsville, Alabama. In a rating action dated in July 2006, a 20 percent evaluation was continued for internal and external hemorrhoids with a history of anal fissures, and an earlier effective date of July 23, 1981, the date the claim for increase was received, was granted. The Veteran and his representative have maintained that a still earlier effective date is warranted, and as such the claim continues in appellate status. In connection with his appeal, the Veteran testified before a Decision Review Officer (DRO) at the RO in September 1999. A transcript of such hearing is associated with the claims file. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claims. A review of the Virtual VA claims file does not reveal any additional documents pertinent to the present appeal. The Veteran and his attorney have specifically maintained that a separate evaluation is warranted for impairment of sphincter control, and have requested consideration of 38 C.F.R. § 4.114, Diagnostic Codes 7335 and 7332 for impaired sphincter control, to include based on a fistula in ano. As such requires consideration of symptoms separate and distinct from the Veteran's service-connected hemorrhoids and the evidentiary record is inadequate to evaluate such contention, the Board finds that such aspect of the Veteran's claim should be considered separately and has included it on the title page of the decision. This issue is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. FINDINGS OF FACT 1. In a rating action dated in July 2006, an increased evaluation of 20 percent was continued for internal and external hemorrhoids with a history of anal fissures, for which an earlier effective date of July 23, 1981, the date of the claim for increase, was granted. 2. The file does not contain any claim for increase for internal and external hemorrhoids with a history of anal fissures, formal or informal, filed subsequent to the final July 8, 1980 rating decision granting service connection and assigning an initial 10 percent evaluation for this condition from June 1978, and prior to the currently assigned effective date for the grant of a 20 percent evaluation, July 23, 1981. 3. It is not factually ascertainable that an increase in the Veteran's internal and external hemorrhoids with a history of anal fissures, corresponding to the assignment of a 20 percent evaluation, occurred during the one-year period prior to July 23, 1981. 4. Since July 23, 1981, the Veteran's internal and external hemorrhoids with a history of anal fissures have been manifested by hemorrhoids, chronic problems with bleeding, and fissures. 5. The evidence of record does not demonstrate that the Veteran's service-connected Veteran's internal and external hemorrhoids with a history of anal fissures are so exceptional or unusual that referral for extraschedular consideration by designated authority is required. CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than July 23, 1981 for the assignment of a 20 percent evaluation for internal and external hemorrhoids with a history of anal fissures have not been met. 38 U.S.C.A. § 5110; 38 C.F.R. §§ 3.155, 3.157, 3.400 (2012). 2. Since July 23, 1981, the criteria for a disability rating in excess of 20 percent for internal and external hemorrhoids with a history of anal fissures have not been met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.321, 4.114, Diagnostic Codes 7333, 7334, 7336 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper VCAA notice 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 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on the claim for VA benefits. Relevant to the Veteran's effective date claim, the Board observes that the Veteran has appealed with respect to the propriety of the initially assigned effective date for the award of a 20 percent rating for his hemorrhoids from the original grant of the increased rating. VA's General Counsel has held that no VCAA notice is required for such downstream issues. VAOPGCPREC 8-2003, 69 Fed. Reg. 25180 (May 5, 2004). In addition, the Board notes that the Court held that "the statutory scheme contemplates that once a decision awarding service connection, a disability rating, and an effective date has been made, § 5103(a) notice has served its purpose, and its application is no longer required because the claim has already been substantiated." Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006). In this case, the Veteran's claim for an increased rating for his hemorrhoids was granted in the July 1197 rating decision on appeal. Therefore, as the Veteran has appealed with respect to the initially assigned effective date, 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). Relevant to the Veteran's increased rating claim, the Board finds that VA has satisfied its duty to notify under the VCAA. Specifically, a February 2003 letter advised the Veteran of the evidence and information necessary to substantiate his increased rating claim. Additionally, such letter, as well as a September 2003 letter, informed him of his and VA's respective responsibilities in obtaining such evidence and information. While the February 2003 and September 2003 letters were issued after the initial July 1997 rating decision, the United States Court of Appeals for the Federal Circuit has held that VA could cure such a timing problem by readjudicating the Veteran's claim following a compliant VCAA notification letter. Mayfield v. Nicholson, 444 F. 3d 1328, 1333-34 (Fed. Cir. 2006). The Court clarified that the issuance of a statement of the case could constitute a readjudication of the Veteran's claim. See Prickett v. Nicholson, 20 Vet. App. 370 (2006). In the instant case, after the February 2003 and September 2003 letters were issued, the Veteran's claim was readjudicated in the July 2006, December 2009, and July 2012 supplemental statement of the case. Therefore, any defect with respect to the timing of the VCAA notice has been cured. The Board also notes that the Veteran was not provided notice of the evidence and information necessary to establish an effective date in accordance with Dingess/Hartman, supra. However, the Board finds no prejudice in proceeding with a decision regarding the Veteran's increased rating claim. In this regard, as the Board concludes herein that the preponderance of the evidence is against the Veteran's claim, any question as to the appropriate effective date to be assigned is rendered moot. Therefore, the Board finds no prejudice to the Veteran in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the Veteran has been prejudiced thereby). All the law requires is that the duty to notify is satisfied and that claimants are given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished, all due process concerns have been satisfied. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102 (harmless error). In view of the foregoing, the Board finds that the Veteran was notified and aware of the evidence needed to substantiate his appellate claim, as well as the avenues through which he might obtain such evidence, and of the allocation of responsibilities between himself and VA in obtaining such evidence. Accordingly, there is no further duty to notify. The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records and VA medical records are in the file. Private medical records identified by the Veteran have been obtained, to the extent possible. The Veteran has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claim. The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran. See Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the Veteran's disability, a VA examination must be conducted. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2012). The AOJ provided the Veteran with appropriate VA examinations in December 2003 and May 2012. There is no objective evidence indicating that there has been a material change in the severity of the Veteran's service-connected disorder since he was last examined. See 38 C.F.R. § 3.327(a). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. See VAOPGCPREC 11-95. The May 2012 VA examination report is thorough and supported by VA outpatient treatment records. The examination in this case is adequate upon which to base a decision. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim). The Board further finds the May 2012 examination as adequate because it assessed the relevant criteria in the diagnostic code, and was conducted by a qualified physician. Contrary to assertions made by the Veteran's attorney, the record reflects that the claims folder was sent for review by the examiner, although such review was not specifically noted on the examination report. Moreover, even if the examiner did not review the claims file, such does not necessarily render the examination inadequate. In the instant case, the examination is adequate to evaluate the Veteran's hemorrhoids as the examiner considered the Veteran's statements regarding the nature and severity of such and conducted a thorough physical examination, addressing the relevant rating criteria. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (noting that the central issue in determining the probative value of an examination is whether the examiner was informed of the relevant facts in rendering a medical opinion); Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (holding that factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion). Therefore, the Board finds that the examinations of record are adequate to evaluate the Veteran's hemorrhoids. With respect to the earlier effective date claim, in this case, the resolution of the Veteran's claim is dependent on the Court's interpretation of the law and regulations pertaining to claims for VA benefits. As the outcome of this earlier effective date claim rests with evidence which is already in the claims folder, no further development under the VCAA is warranted. See Mason v. Principi, 16 Vet. App. 129, 132 (2002); see generally Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Smith v. Gober, 14 Vet. App. 227, 231-32 (2000); see also Livesay v. Principi, 15 Vet. App. 165 (2001) (en banc) (holding that the VCAA is not applicable where it could not affect a pending matter and could have no application as a matter of law). In June 2003 and April 2004, the Board remanded the case for additional development, to include obtaining all outstanding records identified by the Veteran, affording him proper notice under the VCAA, providing him with VA examinations so as to assess the current nature and severity of his hemorrhoids, and ensuring that the AOJ considered all aspects of the Veteran's claims. As discussed in the preceding paragraphs, all outstanding records have been associated with the claims file, the Veteran was provided with VCAA notice in February 2003 and September 2003, and he was afforded VA examinations in December 2003 and May 2012. Finally, the AOJ has considered all aspects of the Veteran's claims as detailed in the supplemental statements of the case issued subsequent to the Board remands. Therefore, the Board finds that the AOJ has substantially complied with the June 2003 and April 2004 remand directives such that no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007). Importantly, the Board notes that the Veteran is represented in this appeal. See Overton v. Nicholson, 20 Vet. App. 427, 438 (2006). The Veteran has submitted argument and evidence in support of the appeal. Based on the foregoing, the Board finds that the Veteran has had a meaningful opportunity to participate in the adjudication of his claims such that the essential fairness of the adjudication is not affected. II. Earlier Effective Date The Veteran maintains an effective date prior to July 23, 1981, is warranted for the assignment of a 20 percent evaluation for internal and external hemorrhoids with a history of anal fissure. A review of the history reflects that the Veteran was discharged from service in June 1978. A VA examination report of September 1978 noted a history of stomach trouble while in service. An examination of the abdomen was negative and an upper GI series of the esophagus, stomach, and duodenum was normal. In a November 1978 rating action, service connection for stomach trouble was denied. On January 9, 1980, the Veteran filed to reopen his service connection claim for a stomach condition. A private medical record of mid-January 1979 (received in February 1980), reflects that the Veteran complained of a 2 year history of diarrhea and bloody stools. An entry dated later in January 1979 revealed that the Veteran had a week-long history of rectal bleeding. On evaluation, it was determined that the Veteran would be treated for rectal fissure and internal hemorrhoids as the source of the bleeding. On VA examination of June 1980, a history of anal bleeding and internal/external hemorrhoids was diagnosed. In a July 1980 rating action, service connection was established for internal and external hemorrhoids with a history of anal fissures, for which an initial 10 percent evaluation was established effective from June 1978. No additional evidence was received within one year of the issuance of the July 1980 rating decision. On July 23, 1981, the Veteran filed to reopen the claim, essentially seeking a increased evaluation for internal and external hemorrhoids with a history of anal fissures. In hearing testimony presented at RO in October 1999, the Veteran maintained that he had not been notified of the action taken in the July 1980 rating action. Ultimately, in a July 2006 rating action, a 20 percent evaluation was continued for internal and external hemorrhoids with a history of anal fissures, and an effective date of July 23, 1981, was granted. In this case, the currently assigned effective date of July 23, 1981, for the award of a 20 percent evaluation for internal and external hemorrhoids with a history of anal fissures, represents the date VA received the Veteran's claim for an increased rating for such disability. Except as otherwise provided, the effective date of an award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase shall be fixed in accordance with the facts found, but shall be no earlier than the date of receipt of the application thereof. 38 U.S.C.A. § 5110(a). The statutory provision is implemented by regulation which provides that the effective date for an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400. A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid to any individual under the laws administered by VA. 38 U.S.C.A. § 5101(a); 38 C.F.R. § 3.151. Any communication or action indicating an intent to apply for one or more benefits under the laws administered by VA from a claimant may be considered an informal claim. 38 C.F.R. § 3.155. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if the formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of the receipt of the informal claim. 38 C.F.R. § 3.155. Essentially two theories of entitlement exist in this case: first, whether an increased rating claim was filed prior to July 23, 1981; and second, whether there is any evidence that the Veteran's service-connected for internal and external hemorrhoids with a history of anal fissures warrants the assignment of a 20 percent evaluation during the one year period prior to July 23, 1981. The Board notes that the controlling issues in this case are (1) the date on which the Veteran initiated his increased rating claim for internal and external hemorrhoids with a history of anal fissures; and (2) the date on which entitlement to a 20 percent evaluation for internal and external hemorrhoids with a history of anal fissures was factually ascertainable. 38 C.F.R. §§ 3.151, 3.155, 3.157, 3.400. As an initial matter, the Board finds that the July 1980 rating decision that awarded service connection for hemorrhoids and assigned a 10 percent rating June 20, 1978, is final. Rating actions are final and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a). The claimant has one year from notification of an RO decision to initiate an appeal by filing a notice of disagreement with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C.A. § 7105(b) and (c) ; 38 C.F.R. §§ 3.160(d) , 20.200, 20.201, 20.202, and 20.302(a). In this regard, the Veteran did not submit a notice of disagreement within one year of the issuance of such decision. In this regard, the Board observes that the claims file does not contain a copy of the letter in which the Veteran was notified of the July 8, 1980 rating action. However, the file does contain documentation dated July 16, 1980, that the rating action was effectuated. This documentation contains recitations of the action taken and a notation of the Veteran's last known address then of record. "The presumption of regularity supports the official acts of public officers and, in the absence of clear evidence to the contrary, courts presume that they have properly discharge their official duties." Chute v. Derwinski, 1 Vet. App. 352, 353 (1991). The presumption of regularity is not absolute; it may be rebutted by the submission of clear evidence to the contrary. Ashely v. Derwinski, 2 Vet. App. 307, 308-309 (1992). Indeed, in Kuo v. Derwinski, 2 Vet. App. 662, 665 (1992) the United States Court of Veterans Appeals held, citing Ashley, supra, that "[i]n the absence of clear [underline added] evidence to the contrary, . . . it must be presumed that the Secretary properly discharged his official duties and mailed the letter to appellant in care of his representative in the normal course of business." Although a copy of the actual notification letter is not of record, pursuant to the presumption of regularity attending the official acts of public officers, it must be concluded that the Veteran was appropriately notified of the July 1980 rating decision and of his appellate rights. Dolan v. Brown, 9 Vet. App. 358, 362 (1996). The documents of record indicate that a proper notification letter was sent to the Veteran at the last known address of record, and there is no evidence in the claims file that this letter was returned to the RO as undelivered. It is noted that in the course of his October 1999 hearing before the RO, the Veteran disputed the receipt of notice of the July 8, 1980 rating action. He failed, however, to submit any evidence other than his own statements that would suggest that he was not properly or timely notified. Unsubstantiated lay statements made by the Veteran are not the type of clear evidence to the contrary which would be sufficient to rebut the presumption of regularity. Mindenhall v. Brown, 7 Vet. App. 271, 274 (1994); Ashley v. Brown, 2 Vet. App. 62, 64 (1992). Furthermore, the Board observes that the notification issue was not addressed in the June 2002 JMR, or in any briefs arguments submitted by the Veteran's attorney in 2012 or 2013. The Board has also considered the applicability of 38 C.F.R. § 3.156(b), which provides that, when new and material evidence is received prior to the expiration of the appeal period, it will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. However, in the instant case, such regulation is inapplicable as no new and material evidence pertaining to the Veteran's claim for an increased rating for hemorrhoids was received prior to the expiration of the appeal period stemming from the July 1980 rating decision. In fact, no evidence at all was associated with the record during such time period. See also Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011); Roebuck v. Nicholson, 20 Vet. App. 307, 316 (2006); Muehl v. West, 13 Vet. App. 159, 161-62 (1999). Therefore, as the July 1980 rating decision is final, the first inquiry is whether following the issuance of such decision, an increased rating claim for internal and external hemorrhoids with a history of anal fissures, either formal or informal was prior to July 23, 1981. In this regard, the Veteran and his attorney maintain that the June 1980 VA examination report provides a basis for the assignment of an effective date prior to July 23, 1981. Applicable regulations, specifically the provisions of 38 C.F.R. § 3.157, provide that if a formal claim for compensation has previously been allowed, as was the case here, a VA hospital admission or examination report can be accepted as an informal claim for increase; the date of the VA hospital admission will be accepted as the date of receipt of a claim if such a report relates to examination or treatment of a disability for which service connection has previously been established. However, when the June 1980 VA examination report was added to the record, the service connection claim was still pending and had not been allowed. Hence, the June 1980 VA examination report cannot be accepted as a formal claim for increase, but is instead considered as evidence assisting in the grant of service connection for hemorrhoids. Accordingly, it does not provide the basis for the assignment of an earlier effective date. In fact, the record is entirely negative for any formal claim or informal claim filed by either the Veteran or a representative subsequent to the unappealed July 8, 1980 rating decision and prior to the currently assigned July 23, 1981, effective date requesting an increased evaluation for service-connected internal and external hemorrhoids with a history of anal fissures. The Court has made it plain that the date of the filing of a claim is controlling in determinations as to effective dates. See Lalonde v. West, 12 Vet. App. 377, 380 (1999) (citing Hazan v. Gober, 10 Vet. App. 511 (1997); Washington v. Gober, 10 Vet. App. 391 (1997); and Wright v. Gober, 10 Vet. App. 343 (1997). In this case, the earliest filing date of either a formal or informal claim requesting an increased evaluation for internal and external hemorrhoids with a history of anal fissures following the July 8, 1980 rating action was clearly no earlier than July 23, 1981. Having established July 23, 1981, as the earliest filing date for an increased rating claim for internal and external hemorrhoids with a history of anal fissures, the second inquiry is whether there is any evidence that the Veteran's service-connected condition warranted a 20 percent evaluation during the one-year period prior to July 23, 1981, as maintained by the Veteran and his attorney. Specifically, the Veteran and his attorney maintain that evidence consisting of both or either a January 1979 private medical report, or the July 8, 1980 VA examination report reflect that it was factually ascertainanble that the Veteran met the criteria for the assignment of a 20 percent evaluation for internal and external hemorrhoids with a history of anal fissures For an increase in disability compensation, the effective date will be the earliest date as of which it is factually ascertainable that an increase in disability had occurred if claim is received within 1 year from such date otherwise, date of receipt of claim. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400(o)(2); see also Hazan v. Gober, 10 Vet. App. 511 (1997); Servello v. Derwinski, 3 Vet. App. 196 (1992). In VAOPGCPREC 12-98, VA General Counsel noted that 38 C.F.R. § 3.400(o)(2) was added to permit payment of increased disability compensation retroactively to the date the evidence establishes the increase in the degree of disability had occurred. That section was intended to be applied in those instances where the date of increased disablement can be factually ascertained with a degree of certainty. It was noted that this section was not intended to cover situations where disability worsened gradually and imperceptibly over an extended period of time. See also Gaston v. Shinseki, 605 F.3d 979, 983 (Fed. Cir. 2010) (explaining the legislative history of 38 U.S.C.A. § 5110(b)(2) was to provide Veterans with a one-year grace period for filing a claim following an increase in a service-connected disability). The Court has held that 38 U.S.C.A. § 5110(b)(2) and 38 C.F.R. § 3.400(o)(2) are applicable only where an increase in disability precedes a claim for an increased disability rating; otherwise the general rule of 38 C.F.R. § 3.400(o)(1) applies. See Harper v. Brown, 10 Vet App 125, 126 (1997). Thus, three possible methods for assigning an effective date may be applicable depending on the facts of the case: (1) if an increase in disability occurs after the claim is filed, the date that the increase is shown to have occurred (date entitlement arose) is the appropriate effective date; 38 C.F.R. § 3.400(o)(1); (2) if an increase in disability precedes the claim by a year or less, the date that the increase is shown to have occurred (factually ascertainable) during that year long period prior to the filing of the increased rating claim is the appropriate effective date 38 C.F.R. § 3.400(o)(2); (3) if an increase in disability precedes the claim by more than a year, the date that the claim is received (date of claim) is appropriate; 38 C.F.R. § 3.400(o)(2). Harper, 10 Vet App at 126. The term "increase" as used in 38 U.S.C.A. § 5110 and 38 C.F.R. § 3.400 means an increase to the next disability level. See Hazan v. Gober, 10 Vet. App. 511, 519 (1992) (noting that, under § 5110(b)(2) which provides that the effective date of an award of increased compensation shall be the earliest date of which it is ascertainable that an increase in disability had occurred, "the only cognizable 'increase' for this purpose is one to the next disability level" provided by law for the particular disability). In this case, based on the contentions of the Veteran and his representative, it was clearly not factually ascertainable that the criteria warranting the assignment for a 20 percent evaluation for internal and external hemorrhoids with a history of anal fissures were met at any time during the year prior to July 23, 1981; therefore, an earlier effective date is not warranted based on such considerations. Specifically, the Board observes that the specific evidence of 1979 and June 1980 identified by the Veteran and his attorney relates to the Veteran's symptoms and severity as shown more than a year prior to July 23, 1981. As explained above, if an increase in disability precedes the claim by more than a year, the date that the claim is received (date of claim) is appropriate; 38 C.F.R. § 3.400(o)(2). Harper, 10 Vet App at 126. Accordingly, the correct effective date for the assignment of a 20 percent evaluation for internal and external hemorrhoids with a history of anal fissures, is the date of the claim for increase, July 23, 1981, as is currently assigned. In summary, there was no increased rating claim for internal and external hemorrhoids with a history of anal fissures, either formal or informal, filed prior to July 23, 1981. Moreover, it was not factually ascertainable that schedular requirements for the assignment of a 20 percent evaluation for internal and external hemorrhoids with a history of anal fissures were met at any time during the one-year period prior to July 23, 1981. Accordingly, the Board concludes that statutory and regulatory criteria for the assignment of an effective date prior to July 23, 1981, for the assignment of a 20 percent evaluation for internal and external hemorrhoids with a history of anal fissures have not been met and the claim must be denied. III. Increased Rating Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012). Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7 (2012). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. See 38 C.F.R. § 4.3 (2012). The Veteran's entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1 (2012). Where, as here, service connection has already been established, and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, in such cases, when the factual findings show distinct time periods during which a claimant exhibits symptoms of the disability at issue and such symptoms warrant different evaluations, staged evaluations may also be assigned. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. See 38 C.F.R. § 4.14 (2012). The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261- 62 (1994). The Veteran's service-connected internal and external hemorrhoids with history of anal fissure are currently evaluated under Diagnostic Code 7336. Under Diagnostic Code 7336, a noncompensable evaluation is warranted for mild or moderate hemorrhoids. A 10 percent rating is assigned if the hemorrhoids are large or thrombotic, irreducible, with excessive redundant tissue, evidencing frequent recurrences. A maximum disability rating of 20 percent is warranted for hemorrhoids with persistent bleeding and secondary anemia or fissures. See 38 C.F.R. § 4.119, Diagnostic Code 7336 (2012). Since July 23, 1981, the Veteran has been awarded a maximum 20 percent evaluation for his service-connected internal and external hemorrhoids with history of anal fissure as evaluated under Diagnostic Code 7336. A brief review of the evidence on file reveals that VA records document recurrent treatment of the Veteran from March 1996 through November 1996 for complaints of hemorrhoids, rectal bleeding and an anal fissure. In March 1996, hemorrhoid with no active bleeding or fissure was noted. In April 1996, there was active bleeding and there was thought to be a small fissure. In July 1996, rectal bleeding was noted. In November 1996, the Veteran complained of rectal bleeding. It was noted that an October 1996 flexible sigmoidoscopy had confirmed a fissure. The assessment was anal fissure. Based upon the foregoing evidence, in a July 1997 rating decision, the RO increased the evaluation of the Veteran's service-connected hemorrhoids, characterized as internal and external hemorrhoids with history of anal fissure, from a 10 percent disability rating to a 20 percent rating, effective from November 12, 1996. In an April 1998 statement, the Veteran indicated that his symptoms included excessive bleeding from the anal sphincter, due to fistula. A VA examination was conducted in December 2003 and the claims folder was reviewed. The Veteran indicated that he had profuse bleeding after bowel movements and sometimes had to wear pads when bleeding was present and persistent. Sphincter control was described as good with no fecal leakage. Small internal and external hemorrhoids were shown on examination, as was an apparent fissure. There was no sign of anemia. Anal fissures and internal/external hemorrhoids were diagnosed. VA records dated from 1996 to June 2006 are entirely negative for evidence of fecal leakage or impairment of sphincter control. VA records dated in March 2004 documented the presence of bleeding anal fissures. In a July 2006 rating action, a 20 percent evaluation was continued for internal and external hemorrhoids with a history of anal fissures, effective from July 23, 1981. A November 2006 VA record documents the Veteran's complaints of rectal bleeding and occasional fecal incontinence. In a statement provided in July 2008, the Veteran indicated that he had suffered from bleeding and fecal incontinence off and on since 1977. In August 2008, the Veteran provided diary entries dated from January to March 2008 documenting bleeding and instances purportedly representing indications of impairment of sphincter control. A VA examination was conducted in May 2012. The Veteran's reported symptoms included internal/external hemorrhoids, not shown on examination; and anal/perianal fistula, described as slight impairment of sphincter control, without leakage. It was noted that the Veteran reported having difficulty holding bowel movements and having blood in his underwear, none of which was shown on examination. Photos of blood on toilet paper were presented by the Veteran on examination. There was no indication that a pad was required. A small anal fissure with no bleeding was shown on examination. The examiner did not, in fact, annotate in the report that the Veteran actually had impairment of rectal sphincter control or any associated symptoms. The report indicated that a 2010 colonoscopy had revealed hemorrhoids with no bleeding. The examiner noted that the Veteran was seen on June 1, 2012, with complaints of rectal bleeding. On that examination, no blood or melena was seen and no hemorrhoids were present. It was also noted that the Veteran reported that a prior colonoscopy had been stopped due to heavy bleeding; however, clinical records showed that it was stopped due to inadequate preparation as well as due to the Veteran's known large ventral hernia. Given the foregoing, the Board finds that the previously assigned 20 percent disability rating under diagnostic code 7336 is appropriate. In this regard, the Board finds that the Veteran's hemorrhoids are manifested by hemorrhoids, chronic problems with bleeding, and fissures. The Board also notes that this is the maximum schedular evaluation available for hemorrhoids under Diagnostic Code 7336. Consideration has been given to application of another Diagnostic Code (other than Diagnostic Code 7332, which governs impairment of sphincter control, as such is addressed in the remand section), but there are no additional symptoms of the Veteran's hemorrhoids that warrant consideration of other Diagnostic Codes. The Veteran and his representative have specifically maintained that a separate/increased evaluation is warranted for fecal leakage, and have requested consideration of diagnostic code 7335/7332, used to evaluate impaired sphincter control. As explained in the Introduction, at this time, entitlement to service connection for impaired sphincter control, to include as secondary to service-connected internal and external hemorrhoids with history of anal fissure, is being considered as a separate issue, which is being remanded to the AOJ for additional development and readjudication. Accordingly, the Board finds that a rating in excess of 20 percent is not warranted for service-connected internal and external hemorrhoids with history of anal fissure, at any point from July 23, 1981, and, therefore, the appeal is denied. Consideration has also been given regarding whether the schedular evaluation is inadequate, thus requiring that the RO refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." 38 C.F.R. § 3.321(b)(1) (2012); Barringer v. Peake, 22 Vet. App. 242, 243-44 (2008) (noting that the issue of an extraschedular rating is a component of a claim for an increased rating and referral for consideration must be addressed either when raised by the Veteran or reasonably raised by the record). An extra-schedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture with marked interference with employment or frequent periods of hospitalization that render impractical the application of the regular schedular standards. Floyd v. Brown, 9 Vet. App. 88, 94 (1996). An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the Veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Thun, 22 Vet. App. at 115-116. When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116. In this regard, the schedular evaluation in this case is not inadequate. The diagnostic criteria adequately describe the severity and symptomatology of the Veteran's internal and external hemorrhoids with history of anal fissure, as the criteria assess whether the hemorrhoids are mild, moderate, thrombotic, irreducible, include bleeding, fissures, redundant tissue, or anemia, and whether recurrences are frequent, which includes the Veteran's symptoms. The Board again notes that the Veteran alleges that his hemorrhoids result in impairment of sphincter control, which is governed by Diagnostic Code 7332, and such contention is addressed in the remand section. Accordingly, this issue need not be referred for consideration of an extraschedular rating. As a final point, the Board further notes that a request for a total disability rating due to individual unemployability (TDIU), whether expressly raised by a claimant or reasonably raised by the record, is an attempt to obtain an appropriate rating for disability or disabilities, may be a component of a claim for increased compensation. There must be cogent evidence of unemployability in the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009), citing Comer v. Peake, 552 F.3d 1362 (Fed. Cir. 2009). In the instant case, a TDIU claim has not been raised, and the evidence of record does not reflect that the Veteran has been rendered unemployable due to his service-connected internal and external hemorrhoids with history of anal fissure, nor have the Veteran or his representative so alleged. In fact, upon VA examination of 2012, the examiner indicated that this condition did not impact the Veteran's ability to work. Therefore, the issue of TDIU has not been reasonably raised and, as such, need not be considered further. The Board has also considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim for a rating in excess of 20 percent for his internal and external hemorrhoids with history of anal fissure. Therefore, the benefit of the doubt doctrine is not applicable in the instant appeal and his increased rating claim must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 4.3, 4.7. ORDER An effective date prior to July 23, 1981, for the assignment of a 20 percent rating for internal and external hemorrhoids with history of anal fissure is denied. A rating in excess of 20 percent for internal and external hemorrhoids with history of anal fissure is denied. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim for a separate rating for impairment of sphincter control associated with his service-connected hemorrhoids so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In this regard, the Board notes that the Veteran alleges that his hemorrhoids result in a fistula in ano under Diagnostic Code 7335 (which is rated pursuant to impairment of sphincter control), and/or impairment of sphincter control under Diagnostic Code 7332. However, the evidentiary record contains insufficient evidence so as to allow the Board to adjudicate whether the Veteran is entitled to a separate rating for such disability as part of his service-connected hemorrhoids. In this regard, the record reflects that, in an April 1998 statement, the Veteran indicated that his symptoms included excessive bleeding from the anal sphincter due to fistula. He also indicated that he had frequent bowel movements which he could not control, and leakage which required him to wear padding. However, at a VA examination in December 2003, while the Veteran indicated that he had profuse bleeding after bowel movements and sometimes had to wear pads when bleeding was present and persistent, sphincter control was described as good with no fecal leakage. Likewise, VA records dated from 1996 to June 2006 are entirely negative for evidence of fecal leakage or impairment of sphincter control. Thereafter, a November 2006 VA record documents the Veteran's complaints of rectal bleeding and occasional fecal incontinence. Additionally, in a statement provided in July 2008, the Veteran indicated that he had suffered from bleeding and fecal incontinence off and on since 1977. Furthermore, in August 2008, the Veteran provided diary entries dated from January to March 2008 documenting bleeding and instances purportedly representing indications of impairment of sphincter control. At the May 2012 VA examination was conducted in May 2012, the Veteran's reported symptoms included anal/perianal fistula, described as slight impairment of sphincter control, without leakage. It was noted that the Veteran reported having difficulty holding bowel movements and having blood in his underwear, none of which was shown on examination. Photos of blood on toilet paper were presented by the Veteran on examination. There was no indication that a pad was required. A small anal fissure with no bleeding was shown on examination. No other physical findings were noted on examination. In September 2012 and April 2013 briefs, the Veteran's attorney described the May 2012 VA examination as inadequate as pertaining to evaluating the Veteran's claimed manifestations of impaired sphincter control and requested a new examination specifically addressing this claimed manifestation. Moreover, in light of the conflicting evidence of record regarding whether the Veteran has a fistula in ano and/or impairment of sphincter control associated with his internal and external hemorrhoids with history of anal fissure, the Board finds that a remand is necessary in order to obtain an addendum opinion from the May 2012 VA examiner. Accordingly, the case is REMANDED for the following action: 1. Return the claims file to the VA examiner who conducted the Veteran's May 2012 VA examination. The claims file and a copy of this Remand must be made available to the examiner. The examiner shall note in the examination report that the claims folder and the Remand have been reviewed. If the May 2012 VA examiner is not available, the claims file should be provided to an appropriate medical professional so as to render the requested opinion. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinion. After a review of the claims file, address the following inquiries: (A) Is it at least as likely as not that the Veteran has a fistula in ano associated with his internal and external hemorrhoids with history of anal fissure? If so, what are the manifestations? In this regard, the examiner is advised that such disability is rated based on impairment of sphincter control (which, in turn, contemplates the frequency and severity of fecal leakage and involuntary bowel movements). When is the approximate onset date of the fistula in ano? (B) Is it at least as likely as not that the Veteran has impairment of sphincter control associated with his internal and external hemorrhoids with history of anal fissure? If so, what are the manifestations? In this regard, the examiner should comment upon the frequency and severity of fecal leakage and involuntary bowel movements. When is the approximate onset date of the impairment of sphincter control? In offering the aforementioned opinions, the examiner should review the full record, to include the Veteran's lay statements regarding his alleged impairment of sphincter control as well as the medical evidence of record. Any opinion expressed should be accompanied by a supporting rationale. 2. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim of entitlement to a separate rating for fistula in ano and/or impairment of sphincter control associated with internal and external hemorrhoids with history of anal fissure should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the 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). ____________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs