Citation Nr: 1321679	
Decision Date: 07/08/13    Archive Date: 07/18/13

DOCKET NO.  09-20 383	)	DATE
	)
	)

On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts


THE ISSUE

Entitlement to a compensable disability rating for hemorrhoids.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Heather J. Harter, Counsel



INTRODUCTION

The Veteran served on active duty from January 1968 to December 1970.  

This matter comes before the Board of Veterans' Appeals (Board) from a July 2008 RO decision.  


FINDING OF FACT

The Veteran's hemorrhoids are no more than moderate in nature.


CONCLUSION OF LAW

A compensable disability rating for hemorrhoids is not warranted.  38 U.S.C.A. § 1155, 5107 (West 2002); 38 C.F.R. § 4.114, Diagnostic Code 7336 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to notify and assist

When an application for benefits is received, VA has certain notice and assistance requirements under the law.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  First, proper notice must be provided to a claimant before the initial VA decision on a claim for benefits and must:  (1) inform the claimant about the information and evidence not of record necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide.  The VA is also required to inform the Veteran of how the VA assigns disability ratings and effective dates.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  The Veteran was provided with this information in an April 2008 letter prior to the initial RO decision in this case.

With regard to the VA examination reports which are of record, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  The Board finds that the VA examination obtained in this case is adequate with regard to the issue decided herein.  The examination report relied upon was predicated on a review of the claims folder and the relevant medical records contained therein, except where noted; contains a description of the history of the disability at issue; and documents and considers the Veteran's complaints and symptoms.  The examiner considered the available pertinent evidence of record, and provided a rationale for the opinions rendered, relying on and citing to the records reviewed.  Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the portions of the issue on appeal which are decided herein has been met.  38 C.F.R. § 3.159(c)(4).  

Service treatment records, VA treatment records, some private medical records (as discussed above), and VA examination reports have been obtained and reviewed in support of the Veteran's claim.  The Veteran has presented sworn testimony in support of his appeal during a hearing before the undersigned Acting Veterans Law Judge.  All relevant records and contentions have been carefully reviewed.  The Board therefore concludes that the VA's duties to notify and assist have been met with regard to the matters decided herein.

Standard of review

Once the evidence has been assembled, it is the Board's responsibility to evaluate the record.  38 U.S.C.A. § 7104(a).  When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.  In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail."  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.

The Board must consider all the evidence of record and discuss in its decision all "potentially applicable" provisions of law and regulation.  See 38 U.S.C. § 7104(a); Schafrath v. Derwinski, 1 Vet. App. 589, 592-93 (1991).  The Board is also required to provide a statement of reasons or bases for its determination, adequate to enable an appellant to understand the precise basis for its decision, as well as to facilitate further appellate review.  See 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet. App. 517, 527 (1995); Gilbert, 56 (1990).  To comply with this requirement, the Board must analyze the credibility and probative value of the evidence, account for the evidence it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table).

Analysis

Historically, the Veteran underwent a hemorrhoidectomy during service.  Service connection for hemorrhoids was granted effective upon his discharge from service.  His medical records through the years reflect no complaints or treatment for hemorrhoids.

Disability evaluations are assigned to reflect levels of current disability.  The appropriate rating is determined by the application of a schedule of ratings 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.  When there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  In evaluating claims for increased ratings, the Board must evaluate the Veteran's condition with a critical eye toward the lack of usefulness of the body or system in question.  38 C.F.R. § 4.10.  

In evaluating the severity of a particular disability, it is essential to consider its history.  38 C.F.R. §§ 4.1, 4.41; Peyton v. Derwinski, 1 Vet. App. 282 (1991).  While a request for an increased rating must be viewed in light of the entire relevant medical history; where, as here, entitlement to compensation has already been established, and an increase in the disability rating is at issue, the present level of disability is of primary concern.  38 C.F.R. § 4.1; Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  

Because the level of a veteran's disability may fluctuate over time, the VA is required to consider the level of the veteran's impairment throughout the entire appeal period.  In this respect, staged ratings are a sensible mechanism for allowing the assignment of the most precise disability rating-one that accounts for the possible dynamic nature of a disability while the claim works its way through the adjudication process.  O'Connell v. Nicholson, 21 Vet. App. 89 (2007).  In another relevant precedent, the Court noted that staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings.  In reaching this conclusion, the Court observed that when a claim for an increased rating is granted, the effective date assigned may be up to one year prior to the date that the application for increase was received if it is factually ascertainable that an increase in disability had occurred within that timeframe.  38 U.S.C.A. § 5110.  Hart v. Mansfield, 21 Vet. App. 505 (2007).

Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases.  38 C.F.R. § 4.21.  Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the veteran, as well as the entire history of the veteran's disability in reaching its decision.  Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991).

The Veteran's hemorrhoids are rating noncompensable under the criteria set forth in 38 C.F.R. § 4.114 , Diagnostic Code 7336.  Under these criteria, external or internal hemorrhoids are rated noncompensable when mild or moderate; 10 percent when large or thrombotic, irreducible, with excessive redundant tissue, evidencing frequent recurrences; and 20 percent with persistent bleeding and with secondary anemia, or with fissures.

VA treatment reports reflect that the Veteran went to the urgent care clinic in February 2008 worried about red blood on his toilet tissue after a particularly hard stool.  No hemorrhoid or other source of bleeding was discovered upon examination of the anal area.  He was advised to increase fiber and water in his diet, and to have a gastrointestinal evaluation to include a colonoscopy to rule out bleeding from a cancerous lesion.  

The Veteran underwent a colonoscopy from a private care provider in March 2008.  Grade 1 internal hemorrhoids were noted, and the colonoscopy was otherwise normal.  The assessment was of bleeding likely from hemorrhoids.  

A VA examination was conducted in May 2008.  He reported having recent anal itching, diarrhea, pain, and swelling.  He was not experiencing tenesmus, perianal discharge or leakage of stool.  He was treating his symptoms with suppositories.  Upon clinical examination, he was noted to be well developed, well nourished and in no acute distress.  His nutritional status was normal.  Rectal examination showed no evidence of ulceration, fissures, reduction of lumen, trauma, rectal bleeding, proctitis, infections, spinal cord injury, protrusion or loss of sphincter control.  Reducible internal hemorrhoids without excessive redundant tissue were present.  There was no evidence of bleeding, however.  Thrombosis was absent.  There was no evidence of frequent recurrence.  The examiner noted the report of the March 2008 colonoscopy.  The diagnostic assessment was of hemorrhoids without current bleeding, no anemia, and no malnutrition.

Upon review of the record, the Board holds that a compensable disability rating for hemorrhoids is not warranted at any time during the appeal period.  His Grade I internal hemorrhoids cannot be described as more than mild or moderate in nature.  There is no thrombosis, no excessive redundant tissue, and no evidence of frequent recurrence, so as to support the award of a 10 percent disability rating.  Similarly, he fortunately does not have persistent bleeding, secondary anemia, or fissures, to support the award of a 20 percent disability rating under the schedular criteria.  His complaints of anal itching, diarrhea, pain and swelling are acknowledged, however, the authors of the rating schedule have deemed that hemorrhoids manifested by such symptoms are to be awarded a 0 percent, or noncompensable disability rating.  The preponderance of the evidence is against the claim for an increased rating and the Veteran's appeal must be denied.

Extra-schedular consideration

Generally, evaluating a disability using either the corresponding or analogous Diagnostic Codes contained in the rating schedule is sufficient.  See 38 C.F.R. § 4.20, 4.27.  For exceptional cases, VA has authorized the assignment of extraschedular ratings and provided the following guidance for awarding such ratings:

To accord justice, therefore, to the exceptional case where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, [C & P], upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities.  The governing norm in these exceptional cases is:  A finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards.  38 C.F.R. § 3.321(b).

As the Court recently explained in Thun, a "determination of whether a claimant is entitled to an extraschedular rating under § 3.321(b) is a three-step inquiry."  Thun v. Peake, 22 Vet. App. 111, 115 (2008).  If the RO or Board determines that (1) the schedular evaluation does not contemplate the claimant's level of disability and symptomatology, and (2) the disability picture exhibits other related factors such as marked interference with employment or frequent periods of hospitalization, then (3) the case must be referred to an authorized official to determine whether, to accord justice, an extraschedular rating is warranted.  Neither the RO nor the Board is permitted to assign an extraschedular rating in the first instance; rather the matter must initially be referred to those officials who possess the delegated authority to assign such a rating.  See Floyd v. Brown, 9 Vet. App. 88, 95 (1996).  Anderson v. Shinseki, 22 Vet. App. 423 (2009).  

In this case, there is no indication that the schedular criteria fail to contemplate the Veteran's level of disability or symptomatology; as such there is no basis for referring this case for consideration of an extra-schedular rating.


ORDER

A compensable disability rating for hemorrhoids is denied.




____________________________________________
M. TENNER
Acting Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs