Citation Nr: 1323600 Decision Date: 07/24/13 Archive Date: 08/01/13 DOCKET NO. 02-18 164 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to a compensable evaluation for hemorrhoids. ATTORNEY FOR THE BOARD C.A. Skow, Counsel INTRODUCTION The Veteran served on active duty in the United States Air Force from September 1963 to June 1967. This matter is before the Board of Veterans' Appeals (the Board) on appeal from a June 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. Historically, in January 2003, the RO awarded the Veteran service-connection for hemorrhoids; a noncompensable disability rating was assigned, effective January 2, 2002. The Veteran did not appeal this decision. Subsequently, in January 2004, the Veteran filed a claim requesting an increased rating greater than zero percent for his hemorrhoid disability. The RO denied this claim in the above-referenced June 2004 rating decision. The Veteran was notified of this decision in a letter dated June 21, 2004. Less than one year later, on June 14, 2005, the RO received the Veteran's Notice of Disagreement (NOD) with the June 2004 rating decision. See the Veteran's June 14, 2005 Statement in Support of Claim. He timely perfected an appeal. Thus, the Veteran's appeal originates from a June 2004 rating decision. In February 2011 and September 2012, the Board remanded the claim for additional evidentiary development. The Board notes that the Veteran requested a videoconference hearing regarding his hemorrhoids claim on his July 2006 substantive appeal [VA Form 9]. In a December 8, 2010 letter, the Veteran was notified that this hearing would be held on January 20, 2011. He failed to report for this hearing. The Veteran provided no explanation for his failure to report and has not since requested that VA rescheduled the hearing. This hearing request, therefore, is also deemed withdrawn. See 38 C.F.R. §§ 20.702(d); 20.704(d) (2012). The Board also 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 file or are irrelevant to the issues on appeal except as to VA treatment records obtained pursuant to the Board's September 2012 remand and associated with Virtual VA. FINDING OF FACT The Veteran has had throughout the appeal period mild or moderate hemorrhoids; hemorrhoids are not large or thrombotic, irreducible with excessive redundant tissue; and there is not persistent bleeding and secondary anemia, or fissures. CONCLUSION OF LAW The criteria for a compensable evaluation for hemorrhoids are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.114, Diagnostic Code 7336 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 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 timing requirement articulated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that VA sent to the Veteran an initial VCAA letter dated in April 2004, prior to the rating decision on appeal, which did not include notice of the disability rating or effective date elements of his claim. In July 2008, VA provided the Veteran with notice of the disability rating criteria to establish his claim for increase and, thereafter, his claim was readjudicated affording him due process of law. See Overton v. Nicholson, 20 Vet. App. 427, 437 (2006) (A timing error may be cured by a new VCAA notification followed by readjudication of the claim). Although the VA did not provide the Veteran with notice of how effective dates are assigned, the Board finds no prejudice to the Veteran in this regard as his claim is denied as explained below. Moreover, 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). In this case, the Veteran has not demonstrated any prejudicial or harmful error in the VCAA notice. The Board also finds that VA met its duty to assist the Veteran in the development of his claim. VA obtained all relevant medical treatment records identified by the Veteran. These records have been associated with the claims file. VA further afforded the Veteran appropriate VA medical examinations. The Board has reviewed the examination reports and finds that they are adequate for rating purposes in that they described the disability in sufficient detail so that the Board's "evaluation of the claimed disability will be a fully informed one." Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (quoting Green v. Derwinski, 1 Vet. App. 121, 124 (1991). See also, Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008); D'Aries v. Peake, 22 Vet. App. 97, 104 (2008). The Veteran has not identified any outstanding evidence that could be obtained to substantiate the claim; the Board is also unaware of any such evidence. The case was previously remanded in February 2011 and September 2012 for additional development. This development included obtaining a new VA examination and obtaining and associating with the claims file relevant treatment records. A review of the record shows a VA examination was conducted in March 2011. VA also sent the Veteran a letter requesting information about his medical treatment for hemorrhoids and notice that updated VA treatment records had been requested. The Veteran did not respond to the request for information. VA obtained updated VA treatment records and associated these records with the Veteran's virtual file. Therefore, the Board concludes that there has been substantial compliance with the directives contained in the Board's prior remand decision. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Accordingly, the Board will address the merits of the claim. II. Claims for Increase The Veteran contends that his service-connected hemorrhoids warrant an increased disability evaluation. 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 (2012); 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. 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. 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). The Veteran's hemorrhoids are rated under Diagnostic Code 7336, which provides that mild or moderate hemorrhoids warrant a noncompensable disability rating. A 10 percent disability rating is warranted when there is evidence of hemorrhoids that are large or thrombotic, irreducible, with excessive redundant tissue, evidencing frequent recurrences. A 20 percent disability rating is warranted where there is persistent bleeding and secondary anemia, or fissures. 38 C.F.R. § 4.114, Diagnostic Code 7336. Having carefully reviewed the evidence of record, the Board finds that the preponderance of the evidence is against the claim for increase. The criteria for a compensable evaluation are not met, nor are they more nearly approximated. 38 C.F.R. §§ 4.7, 4.114, Diagnostic Code 7336. The Veteran has had throughout the appeal period mild or moderate hemorrhoids; his hemorrhoids are not large or thrombotic, irreducible with excessive redundant tissue; and there is not persistent bleeding and secondary anemia, or fissures. Specifically, report of VA examination dated in May 2004 shows no signs of hemorrhoids, bleeding, or fissures. There were no signs of anemia. Hematocrit was normal at 45.6. Report of VA examination dated in January 2006 reflects complaints of frequent rectal bleeding and itching. The Veteran denied history thrombosis, fecal incontinence and perianal discharge. He stated that he had to cleanse his hemorrhoids carefully and used external pressure to push hemorrhoids back into the rectum. He treated with witch hazel pads following each bowel movement (BM) and used suppositories 2-3 times a week. Exam showed external hemorrhoids, measuring 1 centimeter (cm) and bulging at 3 o'clock, without thrombosis, bleeding, or evidence of fissure. There was no anal or rectal stricture, anorectal fistula, sphincter impairment, or rectal prolapse. Laboratory results show findings within reference range for blood work. Report of VA examination dated in March 2011 reflects findings for three hemorrhoidal columns, without excessive redundant tissue, thrombosis, or prolapse. No rectal masses were found. The diagnosis was internal and external hemorrhoids, grade 2/4. The examiner noted that the Veteran had intermittent rectal bleeding, but that there was no sign of fissure or fistula formation and no evidence of recurrent bleeding or thrombosis. VA treatment records dated since 2001 reflect a longstanding history of hemorrhoid problems. In January 2002, the Veteran complained of blood with BMs; the assessment was hemorrhoids. In October 2003, exam showed no external hemorrhoids. In July 2005, the Veteran complained of hemorrhoids with hard BMs. Exam showed no hemorrhoids; the assessment was chronic hemorrhoids. In October 2005, the Veteran requested a written statement from his primary care provider (PCP) indicating that he met the VA schedular criteria for a 10 or 20 percent disability evaluation for hemorrhoids. However, the PCP responded that, after a review of the criteria, "I have not seen any evidence of this degree" and that she was unable to support his claim. An April 2008 entry noted history of hemorrhoids with occasional blood on wiping associated with hemorrhoids. In July 2008, hemorrhoids were present without bleeding or thrombosing. Another July 2008 entry shows that the Veteran was seen for hemorrhoids that prolapse with BMs. Rectal exam was within normal limits. Digital rectal exam showed soft internal hemorrhoids, nontender and that "feel modest in size." In April 2012, the Veteran complained of bleeding hemorrhoids for past 3 days, treated with Sitz baths. The diagnosis was large, non-thrombosed hemorrhoids without active bleeding. Suppositories were prescribed. In May 2012, the Veteran presented for rectal bleeding described as bright red, and prolapsing with BM. He denied bleeding at present time. Exam revealed that he "does not have any appreciable external hemorrhoids." Anoscopy showed moderate sized internal hemorrhoids. The examiner reinforced his need for fiber therapy, stool softeners, and increased fluid intake. On follow-up in June 2012, rectal exam showed small external hemorrhoids. While the evidence shows that the Veteran has consistently had hemorrhoids during the course of the appeal with occasional reports of intermittent rectal bleeding, neither the lay nor the medical evidence more nearly approximates the presence of large or thrombotic hemorrhoids, irreducible, with excessive redundant tissue, evidencing frequent recurrences; or persistent bleeding and secondary anemia, or fissures as contemplated by a compensable evaluation. See Melson v. Derwinski, 1 Vet. App. 334 (1991) [use of the conjunctive "and" in a statutory provision meant that all of the conditions listed in the provision must be met]; compare Johnson v. Brown, 7 Vet. App. 95 (1994) [only one disjunctive "or" requirement must be met in order for an increased rating to be assigned]. While the Veteran is competent to report that his disability is worse than presently evaluated, 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 believes he meets the criteria for a higher disability rating, his complaints and the medical findings do not meet the requirements for higher rating than currently assigned. Although the evidence shows rectal bleeding, such has not been associated with anemia. In fact, anemia is not shown by the evidence of record. But rather, hematocrit was normal in May 2004 and blood work in January 2006 was within normal limits. Also, VA treatment records relating to hemorrhoids are silent for anemia. The Board assigns greater probative value to the VA examinations findings, which are consistent with the presence of mild or moderate hemorrhoids. The Veteran's hemorrhoids are not shown to be large or thrombotic, irreducible with excessive redundant tissue; or manifested by persistent bleeding and secondary anemia, or fissures. The medical findings are highly probative as these were prepared by skilled, neutral medical professionals after physical examination. The Board finds that a higher evaluation is furthermore not available under any other potentially applicable provision in the absence of evidence for impairment of sphincter control; stricture of the rectum and anus; prolapse of the rectum with constant slight or occasional moderate leakage; fistula in ano; or pruritus ani. See 38 C.F.R. § 4.114, Diagnostic Codes 7332-7335, 7337 (2012). The Board acknowledges that 2008 VA treatment records show complaint and findings for prolapse but this was not associated with complaint or findings for "constant slight or occasional moderate leakage and there was no evidence of prolapsed on subsequent VA examination in March 2011. Accordingly, the claim is denied and there is no basis for a staged rating. See Hart, supra. The Veteran met the criteria for a higher evaluation at no time during the appeal period. As the evidence of record is not in equipoise, there is no doubt to resolve. Gilbert, supra. 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 disability are specifically contemplated by the schedular criteria. The Veteran has not expressed any symptoms that fall outside the scheduler criteria for this disability, and there is no evidence of lost time from work or frequent hospitalizations associated with service-connected hemorrhoids. 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 Am increased (compensable) evaluation for hemorrhoids is denied. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs