Citation Nr: 1325186 Decision Date: 08/08/13 Archive Date: 08/13/13 DOCKET NO. 09-32 058 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to a rating greater than 10 percent for hemorrhoids. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Mary E. Rude, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1955 to October 1958 and from November 1958 to November 1971. This case comes before the Board of Veterans' Appeals (Board) on appeal of a May 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In December 2011, the Board remanded the issue of entitlement to a compensable rating for hemorrhoids for further development. In a June 2012 rating decision, VA increased the rating to 10 percent, effective December 8, 2009. Although an increased rating was granted, the issue remains in appellate status, as the maximum schedular rating has not been assigned nor has the appellant withdrawn his appeal. AB v. Brown, 6 Vet. App. 35, 38 (1993). The issue has now been returned to the Board for further appellate consideration. In addition to the paper claims file, there is an electronic claims file associated with the appellant's claim, known as Virtual VA. A review of the documents reveals that they contain VA treatment records relevant to the issue on appeal. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT At no time during the appellate term have the Veteran's hemorrhoids been productive of persistent bleeding and secondary anemia, or fissures. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for hemorrhoids have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.114, Diagnostic Code 7336 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or completeness of the application. In a January 2010 letter, the Veteran was provided notice regarding what information and evidence is needed to substantiate his claims, including what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The letter also provided notice of how disability ratings and effective dates are determined. The claim was readjudicated in June 2012. Hence, any defect with regard to the timing or content of the notice to the appellant is harmless. Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations. There is no evidence that additional records have yet to be requested, or that additional examinations for these issues are in order. Pursuant to the December 2011 remand, the Appeals Management Center (AMC) sent the Veteran a letter requesting that he submit additional information regarding treatment for hemorrhoids. The AMC acquired all relevant VA treatment records and afforded the Veteran a VA examination in January 2012; all treatment records and examination reports have been associated with the claims file or Virtual VA electronic file. Hence, the RO/AMC has substantially complied with the December 2011 remand instructions, and no further action is warranted. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In sum, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. 38 C.F.R. § 3.159(c). Relevant Laws and Regulations Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings 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. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1999). "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. Hart v. Mansfield, 21 Vet. App. 505 (2007). Under 38 C.F.R. § 4.114, Diagnostic Code 7336, a 10 percent rating is warranted where there is evidence of large or thrombotic hemorrhoids, irreducible, with excessive redundant tissue and evidencing frequent recurrences. A maximum rating of 20 percent is warranted where there is persistent bleeding and secondary anemia, or with fissures. Id. Where there is a question as to which of the 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. Analysis The Veterans seeks entitlement to an increased evaluation for hemorrhoids. The Veteran was granted service connection for hemorrhoids in June 1972, with a noncompensable evaluation, and in June 2012 the rating was raised to 10 percent, effective December 8, 2009. The appellant has not filed a notice of disagreement to the assigned effective date. At a May 2011 Board hearing, the Veteran stated that he currently has hemorrhoidal flare-ups five to six times per year, during which time he has rectal bleeding. He stated that he treated his hemorrhoids with suppositories and stool softeners. He also described a September 2009 flare up which caused severe pain for 25 to 30 days. The Veteran's VA treatment records show that in September 2009 he was treated for persistent, severe hemorrhoid pain. The Veteran was treated with topical foam. In a follow-up appointment 17 days later the appellant reported feeling much better and that the pain had resolved. In April 2010, the Veteran reported having continued hemorrhoid problems at times. In August 2011, the Veteran underwent a colonoscopy, which showed large internal and external hemorrhoids, and diverticulosis. At a February 2010 VA examination, the Veteran reported a long history of hemorrhoids with periodic flare-ups, including a significant flare-up in September 2009 which lasted approximately one month. He stated that during flare-ups, his hemorrhoids caused rectal pain, stinging, and itching. He reported having rectal discomfort with prolonged sitting and that he regularly used stool softeners, which helped considerably. On physical examination, the examiner noted normal sphincter tone, no external hemorrhoids, some internal hemorrhoids, and no rectal masses. He diagnosed chronic recurrent internal hemorrhoids with periodic flare-ups. At a June 2011 general VA examination, the examiner diagnosed the Veteran with hemorrhoids and noted that the condition did not prevent him from working. In January 2012, the Veteran was afforded an additional VA examination. The examiner discussed the Veteran's history of hemorrhoids. The Veteran reported having recurrent problems, including rectal bleeding, pain and tenderness caused by thrombosed hemorrhoids, 4 to 5 times a year. He also reported having constant rectal pain and tenderness, and blood on toilet tissue. The examiner reviewed the August 2011 colonoscopy report, noting that it showed large hemorrhoids internally and externally, as well as diverticulitis. The Board notes that the appellant is not service connected for diverticulitis. On examination in February 2012 examiner found small or moderate external and internal hemorrhoids with rectal area tenderness. There were no indications of persistent bleeding, secondary anemia, fissures, anal/perianal fistula, rectal stricture, or other abnormalities. A December 2011 complete blood count revealed a hemoglobin of 15, and a hematocrit of 44.9. The examiner opined that the Veteran's hemorrhoids did impact his ability to work since the appellant reported missing work when he had flare-ups. The examiner noted, however, that the Veteran retired in 2000 and that his symptoms seem to have improved since he was no longer sitting for prolonged periods or performing heavy lifting. The examiner also opined that the Veteran's condition was stable and had not required any surgery in the past 12 months. Based on review of the evidence above, the medical and lay evidence discussed above does not support a rating in excess of 10 percent. The evidence confirms that the Veteran has hemorrhoids which cause pain and tenderness and which flare-up four to six times a year, causing rectal bleeding. In September 2009, the Veteran experienced a severely painful flare-up which lasted for several weeks. The Board acknowledges the pain and discomfort these symptoms cause the Veteran. These symptoms, however, do not warrant a rating greater than 10 percent pursuant to C.F.R. § 4.114, Diagnostic Code 7336. In this regard, throughout the appellate term, no evidence has been presented indicating that the Veteran's hemorrhoids caused persistent bleeding with anemia or fissures. In the absence of evidence of persistent bleeding with secondary anemia or fissures, the criteria for a 20 percent rating are not met. Id. This is true for the entire rating period, and hence a staged rating is not in order. Hart, 21 Vet. App. 505. The Board has considered the application of 38 C.F.R. § 3.321(b)(1) (2012), for exceptional cases where schedular evaluations are found to be inadequate. The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is therefore adequate, and no referral is required. Thun v. Shinseki, 573 F.3d 1366 (Fed. Cir. 2009). Here, the rating criteria reasonably describe the Veteran's disability and his symptomatology. The overall disability picture with respect to hemorrhoids does not show any significant impairment beyond that contemplated by the 10 percent rating. The Veteran has reported having recurrent flare-ups throughout the year, but has never required any hospitalization. While the Veteran reported having to miss work occasionally due to those flare-ups, he has also reported that he has been retired since 2000 and that his symptoms have improved since retirement. There is no evidence of any additional functional or occupational impairment due to hemorrhoids during the period on appeal. As such, the Veteran's disability picture is contemplated by the rating schedule and the schedular rating criteria are adequate to address his symptoms and average impairment of earning capacity. Therefore, the threshold factor for extraschedular consideration under step one of Thun has not been met. As the disability picture is contemplated by the rating schedule, the assigned schedular rating is, therefore, adequate. Consequently, referral for extraschedular consideration is not required under 38 C.F.R. § 3.321(b)(1). In sum, there is no basis for assignment of a rating in excess of 10 percent for hemorrhoids at any time during the current appeal. In reaching the conclusion above, the Board has considered the applicability of the benefit of the doubt doctrine, however, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable. 38 U.S.C.A. § 5107(b). ORDER Entitlement to a rating greater than 10 percent for hemorrhoids is denied. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs