Citation Nr: 1326902 Decision Date: 08/22/13 Archive Date: 08/29/13 DOCKET NO. 07-25 723 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to a rating in excess of 10 percent for hemorrhoids. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD L. Kirscher Strauss, Counsel INTRODUCTION The Veteran served on active duty from September 1974 to April 1978. This matter comes before the Board of Veterans' Appeals (Board) from a September 2006 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. In January 2010, the Veteran failed to appear for a Travel Board hearing he had requested and for which he was notified in December 2009. In April 2011, the Board remanded the claim to the RO via the Appeals Management Center (AMC) in Washington, DC for additional development. The development has been completed and the case is before the Board for final review. In October 2011, the RO increased the assigned rating for hemorrhoids to 10 percent, effective from September 22, 2005. Although the Veteran's current claim for increase was received in June 2006, in an October 2011 statement of the case (SOC), the RO explained that the Veteran's September 2005 untimely appeal from a December 2003 SOC was treated as a new claim. Therefore, the increased rating was assigned from that date. The Board notes that the United States Court of Appeals for Veterans Claims (Court) has held that a rating decision issued subsequent to a notice of disagreement which grants less than the maximum available rating does not "abrogate the pending appeal." AB v. Brown, 6 Vet. App. 35, 38 (1993). Consequently, this matter remains in appellate status. FINDING OF FACT The Veteran's hemorrhoid disability has been manifested objectively by intermittent small internal and small to moderate external hemorrhoids with some bleeding without being large or thrombotic, irreducible, or with excessive redundant tissue, evidencing frequent recurrences; and without persistent bleeding, 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, 5107(b) (West 2002); 38 C.F.R. §§ 4.7, 4.10, 4.20, 4.45, 4.59, 4.114, Diagnostic Code 7336 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VCAA Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012)); see also 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2012), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). In Pelegrini v. Principi, 17 Vet. App. 412 (2004), the United States Court of Appeals for Veterans Claims (Court) held, in part, 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 a claim for VA benefits. This decision has since been replaced by Pelegrini v. Principi, 18 Vet. App. 112 (2004), in which the Court continued to recognize that typically 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 a claim for VA benefits. In this case, the Veteran was provided VCAA notice in a June 2006 and April 2011 letters, advising him of what information and evidence is needed to substantiate his claim for an increased rating, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The letters included information regarding how disability evaluations and effective dates are assigned and the type of evidence that impacts those determinations. The case was last adjudicated in October 2011. The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has not demonstrated any prejudice with regard to the content of any notice. See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.) See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). The Board also finds that VA has complied with all assistance provisions of the VCAA, to include substantial compliance with the prior remand. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). Here, the AMC provided additional VCAA notice to the Veteran regarding his claim for an increased rating and he was afforded an additional examination to assess the current severity of his disability. The evidence of record contains the Veteran's service treatment records; VA outpatient treatment records, including records associated with the Virtual VA claims file; fee-basis and VA examination reports; an Internet publication regarding hemorrhoids; and lay statements from the Veteran. There is no indication of relevant, outstanding records that would support the Veteran's claim. 38 U.S.C.A. § 5103A(c); 38 C.F.R. § 3.159(c)(1)-(3). For all the foregoing reasons, the Board concludes that VA's duties to the Veteran have been fulfilled with respect to the issues on appeal. Criteria & Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; assigning the higher rating where there is a question as to which of two evaluations apply and where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of a 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 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). Hence, the following analysis in the case is undertaken with the possibility that staged ratings may be appropriate. The Veteran's hemorrhoids disability is rated as 10 percent disabling pursuant to 38 C.F.R. § 4.114, Diagnostic Code 7336 (2012). 7336 Hemorrhoids, external or internal: Rating With persistent bleeding and with secondary anemia, or with fissures 20 Large or thrombotic, irreducible, with excessive redundant tissue, evidencing frequent recurrences 10 Mild or moderate 0 38 C.F.R. § 4.114, Diagnostic Code 7336 (2012). During a September 2004 VA gastroenterology consultation in September 2004, the Veteran denied current BRBPR (bright red blood per rectum). He was noted to have a past history of rectal bleed, which prompted a colonoscopy that revealed benign colon polyps. The assessment was last colonoscopy about four years ago with "small benign polyps." In July 2005 he presented to the VA emergency department with complaints of rectal bleeding and discomfort. He was directed to see his primary care provider. During a July 2005 VA surgery consultation approximately one week later, the Veteran complained of chronic constipation and rectal tenderness for three weeks with rectal bleeding with toilet paper use, but denied bright red blood per rectum in bower. He was noted to have a history of anal fissures in the past that had improved. Treatment was with steroid rectal suppositories. Objective findings included pain with digital rectal examination. The assessment was history of chronic constipation, hemorrhoids, and prior anal fissures. Non-operative treatment was recommended. In August 2005, he told his primary care physician that his hemorrhoid was "not too bad now." The assessment was stable hemorrhoid. The physician noted that VA surgery had recommended conservative treatment. The endoscopic impression of a December 2005 VA colonoscopy was small internal hemorrhoids; normal colonoscopy otherwise. During a July 2006 VA primary care visit, the Veteran stated that he was worried about his hemorrhoid and he was filing for an increased rating and needed documentation. He denied recent exacerbation, but had intermittent episodes over the year. The assessment included stable hemorrhoid and over the counter Anusol was recommended as needed. The Veteran was afforded a VA fee-basis examination in September 2006. He reported having moderate fecal leakage that occurs more than two-thirds of the day, requiring use of three pads a day; daily spotting and bleeding from constant hemorrhoids; chronic constipation; and the use of stool softeners and fiber daily and steroidal cream and suppositories as needed. On examination, there was no evidence of rectal fissure or fecal leakage, thrombosis, redundant tissue, or bleeding. There was one small external hemorrhoid and two small to moderate-sized internal hemorrhoids. The examiner noted there were no clinical signs of malnutrition or anemia. In his October 2006 notice of disagreement, the Veteran referred to treatment of his disability in years prior to his September 2005 claim for increase. He reported that he has "experienced pain, bleeding, anal fissures, inflammation, incontinence, and leakage," affecting his daily life and requiring "daily maintenance with the use of medications." He submitted a "Claimant Medical History" report completed in August 2006 prior to the September fee-basis examination. The report reflects his subjective complaints that were documented in the September 2006 examination report. During an April 2007 VA primary care visit the Veteran complained of hemorrhoids and requested ProctoFoam hemorrhoidal steroid. The assessment was stable hemorrhoid with normal colonoscopy in 2005. ProctoFoam was ordered. In his August 2007 substantive appeal, the Veteran stated that he has "internal hemorrhoids that bleed frequently due to thrombotic ruptures with anal fissures," recurrent "anal inflammation and constriction resulting in impaired ability to eliminate," leakage and inability to control bowel, and "irreducible and excessive redundant tissue evidencing frequent recurrences." He reported daily use of internally applied steroidal medicines, stool softeners, anal lubricants, and "anti inflammatory rectal suspension." He believed that any discrepancy between the September 2006 examination and his VA medical records should be resolved based on his VA medical records. An August 2008 VA treatment record reflects the Veteran's report of using fiber and stool softeners for chronic hemorrhoids and hydrocortisone rectal suppository approximately once per month for hemorrhoidal flare-ups. He indicated that he declined surgery. In June 2010, the told a VA physician that he had been having hemorrhoidal pain and blood on tissue when wiping for the past week with worsened chronic constipation. Objective findings were reported as external hemorrhoid visualized, which is tender but not red or inflamed; significant pain on insertion of finger; no obvious blood in vault. The assessment was painful hemorrhoid-consult general surgery for banding. A July 2010 primary care note indicates that the Veteran was scheduled for a surgery evaluation the following day. The Veteran presented for a preadmission assessment and discharge plan for a hemorrhoidectomy the next day, but failed to report for a September 2010 surgical pre-operative visit. The Veteran was afforded a VA examination in April 2011. He reported bleeding, pain, itching, burning, difficulty passing stool, swelling, and prolapsing, and modifications in his diet and personal hygiene to accommodate difficulties associated with symptomatic hemorrhoids. He denied a history of fecal incontinence or thrombosis. On examination, there was no hemorrhoid, anorectal fistula, anal or rectal stricture, or rectal prolapse present. The examiner indicated that she reviewed the claims file, including a July 2010 surgery consultation, which revealed an internal hemorrhoid with no bleeding on examination. The examiner diagnosed hemorrhoids. In July 2011 correspondence, the Veteran stated that over the last 35 years treatment for his hemorrhoids had "ranged from large thrombotic, with anal fissures and bleeding" and that "all physicians have recommended surgery with a very painful recovery and poor prognosis." He stated that remaining treatment options include "use of [sitz] baths, steroidal medications, and reinsertion of protruding tissues during severe prolapses." He asserted that his daily medication and dietary precautions are required to "preclude rupturing, prolapse, inflammation, severe pain, and discomfort." He alleged that the April 2011 VA examiner recommended surgery despite not detecting hemorrhoids on examination. An October 2011 Internet article entitled "More about Hemorrhoids" published by Dekalb Surgical, indicated that if "internal hemorrhoids become large enough and loose enough, they may drop down and protrude through the anal opening," or prolapse. An October 2011 supplemental statement of the case indicated that the RO resolved reasonable doubt in the Veteran's favor to conclude that the evidence more nearly approximated the criteria for a 10 percent rating. The RO believed that the evidence established that the Veteran's "hemorrhoids prolapsed, suggesting they are large," and "established changes in lifestyle to reduce the difficulties, frequent use of medication and dietary supplements, pain, and bleeding." The Board has considered the medical and lay evidence of record, but finds that a preponderance of the evidence is against the claim for a rating in excess of 10 percent for hemorrhoids. The Veteran's hemorrhoids disability has been manifested objectively by intermittent small internal and small to moderate external hemorrhoids with some bleeding. They have not been manifested objectively as large or thrombotic, irreducible, and with excessive redundant tissue, evidencing frequent recurrences, the criteria required for a 10 percent rating. In addition, they have not been manifested by persistent bleeding with secondary anemia, or with fissures, criteria required for a 20 percent rating. Moreover, while the RO deduced that the Veteran had large hemorrhoids based on his subjective report of prolapsed hemorrhoids and an Internet article, the medical evidence of record pertinent to the claim for an increased rating does not reflect any instance of prolapsed hemorrhoids or that his hemorrhoids have been manifested by excessive redundant tissue, which is an element required for a 10 percent rating. Therefore, a rating in excess of 10 percent for hemorrhoids is not warranted because although the Veteran has described having symptoms or manifestations of a 10 and/or 20 percent rating, such findings are not confirmed by objective medical evidence of record. For all the foregoing reasons, the Board finds that the most probative and credible evidence does not support the assignment of a rating in excess of 10 percent for hemorrhoids at any point during the course of the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). Therefore, entitlement to a higher rating for a hemorrhoids disability is not warranted, and the claim must be denied. The Board has considered whether the Veteran's hemorrhoids disability presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of an extraschedular rating is warranted. See 38 C.F.R. § 3.321(b)(1) (2012); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). 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. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Here, the rating criteria reasonably describe the Veteran's hemorrhoids disability level and symptomatology, and provide for higher ratings for additional or more severe symptomatology than is shown by the evidence. Thus, his disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is, therefore, adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). In reaching the conclusions above, the Board has considered the applicability of the benefit of the doubt doctrine. Because, however, the preponderance of the evidence is against the Veteran's claim for a higher rating than assigned, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER A rating in excess of 10 percent for hemorrhoids is denied. ____________________________________________ JAMES L. MARCH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs