Citation Nr: 1327422 Decision Date: 08/27/13 Archive Date: 09/05/13 DOCKET NO. 07-22 919 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial compensable rating for hemorrhoids. 2. Entitlement to a temporary total rating following a service-connected hemorrhoidectomy. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Fetty, Counsel INTRODUCTION The Veteran served on active duty from July 1973 to July 1990. This matter arises to the Board of Veterans' Appeals (Board) from a January 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, that in pertinent part denied a compensable rating for hemorrhoids. In June 2009 and again in July 2011, the Board remanded the case for development. The Board is required to consider all issues raised either by the claimant or reasonably by the record. Robinson v. Peake, 21 Vet. App. 545, 552 (2008), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009); also see Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991) (applicable provisions of law and regulation should be addressed when they are made "potentially applicable through the assertions and issues raised in the record") as cited in Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). In October 2008, VA performed a hemorrhoidectomy to alleviate symptoms. In a November 2010 letter to VA, the Veteran stated that following that surgery he was, "...out from work for approximately 30 days." This statement raises the issue of a temporary total rating. Under 38 C.F.R. § 4.30 (a) (1), a temporary total rating will be assigned where a service-connected surgery necessitates at least one month of convalescence. The Board assumes jurisdiction over this issue as it is a part of the appeal for the highest rating possible for his hemorrhoid disability. The Board has added this issue to page 1 to reflect its jurisdiction. With respect to issues raised by the record, prior to hemorrhoidectomy, frequent rectal prolapse episodes are shown. If found to be service-connected, this disability can be separately rated under Diagnostic Code 7334. Fecal leakage episodes are mentioned. If found to be service-connected, this can be separately rated under Diagnostic Code 7332. Following a service-connected hemorrhoidectomy in October 2008, new conditions arose. Urinary retention with catheterization is noted in November 2008. A sex drive-related impairment has developed, according to the testimony. Rectal surgery scars are noted in an October 2009 VA compensation examination report. Pruritus ani and slight narrowing of the rectal vault are noted in a September 2011 VA compensation examination report. Fecal leakage and impaired sphincter control continue to be mentioned. The record raises the issue of secondary service connection for these disorders. Because the Board does not have jurisdiction over these potential claims, they are referred to the AMC or RO for appropriate action. Entitlement to a temporary total rating is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Prior to surgery on October 28, 2008, the hemorrhoid disability was manifested by small internal hemorrhoids that were thrombosed, painful, and subject to prolapse and bleeding. 2. From October 28, 2008, the hemorrhoid disability has been manifested by rectal pain, constipation, bleeding, a moderate-sized external hemorrhoid, an internal hemorrhoid of unknown size, and evidence of redundant tissue that is not reducible; not shown are fissure, rectal prolapse, thrombosis, and anemia. CONCLUSION OF LAW Throughout the entire appeal period, the criteria for an initial 10 percent rating for a hemorrhoid disability are met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321 (b), 4.1, 4.3, 4.7, 4.10, 4.114, Diagnostic Code 7336 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has remanded the case for development. When the remand orders of the Board are not complied with, the Board itself errs in failing to ensure compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In this case, all remand orders have been complied with. VA must notify and assist claimants in substantiating claims for benefits. 38 U.S.C.A. § 5103A (West 2002); 38 U.S.C.A. §§ 5102, 5103 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA must notify the claimant and his or her representative, if any, of any information and any medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VA must also inform the claimant of any information and evidence not of record that VA will seek to provide and that the claimant is expected to provide. This notice must be provided prior to an initial unfavorable decision. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Regarding the claim for a higher initial rating for hemorrhoids, the notice of disagreement (hereinafter: NOD) as to the initial rating does not trigger additional notice obligations under 38 U.S.C.A. § 5103 (a). See 38 C.F.R. § 3.159 (b) (3) (2012). Rather, the claimant's appeal of an initial rating triggers VA's duty to develop that claim, as set forth at 38 U.S.C.A. §§ 5104, 7105; 38 C.F.R. § 3.103. Under these, VA is required to advise the claimant of what evidence is necessary to obtain the maximum benefit allowed by the evidence and the law. This has been accomplished in a statement of the case (hereinafter: SOC). The SOC provided the claimant with the rating criteria for hemorrhoids. The claimant was informed of the evidence needed to achieve the next-higher schedular rating, and also to obtain even higher ratings. Thus, VA's duties under 38 U.S.C.A. §§ 5104 and 7105 have been satisfied. VA also has a duty to assist the claimant in the development of the claim. This duty includes assisting the claimant in obtaining service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. All necessary development has been accomplished and adjudication may proceed without unfair prejudice to the claimant. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA has obtained VA and private medical reports. The claimant was provided an opportunity to set forth his contentions during the hearing before the undersigned Veterans Law Judge. The claimant was afforded VA medical examination on several occasions. These VA examination reports contain sufficient details and are adequate for rating purposes. 38 C.F.R. § 4.2; Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (where VA undertakes to provide an examination (even where VA is not statutorily obligated to provide one) the Board erred in failing to ensure that the examination was adequate or to otherwise notify the Veteran why it would not provide the promised examination). Neither the claimant nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the claimant is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002). Disability Ratings Disability ratings are based upon the average impairment of earning capacity as determined by a schedule for rating disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2012). Diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. The entire medical history is reviewed when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1995). In determining the current level of impairment, the disability must be considered in the context of the whole recorded history, including service medical records. 38 C.F.R. § 4.2. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. In Fenderson v. West, 12 Vet. App. 119, 126-7 (1999), the United States Court of Appeals for Veterans Claims (Court) distinguished a claim for an increased rating from that of a claim arising from disagreement with the initial rating assigned after service connection was established. The Court later held that where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. See Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). The hemorrhoid disability has been rated noncompensably for the entire appeal period under Diagnostic Code 7336. Under that code, mild or moderate internal or external hemorrhoids warrant a noncompensable rating. Where external or internal hemorrhoids are large or thrombotic, irreducible, with excessive redundant tissue evidencing frequent recurrences, a 10 percent rating is warranted. Where external or internal hemorrhoids persistently bleed and cause anemia, or where there are fissures, a 20 percent rating, the maximum offered under Diagnostic Code 7336, is warranted. 38 C.F.R. § 4.114, Diagnostic Code 7336 (2012). The Veteran underwent a hemorrhoidectomy during the appeal period on October 28, 2008. While entitlement to a temporary total rating for this surgery and convalescence must be remanded for development, the Board may address the schedular rating for postoperative hemorrhoids, as any schedular rating assigned should not impact the assignment of a temporary total rating. See 38 C.F.R. § 4.30 (A total disability rating (100 percent) will be assigned "without regard to other provisions of the rating schedule" ... when ... warranted...). Prior to hemorrhoidectomy surgery on October 28, 2008, there were complaints of severe rectal pains, prolapse, and bleeding and fecal leakage requiring absorbent pads. The December 2005 VA compensation examination report reflects no abnormal sphincter control, fecal leakage, or requirement to wear a pad, but there were bleeding episodes that occurred twice per month and lasted up to three days each time. Fissure, prolapse, and bleeding were not found. Internal hemorrhoids were found and were "relatively small in size, approximately 1-2-cm." In a November 2006 NOD, the Veteran averred that he did have fecal leakage and bleeding for which he wore absorbent pads. In July 2007, the Veteran's spouse confirmed the bleeding, fecal leakage, and resulting sexual and social impairment. A December 2007 VA treatment report mentions that hemorrhoids were constantly bleeding with every stool. There was no constipation. A July 2008 VA out-patient treatment report reflects that the Veteran reported that the hemorrhoids bled, oozed fluid, and were painful. The health-care provider described the hemorrhoids as "thrombosed." In August 2008, a VA physician described the hemorrhoid as "grade 3 hemorrhoids" while an October 2008 pre-operative report mentions that these are "grade 2" hemorrhoids. An October 2008 VA surgery report reflects that the pre-operative diagnosis was internal hemorrhoids. The history included increasingly painful hemorrhoids that prolapsed during bowel movement. Maximum medical management had failed and surgery was determined to be the best course of treatment. Digital examination confirmed "significant internal hemorrhoids that easily prolapsed." From the above facts, prior to surgery on October 28, 2008, the hemorrhoid disability was manifested by significant internal hemorrhoids that were thrombosed, painful, subject to prolapse, and caused bleeding and fecal incontinence. Comparing these manifestations with the criteria of the rating schedule, the criteria for a 10 percent schedular rating under Diagnostic Code7336 are more nearly approximated. This is because the hemorrhoids, while described as "significant," were specifically found to be thrombotic by a VA health-care provider. According to the 10 percent rating criteria, a hemorrhoid must be large or thrombotic, but need not meet both criteria. Concerning irreducibility, during this portion of the appeal period, no examiner has stated whether the hemorrhoids were irreducible, but, given that surgical intervention became necessary after multiple episodes of prolapse, the Board will resolve any remaining doubt in favor of the Veteran and conclude that it is at least as likely as not that the thrombotic internal hemorrhoids were painful, irreducible, had excessive redundant tissue, and frequently recurred. Although fecal leakage is also shown, it should rated as impaired sphincter control under Diagnostic Code 7332 and has been referred for secondary service connection consideration. Turning to the post-operative hemorrhoid rating period that begins after the October 28, 2008, hemorrhoidectomy, in December 2008, the Veteran testified before the undersigned that postoperatively his hemorrhoids continued to be painful and that his bathroom visits were time-consuming and problematic. He testified that since surgery, he has had constipation, more pain, and more hygiene problems. He recalled one recent bleeding episode and two or three fecal leakage accidents. He testified that a sexual dysfunction had arisen because of the hemorrhoid problem. December 2008 and later-dated VA out-patient treatment reports mention rectal pains. An October 2009 VA compensation examination report reflects that the Veteran denied continued bleeding, but he reported that fecal leakage occurred a couple of times each month. The examiner described one moderated-sized external hemorrhoid with no fissure or bleeding. There was no sign of rectal prolapse. In the distal anus, a retained suture or a surgical scar was felt. There was no evidence of anemia. The diagnosis was internal and external hemorrhoids, status post stapling of internal hemorrhoids. A September 2011 VA compensation examination report reflects that since surgery, the Veteran complained of a tight anus and constipation, intermittent bleeding, fecal accidents, gas accidents, and itching. He took medications, including stool softener, for constipation. He denied any prolapse since surgery. The examiner offered a diagnosis of internal or external hemorrhoids. Concerning these hemorrhoids, the examiner graded their severity as mild or moderate. The examiner left blank certain boxes that if checked would indicate large or thrombotic, irreducible, with excessive redundant tissue, evidence of frequent recurrences, or fissures. The examiner then checked a box on the questionnaire indicating that there is no external hemorrhoid, but there were external skin tags. The examiner explained that there is minimal redundant tissue/skin tag at the anal opening and there is some hardened scarring internally, consistent with status-post staple repair. Although the examiner had checked a box (mentioned above) that there is no irreducible hemorrhoid, the examiner then ambiguously stated that there is no objective evidence of internal or reducible tissue/hemorrhoids. The examiner also stated that there is no evidence of bleeding or fissures and no evidence of thrombosis or clots. The examiner checked boxes that indicate fairly frequent involuntary bowel movements and pruritus ani. The examiner mentioned that a CBC (complete blood count) of October 2008 revealed no anemia. As noted above, the description of the hemorrhoid-related symptoms has varied during the post-operative rating period. Whether the changing descriptions of hemorrhoids are due to changing symptoms, or simply due to different examiners, is unclear. 38 C.F.R. § 4.2 reminds that different examiners will not describe the same disability in the same language. It is the responsibility of the rating specialist to interpret 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 present. 38 C.F.R. § 4.2 (2012). Bierman v. Brown, 6 Vet. App. 125, 129 (1994). Resolving the conflicting VA compensation examination reports in favor of the Veteran, the facts above reflect that since the October 2008 hemorrhoidectomy surgery, the hemorrhoid disability has been manifested by rectal pain, constipation, bleeding, fecal leakage, a moderate-sized external hemorrhoid, an internal hemorrhoid of unknown size, and evidence of redundant tissue that is not reducible. Not shown are fissure, rectal prolapse, thrombosis, and anemia. Comparing these manifestations with the criteria of the rating schedule, the criteria for a 10 percent schedular rating under Diagnostic Code7336 are more nearly approximated. According to the 10 percent rating criteria, a hemorrhoid need be large or thrombotic, but not both. An external hemorrhoid was described as being moderate in size, while the size of an internal hemorrhoid is not mentioned. The benefit of the doubt concerning whether a large hemorrhoid is shown is therefore resolved in favor of the Veteran. 38 U.S.C.A. § 5107. The most recent examiner found that there is no evidence that the hemorrhoidal tissue is reducible. Thus, the benefit of the doubt concerning whether it is irreducible is resolved in favor of the Veteran. Because the external hemorrhoid is at least moderately-sized, the presence of excess redundant tissue is assumed. Finally, frequent recurrences of symptoms are clearly shown. The Board will resolve any remaining doubt in favor of the Veteran and concludes that it is at least as likely as not that the criteria of a 10 percent rating under Diagnostic Code 7336 continue to be more nearly approximated since the hemorrhoidectomy. The medical opinions discussed in the case are persuasive, as they are based on accurate facts and are supported by a rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (a medical opinion that contains only data and conclusions is accorded no weight); also see Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (medical opinion based upon an inaccurate factual premise has no probative value). The lay statements and lay testimony concerning symptoms are also competent. 38 C.F.R. § 3.159; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (lay testimony of symptoms at the time supports a later diagnosis by a medical professional). In this case, the evidence does not contain facts that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal. Because the symptoms shown prior to the hemorrhoidectomy are not so different from the symptoms shown post-surgery, the assignment of staged ratings is therefore unnecessary. Hart, 21 Vet. App. at 510. After considering all the evidence of record, including the testimony, the Board finds that the evidence is at least in relative equipoise. The benefit of the doubt doctrine will therefore be applied. See 38 U.S.C.A. § 5107 (West 2002); Gilbert, 1 Vet. App. at 53. An initial 10 percent rating for hemorrhoids will therefore be granted for the entire appeal period, subject to the laws and regulations governing payment of monetary benefits. Extraschedular Consideration The provisions of 38 C.F.R. § 3.321(b) provide that where the disability picture is so exceptional or unusual that the normal provisions of the rating schedule would not adequately compensate the Veteran for her service-connected disability, an extra-schedular evaluation will be assigned. Where the Veteran has alleged or asserted that the schedular rating is inadequate or where the evidence shows exceptional or unusual circumstances, the Board must specifically adjudicate the issue of whether an extraschedular rating is appropriate, and if there is enough such evidence, the Board must direct that the matter be referred to the VA Central Office for consideration. Colayong v. West 12 Vet. App. 524, 536 (1999); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). The Court has stressed that consideration of whether a claimant is entitled to an extraschedular rating is a three-step inquiry. Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd, 572 F.3d 1366 (Fed. Cir.2009). The first step is to determine whether the "evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate." Id. If the adjudicator determines that this is so, the second step of the inquiry requires the adjudicator to "determine whether the claimant's exceptional disability picture exhibits other related factors," such as marked interference with employment or frequent periods of hospitalization. Id. at 116. Finally, if the first two steps of the inquiry have been satisfied, the third step requires the adjudicator to refer the claim to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination of whether an extraschedular rating is warranted. Id. Moreover, in Thun v Shinseki, 572 F.3d 1366 (Fed. Cir. 2009), the Federal Circuit interpreted and then affirmed the Court's three-part test to determine whether an extra-schedular rating is warranted. The Federal Circuit stressed that (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extra-schedular disability rating must be in the interest of justice. Id, at 1368. The established schedular criteria have not been shown or alleged to be inadequate to describe the severity and symptoms of the claimant's disability; the case does not present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and, there is no evidence that an extra-schedular disability rating would be in the interest of justice. In the absence of evidence of such factors, the Board is not required to remand this matter to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b) (1). Additionally, if the claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, then part and parcel to that claim for an increased rating is whether a total rating based on individual unemployability as a result of that disability is warranted. Rice v. Shinseki, 22 Vet. App. 447 (2009). In this case, the record does not reasonably raise the question of unemployability, nor has the Veteran raised this issue. ORDER An initial 10 percent schedular rating for hemorrhoids is granted for the entire appeal period, subject to the laws and regulations governing payment of monetary benefits. REMAND As mentioned in the Introduction, in a November 2010 letter to VA, the Veteran stated that following his service-connected hemorrhoidectomy surgery he was, "...out from work for approximately 30 days." This statement raises the issue of entitlement to a temporary total rating. Under 38 C.F.R. § 4.30 (a) (1), a temporary total rating will be assigned where a service-connected surgery necessitates at least one month of convalescence. Because this issue has not yet been addressed by the RO, it must be remanded for development and consideration in order to preserve the procedural safeguards discussed by the Court in Bernard v. Brown, 4 Vet. App. 384 (1993). Accordingly, the case is REMANDED to the AMC for the following action: 1. The AMC must review the claims files and ensure that any recent pertinent medical evidence has been associated with the claims files. The AMC must offer the Veteran an opportunity to identify or submit any additional pertinent evidence in support of a temporary total rating. Based on his response, the AMC must attempt to procure a copy of any record which has not previously been obtained from identified treatment sources. All attempts to secure this evidence must be documented in the claims files. If, after making reasonable efforts, the AMC is unable to secure same, the AMC must notify the Veteran and (a) identify the specific records that VA is unable to obtain; (b) briefly explain the efforts made to obtain those records; (c) describe any further action to be taken by VA with respect to the claim; and, (d) notify the Veteran that he is ultimately responsible for providing the evidence. The Veteran and his representative must then be given an opportunity to respond. 2. After the development requested above has been completed to the extent possible, the AMC should adjudicate the temporary total rating claim. If the benefits sought remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and given an opportunity to respond thereto. The appellant has the right to submit additional evidence and argument on the matter or matters 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 Court 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). ______________________________________________ L. M. BARNARD Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs