Citation Nr: 1328787 Decision Date: 09/09/13 Archive Date: 09/17/13 DOCKET NO. 10-23 805 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to a compensable rating for hemorrhoids, internal and external, post operative. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD R. Kessel, Counsel INTRODUCTION The Veteran had active military service from June 1957 to December 1957. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. In November 2012 and May 2013, the Board remanded the claim to the agency of original jurisdiction for additional development. This appeal was processed using the Veterans Benefits Management System (VBMS) electronic claims processing system. 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 The Veteran's service-connected hemorrhoids have been manifested by no worse than mild or moderate symptoms. CONCLUSION OF LAW The criteria for a compensable rating for service-connected hemorrhoids, internal and external, post operative have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.7, 4.114, Diagnostic Code 7336 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist The Board notes the enactment of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), in November 2000. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002 & Supp. 2013). To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant of what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The Board finds that all notification action needed to make a decision as to the claim on appeal has been accomplished. Through an October 2009 notice letter, the RO notified the Veteran of the information and evidence needed to substantiate his claim for increase. He was told that the evidence must show that his service-connected hemorrhoids worsened or increased in severity. The October 2009 letter provided the Veteran with the general criteria for assigning disability ratings and effective dates. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). The Board also finds that the October 2009 notice letter satisfies the statutory and regulatory requirement that VA notify a claimant which evidence, if any, will be obtained by the claimant and which evidence, if any, will be retrieved by VA. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002) (addressing the duties imposed by 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b)). In that letter, the RO notified the Veteran that VA was responsible for obtaining relevant records from any Federal agency and that VA would make reasonable efforts to obtain relevant records not held by a Federal agency, such as from a state, private treatment provider, or an employer. Additionally, the notice letter asked the Veteran to submit medical evidence, opinions, statements, and treatment records regarding his disability. Consequently, further notification of how to substantiate the claim is not necessary. There is no indication that any additional action is needed to comply with the duty to assist in connection with the issue on appeal. The Veteran's service treatment records have been obtained and associated with the claims file, as have treatment records from the VA Medical Center (VAMC) in Philadelphia, Pennsylvania. More recent VA treatment records were obtained pursuant to the Board's May 2013 remand. Records from multiple private treatment providers identified by the Veteran have also been obtained. The Veteran has not otherwise alleged that there are any outstanding medical records probative of his claim on appeal that need to be obtained. Moreover, the Veteran was afforded an opportunity to provide testimony at a Board hearing in January 2012, the transcript of which is of record. Additionally, in November 2009, April 2011, January 2013 and March 2013, the Veteran was provided VA examinations in connection with his claim, the reports of which are of record. The more recent examinations were afforded pursuant to the Board's November 2012 remand. The examination reports contain sufficient evidence by which to evaluate the Veteran's hemorrhoids in the context of the rating criteria. Thus, VA has properly assisted the Veteran in obtaining any relevant evidence. II. Analysis Disability evaluations are determined by comparing a veteran's symptoms with criteria set forth in VA's Schedule for Rating Disabilities, which are based on average impairment in earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2012). When a question arises as to which of two ratings apply under a particular diagnostic code, the higher of the two evaluations is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3 (2012). The veteran's entire history is reviewed when making disability evaluations. See generally 38 C.F.R. § 4.1 (2011); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where entitlement to compensation has already been established, VA must address the evidence concerning the state of the disability from the time period one year before the claim for an increase was filed until VA makes a final decision on the claim. Consideration of the appropriateness of a staged rating is also required. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The Veteran was awarded service connection for hemorrhoids in April 1958. A noncompensable (zero percent) rating was assigned. His service-connected hemorrhoids have been evaluated under Diagnostic Code 7336 for "external or internal hemorrhoids." Under that diagnostic code, mild or moderate external or internal hemorrhoids warrant a noncompensable rating. Large or thrombotic, irreducible hemorrhoids, with excessive redundant tissue, evidencing frequent recurrences, warrant a 10 percent rating. Hemorrhoids with persistent bleeding and with secondary anemia, or with fissures, warrant a 20 percent rating. 38 C.F.R. § 4.114, Diagnostic Code 7336 (2012). The Veteran contends that a compensable rating is warranted for his hemorrhoids. In his December 2009 notice of disagreement, he stated that he experiences itching and bleeding from his hemorrhoids. At the January 2012 Board hearing, the Veteran testified that he experiences bleeding and itching. The medical evidence of record includes private treatment records from Kennedy Health System. A March 2008 colonoscopy showed internal hemorrhoids. In March 2009, the Veteran denied experiencing rectal bleeding and a rectal examination was normal. In November 2009, the Veteran established treatment through the Philadelphia VAMC. He reported having chronic internal hemorrhoids with blood spots and itching. The assessment was hemorrhoids. Also in November 2009, the Veteran underwent VA examination in connection with the claim. He reported no current medical treatment for his hemorrhoids. The Veteran noticed blood spots on his shorts after bowel movements, but no other bleeding was noted. He had no other problems regarding hemorrhoids, including no periods of incapacitation. On examination, the examiner found one very small external hemorrhoid and a very well healed scar on the Veteran's anus. There was no bleeding, inflammation, swelling warmth or tenderness. The examiner provided a diagnosis of hemorrhoids. A January 2010 letter from Dr. E.A.E. indicates he was consulted for the Veteran's hemorrhoidal issues. The Veteran reported experiencing intermittent blood on the toilet paper after defecation. Examination revealed a small skin tag in the left lateral quadrant. Additionally, there were grade 2 right lateral and left anterior quadrant internal hemorrhoidal complexes. A February 2010 VA treatment record notes a history of symptomatic, primarily internal, hemorrhoids. The Veteran had complaints of itching, pain, and flecks of blood. In April 2010, the Veteran was noted to have a left lateral skin tag on rectal examination. The VA physician informed the Veteran that his itching was not likely from hemorrhoids. In June 2010, the Veteran complained of perirectal itching and occasional blood. The impression was asymptomatic internal hemorrhoids. The Veteran was seen for similar complaints through October 2011. In November 2011, the Veteran underwent additional VA examination in connection with the claim. The examiner recorded the Veteran's medical history and his report of periodic episodes of rectal bleeding. The Veteran denied having gross rectal bleeding or a history of thrombosed hemorrhoids. Rectal bleeding and discomfort was also denied at the time of the examination. On examination, there was no evidence of anemia, bleeding, anal fissures, or external hemorrhoids. The diagnoses were mild persistent internal hemorrhoids as noted on the colonoscopy from March 2008 and a normal perianal region. A January 2012 record from Dr. E.A.E. notes a 20-year history of treatment and that the Veteran has a lifelong history of hemorrhoids. Dr. E.A.E. indicated that the Veteran's hemorrhoids had become worse and recommended surgery. A February 2012 record from Dr. E.A.E. noted complaints of anal pain and itching, and a history of hemorrhoids. Rectal examination revealed small internal hemorrhoids which were stable and mildly inflamed. There were also tiny stable external hemorrhoids. No thrombosed external hemorrhoids were observed. Dr. E.A.E. assessed the Veteran with residual hemorrhoidal skin tags that were stable, small internal hemorrhoids that were stable, and anal pain. A March 2012 VA treatment record notes that the Veteran's hemorrhoidal symptoms had improved and only bothered him intermittently. The Veteran underwent additional VA examination in January 2013. The diagnosis was internal hemorrhoids with complaints of pain, pruritus, irritation, and blood. The examiner noted that prior colonoscopy confirmed internal hemorrhoids but physical examination could not detect internal hemorrhoids. In March 2013, another VA examination was conducted in connection with the claim. The examiner diagnosed the Veteran's condition as internal hemorrhoids. It was noted that no external hemorrhoids were found. The Veteran reported experiencing blood on the tissue after a bowel movement. There were no large thrombotic irreducible external hemorrhoids and no excessive redundant tissue evidencing frequent occurrences. There was also no anemia, fissures or fistula. The examiner characterized the severity of the condition as "mild internal hemorrhoids." The examiner also stated that the Veteran's hemorrhoids were not severe per history and physical examination. VA treatment records from February 2013 showed continued complaints relating to hemorrhoids. A colonoscopy was performed by a private treatment provider in April 2013, which revealed internal hemorrhoids. In consideration of the evidence of record, the Board finds that the Veteran's service-connected hemorrhoids have been manifested by no worse than mild or moderate symptoms. In view of this finding, the Board concludes that a compensable rating is not warranted for hemorrhoids, internal and external, post operative. See 38 C.F.R. § 4.114, Diagnostic Code 7336. This is so for the entire rating period on appeal. See Hart, 21 Vet. App. at 509-10. The evidence tends to show that the Veteran's hemorrhoids are mild in severity and the noncompensable rating contemplates his complaints of itching, pain and intermittent bleeding. The November 2011 VA examiner characterized the hemorrhoids as mild based on the March 2008 colonoscopy. Additionally, Dr. E.A.E. found that the Veteran's internal hemorrhoids were mildly inflamed and that the hemorrhoids were stable. Moreover, the March 2013 VA examiner assessed the Veteran's internal hemorrhoids as mild and that they were not severe based on history and examination. Thus, to the extent medical professionals have provided an opinion as to the severity of the Veteran's hemorrhoids, the condition has been characterized as mild and the evidence does not reflect assessments worse than mild or moderate hemorrhoids. The Board finds this medical expert evidence to be the most probative evidence as to the level of severity of the service-connected condition. A higher 10 percent rating is not warranted as the hemorrhoids have been described as "very small" or "small," rather than "large" as set forth in the rating criteria. Additionally, thrombotic hemorrhoids have been denied by the Veteran and have not been found on examination. Furthermore, excessive redundant tissue was not found on examination and the evidence does not indicate that the Veteran's hemorrhoids are irreducible. An even higher 20 percent rating is also not warranted. The Veteran has reported bleeding or blood on toilet paper after bowel movements, which he is competent to report and the Board finds not reason to doubt his credibility in this regard. However, the Board does no find that the Veteran's symptom approximates the "persistent bleeding" required for a 20 percent rating. At times, the bleeding was characterized as intermittent and it was not found on physical examination, which weighs against persistency. Moreover, the rating criteria reflect that secondary anemia or fissures would accompany the bleeding if persistent. In the Veteran's case, anemia and fissures have not been evident. Thus, the Board finds that the Veteran's symptom of bleeding is contemplated by the noncompensable rating and does not equate to persistent bleeding as set forth in the criteria for a 20 percent rating. The above determination is based upon consideration of applicable rating provisions. It should also be pointed out that there is no showing that the Veteran's hemorrhoids have reflected so exceptional or unusual a disability picture as to warrant the assignment of any higher evaluation on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1) (2012). The symptoms of his disability (itching, non-persistent bleeding, pain) have been accurately reflected by the schedular criteria. Without sufficient evidence reflecting that the Veteran's disability picture is not contemplated by the rating schedule, referral for a determination of whether the Veteran's disability picture requires the assignment of an extra-schedular rating is not warranted. See Thun v. Peake, 22 Vet. App. 111, 115-16 (2008). For the foregoing reasons, the Board finds that the claim for a compensable rating for service-connected hemorrhoids must be denied. In reaching this conclusion, 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 for increase, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER A compensable rating for hemorrhoids, internal and external, post operative is denied. ____________________________________________ DENNIS F. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs