Citation Nr: 1329822	
Decision Date: 09/18/13    Archive Date: 09/25/13

DOCKET NO.  09-23 707	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUES

1.  Entitlement to an initial compensable evaluation for bilateral hearing loss.

2.  Entitlement to a compensable evaluation for a left little finger fracture with residual flexion deformity.

3.  Entitlement to a compensable evaluation for hemorrhoids.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

M. Carsten, Counsel


INTRODUCTION

The Veteran served on active duty from April 1973 to April 1993.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from September 2008 and October 2008 decisions by the Department of Veterans Affairs (VA) Regional Office's (RO) in Seattle, Washington and Winston-Salem, North Carolina.  The case was certified to the Board by the RO in Winston-Salem.  

In April 2010, the RO granted service connection for residuals of a right hand laceration.  As this issue was resolved, it is no longer for consideration by the Board.  

In his June 2009 VA Form 9, the Veteran indicated that he wanted a travel board hearing.  On an accompanying "Appeal Hearing Options" form, the Veteran indicated that he was requesting a videoconference hearing and waived his right to an in-person hearing.  In August 2011, VA notified the Veteran that a videoconference hearing was scheduled in September 2011.  The Veteran responded that he declined this hearing and preferred to wait for a future visit by a member of the Board.  In November 2011, VA notified the Veteran that another videoconference hearing was scheduled in December 2011.  The Veteran responded stating that he wished to withdraw his request for a videoconference hearing and requested that his case be heard on the merits.  

On review, the Veteran's hearing request is considered withdrawn and the Board will proceed to address the merits of the appeal.  See 38 C.F.R. § 20.704(e) (2012).  

The Virtual VA and VBMS folders have been reviewed. 




FINDINGS OF FACT

1.  In August 2011, the representative submitted a statement documenting the Veteran's intent to withdraw all issues on appeal except for his hemorrhoid condition.  

2.  The Veteran's hemorrhoids are large and not reducible 


CONCLUSIONS OF LAW

1.  The criteria for withdrawal of a substantive appeal concerning the claim of entitlement to an initial compensable evaluation for bilateral hearing loss are met.  38 U.S.C.A. § 7105(d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2012).

2.  The criteria for withdrawal of a substantive appeal concerning the claim of entitlement to a compensable evaluation for a left little finger fracture with residual flexion deformity are met.  38 U.S.C.A. § 7105(d)(5); 38 C.F.R. §§ 20.202, 20.204.

3.  Hemorrhoids are 10 percent disabling.  38 U.S.C.A. §§ 1155, 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.114, Diagnostic Code 7336 (2012). 


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Withdrawal of appeal

In September 2008, the RO in pertinent part granted service connection for bilateral hearing loss at 0 percent; and continued a noncompensable evaluation for the left little finger disability.  In October 2008, the RO again continued the noncompensable evaluation for the left little finger.  The Veteran disagreed with the assigned evaluations and perfected this appeal.  

In August 2011, the Veteran's representative stated that the Veteran would submit a statement withdrawing all appeal issues except for his hemorrhoid condition.  In September 2011, the RO sent the Veteran a letter indicating that based on his representative's statement, they had withdrawn his appeal for the issues of bilateral hearing loss and the left little finger.  The Veteran did not respond or otherwise disagree with this statement.

Under 38 U.S.C.A. § 7105(d)(5), the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed.  A substantive appeal may be withdrawn by an appellant or his representative in writing, or on the record at a hearing, at any time before the Board promulgates a decision.  38 C.F.R. §§ 20.204(a), (b). 
 
There remain no allegations of errors of fact or law for appellate consideration as concerns the issue of entitlement to compensable evaluations for bilateral hearing loss and left little finger fracture with residual flexion deformity.  Accordingly, the Board no longer has jurisdiction to review these issues, and the appeals as to those issues are dismissed.

Evaluation for hemorrhoids

Veterans Claims Assistance Act of 2000 (VCAA)

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.  By correspondence dated in November 2007, VA notified the Veteran of the information and evidence needed to substantiate and complete a claim for increase, to include notice of what part of that evidence is to be provided by the claimant, and notice of what part VA will attempt to obtain.  This letter also provided notice of how VA assigns disability ratings and effective dates.  In March 2009, the Veteran was provided additional information regarding the assignment of disability ratings and was notified of applicable rating criteria.  The claim was most recently readjudicated in the May 2010 Supplemental Statement of the Case.  

VA has also satisfied its duty to assist.  The claims folder contains service treatment records and the Veteran was provided VA examinations in October 2008 and April 2010.  The examinations contain findings necessary for evaluation purposes and are considered adequate.  

Evidence of record shows that the Veteran receives Social Security Administration (SSA) benefits.  These benefits appear to be based on retirement age and not disability and as such, the Board finds no reason to request these records.  Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010) (VA has an obligation to secure SSA records only if there is a reasonable possibility that the records would help to substantiate the Veteran's claim).

In an August 2011 statement, the representative noted that the Veteran was recently treated for his hemorrhoids and that he would submit this evidence.  To date, such evidence has not been received.  The Veteran has not identified the treatment or submitted an authorization for release and the Board is unable to request additional records.  The Board notes that the duty to assist in the development and the adjudication of claims is not a one-way street.  If a claimant wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the evidence.  Wood v. Derwinski, 1 Vet. App. 190 (1991).

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).

Analysis

In November 1993, the RO granted service connection for hemorrhoids and assigned a noncompensable evaluation from May 1, 1993.  In October 2007, the Veteran submitted a claim for increase.  In October 2008, the RO continued the noncompensable evaluation.  The Veteran disagreed and perfected this appeal. 

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder.  38 U.S.C.A. § 1155.  Evaluation of a service-connected disorder requires a review of the Veteran's entire medical history regarding that disorder.  38 C.F.R. §§ 4.1, 4.2 (2012); Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant.  38 C.F.R. § 4.3.  If there is a question as to which evaluation to apply, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.

The United States Court of Appeals for Veterans Claims (Court) held that staged ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibited symptoms that would warrant different ratings.  Hart v. Mansfield, 21 Vet. App. 505 (2007); Francisco v. Brown, 7 Vet. App. 55 (1994).  

External or internal hemorrhoids are evaluated as follows: mild or moderate (0 percent); large or thrombotic, irreducible, with excessive redundant tissue, evidencing frequent recurrences (10 percent); and with persistent bleeding and with secondary anemia, or with fissures (20 percent).  38 C.F.R. § 4.114, Diagnostic Code 7336. 

On VA examination in October 2008, the Veteran reported that his hemorrhoids had been lanced a couple of times, but they were still present.  Current treatment was Preparation H.  He reported that he underwent a hemorrhoidectomy but the date of surgery was unknown.  He also reported a history of occasional rectal bleeding and proctitis one to two times a year.  Current symptoms included anal itching, burning, and pain.  He denied difficulty passing stool.  He has occasional hemorrhoidal bleeding but no history of thrombosis.  Physical examination revealed both internal and external hemorrhoids.  External hemorrhoids were tiny circumferential.  They were not reducible but there was no evidence of prolapse, thrombosis, or bleeding.  There were no fissures or evidence of excessive redundant tissue.  Diagnosis was internal and external hemorrhoids.  There were no significant effects on occupation or daily activities.  

The Veteran most recently underwent a VA examination in April 2010.  He reported his history during service and since that time.  He still has intermittent pain following defecation and occasionally notices a streak of blood following wiping.  There was no history of rectal bleeding and bowel movements are regular.  He uses Anusol-HC ointment for external application.  He denied a history of rectal bleeding, prolapse, recurrent anal infections, or proctitis.  Current symptoms included difficulty passing tool.  He denied current itching, burning or pain.  He also denied bleeding or a history of thrombosis.  On physical examination, external hemorrhoids were present.  These measured less than .5 cm x 4.  There was no evidence of thrombosis, bleeding, fissures or excessive redundant tissue.  Diagnosis was external hemorrhoids.  There were no significant effects on occupation.  Effects on daily activities were noted.  

The Board acknowledges that the Veteran's hemorrhoids were described as not reducible on VA examination in October 2008.  In addition, one examination described the hemorrhoid as 4 cm.  This finding shows that the hemorrhoids are large and not reducible.  Accordingly, the disability more closely approximates the criteria for a 10 percent evaluation.  However, an evaluation in excess of 10 percent is not warranted.  The hemorrhoids are not thrombotic and there is no evidence of excessive redundant tissue indicating frequent recurrences.  There is no lay or medical evidence of persistent bleeding, anemia or fissures.  As such, the preponderance of the evidence establishes that the hemorrhoids are no more than 10 percent disabling.


The Board has considered the symptoms as reported by the Veteran, but finds that the disability picture is consistent with no more than a 10 percent evaluation. 

The disability picture has not changed significantly during the appeal period and staged ratings are not warranted.  See Hart.

In reaching this decision, the Board has also considered whether the Veteran may be entitled to extraschedular ratings pursuant to 38 C.F.R. § 3.321 (2012).  In accordance with Thun v. Peake, 22 Vet. App. 111 (2008), there is a sequential three-step analysis to determine whether a case should be referred for extraschedular consideration.  Step one, is to determine whether the schedular rating adequately contemplates a claimant's disability picture.  If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the Rating Schedule, and the assigned schedular evaluation is, therefore, adequate, then no referral for consideration of an extraschedular rating is required.  If the schedular criteria do not contemplate the claimant's level of disability and symptomatology and the schedular criteria are therefore found to be inadequate, then step two is to determine whether the claimant's disability picture is exceptional with related factors such as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular criteria.  If the disability picture meets the second step, then the third step is to refer the case to the Under Secretary for Benefits or the Director, Compensation Service to determine whether an extraschedular rating is warranted. 

Regarding the first step of Thun, the Board finds that the rating criteria reasonably describe the Veteran's disability and symptomatology.  The Veteran has reported symptoms such as itching, burning, pain and difficulty with bowel movements.  These complaints are arguably considered as part of the rating criteria and higher schedular evaluations are available for increased disability.  Therefore, the threshold factor for extraschedular consideration under step one of Thun has not been met, and the Board need not reach the second step of the Thun analysis, that is, whether the disability picture is exceptional.  Consequently, referral for extraschedular consideration is not required under 38 C.F.R. § 3.321(b)(1).

On most recent examination, the Veteran reported that he was retired and that he was eligible for retirement based on age or duration of work.  There is no evidence to suggest that the Veteran is unemployable by reason of his hemorrhoids and the Board declines to infer a claim for a total disability evaluation based on service-connected disability (TDIU).  See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). 


ORDER

The appeal of the denial of entitlement to an initial compensable evaluation for bilateral hearing loss is dismissed.  

The appeal of the denial of entitlement to a compensable evaluation for left little finger fracture with residual flexion deformity is dismissed.

A 10 percent evaluation for hemorrhoids is granted.



____________________________________________
H. N. SCHWARTZ
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs