Citation Nr: 1331744 Decision Date: 10/02/13 Archive Date: 10/07/13 DOCKET NO. 09-49 442 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to a compensable disability rating for service-connected hemorrhoids. 2. Entitlement to service connection for a right knee disability. 3. Entitlement to service connection for a left knee disability. 4. Entitlement to service connection for erectile dysfunction, to include as secondary to service-connected thoracolumbar spine disability and bilateral knee disability. REPRESENTATION Appellant represented by: North Carolina Division of Veterans Affairs ATTORNEY FOR THE BOARD Carole Kammel, Counsel INTRODUCTION The Veteran had active service from November 1974 to December 1978. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. By that rating action, the RO, in part, denied service connection for right knee arthritis; left knee arthritis; erectile dysfunction; and, denied a compensable rating for service-connected hemorrhoids. The Veteran perfected his appeal to the Board with respect to these claims. Also developed for appellate consideration was the issue of entitlement to service connection for a back disorder, to include scoliosis of the spine and degenerative disc disease of the thoracolumbar spine. By a January 2013 rating action, the RO granted service connection for mild scoliosis, with exaggerated lordosis and degenerative disc disease of the thoracolumbar spine; an initial 10 percent disability rating was assigned, effective September 22, 2008 to September 26, 2012, and 20 percent therefrom. (See January 2013 rating action). This represents a complete grant of the benefit of service connection for a back disability. Thus, the Board does not have jurisdiction over this issue. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997) (Board cannot possess jurisdiction over an issue where a rating decision constituted a full award of the benefit sought on appeal). In February 2013, after issuance of a January 2013 Supplemental Statement of the Case, wherein the RO addressed the issues on appeal, the Board received additional evidence in support of the service connection and increased evaluation claims. Normally, any pertinent evidence must be referred to the agency of original jurisdiction (AOJ) for initial review unless this procedural right is waived by the Veteran. See 38 C.F.R. § 20.1304(c) (2013). Because this evidence is duplicative of that already of record (i.e., statement of Veteran pertaining to his knees, service treatment records and excerpt of September 2012 VA opinion that addressed the etiology of the Veteran's knees) and as the Veteran submitted a waiver of this evidence, a remand to the RO is not necessary. Id. As will be explained in more detail below, a remand with respect to the claims for service connection for right and left knee disabilities and erectile dysfunction, to include as secondary to service-connected low back disability and right and left knee disabilities is necessary prior to further appellate review for reasons outlined below. The issues of entitlement to service connection for right and left knee disabilities and erectile dysfunction, to include as secondary to service-connected low back disability and right and left knee disabilities are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran's service-connected hemorrhoids have been manifested by subjective complaints of pain, anal itching, and swelling with recurring bleeding after bowel movements and at night, without objective evidence of recurrent large or thrombotic irreducible hemorrhoids with excessive redundant tissue. CONCLUSION OF LAW The criteria for a compensable evaluation for the service-connected hemorrhoids have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§3.321, 4.1, 4.7, 4.114, Diagnostic Code 7336 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Before addressing the merits of the issue of entitlement to an increased compensable disability rating for service-connected hemorrhoids, the Board notes that VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159 (d); 3.326(a). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008). None is found by the Board. Indeed, VA's duty to notify has been more than satisfied. In a March 2008 letter, the RO notified the Veteran of the evidence necessary to substantiate his increased evaluation claim; the evidence required in this regard, and his and VA's respective duties for obtaining evidence. He also was notified of how VA determines disability ratings and effective dates. This letter accordingly addressed all notice elements and predated the initial adjudication by the RO in January 2009. Nothing more was required. Concerning the Veteran's increased rating claim, the United States Court of Appeals for Veterans Claims (Court) held in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), that VA must inform the claimant that, in order to substantiate a claim, he or she must provide (or ask the VA to obtain) medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that such worsening has on the claimant's employment and daily life. Further, if the diagnostic code under which the claimant is currently rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by providing the evidence described above (such as a specific measurement or test result), then VA must give at least general notice of that requirement. Additionally, VA must inform the Veteran that if he or she is assigned a higher rating, that rating will be determined by applying relevant diagnostic codes, which generally provide for disability ratings between 0 and 100 percent, based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life. The notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask VA to obtain) that are relevant to establishing entitlement to increased compensation. Id. at 43. However, the United States Court of Appeals for the Federal Circuit (Federal Circuit) issued a decision that vacated and remanded the above-summarized decision of the Court. See Vazquez- Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). Specifically, the Federal Circuit held that only "generic notice," and not "Veteran-specific" notice is required under 38 U.S.C.A. § 5103(a) in response to the "particular type of claim." With respect to a claim for an increased rating, such notice does not need to inform the claimant of the need to submit evidence concerning the effect of a service- connected disability on his or her "daily life" because only the average loss of earning capacity, and not impact on daily life, is subject to compensation under 38 U.S.C. § 1155. Accordingly, the Federal Circuit vacated the decision of the Court insofar as it requires VA to notify a Veteran of alternative diagnostic codes or potential "daily life" evidence. Id. Therefore, in the instant case, there has been an intervening change in the law with respect to the required VCAA notice in an increased rating claim. The Federal Circuit recognizes three exceptions to the law of the case doctrine, to include when the controlling authority has since made a contrary decision of law. See Chisem v. Brown, 8 Vet. App. 37 (1995); see also Leopoldo v. Brown, 9 Vet. App. 33 (1996) (per curiam). As such, the heightened VCAA notice requirements under Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), are no longer required. The Board also notes that the Veteran has actively participated in the processing of his case, and the statements submitted in support of his increased evaluation claim, to include from his accredited representative, have indicated familiarity with the requirements for the benefits sought on appeal. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), reversed on other grounds, 444 F.3d 1328 (Fed. Cir. 2006) (VA can demonstrate that a notice defect is not prejudicial if it can be demonstrated ... that any defect in notice was cured by actual knowledge on the part of the appellant that certain evidence (i.e., the missing information or evidence needed to substantiate the claim) was required and that the appellant should have provided it.); see also Overton v. Nicholson, 20 Vet. App. 427 (2006). The Board also finds that the duty to assist the Veteran in the development of his increased evaluation claim has been satisfied. The Veteran's service treatment records are on file, as are identified post-service VA and private treatment records. Further, in June 2011, the Veteran was afforded a VA fee basis examination to determine the current severity of his service-connected hemorrhoids. This examination report considered the Veteran's personal complaints and lay history and included findings as to the symptomatology of his service-connected hemorrhoids that are consistent with the treatment records and relevant rating criteria. Accordingly, the Board finds that the June 2011 VA fee basis examination is adequate for resolution of the Veteran's claim of entitlement to an increased compensable disability rating for his service-connected hemorrhoids. Recognition is given to the fact that the report of the Veteran's hemorrhoids June 2011 examination is now in excess of two years old. The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate examination was conducted. VAOPGCPREC 11-95. Here, there is no objective evidence indicating that there has been a material change in the severity of the Veteran's hemorrhoids since the June 2011 VA examination. The Veteran does not contend otherwise. The Board notes that it is remanding the service connection claims on appeal in order to obtain outstanding treatment records relating to the Veteran's knees. As the outstanding treatment records pertain to treatment from the Veteran's private orthopedic surgeon from whom he received treatment for orthopedic disabilities (e.g., back, knees, hips), and not his hemorrhoids, a remand of the increased evaluation claim for his service-connected hemorrhoids would service no useful purpose and would delay action on the claim. Consequently, the Board finds that the duty to assist the Veteran has been satisfied in this case. The Veteran has had the opportunity to present evidence and argument in support of his increased evaluation claim, and nothing indicates he has identified the existence of any relevant evidence that has not been obtained or requested. He has not demonstrated there is outstanding evidence documenting symptoms of his service-connected hemorrhoids that is not demonstrated by the evidence already of record. Consequently, the Board finds that the duty to assist the Veteran has been satisfied in this case. I. Laws and Regulations General Rating Criteria Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2013). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, such as here, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994); 38 C.F.R. § 4.2. Staged ratings are, however, 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. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. See generally Hart v. Mansfield, 21 Vet. App. 505 (2007). Where there is a question as to which of 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. See 38 C.F.R. § 4.7. II. Merits Analysis The Veteran seeks a compensable disability rating for his service-connected hemorrhoids. He maintains that his hemorrhoids are more severely disabling than that reflected by the currently assigned noncompensable evaluation as demonstrated by bleeding after bowel movements and at night, and constant pain (See Veteran's October 2011 statement to the Board). The Veteran's service-connected hemorrhoids are evaluated under the provisions of 38 C.F.R. § 4.114, Diagnostic Code 7336. Under that code, a 20 percent evaluation is assigned for external or internal hemorrhoids, with persistent bleeding and with secondary anemia, or with fissures. 38 C.F.R. § 4.114, Diagnostic Code 7336. A 10 percent evaluation is assigned for hemorrhoids, large or thrombotic, irreducible, with excessive redundant tissue, evidencing frequent recurrences. Id. A noncompensable evaluation is assigned for mild or moderate hemorrhoids. Id. The Board finds that the preponderance of the evidence of record is against a compensable disability rating for the service-connected hemorrhoids because there is no objective evidence of external or internal hemorrhoids that are large or thrombotic, irreducible, with excessive redundant tissue, evidencing frequent recurrences--criteria that are necessary for a 10 percent rating under Diagnostic Code 7336. The Veteran was afforded a VA fee basis examination to determine the current severity of his service-connected hemorrhoids in June 2011. Upon examination, the Veteran had two (2) by two (2) centimeter reducible hemorrhoids without any evidence of frequent recurrence with excessive redundant tissue. The examiner indicated that the Veteran's hemorrhoids were quiescent. (See June 2011 fee basis examination report). A June 2012 treatment report uploaded to the Veteran's Virtual VA electronic claims file reflects that the Veteran requested and subsequent underwent a colonoscopy for his rectal bleeding. This treatment report is does not contain clinical findings commensurate with a 10 percent disability rating for the service-connected hemorrhoids under Diagnostic Code 7336. (See June 2012 Virtual VA treatment record). Since persistent bleeding with secondary anemia or fissures has also not been shown, there is also no basis to award a 20 percent rating under this code. Thus, in the absence of evidence to show the presence of large or thrombotic irreducible hemorrhoids with excessive redundant tissue, evidencing frequent recurrences, the criteria required for a 10 percent rating under Diagnostic Code 7336 have not been met. The preponderance of the evidence is against the claim, and the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b). ii) Hart Considerations The Veteran's hemorrhoids have remained constant throughout the course of the period on appeal as demonstrated by similar findings at the June 2011 VA fee basis examination and VA and private treatment records. As such, staged ratings are not warranted for this disability. See Hart, supra. (iii) Lay statements The Board has also considered the Veteran's statements that his hemorrhoids are worse than the currently assigned noncompensable rating. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). The Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470. The Veteran is not, however, competent to identify a specific level of disability of his hemorrhoids according to the appropriate diagnostic codes. On the other hand, such competent evidence concerning the nature and extent of the Veteran's hemorrhoids has been provided by a VA examiner who rendered pertinent opinions in conjunction with the evaluation. The medical findings (as provided in the June 2011 VA examination report) directly address the criteria under which his hemorrhoids are evaluated. (iv) Extraschedular Ratings The question of an extraschedular rating is a component of a claim for an increased rating. Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). The Court has clarified the analytical steps necessary to determine whether referral for such consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). VA must first determine whether the available applicable schedular rating criteria are inadequate because they do not contemplate the Veteran's level of disability and symptomatology. If the rating criteria are inadequate, VA must then determine whether the Veteran exhibits an exceptional disability picture indicated by other related factors such as marked interference with employment or frequent periods of hospitalization. If such related factors are exhibited, then referral must be made to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for extraschedular consideration. In this case, the evidence does not indicate that Veteran's disability picture is not adequately contemplated by the applicable schedular rating criteria discussed above. Specifically, the Veteran's hemorrhoid symptoms were applied to the applicable rating criteria and case law . Although the diagnostic code in this case allow for higher ratings, the Board fully explained why a higher rating was not warranted. Therefore, given that the applicable schedular rating criteria are more than adequate in this case, the Board need not consider whether the Veteran's disability picture with respect to his hemorrhoids include exceptional factors, and referral for consideration of the assignment of disability evaluations on an extraschedular basis is not warranted. See Thun, 22 Vet. App. at 111; see also Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). (v) Total Rating Based on Individual Unemployability (TDIU) Finally, although the Veteran has submitted evidence of a medical disability, and made a claim for the highest rating possible, he has not submitted evidence of unemployability, or claimed to be unemployable. In fact, during a September 2012 VA spine examination, the examiner noted that the Veteran was employed as a mail carrier. Thus, the question of entitlement to TDIU has not been raised. See Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). In sum, after a careful review of the evidence of record, the Board finds that the benefit of the doubt rule is not applicable and the appeal is denied. ORDER An increased compensable rating for service-connected hemorrhoids is denied. REMAND Unfortunately, a remand is required for the claims for service connection for right and left knee disabilities and erectile dysfunction, to include as secondary to service-connected low back disability and right and left knee disabilities. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide these claims so that he is afforded every possible consideration. The Veteran seeks service connection, in part, for right and left knee disabilities. He maintains that his bilateral knee disabilities are the result of having performed numerous in-service parachute jumps. In March 2012, the Board, in part, remanded the claims for service connection for right and left knee disabilities to obtain an examination of the right and left knees and an opinion as to their etiology. A September 2012 VA spine examination report contains a statement from the examining physician that the Veteran was seeking ongoing treatment, in part, for his knees from S. G., M. D., of Cape Fear Orthopedics. The VA examiner referenced reports, dated in May 11, 2011, and February 6, 2012, and prepared by S. G., M. D. In these reports, S. G., M. D. apparently indicated that the Veteran had sustained a post-service, employment-related accident to his right knee, and attributed his knee disabilities to in-service parachute jumping. S. G., M. D.'s March 2011 and February 2012 reports have not been associated either with the Veteran's physical or electronic Virtual VA claims file. As these records contain, in part, a positive nexus between his bilateral knee disabilities and military service, the claims for service connection for right and left knee disabilities must be remanded so that the VA can attempt to obtain all outstanding treatment records from S. G., M. D. (Parenthetically, the Board observes that a February 2008 opinion, prepared by S. G., M. D. has been associated with the Veteran's physical claims files; however any treatment records dated from that time are absent). Because the outcome of the Veteran's claim for service connection for erectile dysfunction is dependent, in part, on the outcome of the claims for service connection for right and left knee disabilities, the claims are "inextricably intertwined." Thus, the Board's determination as the service connection claim for erectile dysfunction, to include as secondary to service-connected low back disability and right and left knee disabilities must be deferred on remand pending the development on the claims for service connection for right and left knee disabilities requested below. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Accordingly, the case is REMANDED for the following action: 1. The AMC/RO should contact the Veteran and obtain the names and addresses of all medical care providers, VA and non-VA that treated him for his right and left knees. Of particular interest are records from Dr. S. G. of Cape Fear Orthopedics, as referenced by a VA examiner in a September 2012 VA spine examination report. After the Veteran has signed the appropriate releases, those records should be obtained and associated with the Veteran's physical claims folders or uploaded to his Virtual VA electronic claims file. All attempts to procure records should be documented in the Veteran's physical claims files. If the AMC/RO cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the files. The Veteran and his representative are to be notified of unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit those records for VA review. 2. When the development requested has been completed, the case should be reviewed by the RO on the basis of additional evidence added to the claims files since the most recent supplemental statement of the case (SSOC). The claims for service connection for right and left knee disabilities and erectile dysfunction, to include, in part, as secondary to his service-connected low back disability and right and left knee disabilities on appeal are considered inextricably intertwined and should be adjudicated accordingly. If any benefit sought is not granted, the Veteran and his representative should be furnished a SSOC that addresses all the evidence received after issuance of the January 2013 SSOC. They should be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims 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). ______________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs