Citation Nr: 1331829	
Decision Date: 10/03/13    Archive Date: 10/07/13

DOCKET NO.  10-02 747	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin


THE ISSUES

1.  Entitlement to service connection for a left posterior thigh cyst.

2.  Entitlement to an initial disability rating in excess of 20 percent for hypertension.

3.  Entitlement to a disability rating in excess of 30 percent for bilateral pes planus.

4.  Entitlement to a compensable disability rating for hemorrhoids.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

David Gratz, Counsel


INTRODUCTION

The Veteran served on active duty from April 1971 to June 1987.

This matter comes 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 Milwaukee, Wisconsin, which denied the Veteran's claim of service connection for a left posterior thigh cyst; granted service connection for hypertension, and assigned a 10 percent rating, effective as of the June 23, 2008 date of claim; continued the Veteran's 30 percent rating for bilateral pes planus; and continued the Veteran's noncompensable rating for hemorrhoids.  In an October 2012 rating decision, the RO increased the Veteran's rating for hypertension from 10 to 20 percent as of June 23, 2008.


FINDINGS OF FACT

1.  The preponderance of the evidence shows that the Veteran's left posterior thigh cyst was not present in service or until many years thereafter and is not related to service or to an incident of service origin, including exposure to Agent Orange.

2.  The Veteran's hypertension has been characterized by diastolic pressure that is predominantly less than 120.

3.  The Veteran's bilateral pes planus is not pronounced, and is not characterized by marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement or severe spasm of the tendo achillis on manipulation.

4.  The Veteran's hemorrhoids are mild or moderate, and are not large or thrombotic, irreducible, with excessive redundant tissue, evidencing frequent recurrences, or characterized by persistent bleeding and secondary anemia, or fissures.

CONCLUSIONS OF LAW

1.  The criteria for service connection for a left posterior thigh cyst have not been met.  38 U.S.C.A. §§ 1110, 1131, 1154(a), 5107(b) (West 2002); 38 U.S.C.A. §§ 3.102, 3.303, 3.307, 3.309 (2012).

2.  The criteria for an initial disability rating in excess of 20 percent for hypertension have not been met.  38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. § 3.102, 3.321, 4.104, Diagnostic Code (DC) 7101 (2012).

3.  The criteria for a disability rating in excess of 30 percent for bilateral pes planus have not been met.  38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. § 3.102, 3.321, 4.71a, DC 5276 (2012).

4.  The criteria for a compensable disability rating for hemorrhoids have not been met.  38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. § 3.102, 3.321, 4.114, DC 7336 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

VA has a duty to provide notification to the Veteran with respect to establishing entitlement to benefits, and a duty to assist with development of evidence under 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159(b).

With respect to the issue of entitlement to service connection for a left posterior thigh cyst, the duty to notify was satisfied prior to the initial Agency of Original Jurisdiction (AOJ) decision by way of a letter sent to the Veteran in July 2008 that informed him of his duty and the VA's duty for obtaining evidence.  In addition, the letter met the notification requirements set out in Dingess v. Nicholson, 19 Vet. App. 473 (2006).

With respect to the issue of entitlement to an initial disability rating for hypertension in excess of 20 percent, this claim arises from a disagreement with the initial disability rating that was assigned following the grant of service connection.  Courts have held that once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).

With respect to the Veteran's claims for entitlement to a compensable rating for hemorrhoids, and for entitlement to a disability rating in excess of 30 percent for pes planus, the notice requirements regarding an increased rating were accomplished in the July 2008 letter that was provided before the January 2009 initial adjudication of the claim.  The letter notified the Veteran of the information and evidence needed to substantiate his increased rating claims.  He was told that the evidence must show that his service-connected disabilities had gotten worse.  The letters also provided notice of the type of evidence necessary to establish a disability rating or effective date for the disability under consideration, pursuant to the holding in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007).  Accordingly, the Board finds that VA satisfied its duty to notify under the VCAA in accordance with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)(1).

VA also has a duty to assist the Veteran in the development of the claims.  This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  The Board finds that all relevant facts have been properly developed, and that all available evidence necessary for equitable resolution of the issue has been obtained.  The Veteran's service treatment and personnel records, VA treatment records, and lay statements have been obtained.  Additionally, VA received a response from the Social Security Administration in April 2011 to the effect that no medical records regarding the Veteran are on file.

A medical examination or medical opinion is necessary in a claim for service connection if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but: (A) Contains competent lay or medical evidence of a currently diagnosed disability or persistent or recurrent symptoms of disability; (B) Establishes that the Veteran suffered an event, injury or disease in service, or has a disease or symptoms of a disease listed in §§ 3.309, 3.313, 3.316, or 3.317 manifesting during an applicable presumptive period provided the claimant has the required service or triggering event to qualify for that presumption; and (C) Indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service or with another service-connected disability.  See 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006).  Here, the record before the Board does not indicate that the Veteran's current left posterior thigh cyst had a causal connection or was associated with his active military service, so an examination is not required.

A VA medical opinion will be considered adequate if it (1) is based upon consideration of the Veteran's prior medical history, (2) describes the disability in sufficient detail so that the Board's "'evaluation of the claimed disability will be a fully informed one,'" Ardison v. Brown, 6 Vet.App. 405, 407 (1994) (quoting Green v. Derwinski, 1 Vet.App. 121, 124 (1991)), and (3) "supports its conclusion with an analysis that the Board can consider and weigh against contrary opinions."  Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007).  The Board finds that the November 2008 VA examination reports as to the Veteran's pes planus and hemorrhoids, and the October 2012 VA examination reports as to the Veteran's pes planus, hemorrhoids, and hypertension are adequate because the examiners discussed the Veteran's medical history, described the service-connected disabilities and their effect on employability in sufficient detail, and supported all conclusions with analysis and, where possible, objective test results.

The Veteran has not indicated there are any additional records that VA should seek to obtain on his behalf.  Thus, the Board finds that VA made reasonable efforts to satisfy its duty assist and to obtain evidence necessary to substantiate the Veteran's claim.  No further assistance to develop evidence is required.

Analysis: Service Connection for a Left Posterior Thigh Cyst

The Veteran contends in his June 2008 claim that:

I do not know what sort of cyst I have, but I suspect it has something to do with my exposure to Agent Orange.  My reason for this thinking is that my father, who was also exposed to Agent Orange, was service connected for a cyst condition that is just like this one.

The cyst actually started on the top of my upper leg, just above my kneecap.  Since then it has moved to the back of my thigh.  It is approximately the size of a half dollar and is hard to the touch.  It causes me intermittent pain, generally at night.

In February 2009, the Veteran reported experiencing a burning sensation with pain in the area of the cyst every few days; he also reported that the cyst has grown appreciably over time.  In January 2010, the Veteran stated that:

I continue to believe that this cyst is the result of my exposure to Agent Orange.  It did not appear until 2004, but it is common that problems caused by Agent Orange don't appear until years after.

Looking at the list of conditions recognized as being related to Agent Orange, I believe the cyst I have is most closely related to soft tissue sarcoma.

Looking at another angle, I was also exposed to the fallout from the Chernobyl explosion.  I reached the area in either March or April 1986, and was there for a year.  Given what has been discovered about exposure to the fallout in the area, I find it hard to believe that this could not also have been related to my duty in the immediate proximity.

Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table).

In making all determinations, the Board must fully consider the lay assertions of record.  A layperson is competent to report on the onset and continuity of his current symptomatology.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on all things of which he has personal knowledge derived from his own senses); 38 C.F.R. § 3.159(a)(2).  Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77.

The Board is charged with the duty to assess the credibility and weight given to evidence.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001).  In Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that the Board had inherent fact-finding ability.  Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002).  Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992).

As a finder of fact, when considering whether lay evidence is credible, the Board may properly consider the internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing.  See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996).

In the present case, the Board finds that the preponderance of the evidence is against a grant of service connection for a left posterior thigh cyst.

The Board acknowledges that the Veteran has a current diagnosis; a VA dermatology physician diagnosed the disorder in February 2007 as "probably intradermal inclusion cyst versus lipoma [a benign tumor composed of body fat] of the left posterior thigh with question of increase in size."  Although that diagnosis occurred prior to the June 2008 date of claim, there is no indication that it has resolved since that time.

The Board notes that the Veteran does not contend, and the evidence does not show, that his left posterior thigh cyst began during his service.  Specifically, the Veteran reported in January 2010 that it did not appear until 2004.  Additionally, although the Board's own review of the record shows VA clinical findings of a lump on the Veteran's left thigh in July 1991 and December 1991, there is no record of it occurring during his service, which ended in June 1987.

As the Veteran's service treatment records show that he served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, and in the absence of affirmative evidence to the contrary, he is presumed to have been exposed to herbicides during his Vietnam service.  38 C.F.R. § 3.307(a)(6)(iii) (2012).  However, no presumptions for service connection exist for a cyst, whether as a chronic disease, or as a result of exposure to radiation or herbicides.  38 C.F.R. § 3.309 (2012).  Furthermore, the Veteran is not competent to diagnose his cyst as soft tissue sarcoma, as diagnosing that disorder involves complex medical questions and the interpretation of objective medical tests.  See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007).  Consequently, service connection is not warranted on a presumptive basis.

Nevertheless, service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d) (2012).  However, the Board finds that the preponderance of the evidence is against the finding of an in-service incurrence of a left thigh cyst.  While service connection for a disorder may be granted based on exposure to herbicides or radiation on a nonpresumptive basis, the evidence in this case does not support such a grant because the Veteran is not competent to relate his left thigh cyst to herbicide or radiation exposure, and he has not provided an adequate rationale for linking his left thigh cyst with any in-service event.  See Woehlaert, 21 Vet. App. at 462 (2007); see also Kahana v. Shinseki, 24 Vet. App. 428 (2011); Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge).

In sum, the Board finds that the most probative evidence fails to link the Veteran's left posterior thigh cyst to service.  Accordingly, service connection for a left posterior thigh cyst is not warranted.

In reaching the conclusions above, 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, that doctrine is not applicable in the instant appeal.  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).

Analysis: Initial Rating for Hypertension

The Veteran contends in his February 2009 notice of disagreement that his blood pressure is not properly regulated-as shown by his high systolic and diastolic readings-even though he takes three different blood pressure medications.  In his January 2010 substantive appeal, the Veteran stated that "I do not take my meds 100% of the time because sometimes I do forget them.  However, I wouldn't consider myself 'noncompliant.'"  The Veteran further stated that "I do not believe that missing a dose now and then should have the [e]ffect of the fluctuations I experience.  I do believe that my blood pressure is poorly controlled, and this is not a result of my actions."

 Disability ratings are based upon VA's Schedule for Rating Disabilities as set forth in 38 C.F.R. Part 4.  The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity in civil occupations.  38 U.S.C.A. § 1155.  The disability must be viewed in relation to its history.  38 C.F.R. § 4.1.  A higher evaluation shall be assigned where the disability picture more nearly approximates the criteria for the next higher evaluation.  38 C.F.R. § 4.7.  Where, as here, the question for consideration is the propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged ratings" is required.  Fenderson v. West 12 Vet. App. 119, 126 (1999).

The Board notes that the assignment of a particular diagnostic code is "completely dependent on the facts of a particular case."  See Butts v. Brown, 5 Vet. App. 532, 538 (1993).  One diagnostic code may be more appropriate than another based on such factors as the veteran's relevant medical history, his current diagnosis, and demonstrated symptomatology.  Any change in diagnostic code by a VA adjudicator must be specifically explained.  See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992).

The RO has evaluated the Veteran's hypertension at 20 percent under 38 C.F.R. § 4.104, Diagnostic Code 7101, as of June 23, 2008-the date of the Veteran's claim for service connection.

Under 38 C.F.R. § 4.104, Diagnostic Code 7101, a 20 percent rating applies where diastolic pressure is predominantly 110 or more, or; systolic pressure is predominantly 200 or more.  A 40 percent rating applies where diastolic pressure is predominantly 120 or more.  A 60 percent rating applies where diastolic pressure is predominantly 130 or more.

The Board finds that the Veteran's diastolic pressure is not predominantly 120 or more.

In July 2008, the Veteran had blood pressure readings of 139/89 (systolic/diastolic) and 136/82.  In October 2008, his readings were 205/132 and 152/102.

In February 2009, the Veteran had readings of 180/110, 172/101, and 142/82.  The VA clinician diagnosed the Veteran with uncontrolled hypertension, found that he was "non-adherent to medications," and instructed him of the need to "be more compliant" with his medications due to the risk factors associated with high blood pressure.

In May 2010, the Veteran had readings of 179/120 and 164/115.  The VA physician diagnosed the Veteran with uncontrolled hypertension.

In October 2012, VA provided the Veteran with an examination of his hypertension.  The Veteran reported that he was compliant with his blood pressure medications.  The examiner found that the Veteran's blood pressure readings were 180/110, 175/108, and 177/110.  The examiner diagnosed the Veteran with hypertension and opined that his poorly controlled hypertension would limit him from jobs that required good blood pressure control, such as being a pilot.

After reviewing all of the clinical evidence and subjective complaints since the effective date of service connection, the Board finds that the preponderance of the evidence shows that an initial disability evaluation in excess of 20 percent for the Veteran's hypertension is not warranted under 38 C.F.R. § 4.104, Diagnostic Code 7101, because his diastolic pressure is not predominantly 120 or more.

In exceptional cases an extraschedular rating may be provided.  38 C.F.R. § 3.321.  The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extra-schedular rating: (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.  Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).  Here, the applicable rating criteria adequately contemplate the manifestations of the Veteran's hypertension.  The rating criteria are therefore adequate to evaluate the hypertension and referral for consideration of an extraschedular rating is not warranted.

Finally, the Court of Appeals for Veterans Claims has held that a total disability rating based on individual unemployability (TDIU) is a part of a claim for increased rating.  Rice v. Shinseki, 22 Vet. App. 447 (2009).  Where a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability, the requirement in 38 C.F.R. § 3.155(a) (2001) that an informal claim "identify the benefit sought" has been satisfied and VA must consider whether the Veteran is entitled to a total rating for compensation purposes based on individual unemployability (TDIU).  Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001).

The Veteran is already in receipt of a TDIU due to his service-connected disabilities.  Nevertheless, the Board must consider whether a TDIU is warranted solely as a result of the Veteran's hypertension because of the potential for special monthly compensation under 38 U.S.C.A. § 1114(s); 38 C.F.R. § 3.350(i).  The Veteran has not reported that his hypertension alone renders him unemployable, and no clinician has so found.  Thus, TDIU is not raised by the record.

Analysis: Increased Rating for Bilateral Pes Planus

The Veteran contends in his June 2008 claim that he is now being treated with arch support inserts for his shoes, that his feet hurt when he is active or standing for too long, and that his heels lock when he walks upstairs.  In his February 2009 notice of disagreement, the Veteran asserted that his disability rating should be increased above 30 percent because he is now receiving treatment for his feet and inserts for his shoes, whereas he previously was receiving a 30 percent rating without those treatments or inserts.  Additionally, the Veteran reported having swelling toes; sharp, jabbing pains in the balls of his feet; and redness on the bottom outsides of his feet.  In his January 2010 substantive appeal, the Veteran stated that he has foot cramping, particularly in the bottoms of his feet, and that his painful condition has not been improved by orthotics.

Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4.  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. 38 C.F.R. § 4.7 (2012).

To evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition.  Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991).  However, where an increase in the level of a disability is at issue, the primary concern is the present level of disability.  Francisco v. Brown, 7 Vet. App. 55 (1994).  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 (2007).  Thus, the analysis in the following decision is undertaken with consideration of the possibility that different ratings may be warranted for different time periods.

The RO has evaluated the Veteran's bilateral pes planus at 30 percent under 38 C.F.R. § 4.71a, Diagnostic Code 5276, throughout the pendency of the appeal.

Under 38 C.F.R. § 4.71a, Diagnostic Code 5276, a 30 percent rating applies where there is severe bilateral acquired flatfoot with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, and characteristic callosities.  A 50 percent rating applies where there is pronounced bilateral acquired flatfoot with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, and no improvement by orthopedic shoes or appliances.

In November 2008, VA provided the Veteran with an examination of his pes planus.  The Veteran reported having flare-ups of bilateral foot pain three times per day, precipitated by walking and lasting for as long as he is walking.  He further reported using shoe inserts which help somewhat.  The examiner diagnosed the Veteran with bilateral mild pes planus deformities, including diffusely tender feet on the plantar surface bilaterally at the arches, heels, and over the first tarsometatarsal joints, and mild callus formation over the B plantar surface of his first tarsometatarsal joints.

In February 2009, a VA clinician found eversion of the rear foot bilaterally, more so on the left than the right.  He diagnosed the Veteran with flatfeet.  In May 2009, the clinician noted that the Veteran reported going barefoot a lot; he recommended wearing shoes, with support, even in the house.

In October 2012, VA provided the Veteran with another examination of his pes planus.  The Veteran reported that his pes planus has not been improved by orthotics, and that he has sharp foot pain which is unrelated to walking or standing.  The examiner found that the Veteran does not have marked pronation of either foot, extreme tenderness of the plantar surface of one or both feet, or marked inward displacement and severe spasm of the Achilles tendon (rigid hindfoot) on manipulation.  The examiner diagnosed the Veteran with flatfoot, and found that it does not impact his ability to work.

After reviewing all of the clinical evidence and subjective complaints during the pendency of the claim, the Board finds that the preponderance of the evidence shows that a disability evaluation in excess of 30 percent for the Veteran's pes planus is not warranted under 38 C.F.R. § 4.71a, Diagnostic Code 5276, because the clinicians' findings, including those of the October 2012 VA examiner, show that the criteria are not met.

The applicable rating criteria adequately contemplate the manifestations of the Veteran's pes planus.  Moreover, even if the established schedular criteria are found to be inadequate to describe the severity and symptoms of the Veteran's pes planus, this case does not present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization.  The Board thus finds that referral for consideration of an extraschedular rating is unwarranted.  See 38 C.F.R. § 3.321; see also Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).

Finally, as discussed above, the Veteran is already in receipt of a TDIU due to his service-connected disabilities.  Nevertheless, the Board must consider whether a TDIU is warranted solely as a result of the Veteran's pes planus because of the potential for special monthly compensation under 38 U.S.C.A. § 1114(s); 38 C.F.R. § 3.350(i).  The Veteran has not reported that his pes planus alone renders him unemployable, and the October 2012 VA examiner expressly found that it does not impact his ability to work.  Thus, TDIU is not raised by the record.

Analysis: Compensable Rating for Hemorrhoids

The Veteran contends in his June 2008 claim that he has itching and bleeding hemorrhoids for which VA clinicians have given him suppositories.  He further reports being told that he has internal scar tissue from previous hemorrhoids.  He stated that it is hard to sit during flare-ups.

In his February 2009 notice of disagreement, the Veteran stated that his hemorrhoids have not bothered him for awhile, but that "very often there is bleeding of a bright red color."  He also reported that he has bleeding every time he has a bowel movement.  In his January 2010 substantive appeal, the Veteran stated that he has bleeding internal hemorrhoids at least three times per month, accompanied by pain and itching, and lasting for up to three days.  The Veteran wrote that "it has been suggested that there might even be an anal fissure."

The RO has evaluated the Veteran's hemorrhoids as noncompensable under 38 C.F.R. § 4.114, Diagnostic Code 7336, throughout the pendency of the appeal.

Under 38 C.F.R. § 4.114, Diagnostic Code 7336, a noncompensable rating applies where there is mild or moderate (external or internal) hemorrhoids.  A 10 percent rating applies where the hemorrhoids are large or thrombotic, and irreducible, with excessive redundant tissue evidencing frequent recurrences.  A 20 percent rating applies where there is persistent bleeding and secondary anemia, or fissures.

In July 2007, the Veteran told a treating VA physician that he had bleeding hemorrhoids, and the physician prescribed a suppository.  The Veteran again reported bleeding hemorrhoids to a VA clinician in January 2010.

In November 2008, VA provided the Veteran with an examination of his hemorrhoids.  The Veteran reported that his hemorrhoids do not interfere with his activities of daily living (ADL's).  He reported that he has bleeding about once per day with bowel movements, but that there are times when he has a bowel movement and does not notice any blood.  The Veteran denied any surgeries or hospitalization for his hemorrhoids.  The examiner found no external hemorrhoids, no bleeding, no thrombosed hemorrhoids, no peri anal erythema or discharge or tenderness; he concluded that the rectal examination was normal.

In October 2012, VA provided the Veteran with another examination of his hemorrhoids.  The examiner found that the Veteran had mild or moderate hemorrhoids, consisting of intermittent bleeding (recently resolved) and itching.  The examiner found small internal hemorrhoids with no bleeding and no scars.  The examiner found that the Veteran's hemorrhoids do not impact his ability to work.

After reviewing all of the clinical evidence and subjective complaints during the pendency of the claim, the Board finds that the preponderance of the evidence shows that a compensable disability rating for the Veteran's hemorrhoids is not warranted under 38 C.F.R. § 4.114, Diagnostic Code 7336, because the clinicians' findings, including those of the October 2012 VA examiner, show that the criteria are not met.

The applicable rating criteria adequately contemplate the manifestations of the Veteran's hemorrhoids.  The Board thus finds that referral for consideration of an extraschedular rating is unwarranted.  See 38 C.F.R. § 3.321; see also Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).

Finally, as discussed above, the Veteran is already in receipt of a TDIU due to his service-connected disabilities.  Nevertheless, the Board must consider whether a TDIU is warranted solely as a result of the Veteran's hemorrhoids because of the potential for special monthly compensation under 38 U.S.C.A. § 1114(s); 38 C.F.R. § 3.350(i).  The Veteran has not reported that his hemorrhoids alone render him unemployable, and the October 2012 VA examiner expressly found that it does not impact his ability to work.  Thus, TDIU is not raised by the record.


ORDER

Service connection for a left posterior thigh cyst is denied.

An initial rating in excess of 20 percent for hypertension is denied.

A disability rating in excess of 30 percent for bilateral pes planus is denied.

A compensable rating for hemorrhoids is denied.




______________________________________________
STEVEN D. REISS
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs