Citation Nr: 1332497 Decision Date: 10/21/13 Archive Date: 10/24/13 DOCKET NO. 10-11 529 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to a compensable rating for hemorrhoids. 2. Entitlement to a compensable rating for hiatal hernia with gallstones. REPRESENTATION Veteran represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD J. Fussell, Counsel INTRODUCTION The Veteran had active service from July 1967 to January 1970 and from January 1974 to September 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. In addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's appeal. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. In the August 2013 Informal Hearing Presentation, the Veteran's representative stated that an April 2008 rating decision deferred the claim of entitlement to service connection for onychomycosis and no final rating decision had addressed that matter. However, the Board notes that the July 2008 rating decision granted service connection for onychomycosis, which was made part of the service-connected diabetes mellitus for rating purposes. Therefore, as such issue has been adjudicated, referral of it is not necessary. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the Veteran if further action is required. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013). The Veteran contends that he is entitled to compensable ratings for his hemorrhoids and hiatal hernia with gallstones. However, for the reasons discussed below, the Board finds that additional development is necessary prior to the Board's adjudication of such claims. As an initial matter, the Board finds that a remand is necessary in order to provide the Veteran with proper Veterans Claims Assistance Act of 2000 (VCAA) notice with respect to his increased rating claims. In this regard, it appears that such claims arose out of the Veteran's application for a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), which he claimed based on his service-connected diabetes mellitus. The VCAA notice provided during the course of the claims referenced the claims for an increased rating for diabetes and a TDIU. While the Veteran was provided with a June 2009 letter in which the rating criteria for his hiatal hernia and hemorrhoids was referenced, and he was informed of the type of evidence considered in assigning a disability rating, he was not provided with full notice pertaining to the evidence and information necessary to substantiate his claims for increased ratings, the division of responsibilities between him and VA in obtaining such evidence and information, and the evidence and information needed to assign an effective date in accordance with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Therefore, such should be accomplished on remand. The Board further finds that a remand is necessary in order to afford the Veteran a contemporaneous VA examination so as to determine the current nature and severity of his hemorrhoids and hiatal hernia with gallstones. In this regard, the Board observes that he was last examined by VA in June 2008. At such time, it was noted that the Veteran's hemorrhoids were controlled without any medication. He had informed the examiner that he had a small internal hemorrhoid, which does not come out, bleeds once or twice a year, and is controlled with diet and sitz baths. Pertinent to his hiatal hernia with gallstones, the Veteran reported that such was controlled without medication and mostly by diet. There were no relevant examination findings. However, the examiner failed to discuss private treatment records dated in 2007 and 2008 that reveal rectal bleeding and a diagnosis of anemia. In this regard, a May 2007 record reveals an impression of iron deficiency anemia, rectal bleeding, and history of colonic polyps. Additionally, a report of an upper endoscopy in June 2007 revealed an impression of gastritis, hiatal hernia, and erosive esophagitis. The postoperative diagnosis was iron deficiency. Likewise, a January 2008 record reveals a history of anemia. Such a finding is particularly relevant as the Veteran's hemorrhoids and hiatal hernia with gallstones are both rated under Diagnostic Codes that include consideration of anemia. In this regard, the Veteran is evaluated for his hemorrhoids under 38 C.F.R. § 4.114, Diagnostic Code 7336, pertinent to internal or external hemorrhoids. He is evaluated for his hiatal hernia with gallstones under 38 C.F.R. § 4.114, Diagnostic Code 7346. Therefore, in light of the findings of anemia and the fact that it has been over five years since the Veteran's last VA examination, the Board finds that a remand is necessary in order to schedule him for an appropriate VA examination in order to assess the current nature and severity of hemorrhoids and hiatal hernia with gallstones, to include whether such result in anemia. The Board notes that 38 C.F.R. § 4.113 provides that there are diseases of the digestive system, particularly within the abdomen, which, while differing in the site of pathology, produce a common disability picture characterized in the main by varying degrees of abdominal distress or pain, anemia and disturbances in nutrition. Consequently, certain coexisting diseases in this area, as indicated in the instruction under the title "Diseases of the Digestive System," do not lend themselves to distinct and separate disability evaluations without violating the fundamental principle relating to pyramiding as outlined in § 4.14. Additionally, 38 C.F.R. § 4.114 indicates that ratings under diagnostic codes 7301 to 7329, inclusive, 7331, 7342, and 7345 to 7348 inclusive, will not be combined with each other. A single evaluation will be assigned under the diagnostic code which reflects the predominant disability picture, with elevation to the next higher evaluation where the severity of the overall disability warrants such evaluation. In the instant case, the Veteran is not outright prohibited from receiving separate ratings under Diagnostic Code 7336 and 7346 under 38 C.F.R. § 4.114; however, consideration must be given to the principles articulated in 38 C.F.R. § 4.113. In this regard, pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a Veteran's service-connected disabilities. 38 C.F.R. § 4.14. It is possible for a Veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes, but the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Therefore, in the readjudication of the Veteran's claims, the agency of original jurisdiction (AOJ) should be mindful of such principles. Finally, while on remand, the Veteran should be given an opportunity to identify any VA or non-VA healthcare provider who has treated him for his hemorrhoids and hiatal hernia with gallstones. Thereafter, any identified records should be obtained for consideration in the Veteran's appeal. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with proper VCAA notice regarding his claims for increased ratings for his hiatal hernia with gallstones and hemorrhoids, to include notice consistent with Dingess/Hartman, supra. 2. The Veteran should be given an opportunity to identify any VA or non-VA healthcare provider who treated him for hemorrhoids and hiatal hernia with gallstones. After securing any necessary authorization from him, obtain all identified treatment records. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 3. After all outstanding records have been associated with the claims file, the Veteran should be afforded an appropriate VA examination in order to determine the current nature and severity of his service-connected hemorrhoids and hiatal hernia with gallstones. The claims file, to include a copy of this Remand, must be made available to and be reviewed by the examiner. Any indicated evaluations, studies, and tests should be conducted. The examiner should describe the nature and severity of all manifestations of the Veteran's hemorrhoids and hiatal hernia with gallstones. As to the Veteran's hemorrhoids, the examiner should specifically indicate whether he has hemorrhoids and, if so, whether they are mild or moderate, or large or thrombotic, irreducible, with excessive redundant tissue and frequent recurrences of hemorrhoids. The examiner should also indicate whether the Veteran has hemorrhoids with persistent bleeding with secondary anemia or fissures. As to the Veteran's hiatal hernia with gallstones the examiner should specifically indicate whether he has persistently recurrent epigastric distress, dysphagia, pyrosis, regurgitation, substernal or arm or shoulder pain, pain, vomiting, material weight loss, hematemesis, melena, and/or moderate anemia. The examiner should also indicate whether such symptoms are productive of considerable impairment of health or severe impairment of health. Because anemia is a criteria for the purpose of rating each of the service-connected disabilities at issue, the attention of the examiner is specifically drawn to the question of whether, for the period beginning one year prior to filing his claim for increased ratings, i.e., January 2007, the Veteran has had anemia and, if so, whether it is due to either his service-connected hemorrhoids or his service-connected hiatal hernia with gallstones, or to some other nonservice-connected condition. The examiner should also discuss the impact, if any, of the Veteran's service-connected hemorrhoids and/or hiatal hernia with gallstones on his employability. The examiner must provide a rationale for any opinion proffered. 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence. In readjudicating such claims, the AOJ should be mindful of the provisions of 38 C.F.R. § 4.14 and § 4.113. If the claims remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. 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 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). _________________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).