Citation Nr: 1333497 Decision Date: 10/24/13 Archive Date: 10/24/13 DOCKET NO. 11-08 879A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to an initial compensable disability rating for hemorrhoids. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD K. J. Kunz, Counsel INTRODUCTION The Veteran served on active duty from December 1974 to March 1980. This appeal comes before the Board of Veterans' Appeals (Board) from a February 2010 rating decision by the Roanoke, Virginia Regional Office (RO) of the United States Department of Veterans Affairs (VA). The RO granted service connection for hemorrhoids and assigned a 0 percent, noncompensable disability rating. Also in that decision the RO denied service connection for gastrointestinal problems. The issue of service connection for back disability was previously on appeal. In a December 2011 rating decision the RO granted service connection for back disability described as "intervertebral disc syndrome of the lumbar spine with degenerative disc disease." The RO also granted service connection and a separate disability rating for sciatica of the left lower extremity. Those grants resolved the appeal for service connection for back disability. While the Veteran's appeal for service connection for gastrointestinal problems was pending, the RO, in a March 2012 rating decision, granted service connection for a disorder described as "bowel dysfunction," as secondary to service-connected lumbar spine intervertebral disc syndrome. The RO assigned a 0 percent, noncompensable disability rating. In April 2012 the Veteran wrote that she disagreed with the March 2012 grant of service connection on a secondary basis rather than a direct basis. She asserted that her gastrointestinal problems began during service rather than as a result of her spine and disc disorders. The Board notes that the RO's finding as to the cause of the service-connected gastrointestinal disorders, even if different from the cause the Veteran asserts, does not affect the outcome of the service connection claim. The service connection claim has been granted and the appeal for service connection is, therefore, is resolved. It is important for the Veteran to understand that there is simply nothing for the Board to adjudicate. In statements dated in January and April 2012, the Veteran asserted that her service-connected gastrointestinal disorders include, in addition to bowel dysfunction, gastritis, a hiatal hernia, gastroesophageal reflux disorder (GERD), and gallbladder disease. While this is not clear, the Veteran appears to have raised claims for service connection for each of those disorders, perhaps as separate problems from "bowel dysfunction". Thus, while not clear, it appears the issues of service connection for gastritis, hiatal hernia, GERD, and gallbladder disease, in each case including as secondary to service-connected gastrointestinal disorders or bowel dysfunction, as a separate disability, have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action (if needed). In this regard, the AOJ may wish to seek additional clarification from the Veteran and her representative. In this regard, in a January 2012 rating decision the RO granted the Veteran's claim for a total disability rating based on individual unemployability (TDIU). As the TDIU provides for disability compensation at the 100 percent rate, the Board notes that the additional claims that have been raised, if granted, would not necessarily provide any greater compensation (in this regard, it is important for the Veteran to understand that a rating may not go beyond "100%"). In that light, the Veteran, in consultation with her representative, may wish to consider withdrawing any other claims. VA must address the claims, even though they may not be able to result in additional compensation, unless the Veteran withdraws them (in writing), assuming these claims have been raised (which is unclear for the record and may need clarification from the Veteran). The Board has reviewed both the Veteran's paper claims file and the Veteran's file on the Virtual VA electronic file system, to ensure a total review of the evidence. Please note 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 hemorrhoids are chronic or constant, are irreducible, and produce rectal pain after a bowel movement and with prolonged sitting. CONCLUSION OF LAW The Veteran's hemorrhoids meet the criteria for a 10 percent disability rating. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. Part 4, including §§ 4.1, 4.2, 4.7, 4.10, 4.114, Diagnostic Code 7336 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran appealed the initial 0 percent rating that the RO assigned for her hemorrhoids. VA assigns disability ratings by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule). 38 U.S.C.A. § 1155; 38 C.F.R. Part 4, including §§ 4.1, 4.2, 4.10. If two ratings are potentially applicable, the higher rating 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. In determining the current level of impairment, the disability must be considered in the context of the whole recorded history, including service medical records. 38 C.F.R. § 4.2. The United States Court of Appeals for Veterans Claims (Court) has held that, at the time of the assignment of an initial rating for a disability following an initial award of service connection for that disability, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). As the Veteran appealed the initial rating that the RO assigned, the Board will consider the evidence for the entire period since June 2, 2009, the effective date of service connection for hemorrhoids. The Board will consider whether a higher rating is warranted for any part of that period. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a claim, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The VA rating schedule provides for rating external or internal hemorrhoids as follows: With persistent bleeding and with secondary anemia, or with fissures ........................................ 20 percent Large or thrombotic, irreducible, with excessive redundant tissue, evidencing frequent recurrences ......... 10 percent Mild or moderate .................................... 0 percent 38 C.F.R. § 4.114, Diagnostic Code 7336 (2013). On VA examination in October 2009, the Veteran reported a history of hemorrhoids since 1977. She stated that hemorrhoids were constantly present. She indicated that her hemorrhoids were manifested by pain, swelling, bleeding, anal itching, and a nagging feeling to empty the bowel. She stated that she had severe constipation and was unable to more her bowels unless she used enemas or suppositories. She reported that it was hard to sit after bowel movements. She indicated that she had rectal area pain with prolonged sitting. She related that the hemorrhoids necessitated hospital treatment for bleeding in 1999. The examiner observed external hemorrhoids. He stated that the hemorrhoids were not reducible. He did not characterize the size of the hemorrhoids. He reported that thrombosis was absent and that there was not excessive redundant tissue. He indicated that there was no evidence of frequent recurrences. He observed no evidence of bleeding or fissures. There were multiple anal tags. The examiner reviewed hemoglobin and hematocrit test results and did not find anemia. In May 2013 a private primary care physician wrote that the Veteran has chronic hemorrhoids. Examination indicated that the Veteran's hemorrhoids are irreducible. Examination did not show that her hemorrhoids were thrombotic. The evidence, including the examination report, does not contain any information on the size of the hemorrhoids, and so does not address whether they are large. While the examiner found that there was no evidence of frequent recurrences, the Veteran reported that the hemorrhoids are constantly present, and her primary care physician stated that her hemorrhoids are chronic. In the matter of frequency of hemorrhoids, chronic or constant presence is at least as frequent or persistent as frequent recurrence. As the hemorrhoids are irreducible and are chronic or constant, they meet or resemble at least some of the criteria for a compensable 10 percent rating. Considering also the impairment in the form of rectal area pain with prolonged sitting and with sitting after bowel movement, the disability picture reasonably approximates the criteria for a 10 percent rating. The Board therefore grants a 10 percent rating. The evidence regarding the Veteran's hemorrhoids does not suggest persistent bleeding, secondary anemia, or fissures. Her hemorrhoids therefore do not meet the criteria for a 20 percent rating. In this regard, it is important to note that the Veteran's own statements would not seem to support such an evaluation. When there is an exceptional disability picture, such that the rating schedule criteria do not reasonably describe a claimant's disability level and symptomatology, an RO may refer a case to the VA Under Secretary for Benefits or to the Director of the VA Compensation and Pension Service for consideration of an extraschedular rating. See 38 C.F.R. § 3.321(b)(1) (2012); see also Thun v. Peake, 22 Vet. App. 111, 115 (2008). Extraschedular ratings are limited to cases in which it is impractical to apply the regular standards of the rating schedule because there is an exceptional or unusual disability picture, with such related factors as frequent hospitalizations or marked interference with employment. 38 C.F.R. § 3.321(b)(1). The Veteran reported a history of one hospitalization for hemorrhoid bleeding; but there is no evidence that her hemorrhoids have required frequent hospitalizations. She has indicated that the hemorrhoids sometimes produce pain with sitting, but she has not indicated, and the evidence does not suggest, that the effects of her hemorrhoids interfere with her capacity for employment to a marked extent. The rating criteria are reasonably adequate to address the manifestations of her hemorrhoids, and those criteria provide for a higher rating for more severe manifestations. Therefore it is not necessary to refer the rating of her hemorrhoids for consideration of extraschedular ratings. The RO has assigned a TDIU in this case; so it is not necessary to consider whether the record raises the issue of unemployability. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) redefined VA's duty to assist a claimant in the development of a claim for VA benefits. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013). The notice requirements of the VCAA require VA to notify the Veteran of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. 38 C.F.R. § 3.159(b). The Court has stated that the 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/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). Insufficiency in the timing or content of VCAA notice is harmless, however, if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). VA provided the Veteran with VCAA notice in a September 2009 letter, issued before the initial decision on service connection and the rating for hemorrhoids. That letter addressed the information and evidence necessary to substantiate claims for service connection. The RO informed the Veteran how VA assigns increased disability ratings and effective dates. The notice also addressed who was to provide the evidence. The record regarding the Veteran's claims (including the paper claims file and information in electronic form) contains service treatment records, records of post-service treatment and examinations, and statements from the Veteran. A VA medical examination that addressed the characteristics and effects of the Veteran's hemorrhoids was performed by a qualified clinician. The examiner provided observations and findings relevant to evaluating hemorrhoids. The examination and the examination report are adequate for rating the Veteran's hemorrhoids. The Board finds that the Veteran was notified and aware of the evidence needed to substantiate her claims, as well as the avenues through which he might obtain such evidence, and the allocation of responsibilities between him and VA in obtaining such evidence. The Veteran actively participated in the claims process by providing evidence and argument. Thus, the Veteran was provided with a meaningful opportunity to participate in the claims process, and she has done so. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication nor to have caused injury to the Veteran's interests. See Pelegrini, 18 Vet. App. at 121. Therefore, any such error is harmless, and does not prohibit consideration of the claim. See Conway, 353 F.3d at 1374, Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). ORDER A 10 percent disability rating for hemorrhoids is granted, subject to the laws and regulations controlling the disbursement of monetary benefits. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs