Citation Nr: 1334254 Decision Date: 10/29/13 Archive Date: 11/06/13 DOCKET NO. 10-13 587A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an initial compensable rating for hemorrhoids. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Michael Sanford, Associate Counsel INTRODUCTION The Veteran had active military service from September 1988 to September 2008. This case comes before the Board of Veterans' Appeals (Board) on appeal of a January 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, that established service connection for the Veteran's hemorrhoids. The Veteran has appealed the noncompensable evaluation assigned for the disability. FINDING OF FACT The Veteran's hemorrhoids are manifested by complaints of bleeding, inflammation, and occasional painfulness; large, thrombotic, irreducible, hemorrhoids with excessive redundant tissue evidencing frequent recurrences, or persistent bleeding with anemia or fissures have not been demonstrated. CONCLUSION OF LAW The criteria for an initial compensable evaluation for hemorrhoids are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.2, 4.3, 4.7, 4.114, Diagnostic Code 7336 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). See also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Dingess v. Nicholson, 19 Vet. App. 473 (2006). In cases such as this, where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service connection claim has been more than substantiated, it has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess v. Nicholson, 19 Vet. App. 473 (2006); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The appellant bears the burden of demonstrating any prejudice from defective notice with respect to the downstream elements. Goodwin v. Peake, 22 Vet. App. 128 (2008); see also Shinseki v. Sanders/Simmons, 556 U.S. 396 (2009). There has been no allegation of such error in this case. In any event, the Veteran received notification prior to the initial AOJ decision through a notice letter dated November 2008. The content of the notice letter fully complies with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. The Veteran was notified of the evidence not of record that was necessary to substantiate the claim, and was told that he needed to provide the names of the persons, agency, or company who had additional records to help decide his claim. He was also informed that VA would attempt to determine what additional information was needed to process his claim, and that VA would schedule a VA examination if appropriate, obtain VA medical records, obtain service records, and obtain private treatment reports as indicated. The duty to notify the Veteran was satisfied under the circumstances of this case. 38 U.S.C.A. § 5103 (2012). VA must also make reasonable efforts to assist the appellant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2012). Service treatment records are associated with claims file. All other post-service treatment records and reports identified by the Veteran have also been obtained. The appellant has not identified any additional records that should be obtained prior to a Board decision. Therefore, VA's duty to further assist the Veteran in locating additional records has been satisfied. The Veteran has been afforded a VA examination for his hemorrhoids on appeal. See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4); Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). The Board finds this examination is adequate for the purposes of the evaluating the Veteran's hemorrhoids, as it involved a review of the Veteran's pertinent medical history as well as a clinical examination of the Veteran, and provided a review of relevant symptomatology related to the disability on appeal. See generally Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issues on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103 and 5103A (West 2002); 38 C.F.R. § 3.159 (2012). Merits Under 38 U.S.C.A. § 7104, Board decisions must be based on the entire record, with consideration of all the evidence. The law requires only that the Board address its reasons for rejecting evidence favorable to the claimant. Timberlake v. Gober, 14 Vet. App. 122 (2000). The Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability evaluations. See generally, 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Evidence to be considered in the appeal of an initial assignment of a disability rating is not limited to that reflecting the then current severity of the disorder. Fenderson v. West, 12 Vet. App. 119 (1999). In Fenderson, the Court discussed the concept of the "staging" of ratings, finding that in cases where an initially assigned disability evaluation has been disagreed with, it is possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Fenderson at 126-28; see also Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's hemorrhoids have been assigned an initial noncompensable evaluation pursuant to 38 C.F.R. § 4.114, Diagnostic Code 7336 (2012). Under this diagnostic code, a noncompensable evaluation is assigned for hemorrhoids that are mild or moderate in degree. A 10 percent evaluation is assigned for hemorrhoids which are large or thrombotic, irreducible, with excessive redundant tissue, evidencing frequent recurrences. A maximum 20 percent evaluation is assigned for internal or external hemorrhoids with persistent bleeding and with secondary anemia, or with fissures. 38 C.F.R. § 4.114, Diagnostic Code 7336 (2012). After reviewing the evidence of record, the Board finds that a compensable evaluation is not warranted for the Veteran's hemorrhoids. In this regard, the Board finds that the Veteran's disorder is no more than mild or moderate in severity. A December 2008 VA examination report indicates some internal hemorrhoids, with occasional bleeding. Specifically, the Veteran reported that he suffers rectal bleeding about two times each month. Further, the Veteran does not suffer from anemia. See December 2008 VA Examination Report. Nor is there evidence that the Veteran has fissures. As to the criteria for a 10 percent evaluation, there is evidence that the Veteran's hemorrhoids were thrombosed in the past. See March 1998 Private Treatment Record. However, over ten years later, at his VA examination, it was determined that the Veteran did not have thrombosis. In addition, records from UMPC Mercy (hospital) indicate that he underwent a colonoscopy in June 2008, which revealed external hemorrhoids which were not thrombosed, as well as mild internal hemorrhoids. While the Board does not contest that the Veteran may have suffered thrombosis in March 1998, this was well before the instant appeal period. Moreover, a much more recent evaluation, the December 2008 VA examination, reflects that the Veteran does not suffer thrombosis. The Board concludes that the December 2008 VA examination report is more reflective of the Veteran's present disability picture than those March 1998 private treatment records and finds that the Veteran does not currently suffer thrombosis. The Veteran's hemorrhoids have not required surgery and the Veteran does not experience incontinence. See December 2008 VA Examination Report. There is no further evidence that the Veteran's hemorrhoids are otherwise large or irreducible with excessive redundant tissue. The evidence of record does not show that the Veteran entitled to an initial compensable rating for his hemorrhoids. The Veteran has asserted that his disability causes him a great deal of discomfort and he has experienced severe bleeding on several occasions. The Veteran is competent to report such symptoms. See Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). Moreover, as those symptoms have been consistently reported, the Veteran's assertion of those symptoms is credible. See December 2008 VA Examination Report. The Board also acknowledges that VA outpatient treatment records dated in January and February 2010 reflect that the Veteran reported ongoing problems with internal hemorrhoids, to include flare ups and bleeding. Nonetheless, having those symptoms, without more, is not sufficient for a compensable rating. See 38 C.F.R. § 4.114, Diagnostic Code 7336 (2012). As discussed above, there is no evidence that the Veteran's hemorrhoids meet the criteria for an initial compensable rating. The Board also acknowledges the Veteran's assertion that his hemorrhoids are worse than "mild or moderate" and should receive a compensable rating. However, the Board is bound by the objective criteria required for each rating under the applicable diagnostic code. See 38 C.F.R. § 4.114, Diagnostic Code 7336 (2012). As such, the Veteran's contention that he should receive a compensable rating is an insufficient basis upon which to assign such a rating. The record does not establish that the rating criteria are inadequate for rating the Veteran's hemorrhoids such that an extraschedular rating is warranted. The effects of the Veteran's disability have been fully considered and are contemplated in the rating schedule. Specifically, Diagnostic Code 7336 considers the symptoms of hemorrhoids. Thus, consideration of whether the Veteran's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is not required and referral for an extraschedular rating is unnecessary. Thun v. Peake, 22 Vet. App. 111 (2008). ORDER A compensable initial evaluation for hemorrhoids is denied. ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs