Citation Nr: 1335793 Decision Date: 11/05/13 Archive Date: 11/13/13 DOCKET NO. 11-21 312 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to an initial compensable rating for hemorrhoids. ATTORNEY FOR THE BOARD Emily L. Tamlyn, Counsel INTRODUCTION The Veteran served on active military duty from April 1966 to April 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. In that decision, the RO granted a claim for service connection for hemorrhoids and assigned a noncompensable rating. FINDING OF FACT The Veteran's hemorrhoids are considered mild or moderate in nature. There is no showing of large or thrombotic hemorrhoids which are irreducible, with excessive redundant tissue, evidencing frequent recurrences; secondary anemia; or fissures. CONCLUSION OF LAW The criteria for an initial compensable evaluation for hemorrhoids have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.114, Diagnostic Code (DC) 7336 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION VCAA In correspondence dated in April 2008, the RO satisfied its duty to notify the Veteran under 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2012) with regard to his underlying claim of service connection for hemorrhoids. In particular, the RO notified the Veteran of: information and evidence necessary to substantiate the claims; information and evidence that VA would seek to provide; and information and evidence that he was expected to provide. Also in that letter, the RO notified the Veteran of the process by which initial disability ratings and effective dates are established. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). This appeal arises from the Veteran's disagreement with the initial evaluation assigned following the grant of service connection for hemorrhoids. 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. See Dunlap v. Nicholson, 21 Vet. App. 112 (2007). As to VA's duty to assist, VA has associated with the claims folder relevant treatment records, including VA and private records. Also, in May 2009, November 2009 and September 2012, the Veteran was afforded pertinent VA examinations. While the Veteran submitted a statement after the last supplemental statement of the case in December 2012, he also stated it contained duplicative information and the Board agrees upon review. No waiver is necessary and there is no prejudice in proceeding with the claim. No additional assistance is required to fulfill VA's duty to assist. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Initial Rating Disability evaluations are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. Each disability must be viewed in relation to its history, with an emphasis on the limitation of activity imposed by the disabling condition. Medical reports must be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.7. It is VA's defined and consistently applied policy to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. See, 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2013). The VA rating schedule evaluates external or internal hemorrhoids under 38 C.F.R. § 4.114, DC 7336. A noncompensable rating is assigned if the hemorrhoids are mild or moderate. A 10 percent rating is assigned if the hemorrhoids are large or thrombotic, irreducible, with excessive redundant tissue, evidencing frequent recurrences. A 20 percent rating is assigned if there is persistent bleeding and secondary anemia, or if there are fissures. The current increased rating claim is based on the initial grant of service connection for hemorrhoids. Consequently, the Board will consider the appropriateness of "staged" ratings, i.e., disability ratings for separate periods of time based on the facts found. See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board does not find a compensable rating is warranted in this case based on the findings and the report of the Veteran. The Veteran filed his claim in February 2008. In his July 2011 appeal, he stated he didn't know how severe his hemorrhoids were, but he stated that sometimes they itch, bleed, and pop out or protrude. He had itching most months of the year and restricted his intake of certain foods and liquids. He periodically used suppositories. He stated he had spotting in his shorts several times a month. The Board finds the Veteran competent to report symptoms and what he actually experiences. See Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Board finds he is not competent regarding a diagnosis of anemia which generally requires some diagnostic testing and judgment of a medical expert (for example, complete blood counts are noted in each of the VA examination reports). To the extent he is competent, the Board finds him credible in reporting his symptoms. See Tatum v. Shinseki, 23 Vet. App. 152, 155 (2009) (noting that the Board's failure to discuss a veteran's report of symptoms combined with a failure to address her credibility rendered its statement of reasons or bases inadequate). The evidence shows the Veteran has been treated for hemorrhoids and similar concerns. The same month he filed his claim, the Veteran visited Dr. R.S. because he was "passing dark stools." It was noted a colonoscopy two years ago showed an AV malformation of the cecum and two benign polyps (which were removed). Physical examination of the rectum did reveal blood in stool. In April 2008, the Veteran visited VA due to having four to five bowel movements per day which were mildly dark. He reported a normal colonoscopy from one year prior. His diarrhea was determined to be due to a medication. In June, a fecal occult blood test was negative and his stool was brown. In April 2009, a VA nurse practitioner noted showed the Veteran stated he noticed bright red blood in his stool yesterday and that morning. He admitted to hemorrhoids two months prior and got a prescription for suppositories. He had a history of external hemorrhoids. Physical examination showed internal hemorrhoids only. He was referred for a colonoscopy. In January 2010, he reported to a VA clinician that he noticed blood on bathroom tissue the past weekend, but a digital rectal examination was normal. A May 2012 VA primary care record shows external hemorrhoids; no acute flare up was noted. The VA examination reports do not show hemorrhoids productive of anemia, fissures, or excessive redundant tissue. The May 2009 report shows the Veteran stated that since service, he continued to experience flare ups that would last for two days. He would use a topical medication daily with good results. He reported observing blood on the tissues every other month but denied any frank bleeding. The last episode was one month prior. He denied loss of sphincter control, fecal leakage or involuntary bowel movements after straining or urination. He did not use pads. He was a retired city bus driver. He denied problems with hemorrhoids while employed and did not have any restriction in performing his duties. He denied limitations with daily activities and denied being incapacitated because of his hemorrhoids. He was independent in activities of daily living. After a physical examination, the examiner stated there was no evidence of internal or external hemorrhoids or fecal incontinence. He did not have obvious signs of bleeding thrombosis or fissures. There was a normal rectal tone. The impression was a normal rectal examination. The November 2009 VA examination report showed that the Veteran's symptoms since service included intermittent itching, swelling, and pain with defecation. When he had these problems, he treated them with suppositories. After two or three days of treatment, they would subside and go a month or two without symptoms. He denied gross bleeding but stated occasionally there would be a little blood on tissue paper following a bowel movement. He denied incontinence or fecal leakage. He didn't wear pads or note any soiling of his underwear. In April 2009, there were some internal hemorrhoids noted on a colonoscopy. The Veteran stated he did not notice external hemorrhoids except for occasionally maybe a slight swelling at the anal opening when he was particularly symptomatic. He denied other associated problems and the examiner stated this had no adverse effect upon his activities of daily living or ability to perform occupational responsibilities. Consistent with the Veteran's report, after a physical examination, the examiner stated there was no evidence of external skin breakdown or rashes, external hemorrhoids, fecal incontinence, or soiling of the underwear. A digital examination showed small internal hemorrhoids slightly tender to palpation. Rectal sphincter tone was normal. There was no evidence of stricture disease and no evidence of internal bleeding. The impression was internal hemorrhoids. The Veteran asserted his condition had worsened, so he was given a new VA examination in September 2012. Upon examination he had internal hemorrhoids without blood and a normal rectal sphincter tone. He had symptoms of externalization with pain and occasional blood on tissue paper monthly (two or three times per month). He used witch hazel during flare ups. He did not take continuous medication. His hemorrhoids were described as mild or moderate. He did not have large or thrombotic hemorrhoids that were irreducible, with excessive redundant tissue, evidencing frequent occurrences. He also did not have persistent bleeding, secondary anemia, or fissures. He also did not have scars, a fistula, fissures, impairment of sphincter control, rectal prolapse or pruritus ani. Complete blood count was normal. Functional impact was that he was not able to do heavy lifting. The Board does not find that an increase is warranted because at no point have large or thrombotic hemorrhoids that were irreducible, with excessive redundant tissue, evidencing frequent occurrences been shown. Also, he did not have persistent bleeding, secondary anemia, or fissures. While he reported itching, and the Board believes him, such a symptom would not warrant an increase. The Board has considered rating the Veteran's hemorrhoids under other DCs in order to provide the most beneficial rating. Under DC 7332, a 30 percent rating is for occasional involuntary bowel movements, necessitating the wearing of a pad and under DC 7333, stricture of the rectum and anus is rated 30 percent disabling for moderate reduction of lumen or moderate constant leakage. 38 C.F.R. § 4.114, DCs 7332, 7333 (2012). However, the evidence of record is against a finding that the Veteran had involuntary bowel movements or moderate fecal leakage to necessitate the wearing of a pad. In addition, the evidence does not show that the Veteran had a reduction of the lumen. While the Veteran has reported the symptom of itching, the DC for pruritis ani (7337) only states that the underlying condition is to be rated. No increase is found under DC 7337. 38 C.F.R. § 4.114. A higher rating is not warranted for the Veteran's hemorrhoids. The Board finds that the medical evidence demonstrates consistently and throughout that, over the entire appeals period, the Veteran does not meet the criteria for a compensable disability rating for his service-connected hemorrhoids. Hart, 21 Vet. App. 505. Under the provisions of 38 C.F.R. § 3.321(b)(1) (2013), the Under Secretary for Benefits or the Director of the Compensation Service is authorized to approve an extraschedular evaluation if the case "presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards." If the evidence raises the question of entitlement to an extraschedular rating, the threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). In this case, the Board finds that the rating criteria reasonably describe the hemorrhoids disability level and symptomatology, and provide for higher ratings for additional or more severe symptoms than currently shown by the evidence. As detailed, the Veteran's hemorrhoids complaints are contemplated by the Rating Schedule's established criteria, and the assigned rating is adequate. No further analysis is necessary under Thun, 22 Vet. App. 111. Referral under 38 C.F.R. § 3.321 is not warranted. As the preponderance of the evidence is against the Veteran's claim for a compensable rating, the benefit-of-the-doubt rule is not applicable and the claim is denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER A compensable rating for hemorrhoids is denied. ____________________________________________ Thomas H. O'Shay Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs