Citation Nr: 1335811	
Decision Date: 11/05/13    Archive Date: 11/13/13

DOCKET NO. 12-08 539	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Honolulu, Hawaii


THE ISSUES

1. Entitlement to an increased (compensable) disability rating for hemorrhoids.

2. Entitlement to an effective date prior to June 6, 2008 for the award of a 10 percent rating for duodenitis/duodenal ulcer.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant



ATTORNEY FOR THE BOARD

A. Lindio, Counsel


INTRODUCTION

The Veteran served on active duty from December 1955 until January 1962. 

By way of background for the earlier effective date claim, the Board of Veterans' Appeals (Board) notes that in an October 2008 rating decision the RO, inter alia, granted a 10 percent disability rating for duodenitis/duodenal ulcer, effective July 23, 2008.  In November 2008, the Veteran filed a notice of disagreement (NOD) with the effective date of the award. . The RO issued another rating decision in May 2009, granting an effective date of June 6, 2008.  In October 2009, the Veteran filed a NOD with that effective date.  Subsequently, instead of issuing a statement of the case (SOC), the RO issued another rating decision in September 2010, in which it again denied an earlier effective date.  The current earlier effective date claim thus arose from the May 2009 rating decision.

With regard to the claim for an increased rating for hemorrhoids, the appeal to the Board arose from a September 2010 rating decision in which the RO, inter alia, continued a noncompensable disability rating for hemorrhoids. In March 2011, the Veteran filed a NOD with that noncompensable rating. The RO issued a SOC in March 2012, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in April 2012. The RO issued a supplemental SOC (SSOC) in August 2012.    

In June 2013, the Veteran testified during a hearing before the undersigned Veterans Law Judge at the RO; a transcript of that hearing is of record. Also during the hearing, the undersigned granted the motion of the Veteran's representative to advance this appeal on the Board's docket, pursuant to 38 U.S.C.A. § 7107(a)(2)(C) (West 2002) and 38 C.F.R. § 20.900(c) (2013).

The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the appellant's claims.  A review of the documents in such file reveals that some of the documents in the Virtual VA paperless claims file, i.e., VA treatment records dated from April 2009 to June 2012, are relevant to the issue on appeal and are not duplicative of the evidence in the paper claims file.  However, such evidence was considered by the RO in the March 2012 SOC and August 2012 SSOC, 

The Board's decision on the matter of an increased rating for hemorrhoids is set forth below.  The claim  for an earlier effective date-for which the Veteran has completed the first of two actions required to place this matter in appellate status-is addressed in the remand following the order.  This matter is being remanded to the RO, via the Appeals Management Center (AMC) in Washington, DC.  VA will notify the Veteran when further action, on his part, is required.


FINDINGS OF FACT

1.  All notification and development actions needed to fairly adjudicate the claim herein decided have been accomplished.

2.  The Veteran's hemorrhoids have been characterized as mild or moderate, with no evidence that they are large or thrombotic, have excessive redundant tissue, or frequently recur or persistently bleed with secondary anemia or fissures.

3.  The applicable rating criteria are adequate to rate the Veteran's hemorrhoids at all pertinent points.


CONCLUSION OF LAW

The criteria for a compensable rating for hemorrhoids are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3,321, 4.1, 4.3, 4.7, 4.114, Diagnostic Code 7336 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. Due Process Considerations

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. 2013)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013).

With respect to the increased rating claim notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim(s), in accordance with 38 C.F.R. § 3.159(b)(1).

The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 have been revised, in part. See 73 Fed. Reg. 23,353-23,356 (April 30, 2008). Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession.

With respect to the increased rating claim, a July 2010 pre-rating letter notified the Veteran as to what information and evidence was needed to satisfy the elements of a claim for increased rating, as well as what information and evidence must be submitted by the Veteran, and what information and evidence would be obtained by VA.  That letter also provided the Veteran with information pertaining to the assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations. It further specifically informed the Veteran to submit any evidence in his possession pertinent to the claim (consistent with Pelegrini and the version of 38 C.F.R. § 3.159 then in effect).  This letter meets the Pelegrini and Dingess/Hartman content of notice requirements (as applicable), as well as the VCAA's timing of notice requirement.  The September 2010 rating decision reflects the initial adjudication of the claim after issuance of the July 2010 letter. 

The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matters herein decided.  Pertinent medical evidence associated with the claims file consists of service, VA and private treatment records.  The Veteran also underwent VA examinations in June 2010 and August 2012.  Also of record and considered in connection with the appeal is the transcript of the Board's June 2013 hearing, along with various written statements provided by the Veteran.  The Board finds that no additional RO action to further develop the record in connection with the claim, prior to appellate consideration, is required.

As regards the Board hearing, in Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims held that 38 C.F.R. § 3.103(c)(2) requires that the hearing officer who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked.  Bryant v. Shinseki, 23 Vet. App. 488 (2010).  Here, the undersigned Veterans Law Judge identified the issue on appeal and solicited the Veteran to identify evidence relevant to the claim.  The Veteran reported symptoms and treatment for the disability from the VA hospital. As such, the Board finds that, consistent with Bryant, the undersigned complied with the duties set forth in 38 C.F.R. 3.103(c)(2), and the hearing was legally sufficient.   

In summary, the duties imposed by the VCAA have been considered and satisfied. The Veteran has been notified and made aware of the evidence needed to substantiate the claim decided herein, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence.  There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with the claim.  Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of any of the matter herein decided, at this juncture. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998).

II. Analysis

Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 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 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.  After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3.

A veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  Nevertheless, 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, 509-510 (2007).  The following analysis is therefore undertaken with the possibility that "staged rating" (assignment of different ratings may be warranted for distinct periods of time, based on the facts found) may be warranted. 

Historically, in a December 2007 rating decision, the RO granted service connection for hemorrhoids and assigned a noncompensable disability rating, from July 19, 2007. Presently, the Veteran is appealing September 2010 rating decision, wherein the RO continued the noncompensable rating for hemorrhoids.

The RO has evaluated the Veteran's hemorrhoids under Diagnostic Code 7336. Under that diagnostic code, a noncompensable rating is assigned for mild or moderate symptoms.  A 10 percent rating is assigned for large or thrombotic, irreducible hemorrhoids with excessive redundant tissue, evidencing frequent recurrences.  A maximum 20 percent rating is assigned for hemorrhoids with persistent bleeding and with secondary anemia, or with fissures.  38 C.F.R. § 4.114, Diagnostic Code 7336.

The Board notes that the term "thrombotic" is defined as pertaining to or affected with thrombosis.  The term "thrombosis" is the formation, development or presence of a thrombus.  Finally, a "thrombus" is a stationary blood clot along the wall of a blood vessel.  See Dorland's Illustrated Medical Dictionary 1907 (30th ed. 2003).

Considering the pertinent evidence in light of the applicable criteria, the Board finds that, at no point since the October 2009 claim for increase has the Veteran's hemorrhoids warranted a compensable rating.

VA medical records generally document occasional reports of hemorrhoid symptoms and treatment for them.  An August 17, 2009 VA medical record shows that the Veteran complained of hemorrhoids three times a year since his in-service hemorrhoids surgery in 1956.  The VA medical provider found that the Veteran had "rectal small hemorrhoidal tags" and diagnosed the Veteran with hemorrhoids. 

In June 2010, the Veteran underwent a VA examination.  The examiner noted that the Veteran reported continual irritation due to his hemorrhoids, requiring him to wash with a wet wipe frequently and that he would have blood on his toilet paper when wiping hard with a dry wipe.  The examiner also noted that the Veteran received suppositories for use due to his burning and irritation, in addition to the use of bacitracin ointment.  The Veteran reported that he had developed non-bleeding hemorrhoids following an early 2009 colonoscopy and a hot sitz bath had helped them resolve.  The Veteran further indicated that his hemorrhoids did not cause incapacitations, but were just annoying.  The June 2010 VA examiner found two hemorrhoids externally that were non thrombosed and non-bleeding. 

In an October 2010 statement, the Veteran complained of constant pain and unexpected leakage.

In an August 2, 2010 VA medical record, the Veteran reported having itching from hemorrhoids, prior to suppository use, daily pressure and sitting in warm water to relieve his hemorrhoids.

An August 29, 2011 VA medical record reflects that the Veteran reported that at times he had to put Kleenex in the rectal area to stop bleeding and that he has bleeding when he wiped that area; he also had bowel urgency and intermediate rectal pain.

In a May 23, 2012 VA medical record, hemorrhoids causing him to use Tucks and suppository. The medical provider diagnosed him with hemorrhoids.

In a June 2012 letter, a VA medical provider informed the Veteran that his recent colonoscopy indicated a normal bowel.

In August 2012, the Veteran underwent another VA examination, at which time the VA examiner diagnosed recurrent hemorrhoids. The VA examiner noted that the Veteran had previously complained of hemorrhoids multiple times a year and intermittent pain and blood on the toilet paper, as well as a June 2012 colonoscopy report that did not show hemorrhoids. The examiner noted that the Veteran's history and medical records were consistent with intermittent hemorrhoids that were present for only several days throughout the year. 

The August 2012 VA examiner found that the Veteran had mild or moderate internal or external hemorrhoids and specifically noted the Veterans history, including a report of "[i]ntermittent rectal pain and blood on toilet paper about three to four times per year lasting up to one week."  The examiner further did not indicate that the Veteran had any impairments of anal/perianal fistula, rectal stricture, impairment of rectal sphincter control or rectal prolapsed.

On examination, the August 2012 VA examiner found that the Veteran's rectal/anal area was normal, with no external hemorrhoids, anal fissures or other abnormalities. The VA examiner further noted that there were no other pertinent physical findings, complications, conditions, signs and/or symptoms related to his diagnosis. The VA examiner also found that the hemorrhoids did not impact the ability to work.

During his July 2013 Board hearing, the Veteran reported he had skin tissue that came out every day, requiring him to use Tuck pads and medication. The Veteran also state that his doctor provided him medication to use the two to four times a year his hemorrhoids really flared up, at which point he reported that he could not sit down or walk correctly. The Veteran further indicated that he would have to be careful when using the toilet so as to not cause bleeding, which happened maybe once a month.

The Board finds that the medical evidence of record does not show hemorrhoid manifestations of the type described in the criteria for a compensable disability rating.  There has been no objective finding of large hemorrhoids, excessive redundant tissue, thrombosis, anemia or fissures, or that the hemorrhoids were irreducible. The most recent August 2012 VA examiner specifically indicated that none of these symptoms were present; rather, that VA examiner specifically found that the Veteran's hemorrhoids were only of a mild or moderate severity, which is consistent with his current noncompensable disability rating.   38 C.F.R. § 4.114, Diagnostic Code 7336.

The Veteran's hemorrhoids have never been described as either large or thrombotic or irreducible with excessive tissue, which would support a 10 percent rating.  The August 2012 VA examiner did not observe any hemorrhoids.  Although the June 2010 VA examiner noted two hemorrhoids, she did not provide an opinion on size, but did note that they were nonthrombosed and non-bleeding.  Additionally, although an August 17, 2009 VA medical record notes small hemorrhoids skin tags, such findings are not consistent with a finding of "excessive redundant tissue" as part of the criteria for a 10 percent disability rating.  Otherwise, as previously noted, the August 2012 VA examiner specifically found that the Veteran did not meet any of the criteria for a compensable disability rating. 

Although the Veteran has reported bleeding at times, he has generally reported that such bleeding was intermittent and due to his wiping.  The medical records have not documented actual hemorrhoid bleeding.  Indeed, the June 2010 VA examiner actually examined the Veteran's hemorrhoids and found that they did not bleed. Moreover, the criteria for a 20 percent rating are conjunctive, not disjunctive; thus all criteria must be met. See Melson v. Derwinski, 1 Vet. App. 334, 337 (1991) (use of the conjunctive "and" in a statutory provision meant that all of the conditions listed in the provision must be met). Although the Veteran recently reported more persistent bleeding than previously noted, during his July 2013 Board hearing, there have clearly been no objective findings of anemia or fissures, which are necessary for 20 percent rating. Again, the most recent VA examination clearly indicated that there was no evidence of anemia or fissures. Additionally, both VA examiners found that the hemorrhoids did not affect employability. In sum, the Veteran's symptoms do not meet the criteria for a compensable rating. 

The Board recognizes that the Veteran has also reported mild fecal leakage, which is not addressed under Diagnostic Code 7336 for hemorrhoids. However, there have been no objective findings of any rectum prolapse, stricture or loss of sphincter control to warrant compensable ratings under other diagnostic codes, specifically 38 C.F.R. § 4.114 , Diagnostic Codes 7332, 7333, and 7334. The August 2012 VA examiner clearly found that none of those problems were present.  The Board has also considered whether there are any other potentially applicable diagnostic codes pursuant to which any higher rating for the Veteran's service-connected hemorrhoids could be assigned, but has found none more applicable here. See 38 C.F.R. § 4.114. 

As for the lay assertions of record, the Board notes that the Veteran is certainly competent to report his own symptoms, or matters within his personal knowledge. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). In this case, the Veteran has complained of pain, extended tissue, itchiness and occasional bleeding. However, the Veteran is not shown to be other than a layperson without appropriate medical training and expertise to competently render medical findings of a diagnosis of hemorrhoids or the severity of the symptoms attributable to them.  The Board finds that the lay assertions made in support of his claim for higher initial rating are not entitled to more weight than the objective findings rendered by trained medical professionals in evaluating the Veteran's hemorrhoids. Here, the Board finds probative the fact that, notwithstanding the Veteran's assertions, VA examiners and medical providers have repeatedly found that the Veteran did not have symptoms consistent with a compensable disability rating. See 38 C.F.R. § 3.159 (a)(1) (competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions).

The above-noted determinations are based on consideration of applicable provisions of VA's rating schedule.  Additionally, the Board finds that there is no showing that, at any point pertinent to the October 2009 claim for increase, the Veteran's service-connected hemorrhoids have reflected so exceptional or so unusual a picture as render inadequate the schedular criteria for rating the disability and to warrant the assignment of a higher rating on an extra-schedular basis. See 38 C.F.R. § 3.321(b).

There is a three-step analysis for determining whether an extra-schedular rating is appropriate. Thun v. Peake, 22 Vet. App. 111, 115 (2008). First, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability and the established criteria found in the rating schedule to determine whether the Veteran's disability picture is adequately contemplated by the rating schedule. Id. If not, the second step is to determine whether the claimant's exceptional disability picture exhibits other related factors identified in the regulations as 'governing norms.'  Id. at 115-16; see also 38 C.F.R. § 3.321(b)(1) governing norms include marked interference with employment and frequent periods of hospitalizations). If the factors of step two are found to exist, the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination whether the claimant's disability picture requires the assignment of an extra-schedular rating.  Id. at 116.

The Board finds that schedular criteria are adequate to rate the Veteran's disability at all times pertinent to this appeal.  As noted, VA's rating schedule provides for specific criteria for rating hemorrhoids, to include on the basis of current manifestations. Unfortunately, as explained above, the disability under consideration simply does not meet the criteria for a compensable rating under the applicable rating criteria. Additionally, as previously noted, in regards to the Veteran's reports of fecal leakage, the evidence of record does not support such findings. Significantly, there is no medical indication or argument that the applicable criteria are otherwise inadequate to rate the disability.  Thus, the threshold requirement for invoking the procedures set forth in 38 C.F.R. § 3.321(b)(1) is not met.  See Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). 

The Board is very sympathetic to the Veteran's reports of his symptoms and treatment of his hemorrhoids, since service.  The Board does not doubt that the Veteran has suffered from this condition for years.  However, such symptoms, as reported by the Veteran and found by various medical professionals, are consistent with a finding of mild or moderate hemorrhoids for which a noncompensable rating is warranted. 

For all the foregoing reasons, the Board finds that there is no basis for staged rating of the disability, pursuant to Hart (cited above), and the claim for higher rating must be denied.  In reaching these conclusions, the Board has considered the applicability of the benefit-of-the doubt doctrine; however, as the preponderance of the evidence is against assignment of a compensable rating for the Veteran's hemorrhoids; that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990).


ORDER

A compensable rating for hemorrhoids is denied.


REMAND

In an October 2008 rating decision, the RO awarded a 10 percent disability rating for duodenitis/duodenal ulcer, effective July 23, 2008.  The Veteran filed a NOD with the assigned effective date in November 2008.  The RO then issued another rating decision in May 2009, granting an effective date of June 6, 2008. In October 2009, the Veteran again filed a NOD with the effective date.  Subsequently, the RO then issued another rating decision in September 2010, in which it again denied an earlier effective date, but did not issue a SOC for that claim. 

By filing a timely NOD, the Veteran initiated appellate review of the earlier effective date issue.  However, the RO has not yet issued an SOC with respect to that claim, which is the next step in the appellate process. See 38 C.F.R. § 19.29; Manlincon v. West, 12 Vet. App. 238, 240-41 (1999); Holland v. Gober, 10 Vet. App. 433, 436 (1997). Consequently, this matter must be remanded to the RO for the issuance of an SOC. Id. The Board emphasizes, however, that to obtain appellate review of any issue not currently in appellate status, a perfected appeal must be filed. See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.200, 20.201, 20.202 (2013).

Accordingly, this matter is hereby REMANDED for the following actions:

1. Furnish to the Veteran and his representative an SOC with respect to the denial of an effective date prior to June 6, 2008, for a 10 percent rating for duodenitis/duodenal ulcer, along with a VA Form 9, and afford him the appropriate opportunity to submit a substantive appeal perfecting an appeal on that issue.

2.  The Veteran and his representative are hereby reminded that to obtain appellate review of any matter not currently in appellate status, a timely appeal must be perfected-here, with respect to the above-noted issue, within 60 days of the issuance of the SOC.

The purpose of this REMAND is to afford due process; it is not the Board's intent to imply whether the benefits requested should be granted or denied.  The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame.  See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992).

This REMAND must be afforded expeditious treatment. The law requires that all claims remanded by the Board of Veterans' Appeals 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).  The RO/AMC is reminded that this appeal has been advanced on the Board's docket.



_________________________________________________
JACQUELINE E. MONROE 
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 the appeal.  38 C.F.R. § 20.1100(b) (2013).


Department of Veterans Affairs