Citation Nr: 1338023 Decision Date: 11/20/13 Archive Date: 12/06/13 DOCKET NO. 11-33 338 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to a disability rating in excess of 10 percent for hemorrhoids and colon polyps. 2. Entitlement to a disability rating in excess of 10 percent for a right knee sprain, post anterior cruciate ligament (ACL) repair. ATTORNEY FOR THE BOARD P. M. Johnson, Associate Counsel INTRODUCTION The Veteran had active service in the United States Navy from September 2003 to September 2008. This matter comes before the Board of Veterans' Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. Disability ratings of 10 percent have been assigned for a right knee sprain, post ACL repair and for hemorrhoids and colon polyps. In a November 2008 VA audiological evaluation, an audiologist linked left ear tinnitus to active service. The issue of entitlement to service connection for tinnitus of the left ear has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The issue of entitlement to a disability rating in excess of 10 percent for a right knee sprain, post ACL repair is addressed in the REMAND portion of the decision below and REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran's hemorrhoids and colon polyps are manifested with continual pain and bleeding; however, the evidence of record does not establish that the Veteran's hemorrhoids and colon polyps manifest with persistent bleeding and with secondary anemia or fissures. CONCLUSION OF LAW The criteria for a disability rating in excess of 10 percent for hemorrhoids and colon polyps have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.71a, Diagnostic Code 7336 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist VA has met all statutory and regulatory notice and duty to assist provisions as to the Veteran's claim for a higher disability rating. 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. The RO provided the Veteran with VCAA notice in a letter issued in December 2009 which fully satisfied the duty to notify. It is pertinent to note that the Veteran has not pled prejudicial error with respect to the content or timing of VCAA notice, and has demonstrated that he is aware of how to substantiate his claims. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). Regarding VA's duty to assist the Veteran in obtaining evidence needed to substantiate his claim, the Board finds that all necessary assistance has been provided in this case. The Veteran's claims file (including information on paper and in electronic form) contains service treatment records, records of post-service treatment and examinations, and statements from the Veteran, his wife, and his brother. The Veteran has had VA examinations performed by qualified clinicians who reviewed the Veteran's claims file. The examiners explained their findings and conclusions. The examinations and examination reports are adequate for the purpose of considering the appropriate ratings for the Veteran's hemorrhoid disability. The Board finds that the Veteran was notified and aware of the evidence needed to substantiate his claim, as well as the avenues through which he might obtain such evidence, and the allocation of responsibilities between the Veteran and VA in obtaining such evidence. The Veteran has actively participated in the claims process by providing evidence and argument. Thus, he was provided with a meaningful opportunity to participate in the claims process, and he 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 or 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 his claim on the merits. 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). Entitlement to a Higher Rating for Hemorrhoids and Polyps The Veteran contends, in essence, that his service-connected hemorrhoids and polyps are of greater severity than what is contemplated by the currently-assigned 10 percent rating. He maintains that the bleeding and pain associated with his hemorrhoids cause him great discomfort on a daily basis, and that he has occasionally missed work due his condition. Disability ratings are determined by applying criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations should be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. In determining the disability evaluation, VA has a duty to consider all possible regulations which may be potentially applicable based upon the assertions and issues raised in the record. After such a consideration, VA must explain to the Veteran the reasons and bases utilized in the government's decision. See Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). The Board must consider the application of "staged" ratings for different periods from the filing of the claim forward, if the evidence suggests that such a rating would be appropriate. See Hart v. Mansfield, 21 Vet. App 505 (2007). Here, the disability has not significantly changed and a uniform evaluation is warranted. Diagnostic Code 7336 addresses hemorrhoids, external or internal. Under that code, evaluations may be assigned ranging between 0 and 20 percent. The Veteran is currently assigned a 10 percent disability rating. This evaluation is in order when there are large or thrombotic hemorrhoids, irreducible, with excessive redundant tissue, evidencing frequent recurrences. To warrant a 20 percent rating, there must be evidence of hemorrhoids with persistent bleeding and with secondary anemia, or with fissures. See 38 C.F.R. § 4.114, Diagnostic Code 7336. Based on the evidence of record, the Veteran's hemorrhoids most closely approximate the criteria for the currently assigned 10 percent disability rating. See 38 C.F.R. § 4.114, Diagnostic Code 7336 (2013). The clinical evidence of record indicates that the Veteran currently has hemorrhoids, irreducible, with excessive redundant tissue, evidencing frequent recurrence. At a VA examination in January of 2010, the examiner noted reports of anal itching, diarrhea, pain, a nagging feeling to empty bowel, swelling, and perianal discharge. There was no report of leakage of stool. The hemorrhoids were noted to be constantly present and that the Veteran had prior surgeries for the condition. Upon physical examination, the examiner reported: No evidence of ulceration, fissures, reduction of lumen, loss of rectal tonus, rectal bleeding, proctitis, infections, spinal cord injury, protrusion or loss of sphincter control. External hemorrhoids are present on examination of the rectum located at 5 o'clock which are not reducible. There is no evidence of bleeding. Thrombosis is absent. There is evidence of frequent recurrence with excessive redundant tissue. The CBC (Complete Blood Count) results were reported to be within normal limits. Hemoglobin level was 17.2 g/dL and the hematocrit level was 49.3 percent. The Veteran has submitted statements from himself and his wife regarding the condition of his hemorrhoids. In January 2010, his wife stated that his hemorrhoid issue is a daily problem that causes him great pain and difficulty. She stated that he occasionally misses work due to severe bleeding and that the hemorrhoids bleed every time he uses the bathroom. These statements are consistent with those given by the Veteran on his November 2011 VA Form 9. The Veteran also indicated that these issues continue to occur. The Board recognizes that the Veteran is competent to report bleeding upon bowel movements. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Further, the Board finds the statements of the Veteran credible regarding this bleeding, as it has been consistently reported throughout the appeal period. However, even conceding that the Veteran has irreducible hemorrhoids with frequent recurrences, excessive redundant tissue, and frequent bleeding, the evidence of record does not warrant a schedular rating of greater than 10 percent. The clinical evidence of record from the VA examination of January 2010 indicates that the Veteran does not suffer from fissures or secondary anemia due to his hemorrhoids. The VA examiner specifically stated that there were no findings of fissures, and the CBC results were reported within normal limits. Based upon the totality of the evidence, the Veteran's hemorrhoids most closely approximate the criteria for the current 10 percent disability rating. Additionally, the Board notes that the pain exhibited by the Veteran is not so unique, in itself, as to take the service-connected disability picture outside of the norm. The Veteran's disability is manifested by pain and bleeding, and while he has occasionally missed work due to his hemorrhoid discomfort, there is nothing of record to suggest that this causes a frequent or marked interference with his full time job as an assembler/mechanic. Indeed, as noted, the pain and bleeding are fully contemplated by the rating schedule, and thus, the claim will not be remanded for a referral to the Director of VA's Compensation Service for consideration of an extraschedular rating for his hemorrhoid disability. See Thun v. Peake, 22 Vet. App. 111 (2008). Therefore, since there is no evidence that the Veteran's hemorrhoid disability meets the 20 percent rating under the schedular criteria, and as the evidence of record does not warrant a consideration of extraschedular entitlement, the Veteran's claim for a disability rating in excess of 10 percent for hemorrhoids and polyps is denied. In reaching this determination, the Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is not applicable in this case because the preponderance of the evidence is against the Veteran's claim for a higher rating for hemorrhoids and polyps. See 38 U.S.C.A. § 5107(b); see also, e.g., Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). ORDER A disability evaluation in excess of 10 percent for hemorrhoids and colon polyps is denied. REMAND The Veteran contends, in essence, that his service-connected right knee sprain, post ACL repair is of greater severity than what is contemplated by the currently-assigned 10 percent rating. The Veteran's last extensive right knee evaluation of record occurred in January of 2010, almost four years prior to this decision. Findings included restricted flexion, pain following repetitive use, and pain that has major functional impact. The Veteran has submitted subsequent statements indicating that he has great difficulty walking after an 8-hour work shift, he cannot squat or kneel without excruciating pain, and he must be careful while walking because the knee may pop out or twist. He has thus alleged that there is some degree of instability associated with his right knee. Essentially, with the Veteran offering his testimony that he now experiences stability problems with his knee, he has come forth with an allegation of worsening of the service-connected disability picture. The most recent examination, in January of 2010, is almost four years old, and is relatively dated in light of the alleged worsening. Due to the concern that the medical evidence of record does not provide a clear picture of the Veteran's current disability, the Board orders that an examination be given to assess the status of the Veteran's current right knee sprain, post ACL repair disability. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination for the purposes of determining the nature of the service-connected right knee disabilities. All efforts made to schedule the examination should be documented and incorporated into the claims file. The relevant documents in the claims file should be made available to the examiner for review, and the examination report should reflect that such review has been accomplished. All appropriate testing should be conducted, to include: range of motion (ROM) testing of the right knee in degrees, and an assessment of instability. Any conclusions of these tests should be supported by an associated rationale. The examiner should also request a history from the Veteran. The examiner should address the extent of functional impairment attributable to any reported during flare-ups. The examiner should describe whether any existing pain significantly limits functional mobility of the right knee during flare-ups or when repeatedly used. If it is not feasible to address the functional limitation during flare-ups, this should be stated and discussed in the examination report. If the Veteran does not have flare-ups or any other factors, that fact should be noted as well. 2. Following the above-directed development, re-adjudicate the Veteran's claim. Should the claimed benefits not be granted, issue a supplemental statement of the case to the Veteran and his representative. Following this, return the case to the Board for adjudication. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are 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. 2013). ______________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs