Citation Nr: 1340955 Decision Date: 12/12/13 Archive Date: 12/20/13 DOCKET NO. 10-18 596 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to service connection for residuals of bilateral ankle injuries. 2. Entitlement to an increased rating for pseudofolliculitis barbae, currently rated 10 percent disabling. 3. Entitlement to an increased rating for hemorrhoids, currently rated 10 percent disabling. REPRESENTATION Appellant represented by: Mississippi Veterans Affairs Commission ATTORNEY FOR THE BOARD C. Fetty, Counsel INTRODUCTION The Veteran performed active military service from December 1972 to December 1974. This appeal arises to the Board of Veterans' Appeals (Board) from a September 2008-issued rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi, that denied service connection for arthritis of the ankles, denied an application to reopen a claim for service connection for a penile lesion, denied an increased rating for pseudofolliculitis barbae, and denied an increased rating for hemorrhoids. Concerning the application to reopen a claim for service connection for a penile lesion, the Veteran perfected that appeal in April 2009; however, in October 2009 he withdrew that appeal. Nevertheless, in April 2010, he submitted a VA Form 9, Appeal to the Board of Veterans' Appeals, addressing this issue. The RO construed that submission as a new application to reopen the claim. The RO again denied the application to reopen the claim in a January 2011 rating decision and the Veteran again commenced an appeal of that issue. Following receipt of a statement of the case (hereinafter: SOC) in July 2012, the Veteran again withdrew his appeal. The Board therefore has no jurisdiction to address service connection for a penile lesion. On his April 2010 VA Form 9, the Veteran requested a hearing before a Veteran's law judge; however, in July 2010, the Veteran withdrew his request for a hearing. The record before the Board consists of the Veteran's paper claims files and an electronic file known as Virtual VA. Entitlement to service connection for the ankles is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. FINDINGS OF FACT 1. Throughout the appeal period, pseudofolliculitis barbae has been manifested by papules and flare-ups of papules on the neck area, which affect no more than 1 percent of exposed areas. At no point does the condition approach the level of severity so as to affect 20 to 40 percent of the entire body, or 20 to 40 percent of exposed areas, or cause the need for systemic therapy, such as corticosteroids or other immunosuppressive drugs. 2. Throughout the appeal period, hemorrhoids have been manifested by visible blood in stools and on tissue paper that could indicate the presence of large or thrombotic internal hemorrhoids with excessive redundant tissue; neither anemia nor fissures are shown. CONCLUSIONS OF LAW 1. For the entire appeal period, the criteria for a schedular rating greater than 10 percent for pseudofolliculitis barbae are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321 (b), 4.1, 4.3, 4.7, 4.10, 4.118a, Diagnostic Code 7806 (2013). 2. For the entire appeal period, the criteria for a schedular rating greater than 10 percent for hemorrhoids are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321 (b), 4.1, 4.3, 4.7, 4.10, 4.114, Diagnostic Code 7336 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and VA must assist the claimant by making reasonable efforts to obtain all evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). A VA notice letter must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits and the notice letter must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). VA's duty to notify the claimant was satisfied by a letter sent to the claimant in March 2008 with regard to the claims for increased ratings. The letter addressed all of the notice elements and was sent prior to the initial September 2008-issued unfavorable decision by the RO. VA's duty to assist the Veteran in the development of the claims has also been met. The service treatment records (STRs) and all pertinent VA and private treatment records have been obtained and associated with the file. VA examinations were performed in March 2008 and in December 2009. See 38 C.F.R. § 3.159(c) (4). VA must ensure that its examinations are adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The medical examinations obtained in this case are adequate, as they are predicated on a full reading of the private and VA medical records in the claims file. The medical expert considered the pertinent evidence of record and the statements of the claimant and provided a rationale for any opinion stated. Accordingly, VA's duty to assist with respect to obtaining a VA examination has been met. See 38 U.S.C.A. § 5103A (d) (2); 38 C.F.R. § 3.159(c) (4) (i); also see McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Disability Ratings Disability ratings are based upon the average impairment of earning capacity as determined by a schedule for rating disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2013). Diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. The entire medical history is reviewed when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1995). 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. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. In Fenderson v. West, 12 Vet. App. 119, 126-7 (1999), the United States Court of Appeals for Veterans Claims (Court) distinguished a claim for an increased rating from that of a claim arising from disagreement with the initial rating assigned after service connection was established. Where an increase in disability is at issue, the present level of disability, rather than remote history, is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). The Court held that where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. See Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). Pseudofolliculitis Barbae Pseudofolliculitis barbae has been rated 10 percent disabling for the entire appeal period under Diagnostic Code 7899-7806. This rating has been in effect since December 1988 and therefore must be preserved. A disability which has been continuously rated at any evaluation for 20 or more years will not be reduced to less than such evaluation except upon a showing that such rating was based upon fraud. See 38 C.F.R. § 3.951(b) (2013). Under Diagnostic Code 7806, if dermatitis or eczema [or other skin lesion] covers an area of at least 5 percent, but less than 20 percent, of the entire body, or at least 5 percent, but less than 20 percent, of exposed areas affected; or requires intermittent systemic therapy, such as corticosteroids or other immunosuppressive drugs required for a total duration of less than six weeks during the past twelve-month period, a 10 percent rating is warranted. A 30 percent rating is warranted for dermatitis or eczema where 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas are affected, or; where systemic therapy such as corticosteroids or other immunosuppressive drugs have been required for a total duration of six weeks or more, but not constantly, during the past twelve-month period. Finally, a maximum rating of 60 percent under the revised criteria is warranted where the condition covers an area of more than 40 percent of the entire body or where more than 40 percent of exposed areas affected, or; where constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs have been required during the past twelve-month period. 38 C.F.R. § 4.118, Diagnostic Code 7806 (2013). The Veteran requested an increased rating for pseudofolliculitis barbae in February 2008, although he provided no specific detail (see claims files, Vol 3). A March 2008 VA dermatology compensation examination report reflects that the Veteran reported that he uses a VA-prescribed hydrocortisone cream on his face and neck twice daily, but still has three to five flare-ups of pseudofolliculitis barbae per month. These small bumps appear only on shaved areas, that is, the face and neck. The Veteran denied any weight loss or systemic condition and he denied any functional impairment due to this disability. His face was clean-shaven and clear, but his neck exhibited multiple small papules and hyperpigmentation. The impression was pseudofolliculitis barbae, although there was no active disease. The examiner, a nurse-practitioner, estimated that the lesions covered 1 percent of exposed area and less than 1 percent of entire body area. In his April 2009 substantive appeal, the Veteran characterized the issue as a "shaving problem," but provided no other detail. The RO obtained extensive Social Security Administration (SSA) records, but these provided no relevant information. In December 2009, the Veteran's pseudofolliculitis barbae was again examined by the VA examiner who conducted the March 2008 compensation examination. During the examination, the Veteran reported that he shaved only three times each week and used alcohol on his face after each shave. He also used a hydrocortisone cream every day with good results. He then said that he shaved daily and has a flare-up after each shave. He stated that he did not shave that day and hence, there were no bumps or flare-up to observe. He stated that these flare-ups may last three to five days. The examiner observed a day's growth of beard, no scarring, no disfigurement, and no active condition on the face. The neck exhibited multiple small papules and hyperpigmentation. The examiner estimated that the lesions covered 1 percent of exposed area and less than 1 percent of entire body area. The Veteran has not alleged a worsening of the condition since the December 2009 examination. The above-recited facts reflect that throughout the appeal period, pseudofolliculitis barbae has been manifested by papules and flare-ups of papules on the neck area, which affects no more than 1 percent of exposed areas. Comparing these manifestations with the criteria of the rating schedule, the Board finds that the criteria for a schedular rating greater than 10 percent under Diagnostic Code 7806 are not more nearly approximated. This is because 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas have not been shown to be affected and systemic therapy, such as corticosteroids or other immunosuppressive drug has not been required at any time. Other diagnostic codes have also been considered, but none appear to offer the Veteran a schedular rating greater than 10 percent. The evidence does not contain factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal. Assignment of staged ratings is therefore unnecessary. See Hart v. Mansfield, 21 Vet. App. at 510. After considering all the evidence of record, the Board finds that the preponderance of it is against the claim. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107 (West 2002); Gilbert, 1 Vet. App. at 53. The claim for a schedular disability rating greater than 10 percent for pseudofolliculitis barbae is therefore denied. Hemorrhoids Hemorrhoids have been rated 10 percent disabling for the entire appeal period under Diagnostic Code 7336. This rating has been in effect since June 1990 and therefore must be preserved. See 38 C.F.R. § 3.951(b) (2013). Under Diagnostic Code 7336, mild or moderate internal or external hemorrhoids warrant a noncompensable rating. Where external or internal hemorrhoids are large or thrombotic, irreducible, with excessive redundant tissue evidencing frequent recurrences, a 10 percent rating is warranted. Where external or internal hemorrhoids persistently bleed and cause anemia, or where there are fissures, a 20 percent rating, the maximum offered under Diagnostic Code 7336, is warranted. 38 C.F.R. § 4.114, Diagnostic Code 7336 (2013). The Veteran requested an increased rating for hemorrhoids in February 2008, although he provided no specific detail. A March 2008 VA proctology compensation examination report reflects that the Veteran reported that he uses rectal suppositories and cold compresses daily after bowel movement. He continues to see blood in his stools after each bowel movement. He reported that a recent colonoscopy revealed internal hemorrhoids. He denied fecal incontinence, straining, and the use of pads. The Veteran denied any functional impairment due to this disability. The examiner, a nurse-practitioner, found no abnormality and gave an impression of "Normal Rectal Exam." In his April 2009 substantive appeal, the Veteran stated that during the compensation examination, the doctor did see blood in his shorts. The RO obtained extensive SSA records, but these provided no relevant information. In December 2009, the Veteran's hemorrhoid condition was again examined by the VA examiner who conducted the March 2008 compensation examination. During the examination, the Veteran reported blood on tissue paper and in stools. He reported that using a stool softener has helped his hemorrhoids. He denied any incapacitation or functional impairment due to hemorrhoids. The remainder of the report essentially repeats the March 2008 report. The impression remained, "Normal Rectal Exam." The Veteran has not alleged a worsening of the condition since the examination. The above-recited facts reflect that throughout the appeal period, hemorrhoids have been manifested by internal hemorrhoids that cause visible blood in stools and on tissue paper, felt to indicate large or thrombotic hemorrhoids that might have excessive redundant tissue. Comparing these manifestations with the criteria of the rating schedule, the criteria for a schedular rating greater than 10 percent under Diagnostic Code 7336 are not more nearly approximated. This is because neither anemia nor fissures are shown. The evidence does not contain factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal. Assignment of staged ratings is therefore unnecessary. Hart, 21 Vet. App. at 510. After considering all the evidence of record, the Board finds that the preponderance of it is against the claim. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107 (West 2002); Gilbert, 1 Vet. App. at 53. The claim for a schedular disability rating greater than 10 percent for hemorrhoids is therefore denied. Extraschedular Consideration The provisions of 38 C.F.R. § 3.321(b) provide that where the disability picture is so exceptional or unusual that the normal provisions of the rating schedule would not adequately compensate the Veteran for his service-connected disability, an extra-schedular evaluation will be assigned. Where the Veteran has alleged or asserted that the schedular rating is inadequate or where the evidence shows exceptional or unusual circumstances, the Board must specifically adjudicate the issue of whether an extraschedular rating is appropriate, and if there is enough such evidence, the Board must direct that the matter be referred to the VA Central Office for consideration. Colayong v. West 12 Vet. App. 524, 536 (1999); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). The Court has stressed that consideration of whether a claimant is entitled to an extraschedular rating is a three-step inquiry. Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd, 572 F.3d 1366 (Fed. Cir.2009). The first step is to determine whether the "evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate." Id. If the adjudicator determines that this is so, the second step of the inquiry requires the adjudicator to "determine whether the claimant's exceptional disability picture exhibits other related factors," such as marked interference with employment or frequent periods of hospitalization. Id. at 116. Finally, if the first two steps of the inquiry have been satisfied, the third step requires the adjudicator to refer the claim to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination of whether an extraschedular rating is warranted. Id. Moreover, in Thun v Shinseki, 572 F.3d 1366 (Fed. Cir. 2009), the Federal Circuit interpreted and then affirmed the Court's three-part test to determine whether an extra-schedular rating is warranted. The Federal Circuit stressed that (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extra-schedular disability rating must be in the interest of justice. Id, at 1368. Additionally, if the claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, then part and parcel to that claim for an increased rating is whether a total rating based on individual unemployability as a result of that disability is warranted. Rice v. Shinseki, 22 Vet. App. 447 (2009). In this case, the question of unemployability has not arisen. The established schedular criteria have not been shown or alleged to be inadequate to describe the severity and symptoms of the claimant's disabilities; the case does not present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and, there is no evidence that an extra-schedular disability rating would be in the interest of justice. In the absence of evidence of such factors, the Board is not required to remand this matter to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b) (1). ORDER A schedular rating greater than 10 percent for pseudofolliculitis barbae is denied. A schedular rating greater than 10 percent for hemorrhoids is denied. REMAND VA's duty to assist in the development of the claim includes obtaining a medical examination and/or medical opinion on the matter. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The duty arises when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim). Id. The Court observed that the third prong, which requires that the evidence of record "indicates" that the claimed disability or symptoms "may be" associated with the established event, is a low threshold. Id. at 83. Also see 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i). The duty to assist in this case has been triggered because the four prongs of the McLendon analysis are met. The Veteran claims to have a current disability, that is, bilateral ankle-joint pains. Because he is competent to report ankle pain, the first prong of the McLendon analysis is met. The second McLendon prong has been met because his STRs clearly show an ankle injury during active service. The third prong, an indication that there might be a relationship between current ankle pains and an inservice injury, stems from a simple rule of logic: where event B follows event A, it is at least theoretically possible that event B "may be" associated with event A. As the Court noted, this is a low threshold. Thus, the third McLendon prong is met. Finally, because VA has not yet determined the nature and etiology of any current ankle disability, the fourth McClendon prong is met. The case is therefore remanded to the AMC for the following action: 1. The AMC must obtain up-to-date relevant treatment reports and associate them with the claims files and/or with Virtual VA. 2. After the development requested above has been completed to the extent possible, the AMC should make arrangements for an examination of both ankles by an orthopedist (an M.D.). The claims files and any additional records contained in Virtual VA should be made available to the physician for review. 3. The examining physician is asked to review the pertinent medical history and note that review in the report. The physician is asked to elicit a complete history of relevant symptoms from the Veteran, examine his ankles, and then offer a diagnosis, if appropriate. For each diagnosis offered, the physician is asked to address whether it is at least as likely as not (50 percent or greater possibility) that the diagnosis is related to active military service. The physician should offer a rationale for any conclusion in a legible report. 4. After the development requested above has been completed to the extent possible, the AMC should re-adjudicate the claim. If the benefits sought remain denied, the Veteran and his representative should be furnished an SSOC and given an opportunity to respond thereto. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. No action by the Veteran is required until he receives further notice; however, the Veteran is advised that failure to report for an examination, without good cause, may have adverse consequences on his claim. 38 C.F.R. § 3.655 (2013). The Veteran has the right to submit additional evidence and argument on the matter 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 or by the Court, 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). ______________________________________________ DENNIS F. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs