Citation Nr: 1417476 Decision Date: 04/18/14 Archive Date: 05/02/14 DOCKET NO. 11-18 622A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for a lumbar spine disability. 2. Entitlement to an initial compensable disability rating for hemorrhoids. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. A. Flynn, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1979 to August 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In March 2013, the Veteran raised a claim to reopen the issue of entitlement to service connection for an upper spine disability. That issue has not been adjudicated by the Agency of Original Jurisdiction (AOJ). 38 U.S.C.A. § 5103(A) (West 2002); 38 C.F.R. § 3.159 (2013). Therefore, the Board does not have jurisdiction over that issue, and it is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. The weight of the probative evidence is against a finding that a current lumbar spine disability is related to active duty service. 2. Throughout the period on appeal, the Veteran's hemorrhoids have been of a mild or moderate severity; they have not been large or thrombotic, irreducible, or associated with excessive redundant tissue, secondary anemia, or fissures. 3. From February 21, 2013, the Veteran's hemorrhoids have produced occasional mild fecal leakage. CONCLUSIONS OF LAW 1. A lumbar spine disability was not incurred in or aggravated by active service, and a relationship between a lumbar spine disability and active service may not be presumed. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.309 (2013). 2. The criteria for a compensable disability rating for a hemorrhoid disability have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.114, Diagnostic Code 7336 (2013). 3. From February 21, 2013, the criteria for a separate 0 percent rating for fecal leakage have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.114, Diagnostic Code 7332 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence of record. The Board has an obligation to provide reasons and bases supporting a decision. However, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. 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). The analysis focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran should not assume that the Board has overlooked pieces of evidence that are not explicitly discussed. Timberlake v. Gober, 14 Vet. App. 122 (2000) (Board must address its reasons for rejecting evidence favorable to the Veteran). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Equal weight is not accorded to each piece of evidence contained in the record. Every item of evidence does not have the same probative value. When all the evidence is assembled, the Board is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Duties to Notify and Assist VA has a duty to notify a Veteran of the information and evidence necessary to substantiate a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013); 38 C.F.R. § 3.159 (2013). VA also has a duty to assist Veterans in the development of claims. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2013); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will to provide; and (3) that the claimant is expected to provide. This notice should be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements apply to all five elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between service and the disability; (4) degree of disability; and (5) effective date of the disability. The notice should include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Correspondence dated July 2009 provided the Veteran with all required notice, and the Board notes that the Veteran has received several readjudications of his claims since that time. The Board finds that the duty to notify has been satisfied, and that no further notice is necessary. With respect to the duty to assist, VA has done everything reasonably possible to assist the Veteran with respect to his claim for benefits. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2013). The Veteran's service medical records, VA medical treatment records, and private treatment records have been obtained, to the extent available. There is no indication that there is any other relevant evidence that is available and not part of the claims file. The Veteran was provided with a VA examination of the spine in August 2010. The VA examiner reviewed the Veteran's claim file, past medical history, recorded the Veteran's current complaints and history, conducted an appropriate evaluation, and provided an appropriate diagnosis and opinion consistent with the remainder of the evidence of record. The VA examination report is therefore adequate for the purpose of rendering a decision on appeal. 38 C.F.R. § 4.2 (2013); Barr v. Nicholson, 21 Vet. App. 303 (2007). The Veteran presented testimony before the undersigned in an August 2013 videoconference hearing, and a transcript of that hearing is of record. Thus, the duties to notify and assist have been met, and the Board will proceed to a decision. Service Connection In general, service connection may be granted for disability or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2013). In order to establish service connection for a claimed disability, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence, generally medical, of a nexus between the claimed in-service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247 (1999). Additionally, arthritis is among the chronic diseases listed in 38 C.F.R. § 3.309(a), and it therefore may be established based on a continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Furthermore, service incurrence will be presumed for certain chronic diseases, including arthritis, if manifest to a compensable degree within the year after active service. 38 U.S.C.A. § 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2013). The medical evidence shows that the Veteran has been diagnosed with lumbar osteoarthritis. With respect to an in-service event, disease, or injury, the Veteran received treatment in-service for lower back pain, to include in October 1981, November 1982, and July 1983. Regarding medical evidence of nexus, in February 2010, Dr. G.B. stated that he had treated the Veteran for problems with his back since 2005. Dr. G.B. indicated that the Veteran stated that his back bothered him while he was in service. At an August 2010 VA examination, the examiner opined that the Veteran's osteoarthritis was less likely than not related to the Veteran's active service. As a rationale for the opinion, the examiner noted that the Veteran had self-limiting diagnoses throughout his military career, with muscle relaxers given to treat short-term low back pain. Additionally, the examiner noted that the Veteran had a normal lumbar x-ray in 1988, at which time no chronic disability of the lumbar spine was identified. To the extent that the Veteran believes that his lumbar spine disability is related to his service, the Board notes that the Veteran is competent to provide testimony concerning factual matters of which he has first-hand knowledge and experiences through his senses. Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005). Further, under certain circumstances, lay statements may support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). VA provided the Veteran with an examination based in part on the competency of those observations. Lay persons are competent to provide opinions on some medical issues. Kahana v. Shinseki, 24 Vet. App. 428 (2011). However, as to the etiology of a lumbar spine disability, the issue of causation of such a medical condition is a medical determination outside the realm of common knowledge of a lay person. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Thus, although the Board has carefully considered the lay contentions of record suggesting that the Veteran's lumbar spine disability is related to his service, the Board ultimately affords the objective medical evidence of record, which is against finding such a connection, with greater probative weight than the lay opinions. The Board has also considered whether the Veteran has presented a continuity of symptomatology associated with his lumbar spine disability, and finds that he has not done so. There is no competent medical evidence suggesting that the Veteran was treated after service for a lumbar spine disability until 2005, or approximately 14 years after separation from service. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (proper to consider the veteran's entire medical history, including the lengthy period of absence of complaint with respect to the condition now raised). Thus, while the Board has considered the lay contentions that the Veteran experienced spine problems soon after military service, the Board finds that the weight of the evidence does not support a finding of continuous symptoms since active duty. The Board finds that the Veteran's allegations of continuity of symptomatology are not credible, and the medical nexus element cannot be met via continuity of symptomatology. Those contentions are outweighed by the lack of medical evidence showing complaint or treatment for any lumbar spine disability. Furthermore, the Board finds that arthritis of the lumbar spine was not shown within one year following separation from service. Therefore, presumptive service connection is not warranted. The Board acknowledges that VA must resolve reasonable doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. However, the preponderance of the evidence is against the claim. Therefore, the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Increased Rating Disability ratings are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2013). Separate Diagnostic Codes identify the various disabilities. 38 C.F.R. Part 4 (2013). When there is a question as to which of two ratings shall be applied, the higher ratings 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 (2013). Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2013). In general, when an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). The Board will consider entitlement to staged ratings to compensate for times when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The assignment of a particular Diagnostic Code is dependent on the facts of a particular case. Butts v. Brown, 5 Vet. App. 532 (1993). One Diagnostic Code may be more appropriate than another based on such factors as an individual's relevant medical history, diagnosis, and demonstrated symptomatology. Any change in Diagnostic Code by a VA adjudicator must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). Separate disabilities arising from a single disease entity are to be rated separately. 38 C.F.R. § 4.25 (2013); Esteban v. Brown, 6 Vet. App. 259 (1994). Pyramiding, or rating the same manifestation of a disability under different Diagnostic Codes, is to be avoided when rating service-connected disabilities. 38 C.F.R. § 4.14 (2013). The Veteran's hemorrhoids are currently rated under Diagnostic Code 7336, which is applicable to external or internal hemorrhoids. Under Diagnostic Code 7336, a 0 percent rating applies to mild or moderate hemorrhoids. A 10 percent rating applies to hemorrhoids that are large or thrombotic, irreducible, with excessive redundant tissue, evidencing frequent recurrences. A 20 percent rating applies to hemorrhoids with persistent bleeding and secondary anemia, or with fissures. 38 C.F.R. § 4.114, Diagnostic Code 7336 (2013). In addition to the currently-assigned disability rating under Diagnostic Code 7336, the Board will also address whether the Veteran is entitled to a separate rating addressing the symptom of fecal leakage. Diagnostic Code 7332 addresses impairment of sphincter control of the rectum and anus. Under Diagnostic Code 7332, a 0 percent rating applies to healed or slight impairment of sphincter control, without leakage. A 10 percent disability rating applies to constant slight or occasional moderate leakage. A 30 percent rating applies to occasional involuntary bowel movements, necessitating wearing of a pad. A 60 percent rating applies to extensive leakage and fairly frequent involuntary bowel movements. A 100 percent rating applies to complete loss of sphincter control. 38 C.F.R. § 4.114, Diagnostic Code 7332 (2013). The words slight, moderate, and extensive are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are equitable and just. 38 C.F.R. § 4.6 (2013). At an August 2010 VA examination, the Veteran complained of occasional itching and leakage of bright red blood from his rectum. The Veteran had no swelling, fecal leakage, or tenesmus. Physical examination revealed an external, non-thrombosed hemorrhoid. There was no evidence of fecal leakage, and sphincter tone was intact. No bleeding was noted. In June 2012, the Veteran stated that he experienced daily symptoms associated with hemorrhoids. The Veteran indicated that he used an ointment, suppositories, and a sitz bath to treat hemorrhoids. The Veteran stated that his hemorrhoids often ruptured, filling the toilet with bright red blood. The Veteran suggested that he experienced bleeding every day. In September 2012, the Veteran complained of rectal bleeding, which a gastroenterologist associated with the Veteran's hemorrhoids. In a September 2012 emergency care record, the Veteran indicated that he had noticed a small amount of bright red blood after wiping. At a February 2013 VA examination, the examiner diagnosed the Veteran with internal or external hemorrhoids. The Veteran took rectal suppositories and Dibucaine in treatment of his condition. The examiner noted that the Veteran's hemorrhoids were of a mild or moderate severity, and the examiner noted that the Veteran complained of flares occurring approximately two to three times monthly, with each flare lasting two to three days. Flares were associated with spotting of blood, swelling, burning, itching, and mild fecal leakage. During the Veteran's August 2013 hearing before the undersigned, the Veteran complained of daily symptoms associated with hemorrhoids. The Veteran indicated that he treated his hemorrhoids with ointments, suppositories, and a sitz bath. The Board finds that a 10 percent rating for hemorrhoids is not warranted at any time. The medical record does not indicate that the Veteran's hemorrhoids are large or thrombotic, irreducible, or have excessive redundant tissue. In addition, the Board finds that a 20 percent rating for hemorrhoids is not warranted at any time. While the Board acknowledges the Veteran's complaints of periodic bleeding in association with his hemorrhoids, the medical record does not indicate that the Veteran has experienced secondary anemia or fissures in association with this bleeding. While a greater rating is unavailable to the Veteran under the Diagnostic Code applicable to hemorrhoids, the Board notes that as of the time of his February 2013 VA examination, the Veteran complained of "mild" fecal leakage during hemorrhoid flares, which he indicated that he experienced up to nine days monthly. The Veteran has not otherwise complained of fecal leakage, including during his August 2013 hearing before the undersigned. The Board finds that such symptoms are most consistent with a separate 0 percent rating under Diagnostic Code 7322, which applies to slight impairment of sphincter control, without leakage. A 10 percent or greater rating is unavailable to the Veteran under this Diagnostic Code because the Board finds that the Veteran's symptoms of "mild" fecal leakage on, at most, nine days each month, do not rise to the level of "constant slight" leakage or "occasional moderate" leakage. No clinician has characterized the Veteran's fecal leakage in that way, and the Veteran himself has not indicated that he experiences fecal leakage of such a severity. Accordingly, while the Veteran is entitled to a separate rating under Diagnostic Code 7322, a rating of 0 percent, and not more, applies to the fecal leakage. The Board finds that the preponderance of the evidence is against the assignment of any higher or other separate rating. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Extraschedular Ratings The Board has also considered whether the Veteran is entitled to a higher rating on an extraschedular basis for hemorrhoids or fecal leakage. The VA Rating Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. Fisher v. Principi, 4 Vet. App. 57 (1993). There is a three-step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular ratings for that service-connected disability are inadequate. Thun v. Peake, 22 Vet App 111 (2008). The Board finds that the evidence does not show such an exceptional disability picture due to hemorrhoids or fecal leakage that the available schedular ratings are inadequate. A comparison between the level of severity and symptomatology of the Veteran's disability with the established criteria found in the rating schedule and regulation shows that the criteria reasonably describe the Veteran's disability level and symptomatology. The rating schedule fully contemplates the described symptomatology, and provides for ratings higher than those assigned based on more significant impairment. The evidence does not show marked interference with employment or frequent hospitalization due to hemorrhoids or fecal leakage. Thus, the threshold requirement for invoking the procedures set forth in 38 C.F.R. § 3.321(b)(1) is not met. Thun v. Peake, 22 Vet. App. 111 (2008). The issue of entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disability is part of an increased rating claim when a request for TDIU is reasonably raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). However, the Veteran has not raised the issue of TDIU. Likewise, the record does not reasonably raise the issue of TDIU. In February 2013, a VA examiner noted that the Veteran's hemorrhoids did not affect his ability to work. Furthermore, while the Veteran has indicated that his hemorrhoids cause him difficulty at work, the record indicates that the Veteran is currently employed. The Board finds that the evidence of record does not suggest either that the Veteran is unemployed or unemployable as a result of his hemorrhoids. Therefore, the Board finds that a claim of entitlement to TDIU has not been raised. ORDER Entitlement to service connection for a lumbar spine disability is denied. Entitlement to an initial compensable disability rating for hemorrhoids is denied. Entitlement to a separate 0 percent rating for fecal leakage, effective February 21, 2013, but not earlier, is granted. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs