Citation Nr: 1514533 Decision Date: 04/03/15 Archive Date: 04/09/15 DOCKET NO. 09-31 444 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an increased disability rating for hemorrhoids, currently rated as 10 percent disabling. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Adamson, Counsel INTRODUCTION The Veteran had active service from August 1989 to March 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In connection with his appeal the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge in February 2011. A transcript of the hearing is associated with the claims files. This matter was remanded in May 2011 and again in April 2012 for further development. In February 2013, the Board issued a decision denying the Veteran's claim for an increased rating for hemorrhoids. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In December 2014, the Court issued an order remanding the matter to the Board for action in accordance with a joint motion of the parties. The record before the Board consists of electronic records within the Veterans Benefits Management System. As was noted in the Board's April 2012 remand and February 2013 decision, the issue of entitlement to an increased rating for cervical spine disability has been raised by the Veteran, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). This claim remains unadjudicated. Therefore, it is again REFERRED to the AOJ for appropriate action. REMAND The Veteran is seeking a rating in excess of 10 percent for his service-connected hemorrhoids. The presently assigned 10 percent rating is awarded under 38 C.F.R. § 4.114, Diagnostic Code 7336. A 20 percent rating is authorized for hemorrhoids manifested by persistent bleeding and secondary anemia, or with fissures. The Veteran underwent a VA examination for rectum and anus conditions (including hemorrhoids) in May 2012, and no such symptoms were noted in the area of the report pertaining to signs and symptoms of hemorrhoids. In another area of the report related to the condition of impairment of sphincter control, the VA examiner indicated that the Veteran has occasional involuntary bowel movements and extensive leakage. Such symptoms may warrant a compensable rating under Diagnostic Code 7332. It is not clear, however, whether the impairment of sphincter control is a manifestation of the service-connected hemorrhoids, or whether it is a separate condition, as suggested by the separation on the VA rectum and anus disability benefits questionnaire (DBQ). A remand is required in order to afford the Veteran a new VA examination to assess the current severity of his service-connected hemorrhoids and to obtain an opinion as to whether the impairment of sphincter control is a manifestation of the hemorrhoids. The Board observes that the Veteran's records indicate that he has been incarcerated during the pendency of this claim. Should the Veteran not be available for a VA examination, the RO or Appeals Management Center (AMC) should nonetheless seek a medical opinion related to causation of impairment of sphincter control. Finally, on remand, relevant ongoing medical records also should be obtained. 38 U.S.C.A. § 5103A(c) (West 2014); 38 C.F.R. § 3.159(c) (2014); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED to the RO or the AMC in Washington, D.C. for the following actions: 1. . Undertake appropriate development to obtain all outstanding VA and private medical records pertaining to treatment of the Veteran's hemorrhoids. If any requested records are not available, the record should be annotated to reflect such and the Veteran notified. 2. Once the record is developed to the extent possible, the RO or the AMC should afford the Veteran a VA examination to determine the current degree of severity of his hemorrhoids. The RO or the AMC should ensure that the examiner provides all information required for rating purposes. The examiner should also provide an opinion as to whether the impairment of sphincter control noted in the May 2012 VA examination report, including occasional involuntary bowel movements and extensive leakage, is a manifestation of the service-connected hemorrhoids. Should the Veteran be unavailable for an examination, the RO or AMC should nonetheless seek a medical opinion based on a review of the records concerning the causal relationship, if any, between the Veteran's hemorrhoids and his noted impairment of sphincter control. The rationale for all opinions expressed must also be provided. If the examiner is unable to provide any required opinions, he or she should fully explain why he or she is unable to do so. 3. The RO or the AMC should also undertake any other development it determines to be warranted. 4. Then, the RO or the AMC should readjudicate the issue on appeal. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the RO or the AMC should furnish to the Veteran and his representative a supplemental statement of the case and afford them the requisite opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran need take no action until he is 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). This REMAND must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or 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 2014). _________________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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 your appeal. 38 C.F.R. § 20.1100(b) (2014).