Citation Nr: 1528310 Decision Date: 07/01/15 Archive Date: 07/15/15 DOCKET NO. 12-31 786 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to an initial compensable disability rating for hemorrhoids. REPRESENTATION Appellant represented by: Colorado Division of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. J. Kunz, Counsel INTRODUCTION The Veteran had active service from December 1967 to December 1971. This appeal comes before the Board of Veterans' Appeals (Board) from an April 2011 rating decision by the Denver, Colorado Regional Office (RO) of the United States Department of Veterans Affairs (VA). In that decision, the RO granted service connection for hemorrhoids and assigned a 0 percent disability rating. In April 2015, the Veteran had a Travel Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is of record. The issue of service connection for psychiatric disability including post-traumatic stress disorder (PTSD) has been raised by the record in a July 2014 statement, 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. 38 C.F.R. § 19.9(b) (2014). FINDING OF FACT From December 23, 2010, the Veteran's hemorrhoids have been manifested by fissures and by intermittent flare-ups with symptoms of pain, itching, and bleeding. CONCLUSION OF LAW From December 23, 2010, the Veteran's hemorrhoids have met the criteria for a 20 percent disability rating. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. Part 4, including §§ 4.1, 4.2, 4.7, 4.10, 4.114, Diagnostic Code 7336 (2014). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2014). Under the notice requirements, VA is to notify the claimant 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. 38 C.F.R. § 3.159(b). Also, in Bryant v. Shinseki, 23 Vet. App. 488, 493-94 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that that the VLJ who conducts a Board hearing fulfill duties to (1) fully explain the issues and (2) suggest the submission of evidence that may have been overlooked. VA provided the Veteran notice in a letter issued in January 2011, before the initial decision on the issue on appeal. In that letter, VA advised the Veteran what information was needed to substantiate claims for service connection. VA also informed the Veteran how VA assigns disability ratings and effective dates. In the April 2015 Board hearing, the undersigned VLJ fully explained the issues and suggested the submission of evidence that may have been overlooked. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) or identified any prejudice in the conduct of the Board hearing. The Board therefore finds that, consistent with Bryant, the VLJ who conducted the hearing complied with the duties set forth in 38 C.F.R. § 3.103(c)(2), and that any error provided in notice during the Veteran's hearing constitutes harmless error. The Veteran's claims file contains service treatment records, post-service treatment records, reports of VA and private examinations, and a transcript of the April 2015 Board hearing. The examination reports appropriately and sufficiently address the issue on appeal. The Board finds that the Veteran was notified and aware of the evidence needed to substantiate the 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. Hemorrhoids The Veteran contends that the manifestations and effects of his hemorrhoids, including flare-ups, warrant a disability rating higher than the initial 0 percent, noncompensable rating that the RO assigned. VA assigns disability ratings by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule). 38 U.S.C.A. § 1155; 38 C.F.R. Part 4, including §§ 4.1, 4.2, 4.10. If two ratings are potentially applicable, 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. 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. The Court has held that, at the time of the assignment of an initial rating for a disability following an initial award of service connection for that disability, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Veteran appealed the initial 0 percent disability rating that the RO assigned effective December 23, 2010. The Board will consider what ratings are appropriate from that date forward. The Board must assess the credibility and weight of all the 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 claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 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 there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a claim, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. The rating schedule provides the following criteria for rating external or internal hemorrhoids: With persistent bleeding and with secondary anemia, or with fissures ........................................................ 20 percent Large or thrombotic, irreducible, with excessive redundant tissue, evidencing frequent recurrences ........................... 10 percent Mild or moderate .............................................. 0 percent 38 C.F.R. § 4.114, Diagnostic Code 7336. The report of a VA examination in February 2011 indicates that the Veteran reported that he first noticed hemorrhoids in 1969 or 1970. He stated that he controlled hemorrhoids with regular prophylactic use of Vaseline. He indicated that he had not had any bleeding of hemorrhoids in over 20 years. He denied pain, itching, or recurrence or flare-ups of hemorrhoid symptoms. The examiner observed one resolved external hemorrhoid with a residual hemorrhoidal tag, without active bleeding or irritation. There were no palpable internal hemorrhoids. The Veteran walked comfortably. In VA treatment in June 2011, the Veteran reported that he used Vaseline daily to manage his hemorrhoids. He stated that he used Preparation H two to three times a year. In July 2011, he stated that he had recurrent hemorrhoid problems about three times a year. He related that he used over-the-counter products during flare-ups. He indicated that hemorrhoids were not in active flare-up at the time of the treatment visit. The treating physician found that there were no active hemorrhoids. In a November 2012 substantive appeal, the Veteran reported that he had several flare-ups a year of hemorrhoid symptoms. He stated that during flare-ups the hemorrhoids were large and painful. He indicated that he treated the flare-ups himself. In the April 2015 Board hearing, the Veteran stated that he used Vaseline with every bowel movement to try to avoid flare-ups of his hemorrhoids. He reported that he had hemorrhoids flare-ups, with bleeding, four to six times per year. He indicated that during flare-ups he used Preparation H. He related that during flare-ups he did not want to walk or exercise, and he was basically restricted to his house. He reported that it took five to ten days before flare-ups cleared up and recessed back in. He indicated that he was retired from a career as a manager and engineer at an aerospace corporation. He stated that, when he was working, he had to try to minimize the frequency of flare-ups. He noted that he avoided worse symptoms through very careful and consistent self care. In a May 2015 examination, the Veteran's primary care physician, G. K., M.D., noted that the Veteran had a many year history of mild or moderate hemorrhoids, with anal fissures. Dr. K. described the fissures as small red tears on the hemorrhoids. He stated that the hemorrhoids and fissures produced symptoms of pain, discomfort, itching, and bleeding. He characterized the pain as occasional and the itching as fairly constant. He indicated that the disorder required continuous medication with Anusol HC cream. The Veteran reports that he treats his hemorrhoids himself, so there are not medical treatment records documenting the frequency and severity of flare-ups. The Veteran is competent to describe his treatment regime and the symptom history. The report of the February 2011 VA examination presents a different history and disability picture than the remainder of the evidence. From June 2011 forward, however, the Veteran consistently reported a regime of daily use of Vaseline as a preventative, and a history of several flare-ups a year requiring treatment with nonprescription medication. As the accounts from the Veteran and Dr. K. since the 2011 VA examination have been quite consistent, the Board accepts them as credible. Dr. K. observed fissures on the Veteran's hemorrhoids. The presence of fissures meets one of two alternative criteria under Diagnostic Code 7336 for a 20 percent rating. There is no recorded observation of fissures before Dr. K.'s report; but Dr. K. indicated that both the hemorrhoids and the fissures had a many year history. The record therefore reasonably supports the assignment of a 20 percent rating from the effective date of service connection. When there is an exceptional disability picture, such that the rating schedule criteria do not reasonably describe a claimant's disability level and symptomatology, an RO may refer a case to the VA Under Secretary for Benefits or to the Director of the VA Compensation and Pension Service for consideration of an extraschedular rating. See 38 C.F.R. § 3.321(b)(1) (2014); see also Thun v. Peake, 22 Vet. App. 111, 115 (2008). Extraschedular ratings are limited to cases in which it is impractical to apply the regular standards of the rating schedule because there is an exceptional or unusual disability picture, with such related factors as frequent hospitalizations or marked interference with employment. 38 C.F.R. § 3.321(b)(1). The Veteran's hemorrhoids have not required frequent hospitalizations. He has related that careful self-care of his hemorrhoids, to minimize flare-ups, was especially important before his retirement from employment. He does not contend, however, and the record does not suggest, that his hemorrhoids markedly interfere with his capacity for employment. His hemorrhoids thus have not suggested an exceptional or unusual disability picture, and it is not necessary to refer the rating issue for consideration of extraschedular ratings. The Court has indicated that VA must consider, in an increased rating claim, whether the record indirectly raises the issue of unemployability. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran has not suggested, and the assembled evidence does not suggest, that his hemorrhoids have made him unemployable. Thus, the present record does not indirectly raise the issue of unemployability. ORDER From December 23, 2010, a 20 percent disability rating for hemorrhoids is granted, subject to the laws and regulations controlling the disbursement of monetary benefits. ____________________________________________ MATTHEW D. TENNER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs