Citation Nr: 1537830	
Decision Date: 09/03/15    Archive Date: 09/10/15

DOCKET NO.  12-11 599A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUE

Entitlement to a compensable rating for hemorrhoids. 


REPRESENTATION

Appellant represented by:	Georgia Department of Veterans Services


ATTORNEY FOR THE BOARD

Zi-Heng Zhu, Associate Counsel


INTRODUCTION

The Veteran served on active duty in the United States Navy from May 1965 to May 1969. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision of the Atlanta, Georgia, Regional Office (RO) of the Department of Veterans Affairs (VA), which denied the Veteran's claim for an increased rating for his service-connected hemorrhoids. 

In May 2012, the Veteran submitted a VA Form 9, in which he requested a hearing before a Veterans Law Judge (VLJ). However, in September 2013, the VA received notice from the Veteran that he wished to withdraw his request for a hearing, and his request for a hearing was withdrawn. 

This appeal was processed using the Virtual VA and Veteran Benefits Management System (VBMS) paperless claims processing system.  Accordingly, any future consideration of this Veteran's case should review this electronic record.


FINDINGS OF FACT

During the entire claims period, the Veteran suffered from mild-moderate hemorrhoids manifested by pain, swelling and small external hemorrhoids that were not thrombotic or irreducible, with no excessive redundant tissue. 


CONCLUSION OF LAW

The criteria for entitlement to a compensable rating for hemorrhoids have not been met. 8 U.S.C.A. §§ 1155, 5103A, 5107 (West 2014); 38 C.F.R. §§3.321, 4.1, 4.7, 4.114, Diagnostic Code (DC) 7336 (2014).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

VA has satisfied its duties under the Veteran's Claims Assistance Act of 2000 (VCAA) to notify and assist. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2014).

The RO provided VCAA notice with respect to the Veteran's claims. As here, where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been substantiated, thereby rendering section 5103(a) notice no longer necessary because the purpose the notice is intended to serve has been fulfilled. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 491 (2006).

VA's duty to assist under the VCAA includes helping claimants to obtain service treatment records and other pertinent records, including private medical records. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The claims file contains the Veteran's service treatment records, private medical records, and VA medical records. The duty to obtain relevant records is satisfied. See 38 C.F.R. § 3.159(c).

VA's duty to assist also includes providing a medical examination and/or obtaining a medical opinion when necessary to make a decision on the claim, as defined by law.  See 38 U.S.C.A. § 5103A; 38 C.F.R. §§ 3.159(c)(4), 3.326(a); McLendon v. Nicholson, 20 Vet. App. 79 (2006).  An adequate examination must consider the issue at hand and provide sufficient analysis for the Board to weigh that examination against others. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). However, "there is no reasons or bases requirement imposed on examiners." Acevedo v. Shinseki, 25 Vet. App. 286, 293 (2012).  Rather, a medical opinion is adequate when it is based on consideration of the veteran's prior medical history and examinations, and the final report describes the disability in sufficient detail so that the Board's "'evaluation of the claimed disability will be a fully informed one.'"Ardison v. Brown, 6 Vet. App. 405, 407 (1994) (quoting Green v. Derwinski, 1 Vet. App. 121, 124 (1991)).  The Board finds that the VA examinations provided are adequate under the law.  

Increased Ratings - In General 

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4 (2014). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.1 (2014). In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2014).

Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. Hart v. Mansfield, 21 Vet. App. 505 (2007).

It is the responsibility of the rating specialist to interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present. See 38 C.F.R. § 4.2. It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall 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. 38 C.F.R. § 4.7.

In general, all disabilities, including those arising from a single disease entity, are rated separately, and disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a Veteran's service-connected disabilities. 38 C.F.R. § 4.14. It is possible for a Veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes, however the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). 

Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, irrespective of whether the Veteran raised them, as well as the entire history of his disability in reaching its decision. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991).

Increased Rating - Hemorrhoids 

The Veteran has contended that his service-connected hemorrhoids are more severe than his current noncompensable disability rating under the appropriate diagnostic code. Specifically, the Veteran asserts that he experiences chronic hemorrhoids that are painful and itchy, with swelling and some occasional bleeding. The Board finds, however, that the preponderance of the evidence, which includes VA Compensation and Pension (C&P) examinations and VA treatment records, is against the finding that the Veteran suffers from large or thrombotic hemorrhoids, fissures or persistent bleeding with secondary anemia. Therefore, the Veteran's claim for a compensable rating must be denied. 

The Veteran's service-connected hemorrhoids are currently evaluated as noncompensable under Diagnostic Code 7336. Under this code, external or internal hemorrhoids are assigned a noncompensable rating when they are mild or moderate. 38 C.F.R. § 4.114, DC 7336. A 10 percent disability rating is assigned when external or internal hemorrhoids are large or thrombotic, irreducible, with excessive redundant tissue, evidencing frequent recurrences. Id. A maximum 20 percent disability rating is assigned when there are external or internal hemorrhoids with persistent bleeding and with secondary anemia, or with fissures. Id. 

As noted above, the Veteran has been afforded multiple VA C&P examinations during the pendency of this claim, in August 2008, November 2009, April 2010, June 2011, and November 2011. A thorough review of these examinations, as well as private and VA medical treatment records, reveals that the Veteran's service-connected hemorrhoids have not manifested to a degree that warrants a higher, compensable rating under the appropriate Diagnostic Code. The Board will discuss these examinations and the relevant medical evidence in turn. 

The Veteran was afforded his first VA examination in August 2008. During the examination, the Veteran complained about pain and flare-ups of his hemorrhoids that included occasional bleeding. The VA examiner diagnosed the Veteran with chronic hemorrhoids; however, on examination the examiner detected no internal/external hemorrhoids at the time of the examination. The examiner also noted no thrombosis, fissures or rectal prolapse.  

In November 2009, the Veteran was afforded another examination for this condition. The Veteran again complained of swelling, anal itching, burning, and diarrhea, noting that he used rectal foam and sitz baths daily to relieve hemorrhoid symptoms, with good relief. The Veteran noted no bleeding or thrombosis. On examination, the VA examiner noted that the Veteran had small external hemorrhoids, with no evidence of bleeding, thrombosis, or fissures. Overall, the examiner noted no functional effects on the Veteran's daily life. 

The Board notes that the November 2009 examination is representative of all the proceeding VA examinations in April 2010, June 2011 and November 2011. A thorough review of those VA examinations reveals a nearly unchanged condition regarding the Veteran's service-connected hemorrhoids. These examinations reveal no evidence of large or thrombotic hemorrhoids, with excessive redundant tissue, or persistent bleeding or fissures. Indeed, during these examinations, the Veteran's condition was only noted as manifesting in small hemorrhoids with symptoms such as itching, swelling, pain and only occasional bleeding. 

Additionally, the Board notes that a review of the private and VA medical treatment records shows a similar, if not less severe, disability picture regarding the Veteran's hemorrhoids. Such treatment records do not indicate any evidence of manifestations of the Veteran's hemorrhoids that include persistent bleeding, fissures, or large or thrombotic hemorrhoids, or any symptoms that would warrant a higher, compensable rating.

As noted above, a compensable rating of 10 percent for under diagnostic code 7336 requires manifestations such as large or thrombotic hemorrhoids, irreducible, with redundant tissue, evidencing frequent recurrences. 38 C.F.R. § 4.114, DC 7336. Here, the competent evidence of record simply does not show a condition of that severity. A close analysis of the evidence reveals no instance where the Veteran's condition manifested in large or thrombotic hemorrhoids. As such, a higher rating of 10 percent is not warranted. 

Likewise, a 20 percent rating under the same diagnostic code is not warranted. Such a rating contemplates persistent bleeding hemorrhoids with fissures. Id. While the medical evidence does show that the Veteran has experienced anal bleeding, such incidents were only deemed occasional. Indeed, during some examinations, no bleeding was even reported by the Veteran. Therefore, the Board finds that a 20 percent is similarly unwarranted by the medical evidence at hand. 

The Board does acknowledge that the Veteran has consistently asserted that the severity of his condition is not contemplated by his current noncompensable rating, which contemplates a mild-moderate hemorrhoid condition. However, the Board points out that the Veteran himself has not asserted suffering from those symptoms contemplated by the higher rating. Specifically, even during his examinations, the Veteran has never reported persistent bleeding, or described fissures, nor has he contended experiencing large hemorrhoids, or described his external hemorrhoids as thrombotic. Furthermore, while symptoms such as pain, itching, burning and bleeding are observable by a lay person, such as the Veteran, the criteria set out by the Diagnostic Code requires specialized education, experience and training to diagnose. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Accordingly, the Board finds that the VA examinations provided to the Veteran during this appeals period, along with the medical treatment records, are most probative in establishing the current disability picture of the Veteran's service-connected hemorrhoids.  

Finally, the Board further recognizes that the last VA examination afforded to the Veteran was in November 2011, nearly 4 years ago. However, while this examination is temporally distant from this decision, the Board notes that the mere passage of time, alone, since an otherwise adequate examination, does not obligate VA to have the Veteran reexamined simply as a matter of course. See Palczewski v. Nicholson, 21 Vet. App. 174 (2007) (the passage of time alone, without an allegation of worsening, does not warrant a new examination). In this case, there is no persuasive evidence indicating that there has been a material change in the severity of the Veteran's service-connected disability since he was last examined. Indeed, the Veteran, since his last examination in November 2011, has not alleged a worsening condition and increase in severity, to include his substantive appeal to the Board in May 2012. As a result, the Board finds that additional development by way of another examination would be redundant and unnecessary. Id.

Although the Board is sympathetic to the Veteran's claim, VA (including the Board) is bound by the applicable law and regulations as written.  38 U.S.C.A. § 7104(c)  The Board is without authority to grant benefits simply on the basis that it might be perceived as equitable.  See 38 U.S.C.A. §§ 503, 7104; see also Harvey v. Brown, 6 Vet. App. 416, 425 (1994).  Indeed, "no equities, no matter how compelling, can create a right to payment out of the United States Treasury that has not been provided for by Congress." Smith v. Derwinski, 2 Vet. App. 429, 432-33 (1992). Thus, its hands are tied based upon the criteria of the rating schedule.  See Wingard v. McDonald, 779 F.3d 1354, 1359 (Fed. Cir. 2015) ("In short, Congress in 2008 left in place the existing provisions governing judicial review under chapter 72. Those provisions, we held in Wanner, preclude this court from reviewing, on appeal from the Veterans Court, a substantive statutory challenge to Department rating-schedule regulations. We remain precluded from doing so today.")  

Consequently, as the preponderance of the evidence is against the finding that the Veteran's service-connected hemorrhoids are more severe than his current noncompensable rating, the benefit-of-the-doubt doctrine is not applicable, and the Veteran's claim must be denied.  

Other Considerations

In exceptional cases, an extraschedular rating may be provided. 38 C.F.R. § 3.321. The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1) , for determining whether a Veteran is entitled to an extraschedular rating: (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 extraschedular disability rating must be in the interest of justice. See Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F. 3d 1366 (Fed. Cir. 2009).

The Veteran has not presented any evidence that his disability results in a unique disability picture that is not addressed by the rating criteria. The rating criteria adequately contemplate the signs, symptoms, and affects reported by the Veteran. See 38 C.F.R. §§ 4.130, Diagnostic Codes 7336. Accordingly, the severity, frequency and kind of symptoms, the Veteran's service-connected hemorrhoids manifests are contemplated by the rating criteria. 

The Board further observes that, even if the available schedular evaluation for the disability is inadequate (which it manifestly is not), the Veteran does not exhibit other related factors such as those provided by the regulation as "governing norms." The record does not show that the Veteran has required frequent hospitalizations for his disability. There is also no persuasive evidence in the record to indicate that the service-connected disability on appeal would cause any impairment with employment, such as marked interference, over and above that which is already contemplated in the assigned schedular ratings.

Therefore, the evidence does not otherwise indicate that there is an exceptional or unusual disability picture in this case which render impracticable the application of the regular schedular standards. Referral for consideration of an extraschedular rating is therefore not warranted.

According to Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a veteran may be entitled to "consideration [under 38 C.F.R. § 3.321(b)] for referral for an extra-schedular evaluation based on multiple disabilities, the combined effect of which is exceptional and not captured by schedular evaluations."  Referral for an extraschedular rating under 38 C.F.R. § 3.321(b) is to be considered based upon either a single service-connected disability or upon the "combined effect" of multiple service-connected disabilities when the "collective impact" or "compounding negative effects" of the service-connected disabilities, when such presents disability not adequately captured by the schedular ratings for the service-connected disabilities.  

In this case, the Veteran has not asserted, and the evidence of record has not suggested, any such combined effect or collective impact of multiple service-connected disabilities that create such an exceptional circumstance to render the schedular rating criteria inadequate.  


ORDER

Entitlement to a compensable rating for hemorrhoids is denied. 



____________________________________________
BRADLEY W. HENNINGS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs