Citation Nr: 1603731 Decision Date: 02/03/16 Archive Date: 02/11/16 DOCKET NO. 14-21 598 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to a compensable evaluation for service-connected hemorrhoids. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD Betty Lam, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1972 to July 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In July 2015, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge at the RO in Washington, D.C. The evidentiary record was held open for 60 days to allow the appellant to submit any additional evidence. To date, no additional evidence. The transcript of this hearing is a part of the record. In addition to the paper claims file, the Veteran also has electronic Virtual VA and Veteran Benefits Management System (VBMS) paperless claims files. A review of the documents in such files reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. FINDING OF FACT Resolving reasonable doubt in favor of the Veteran, it is factually ascertainable from December 17, 2010 that his hemorrhoid disability more nearly approximates impairment associated with large or thrombotic, irreducible, hemorrhoids with excessive redundant tissue, evidencing frequent recurrences, and constant slight fecal leakage. CONCLUSIONS OF LAW 1. From December 17, 2010, the criteria for a 10 percent disability rating, and no higher, under Diagnostic Code 7336 for hemorrhoids have been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.7, 4.114, Diagnostic Code 7336 (2015). 2. From December 17, 2010, the criteria for a separate 10 percent disability rating, and no higher, under Diagnostic Code 7332 for fecal leakage associated with hemorrhoids have been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.7, 4.114, Diagnostic Code 7332 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2014)) redefined VA's duties to notify and assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2015). VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claims; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). As part of this duty, the Veteran should be advised of the elements of a disability rating and an effective date. Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006); aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). The duty to notify for the increased rating issue in this case was satisfied by a letter sent to the Veteran dated in April 2011, prior to the issuance of the September 2012 rating decision. Moreover, the April 2011 VCAA notice letter advised the Veteran of the additional notice requirements for an increased rating claim. VCAA notice for an increased rating claim does not have to be individually tailored or specific to each Veteran's particular facts, but rather only a generic notice is required. See Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated on other grounds, Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The April 2011 VCAA letter, in particular, was fully sufficient. Thus, the Veteran has received all required notice in this case for the increased rating issue, such that there is no error in the content or timing of the VCAA notice. See Shinseki v. Sanders, 556 U.S. 396 (2009) (noting that an error in VCAA notice should not be presumed prejudicial and the burden of showing harmful error rests with the party raising the issue, to be determined on a case-by-case basis). In the present case, there has not been an allegation of any error in the VCAA notice provided to the Veteran. With respect to the duty to assist, the RO has secured the Veteran's service treatment records, VA treatment records, VA examinations, social security administration (SSA) records, and private medical evidence as authorized by the Veteran. For his part, the Veteran has submitted personal statements, argument from his representative, and additional private medical evidence. The last VA examination rating the severity of the Veteran's service-connected hemorrhoids was in May 2011 and an addendum opinion was issued in November 2011. However, the record is adequate - the need for a more contemporaneous examination occurs only when the evidence indicates that the current rating may be incorrect or when the evidence indicates there has been a material change in the disability. See 38 C.F.R. § 3.327(a); Palczewski v. Nicholson, 21 Vet. App. 174, 182-83. The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. See VAOPGCPREC 11-95. Furthermore, the lay and medical evidence of record does not reveal additional worsening after the examination date. The Board finds the examination is adequate as it was conducted upon a review of the claims file, included a thorough examination, and addressed the Veteran's symptoms as they relate to the relevant diagnostic codes. Thus, a new VA examination is not warranted. With regard to the July 2015 hearing, a Veterans Law Judge (VLJ) who chairs a hearing must fulfill two duties to comply with 38 C.F.R. § 3.103(c)(2). See Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). These duties consist of (1) fully explaining the issues pertinent to the claim(s) on appeal; and (2) suggesting the submission of evidence that may have been overlooked. See 38 C.F.R. § 3.103(c)(2); Procopio v. Shinseki, 26 Vet. App. 76 (2012). At the Board hearing, the VLJ, the Veteran, and the representative outlined the increased rating issue on appeal. They engaged in a discussion as to substantiation of the claim. The Veteran discussed his specific symptomatology and why he believed his disorder should be granted a higher rating. The evidentiary record was held open for 60 days to allow the Veteran to submit additional medical evidence he believed would support his claim. The July 2015 hearing was legally sufficient, and there has been no allegation to the contrary. The Board is therefore satisfied that the VA has provided all assistance required by the VCAA. 38 U.S.C.A. § 5103A (West 2014). Hence, there is no error or issue that precludes the Board from addressing the merits of the increased (compensable) rating issue on appeal. II. Higher evaluation for hemorrhoids Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. To evaluate the severity of a particular disability, it is essential to consider its history. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. §§ 4.1 and 4.2 (2015). Where there is a reasonable doubt as to the degree of disability, such doubt will be resolved in favor of the claimant. See 38 C.F.R. §§ 3.102, 4.3 (2015). In addition, where there is a question as to which of two disability evaluations should 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. See 38 C.F.R. § 4.7 (2015). The Court has also held that in a claim of disagreement with the initial rating assigned following a grant of service connection separate ratings can be assigned for separate periods of time, based on the facts found. See Fenderson v. West, 12 Vet. App. 119 (1999). Where entitlement to compensation has already been established, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994); 38 C.F.R. § 4.2. The Board further acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the veteran. 38 C.F.R. § 4.3. An evaluation of the level of disability present also includes consideration of the functional impairment of the veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. The Veteran was originally awarded service connection for hemorrhoids in a January 1996 rating decision, and assigned a noncompensable evaluation, effective from August 1, 1995. The Veteran's claim for an increased rating was received on February 15, 2011. Thus, in addition to determining whether an increased rating is warranted, the Board will also consider whether any such increase is factually ascertainable within a year of the filing of the claim. 38 U.S.C.A. 5110(b)(2) (West 2014); Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. 3.400 (o)(1)(2) (2015); VAOPGCPREC 12-98 (1998). The Veteran's service-connected hemorrhoids are currently rated as noncompensable under 38 C.F.R. § 4.114, Diagnostic Code 7336. A noncompensable evaluation is warranted for mild or moderate hemorrhoids. A 10 percent evaluation is warranted for large or thrombotic hemorrhoids that are irreducible, with excessive, redundant tissue, evidencing frequent occurrences. A 20 percent evaluation is warranted for hemorrhoids with persistent bleeding, and with secondary anemia, or with fissures. Private treatment records in December 2010 showed that the Veteran underwent a colonoscopy which revealed an impression of internal hemorrhoids. In January 2011, the Veteran underwent a left lateral and right anterior hemorrhoidectomy. A January 2011 procedure note indicated a pre-operative diagnosis of hemorrhoids and the indication for the procedure was "rectal bleeding." The operative/anesthesia report provided that no masses or lesions other than the hemorrhoid were seen in the rectum or anal canal. An anoscopy provided visualization of the left lateral column with a large hemorrhoid that had evidence of bleeding. The Veteran tolerated the procedure well and was transferred to a post anesthesia unit in stable condition. A March 2011 follow-up treatment record provided that the Veteran had some pain with bowel movement (BM) for the two weeks following the operation but now had no pain, blood, fevers, or changes. The Veteran was provided a VA examination in May 2011. He reported that he was "still having episodes of bleeding approximately once a week and mild pain, but his symptoms are much improved since undergoing surgery in January 2011." The Veteran denied itching, pain, or swelling. However, he reported intermittent diarrhea, but denied bleeding with his diarrhea. The Veteran also reported episodes of fecal leakage and that he wore pads prior to his surgery, but has not had to wear pads since that time. The Veteran continues to use Tucks pads for wiping as well as stool softeners. The Veteran denied any problems with his rectum, anus spinal cord, or rectal prolapse. A physical examination revealed some mild fecal leakage around the anus although normal sphincter tone was found. The examiner found no evidence of prolapse or bleeding at the examination. The Veteran reported that he is doing relatively well since his surgery. A November 2011 VA addendum opinion was provided to clarify whether there is a diagnosis for impairment of the sphincter control, and if so, whether it is related to the service-connected hemorrhoid condition. The examiner provided that the Veteran had mild stool leakage around his anus, but that he had normal sphincter tone. Therefore, the examiner provided that the Veteran does not have impairment of sphincter control on examination. VA treatment records from the Augusta VA Medical (VAMC) dated through February 2014 are silent for any treatment for hemorrhoids. At the July 2015 Board hearing, the Veteran testified that he continues to have daily bleeding from his hemorrhoids. The Veteran also reported symptoms of fecal leakage, hemorrhoid pain, bleeding, and problems with sitting or standing for long periods of time. The Veteran also reported that he was being treated by a private physician for his hemorrhoid condition and that he would provide a current medical opinion to the Board. As mentioned above, the record was held open by the undersigned for 60 days for the Veteran to submit evidence of any additional medical treatment. However, no additional evidence has been received. Based on a review of the evidence of record and resolving the benefit of the doubt in the Veteran's favor, the Board finds that from December 17, 2010, the Veteran's disability more nearly approximates the symptomatology associated with a 10 percent disability rating under Diagnostic Code 7336. Notably, the December 17, 2010 colonoscopy report provided findings of internal hemorrhoids and the Veteran underwent a hemorrhoidectomy in January 2011. The January 2011 operative report contained findings of "rectal bleeding" and an anoscopy revealed a "large" left hemorrhoid that had evidence of bleeding. At the May 2011 VA examination, the Veteran further complained of having episodes of bleeding approximately once a week. Thereafter, at the July 2015 Board hearing, the Veteran continued to report symptoms of bleeding, fecal leakage, and hemorrhoid pain causing problems with sitting or standing for prolonged periods of time. As such, the Board finds that a 10 percent evaluation under Diagnostic Code 7336 is warranted from December 17, 2010. The Board further finds that a maximum 20 percent disability under Diagnostic Code 7336 is not warranted at any time of the appeal period. In particular, the evidence at no time demonstrates that the Veteran's hemorrhoids are manifested by persistent bleeding and with secondary anemia, or with fissures. Although the Veteran has reported symptoms of hemorrhoids bleeding, at no time has he been found as having secondary anemia. Also, the competent and probative evidence during the appeal period is absent any findings of anal fissures. The Board has also specifically considered any possible evaluation under Diagnostic Codes 7332, 7333, 7334, 7335, and 7337 for impairment of sphincter control, stricture of the rectum and anus, prolapse of the rectum, anal fistula, and pruritus ani; however, there is no medical evidence to support the presence of any of these conditions. The Veteran has also never claimed the presence of any of these conditions. The May 2011 VA examiner provided that the Veteran had a normal sphincter tone and there was no evidence of prolapse or bleeding on examination. The November 2011 VA addendum confirmed that the Veteran does not have impairment of sphincter control. However, the VA physical examination revealed mild fecal leakage which is supportive of the Veteran's claim that he experiences recurrent bouts of fecal leakage. Thus, while Diagnostic Codes 7333, 7334, 7335, and 7337 are not applicable, the Board finds that the Veteran's recurrent mild fecal leakage more nearly approximates the symptomatology associated with a 10 percent disability rating under Diagnostic Code 7332. Accordingly, the Board finds that a 10 percent rating under Diagnostic Code 7336 for the Veteran's hemorrhoids is warranted beginning December 17, 2010, and a separate 10 percent rating under Diagnostic Code 7332 for fecal leakage associated with hemorrhoids is warranted beginning December 17, 2010. The Board has also considered whether the Veteran's disability presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of extraschedular ratings is warranted. See 38 C.F.R. § 3.321(b)(1) (2015); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). The Board finds that the schedular evaluations are adequate. The evaluations of the Veteran's disability contemplate his complaints of pain, bleeding, and fecal leakage causing problems with sitting or standing for prolonged periods of time. The diagnostic criteria adequately contemplate the severity and symptomatology of the Veteran's disability, and provide higher ratings for more severe symptoms than the Veteran experiences. The Veteran has not described any unusual or exceptional features associated with his disability or described how the impairment associated with his disability impacts him in an exceptional or unusual way. Thus, the rating criteria reasonably describe the Veteran's disability level and symptomatology. Consequently, referral for extraschedular consideration is not warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). Further, the Board notes that under Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected disabilities experienced. However, in this case, there are no additional service-connected disabilities that have not been attributed to a specific service-connected disability. Accordingly, this is not an exceptional circumstance in which extraschedular consideration may be required to compensate the Veteran for a disability that can be attributed only to the combined effect of multiple conditions. The Board observes that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court of Appeals for Veterans Claims (Court) held that a claim for a total rating based on unemployability due to service-connected disability (TDIU), either expressly raised by the Veteran or reasonably raised by the record involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. The Veteran has not contended, nor does the evidence of record otherwise show, that he is precluded from securing and following substantially gainful employment specifically due to his hemorrhoids. Accordingly, the Board concludes that the issue of TDIU has not been raised in this case. ORDER Entitlement to a 10 percent disability rating under Diagnostic Code 7336 for hemorrhoids is granted from December 17, 2010, subject to controlling regulations applicable to the payment of monetary benefits. Entitlement to a separate 10 percent disability rating under Diagnostic Code 7332 for fecal leakage associated with hemorrhoids is granted from December 17, 2010, subject to controlling regulations applicable to the payment of monetary benefits. ____________________________________________ TANYA SMITH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs