Citation Nr: 1622015 Decision Date: 06/02/16 Archive Date: 06/13/16 DOCKET NO. 10-03 121 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to an increased evaluation for gout and degenerative changes of the bilateral foot and ankle, currently rated as 20 percent disabling. 2. Entitlement to an increased evaluation for hemorrhoids/recurrent anal fissures, status post sphincterotomy, currently rated as non-compensable. 3. Entitlement to an increased evaluation for degenerative joint disease, left knee, status post anterior cruciate ligament (SCL) repair with surgical scar, currently rated as non-compensable. 4. Entitlement to an increased evaluation for deviated septum, status post fracture of the left nasal bone, currently rated as non-compensable. 5. Entitlement to an increased evaluation for limited range of motion of the right shoulder, currently rated as non-compensable. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD E.I. Velez, Counsel INTRODUCTION The Veteran served on active duty in the U.S. Navy from November 1986 to October 2008. This case comes before the Board of Veterans' Appeals (Board) from a May 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. The Board has considered the applicability of Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009) holding that when evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for entitlement to a TDIU will be considered to have been raised by the record as "part and parcel" of the underlying claim, to the present case. However, there is no showing of or claim of unemployability due to the disabilities on appeal and the issue of TDIU has not been raised. All of the issues except the issue of the evaluation of hemorrhoids are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT For the entire period on appeal, the Veteran's hemorrhoids have been characterized by subjective complaints of constant itching, burning, tenderness, and occasional bleeding; and objective findings of reducible external hemorrhoids; at no time have the Veteran's hemorrhoids been shown to be large or thrombotic, irreducible, with excessive redundant tissue, evidencing frequent recurrences, nor has persistent bleeding with secondary anemia or fissures been shown, or rectal leakage. CONCLUSION OF LAW Entitlement to a compensable rating for hemorrhoids is denied. 38 U.S.C.A. § 1155 (West 2015); 38 C.F.R. §§ 3.321 , 4.1, 4.2, 4.7, 4.14, 4.21, 4.41, 4.114, Diagnostic Codes 7336-7332 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist VA satisfied its duty to notify the Veteran pursuant to the Veterans Claims Assistance Act of 2000 (VCAA). 38 U.S.C.A. §§ 5100 , 5102-5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), 4.2 (2015). The appeal for a compensable initial disability rating for service-connected hemorrhoids arises from a disagreement with the initial evaluation following the grant of service connection. The Courts have held that once service connection is granted the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, no further notice is needed under VCAA. VA's duty to assist under the VCAA includes helping the claimant obtain service treatment records and other pertinent records, as well as performing an examination or obtaining a medical opinion when one is necessary to make a decision on the claim. See 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159(c) (2015). Here, the Veteran's service treatment records, VA medical records, and private treatment records are in the claims file. He has not identified any other records or evidence that remains outstanding. Thus, the duty to obtain relevant records on the Veteran's behalf is satisfied. See 38 C.F.R. § 3.159(c) (2015). The Board acknowledges that the remaining issues on appeal are being remanded below for additional development to include obtaining outstanding treatment records. However, the identified potentially outstanding treatment records pertain to the orthopedic disabilities and are therefore, not relevant to the issue being decided herein, the evaluation of hemorrhoids. With respect to claims for increased ratings, the duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran. See Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the Veteran's disability, a VA examination must be conducted. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2015). The RO provided the Veteran VA examinations for his hemorrhoids in February 2009 and April 2015. The examination reports are thorough and supported by the other evidence of record. The examination reports discussed the clinical findings and the Veteran's reported history as necessary to rate the disabilities under the applicable rating criteria. The examination reports also discussed the functional impact of the Veteran's hemorrhoids. They are, therefore, adequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (noting that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). With regard to the April 2015 examination, the Board notes that the Veteran refused to be physically examined. The findings entered in the report are based on an interview with the Veteran and blood work. Despite the lack of current physical findings, the Board notes that the duty to assist is not always a one way street and the Veteran has refused to cooperate in obtaining the most recent findings. See Jones v. Shinseki, 23 Vet. App. 382, 391 (2010) (stating: "Notwithstanding the duty to assist, it remains the claimant's responsibility to submit evidence to support his claim."); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) Therefore, the Board finds that it is not prejudicial to decide the claim based on the evidence of record. The Board additionally observes that all appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2015). The Veteran declined the opportunity to present testimony before a Veterans' Law Judge. The Veteran has been accorded the opportunity to present evidence and argument in support of his claims. Thus, the Board finds that VA has satisfied its duties to inform and assist the Veteran at every stage of this case, and may proceed to the merits of the Veteran's claims. Legal Criteria and Analysis Disability ratings are assigned, under a schedule for rating disabilities, based on a comparison of the symptoms found to the criteria in the rating schedule. 38 U.S.C.A. § 1155 (West 2015); 38 C.F.R. Part 4 (2015). Disability evaluations are determined 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 ratings schedule. Individual disabilities are assigned separate Diagnostic Codes. See 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.1 (2015). The evaluation of the same disability under various diagnoses is to be avoided. See 38 C.F.R. § 4.14 (2015); see also Fanning v. Brown, 4 Vet. App. 225 (1993). If there is a question as to which evaluation to apply to the Veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2015). The Veteran's hemorrhoids/recurrent anal fissures, status post sphincterotomy are currently assigned a non-compensable rating from November 1, 2008, under 38 C.F.R. § 4.114 (2015), Diagnostic Code 7336-7332. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the disability rating assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27 (2015). Diagnostic Code 7336 pertains to external or internal hemorrhoids. Diagnostic Code 7332 pertains to the impairment of sphincter control of the rectum and anus. 38 C.F.R. § 4.114, Diagnostic Codes 7332, 7336 (2015). Under Diagnostic Code 7336, hemorrhoids that are mild or moderate are rated as non-compensable. A 10 percent disability rating is warranted when hemorrhoids are large or thrombotic, irreducible, with excessive redundant tissue, evidencing frequent recurrences. The maximum 20 percent disability rating is warranted when there is persistent bleeding and secondary anemia, or fissures. 38 C.F.R. § 4.114, Diagnostic Code 7336. Under Diagnostic Code 7332, an impairment of sphincter control that is healed or slight, without leakage, is rated as non-compensable. A 10 percent disability rating is warranted when there is constant slight, or occasional moderate leakage. Impairments of sphincter control characterized by occasional involuntary bowel movements, necessitating wearing a pad, warrant a 30 percent disability rating. When there is extensive leakage and fairly frequent involuntary bowel movements, a 60 percent disability rating is warranted. When there is a complete lack of sphincter control the maximum 100 percent disability rating is warranted. 38 C.F.R. § 4.114, Diagnostic Code 7332. Service treatment records show that the Veteran was treated for hemorrhoids and recurrent anal fissures while in service. More specifically, in April 1991, he underwent an internal sphincterotomy. In May 1992, September 1998 and May 2003, he was treated for external hemorrhoids. In April 2008 he was treated for external hemorrhoids and recurrent anal fissures. A June 2008 colonoscopy showed hemorrhoids. The Veteran's initial rating, which he is appealing now, was established in November 2008. The Veteran was afforded a VA examination in February 2009. The Veteran reported symptoms of anal itching, diarrhea, pain, swelling and perianal discharge. He noted he has anal itching all the time with occasional diarrhea, swelling pain and discharge. He reported the hemorrhoids recur frequently. He also endorsed occasional bleeding. He denied any leakage of stool. He denied any functional impairment caused by the hemorrhoids. Upon physical examination, there was no evidence of ulceration, fissures, reduction of lumen, rectal tonus, rectal bleeding or loss of sphincter control. External hemorrhoids were noted at the posterior of the rectum which are reducible. There was no evidence of bleeding or thrombosis, and no evidence of frequent recurrence, without excessive redundant tissue. No rectum fistula was noted. The examiner noted that there was no pathology to render a diagnosis of anal fissures. There was no significant anemia and no findings of malnutrition. The Veteran was afforded another VA examination in April 2015. At the time, he refused a physical examination and he denied any current symptoms. Diagnoses of internal or external hemorrhoids and anal perianal fistula were noted. Blood work showed no anemia. The examiner noted that the Veteran's hemorrhoids and anal fissures were asymptomatic. As to the status post internal sphincterotomy, no diagnosis could be rendered as he refused to be examined. Based on the foregoing, the preponderance of the evidence is against a finding of a compensable rating for hemorrhoids/recurrent anal fissures, status post sphincterotomy. In this regard, the Board notes that the Veteran's hemorrhoids have not been shown to be large or thrombotic, irreducible, with excessive redundant tissue, evidencing frequent recurrences, nor has persistent bleeding with secondary anemia or with fissures been shown. Moreover, anal leakage has not been shown. Significantly, at the most recent VA examination, the Veteran denied any current symptoms. Although the Veteran reported at the February 2009 VA examination occasional bleeding, this does not rise to the level to warrant a compensable rating under the applicable criteria given absence of any other criteria for a compensable rating and the current asymptomatic status of the disability. Additionally, the Veteran's reports of discomfort, itching, burning, and tenderness are contemplated by the non-compensable rating, which recognizes the existence of hemorrhoids and all of the typical symptoms thereof. Furthermore, as to the anal fissures, while the Veteran is service-connected for hemorrhoids/recurrent anal fissures, at no point during the appeal period have anal fissures been shown. Thus, a compensable rating is not warranted at any time. Extraschedular Considerations The Board has also considered whether the Veteran is entitled to referral for compensation on an extraschedular basis. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors, which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2015). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), 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 evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Director, Compensation Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. The Board notes that the Veteran's disability is manifested by subjective complaints of constant discomfort, itching, burning, tenderness, and occasional bleeding. Such symptoms are common for hemorrhoids and are not found to be outside the realm of what the rating considers. These findings are contemplated by non-compensable rating currently assigned for the Veteran's disability. ORDER Entitlement to a compensable rating for hemorrhoids/recurrent anal fissures, status post sphincterotomy, is denied. REMAND The Veteran seeks increased disability ratings for his service-connected bilateral foot and ankle gout and degenerative joint disease, degenerative joint disease of the left knee status post ACL repair with scar, deviated septum, status post fracture of nasal bone, and limited range of motion of the right shoulder. After a review of the evidence of record, the Board finds that additional development is needed prior to deciding these issues. A March 2013 VA memo notes that a CD was received with films and possibly a three page report. However, it is also noted that the films were not printed. On remand, the images contained in the CD should be uploaded to the electronic claim file together with the three page report noted. Private treatment record of January 2014 notes that the Veteran underwent a cervical spine surgery. Records show that the Veteran complained of right arm radiculopathy. Further, the records note that the Veteran was to be seen for follow up in six weeks. However, no additional private treatment records post surgery have been associated with the claim file. These records should be obtained. The Veteran was afforded various orthopedic examinations in April 2015 for his bilateral feet and ankles, right shoulder, and left knee. Upon review of the examination reports, the Board finds that the examinations are inadequate for various reasons to include inconsistencies within the examination reports, failure to review the claim file and consider treatment records contained therein, and failure to provide adequate findings. In regard to the left knee, the examiner noted that a finding of gout of both knees in addition to degenerative arthritis of the left knee. However, no findings regarding gout were noted within the report. Further, the examiner noted that the Veteran's disability was asymptomatic. However, a report of flare-ups and reduced range of motion and pain with most physical activities was also noted. Range of motion findings on examination and with repetitive use were noted to be normal and without pain. However, the examiner did not reconcile the Veteran's reports of functional loss during flare-ups and the normal range of motion findings. Significantly, the examiner noted that the Veteran's work was affected during flare-ups due to reduced range of motion and pain. The Board finds that the reported flare-ups confirm that the disability is not asymptomatic. Accordingly a new VA examination is needed. As to the bilateral feet and ankles, the examiner noted that the condition was asymptomatic and required no constant medication. However, private treatment records note that the Veteran had occasional gout attacks. Additional in a February 2013 statement the Veteran stated that he now was in a daily regimen of medications for gout. Finally, the examiner stated that the Veteran has no exacerbations, yet noted reports of flare-ups. The Board finds that the examination report is inconsistent and a new examination is needed. In regard to the right shoulder, the examiner failed to indicate whether there was any impact on occupation by the right shoulder disability. Moreover, a diagnosis of gout was noted together with flare-ups of pain on the right shoulder. It is unclear as to whether the Veteran has gout on the right shoulder and whether the pain is associated with gout or the service-connected right shoulder disability. Moreover, the examiner stated the condition was asymptomatic, yet noted reports of flare-ups with reduced range of motion and pain. The Board finds the examination inconsistent and a new examination is needed. Finally, as to the Veteran's deviated nasal septum, the examiner noted that the Veteran had a diagnosis of deviated septum and at the same time noted no deviated septum in the report. Moreover, X-rays of the nasal bone of April 2015 showed thickening nasal septum with slight deviation towards the right and slight concavity left nasal bone in the Waters view, correlate for site of previous fracture and/or surgery. However, the examiner, in noting no deviated septum, also noted no findings related to any obstructions, if present. The Board cannot be sure of the adequacy of the physical examination given the above inconsistencies and finds that a new examination is needed. A review of the record shows that a document uploaded to the VBMS file in July 2012 contains over 300 pages of what appears to be x-ray or MRI images which contain no findings or explanations associated with the images. The Board is requesting new VA examinations below, as part of the examination, the VA examiner should review these images and enter any pertinent findings related to the issues being remanded herein. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request that he provide the names, dates of treatment, and addresses of any private physician who treated him for the right shoulder since January 2014. A release of information form should be obtained for each identified provider. Upon receipt of any release of information form from the Veteran, all identified records should be obtained and associated with the claim file. All efforts to obtain the identified records should be clearly documented in the file. 2. Associate with the claim file all of the images contained in the CD received in March 2013. If the images are not available a reason for their unavailability should be noted. 3. After the development in (1) and (2) above has been completed, schedule the Veteran for appropriate VA examinations to determine the current level of severity of his bilateral feet and ankles gout and DJD, DJD of the left knee, right shoulder, and deviated nasal septum. The claims file should be made accessible to the examiner and the examiner must state in the examination report that a review of the file was conducted. All appropriate tests should be conducted to include any X-rays or MRIs. For each disability, a complete and detailed history of symptomatology should be recorded, to include any symptoms during flare-ups. Ranges of motion testing should be conducted to include upon repetitive motion. If reduced range of motion is reported during flare-ups, the examiner should estimate, to the best extent possible, the range of motion during flare-ups. A report of any impact on occupation should be noted for each of the claimed disabilities. If flare-ups are reported, the frequency and duration of the same should be noted. The examiner is requested to review the images contained in the July 2012 VBMS entry and any other images associated with the file as a result of the development requested in (2) above, and enter any pertinent findings related to the disabilities above shown by these images. 4. Ensure completion of the foregoing and any other development deemed necessary, then readjudicate the Veteran's claim. If the issues remain denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case and an opportunity to respond. The case should then be returned to the Board for appropriate appellate consideration. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs