Citation Nr: 1640730 Decision Date: 10/14/16 Archive Date: 10/27/16 DOCKET NO. 09-37 135 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for sleep apnea, including as secondary to service-connected hemorrhoids. 2. Entitlement to service connection for anemia (claimed as low blood count), including as secondary to service-connected hemorrhoids. 3. Entitlement to a compensable rating for hemorrhoids. 4. Entitlement to a compensable rating for internal derangement, left knee. 5. Entitlement to a rating in excess of 10 percent, prior to October 25, 2013, and in excess of 20 percent from October 25, 2013, for a lumbosacral strain. 6. Entitlement to service connection for residuals of a right third finger injury with an extensor tendon rupture. 7. Entitlement to service connection for pseudofolliculitis barbae. 8. Entitlement to service connection for left great toe tenderness and residuals. 9. Entitlement to service connection for a heart murmur. 10. Entitlement to service connection for residuals of a right calf injury, including a contusion with swelling and tenderness. 11. Entitlement to service connection for hypertension. 12. Entitlement to service connection for gastroenteritis. 13. Entitlement to service connection for sinusitis with chest pain and shortness of breath. 14. Entitlement to service connection for allergic rhinitis with congestion, shortness of breath, and rhinorrhea (claimed as a nasal blockage). REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD L. N., Counsel INTRODUCTION The Veteran had active service in the United States Air Force from March 1980 to March 2000. The first five claims noted on the prior page come before the Board of Veterans' Appeals (Board) on appeal of a May 2008 rating decision, in which the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois, denied service connection for sleep apnea and anemia and continued the noncompensable (0 percent) ratings assigned the Veteran's hemorrhoids and left knee and low back disabilities. The RO did not certify the remaining claims to the Board for appellate review, but for the reason noted in the Remand portion of this decision, below, the Board has included them as issues on appeal. In a supplemental statement of the case dated July 2011, the RO increased the 0 percent rating assigned the Veteran's low back disability to 10 percent, effective from April 6, 2011. The Board then remanded the first five claims to the RO for additional action in July 2012, July 2013 and July 2014. In December 2015, the Board issued a decision partially granting the Veteran's claim for an increased rating for his low back disability by assigning that disability a 10 percent rating from March 19, 2008, and a 20 percent rating from October 25, 2013. The Board denied all other claims then on appeal. The Veteran appealed the Board's December 2015 decision to the U.S. Court of Appeals for Veterans Claims (Court). In June 2016, based on a Joint Motion To Vacate In Part And Remand (JMPR), the Court remanded these claims (all but the favorable findings involving the low back) to the Board for action consistent with the terms of the JMPR. VA processed these claims electronically, utilizing Virtual VA and Veterans Benefits Management System (VBMS), VA's paperless claims processing systems. Review of these claims therefore contemplates both electronic records. The claims of entitlement to service connection for sleep apnea, including as secondary to service-connected hemorrhoids, anemia, including as secondary to service-connected hemorrhoids, residuals of a right third finger injury with an extensor tendon rupture, pseudofolliculitis barbae, left great toe tenderness and residuals, a heart murmur, residuals of a right calf injury, including a contusion with swelling and tenderness, hypertension, gastroenteritis, sinusitis with chest pain and shortness of breath, and allergic rhinitis with congestion, shortness of breath, and rhinorrhea, and entitlement to a compensable rating for internal derangement, left knee, and a rating in excess of 10 percent, prior to October 25, 2013, and in excess of 20 percent from October 25, 2013, for a lumbosacral strain, are addressed in the REMAND portion of the decision and are REMANDED to the Agency of Original Jurisdiction (AOJ). In Notices of Disagreement received dated March 2016, the Veteran raises claims to reopen previously denied claims for service connection for vision loss and bilateral hearing loss. The Board refers these matters to the AOJ for appropriate action. FINDINGS OF FACT 1. The Veteran has recurrent, occasionally bleeding internal and external hemorrhoids with fissures. 2. The rating criteria reasonably describe the level of severity and symptomatology of the Veteran's hemorrhoids. CONCLUSION OF LAW The criteria for entitlement to a 20 percent rating for hemorrhoids are met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.321, 4.1-4.14, 4114, Diagnostic Code (DC) 7336 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist Upon receipt of a complete or substantially complete application for benefits, VA is tasked with satisfying certain procedural requirements outlined in the VCAA and its implementing regulations. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). Specifically, VA is to notify a claimant and his or her representative, if any, of the information and medical or lay evidence not previously provided to the Secretary that is necessary to substantiate the claim, which portion of the evidence the claimant is to provide and which portion of the evidence VA will attempt to obtain on the claimant's behalf. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b), (c). VA is also to assist this claimant in obtaining evidence necessary to substantiate a claim, including, in certain cases, by affording him or her a medical examination or obtaining a medical opinion. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b), (c). Here, the Veteran does not assert that VA violated its duty to notify, that there are any outstanding records that need to be secured on his behalf, or that the VA examinations he underwent during the course of this appeal were inadequate. No further notification or assistance is thus necessary. Moreover, the Board notes that it is remanding a number of the claims for additional development, but finds there is no indication that any outstanding medical records contain information that would entitle the Veteran to a rating higher than 20 percent for hemmorhoids. See 38 U.S.C.A. § 5107 (a) ("[A] claimant has the responsibility to present and support a claim for benefits."); Skoczen v. Shinseki, 564 F.3d 1319, 1323-29 (2009) (interpreting section 5107(a) to obligate a claimant to provide an evidentiary basis for his or her benefits claim, consistent with VA's duty to assist, and recognizing that "[w]hether submitted by the claimant or VA ... the evidence must rise to the requisite level set forth in section 5107(b)," requiring an approximate balance of positive and negative evidence regarding any issue material to the determination); Fagan v. Shinseki, 573 F.3d 1282, 1286 (2009) (stating that the claimant has the burden to "present and support a claim for benefits" and noting that the benefit of the doubt standard in section 5107(b) is not applicable based on pure speculation or remote possibility). Analysis The Veteran seeks a 20 percent rating for his hemorrhoids on the basis that they are internal and external, severe and persistent, cause bleeding, leakage and anemia and involve fissures. Here, given the medical evidence of record, the assignment of a 20 percent rating, which is the maximum under the rating schedule, is indeed warranted. Disability ratings 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 Schedule for Rating Disabilities (rating schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 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. Schedular The RO has rated the Veteran's hemorrhoids as 0 percent disabling under DC 7336 based on a finding that these hemorrhoids are mild or moderate. To warrant the assignment of the next higher 10 percent rating under this DC, the evidence must establish that the hemorrhoids are large or thrombotic, irreducible, with excess redundant tissue, evidencing frequent recurrences. To warrant the highest 20 percent rating under this DC, the evidence must establish that the hemorrhoids, external or internal, involve persistent bleeding with secondary anemia, or with fissures. 38 C.F.R. § 4.114, DC 7336. The Veteran sought treatment for and underwent VA examinations of his hemorrhoids on numerous occasions since service in the 1980s, when they first manifested. Prior to filing this claim, in May 2000, he underwent his first VA examination, during which he reported discomfort and leakage associated with the hemorrhoids. He indicated that he bled between four times weekly and daily, but had a good response with Preparation H. He brought a pair of underwear soiled with blood to the examination to confirm his contentions, but on that date, there was no evidence of bleeding, thrombosed hemorrhoids or anemia. In 2005 and 2007, he visited gastroenterologists and underwent upper and lower gastrointestinal endoscopies in response to his complaints, testing that confirmed internal and external hemorrhoids and external skin tags, but no source of blood loss. In 2007, lab work revealed that the Veteran had low iron and abnormal hemoglobin and, for some years, there was a question as to whether the anemia was due to the bleeding associated with the hemorrhoids, as the Veteran alleges, or secondary to abnormal hemoglobin commonly seen in African-Americans. Treatment providers and VA examiners discussed these possibilities, the former never providing a definitive opinion, the latter ruling out a relationship between the anemia and hemorrhoids. In any event, after the Veteran took iron supplements from 2007 to 2008, his anemia appears to have resolved, as evidence by normal testing that followed. Following the first VA examination, including in March 2008, April 2011, September 2013, the Veteran underwent three additional VA examinations, during which he consistently reported associated bleeding, albeit intermittent. Examiners confirmed the presence of internal and external hemorrhoids, characterized them as symptomatic and mild to moderate, but did not note any associated bleeding. During this time period, including in November 2009 and January 2010, the Veteran presented to the hospital for excision of tender hemorrhoids. In April 2011, the Veteran reported some improvement, but indicated that he was still experiencing occasional bleeding associated with his hemorrhoids. In November 2011, he noted that he was having flare-ups of hemorrhoids, off and on. During his July 2015 VA examination, he reported rectal pain and bright red stools, symptoms for which he had scheduled a colonoscopy the following month. The examiner noted small to moderate external hemorrhoids and an anal fissure or large internal hemorrhoid. No medical professional has noted that the Veteran has frequently recurring large or thrombotic, irreducible hemorrhoids with excessive redundant tissue, symptoms that would warrant the assignment of a 10 percent rating. However, based on treatment records, it is clear these hemorrhoids recur regularly, despite surgeries. According to the Veteran, the bleeding associated with the hemorrhoids is persistent, a claim the Veteran is competent to make, bleeding being a lay-observable symptom. Certainly, the soiled underwear he produced during his first VA examination lends credibility to this particular contention. It is also clear the Veteran now has a fissure. That finding coupled with the persistent bleeding is sufficient to establish the Veteran's entitlement to a 20 percent schedular rating under DC 7336. Extraschedular In certain circumstances, the Board may assign a higher initial or increased rating on an extraschedular basis, but not in the first instance. When the question is raised either by the claimant, or reasonably by the evidence of record, the adjudicator must specifically decide whether to refer the claim to the Chief Benefits Director of VA's Compensation and Pension Service under 38 C.F.R. § 3.321 for consideration of the matter. Barringer v. Peake, 22 Vet. App. 242 (2008). The Director is authorized to approve the assignment of an extraschedular rating if the claim "presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards." 38 C.F.R. § 3.321(b)(1). If the claimant or the evidence raises the question of entitlement to a higher initial or increased rating on an extraschedular basis, as a threshold matter, the Board must determine whether the evidence before VA presents such an exceptional disability picture that the available schedular rating for the service-connected disability is inadequate. This requires comparing the level of severity and symptomatology of the service-connected disability with the established criteria found in the rating schedule pertaining to that disability. Thun v. Peake, 22 Vet. App. 111, 118 (2008). This comparison must take into account the collective impact of all of the claimant's service-connected disabilities. Johnson v. McDonald, 762 F.3d 1362, 1365 (Fed. Cir. 2014) (discussing the application of the combined effect analysis and the interplay of the first two elements of Thun). If the criteria reasonably describe the level of severity and symptomatology of the disability, the disability picture is contemplated by the rating schedule, the assigned schedular rating is adequate and no referral is necessary. Id. If the criteria do not reasonably describe the level of severity and symptomatology of the disability, the disability picture is not contemplated by the rating schedule and the assigned schedular rating is inadequate. The RO or Board must then determine whether the exceptional disability picture involves other related factors such as those outlined in 38 C.F.R. 3.321(b)(1) as "governing norms", including "marked interference with employment" and "frequent periods of hospitalization". Id. During his most recent VA examination, by asserting increased absenteeism at work secondary to hemorrhoids, the Veteran has raised the question of whether he is entitled to an increased rating on an extraschedular basis. Regardless, referral is unnecessary. The rating criteria not only contemplate the Veteran's internal and external hemorrhoids and fissures, but also the bleeding associated with these conditions and the frequency of the bleeding (persistent). There is nothing exceptional or unusual about this disability, which would deem the rating criteria inadequate. Although the Board is sympathetic to the Veteran, to the extent that VA's current rating schedule does not provide for additional compensation for hemmorhoids, neither the Board nor the Court of Appeals for Veterans Claims itself has the power to change those requirements. See Wingard v. McDonald, 779 F.3d 1354, 1356 (Fed. Cir. 2015) ("Congress precluded the Veterans Court from 're-view[ing] the schedule of ratings for disabilities adopted under section 1155 ... or any action of the Secretary in adopting or revising that schedule.' 38 U.S.C. § 7252 (b). That provision squarely precludes the Veterans Court from determining whether the schedule . . . substantively violates statutory constraints.") ORDER A 20 percent rating for hemorrhoids is granted. REMAND The Board regrets the delay that will result from remanding rather than immediately deciding the claims of entitlement to service connection for sleep apnea, including as secondary to service-connected hemorrhoids, anemia, including as secondary to service-connected hemorrhoids, residuals of a right third finger injury with an extensor tendon rupture, pseudofolliculitis barbae, left great toe tenderness and residuals, a heart murmur, residuals of a right calf injury, including a contusion with swelling and tenderness, hypertension, gastroenteritis, sinusitis with chest pain and shortness of breath, and allergic rhinitis with congestion, shortness of breath, and rhinorrhea, and entitlement to a compensable rating for internal derangement, left knee, and a rating in excess of 10 percent, prior to October 25, 2013, and in excess of 20 percent from October 25, 2013, for a lumbosacral strain, but additional action is necessary before the Board proceeds. First, according to the parties' JMPR, there are pertinent, outstanding medical documents, which need to be secured in support of these claims directly from the treatment providers. Such documents include a complete set of records of the Veteran's post-separation treatment at Scott Air Force Base (AFB) (incomplete set currently in VBMS) and Lincoln Surgical Associates. Second, in a rating decision dated December 2015, the RO denied the Veteran service connection for residuals of a right third finger injury with an extensor tendon rupture, pseudofolliculitis barbae, left great toe tenderness and residuals, a heart murmur, residuals of a right calf injury, including a contusion with swelling and tenderness, hypertension, gastroenteritis, sinusitis with chest pain and shortness of breath, and allergic rhinitis with congestion, shortness of breath, and rhinorrhea (claimed as a nasal blockage). Thereafter, in three Notices of Disagreement dated March 2016, the Veteran expressed disagreement with the denials. To date, the RO has not issued a statement of the case in response, which is mandated under Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, these claims are REMANDED for the following action: 1. Secure all of the remaining records of the Veteran's post-separation treatment at Scott AFB directly from that facility. Associate such records with the electronic files. 2. Determine whether the Veteran's August 2013 authorization is sufficient to secure and associate with the electronic files his treatment records from Lincoln Surgical Associates. If not, obtain updated authorization. 3. Furnish the Veteran a statement of the case addressing the issues of service connection for residuals of a right third finger injury with an extensor tendon rupture, pseudofolliculitis barbae, left great toe tenderness and residuals, a heart murmur, residuals of a right calf injury, including a contusion with swelling and tenderness, hypertension, gastroenteritis, sinusitis with chest pain and shortness of breath, and allergic rhinitis with congestion, shortness of breath, and rhinorrhea (claimed as a nasal blockage). Notify the Veteran that the Board will not decide these claims unless they are properly perfected for appellate review. 4. Readjudicate. The Veteran has the right to submit additional evidence and argument on the remanded claims. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014) (law requires all claims remanded by the Board of Veterans' Appeals or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action be handled in an expeditious manner). ______________________________________________ BRADLEY W. HENNINGS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs