Citation Nr: 1644822 Decision Date: 11/30/16 Archive Date: 12/09/16 DOCKET NO. 10-29 230 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for diabetes mellitus, to include as due to exposure to herbicides. 2. Evaluation of hemorrhoids, currently evaluated as 10 percent disabling. 3. Evaluation of residuals of a fracture of the 5th toe of the right foot, currently evaluated as noncompensably disabling. 4. Entitlement to a total disability evaluation based upon unemployability (TDIU) due to service-connected disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Rocktashel, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1969 to October 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. Subsequent to the Veteran's Notice of Disagreement of the July 2009 decision, the RO granted the Veteran service connection for hypertension and increased the evaluation of the hemorrhoid disability to 10 percent. The claim of service connection for hypertension is resolved and no longer on appeal. The hemorrhoid claim, however, remains in appellate status as the Veteran is presumed to be seeking the highest possible evaluation. AB v. Brown, 6 Vet. App. 35, 38 (1993). During the pendency of the Veteran's claim for an increased evaluation, he asserted that he retired before he was ready because of his service-connected hemorrhoid and/or toe disorder. See a December 2012 statement from the Veteran. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court of Appeals for Veterans Claims held that a total disability rating based on individual unemployability (TDIU) claim is part of a claim for a higher rating when such claim is raised by the record or asserted by the Veteran. Accordingly, the TDIU claim is before the Board as a component of his claim for an increased evaluation. Id. The issues of entitlement to service connection for diabetes, the evaluation of the right toe, and entitlement to a TDIU are addressed in the REMAND portion of the decision below are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The hemorrhoid disorder is manifest by internal and external hemorrhoids that are large with frequent recurrences and occasional to frequent bleeding, but without anemia or fissures. CONCLUSION OF LAW The criteria for a rating for hemorrhoids in excess of 10 percent have not been met or more nearly approximated. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.114, Diagnostic Code 7336 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 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) (2016). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In this case, notice of the requirements for disability evaluations was satisfied by a letter sent to the Veteran in May 2009. The claim was last adjudicated in March 2016. Next, VA has a duty to assist the Veteran in the development of the claim. To that end, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2015); see Golz v. Shinseki, 590 F.3d 1317, 1320 (2010). Furthermore, "[t]he duty to assist is not boundless in its scope" and "not all medical records . . . must be sought - only those that are relevant to the [V]eteran's claim." Golz at 1320, 21. In this case, service treatment records, private medical records, military personnel records, VA treatment records, and lay statements have been associated with the record. In June 2009, VA afforded the Veteran an adequate examination with respect to the severity of his hemorrhoid disorder. The Board finds this examination to be adequate to address the current severity of the disability. The VA examiner reviewed the evidence of record, considered the Veteran's history and statements, and rendered medical opinions based upon the facts of the case and the examiner's knowledge of medical principles. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Although the Veteran's representative contends that the examination is too old to adequately describe the disability, the Board notes that the age of a VA examination alone is not a sufficient reason to warrant a new examination. Palczewski v. Nicholson, 21 Vet. App. 174, 182-83 (2007). There must also be an indication or allegation that the Veteran's condition worsened. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993) ("Where an appellant claims that his condition is worse than when originally rated, and the available evidence is too old for an adequate evaluation of appellant's current condition, the VA's duty to assist includes providing a new examination."). In this case, the Veteran has not contended that his condition has worsened, and the evidence of record does not suggest any worsening. Accordingly, the Board finds the June 2009 VA examination is adequate to evaluate the Veteran's current condition. For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. There is no additional evidence which needs to be obtained. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. Analysis The Veteran is currently in receipt of a 10 percent rating for hemorrhoids under Diagnostic Code. See 38 C.F.R. § 4.114. Diagnostic Code 7336 rates hemorrhoids, external or internal. Under Diagnostic Code 7336, mild or moderate hemorrhoids are to receive a 0 percent (noncompensable) rating. Hemorrhoids that are large or thrombotic, irreducible, with excessive redundant tissue, evidencing frequent recurrences are assigned a 10 percent rating. Hemorrhoids with persistent bleeding and with secondary anemia, or with fissures are assigned a 20 percent rating. Id. Here, the Veteran generally contends that he is entitled to an increased rating for the service-connected hemorrhoids. In the June 2010 Decision Review Officer hearing at the RO, the Veteran explained that he has daily bouts with his hemorrhoids. They require the use of Tucks medicated pads every day and suppositories every night. The pain level is a constant 9 out of 10. He also frequently requires a Sitz bath during the day, making working in an office impractical. Walking is made unbearable during flare ups. The Veteran acknowledged that if he had employment allowing him to work from home, he could likely perform such work. At the June 2009 VA examination, the Veteran endorsed anal itching, pain, and swelling. He denied diarrhea, tenesmus and perianal discharge. He reported hard stool, severe pain, bleeding, and pain when walking. Leakage of stool was not present. Hemorrhoids were constantly present. The rectal examination showed no evidence of ulceration, fissures, reduction of lumen, rectal tonus, trauma, rectal bleeding, proctitis, infections, spinal cord injury, protrusion or loss of sphincter control. External hemorrhoids that are not reducible were present on examination of the rectum. Thrombosis was absent. No rectum fistula was noted on examination. VA treatment records and private treatment records during the appeal period do not show treatment for hemorrhoids. A colonoscopy was performed in 2008 which was unremarkable, other than reporting internal hemorrhoids in the rectum. Based on all the evidence, both medical and lay, the Board finds that the hemorrhoids more nearly approximate the criteria for a 10 percent rating under Diagnostic Code 7336. A 20 percent rating under is not more nearly approximated. The Board acknowledges that the hemorrhoids are large and evidence frequent reoccurrence. The Veteran has credibly reported occasional to frequent bleeding "a little bit." Nonetheless, the medical and lay evidence does not demonstrate that the Veteran has secondary anemia associated with his rectal bleeding. Treatment records are silent as to treatment for hemorrhoids, and therefore, for anemia. The Veteran himself does not contend he experiences anemia due to his hemorrhoids. The evidence also does not show that the Veteran has a diagnosis of an anal fissure caused by the hemorrhoids. While bleeding may suggest there is a fissure, on examination in June 2009, no fissure was diagnosed, and review of the treatment records do not show a diagnosis of a fissure. Therefore, the Board finds that the criteria for a 20 percent rating for hemorrhoids under Diagnostic Code 7336 have not been met or more nearly approximated. 38 C.F.R. §§ 4.3, 4.7, 4.114. Consideration has been given regarding whether the schedular evaluations are inadequate, thus requiring that the AOJ refer a claim to the Under Secretary for Benefits or the Director, Compensation Service, for consideration of an extra-schedular evaluation. 38 C.F.R. § 3.321(b)(1) (2016). An extra-schedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture with marked interference with employment or frequent periods of hospitalization that render impractical the application of the regular schedular standards. Floyd v. Brown, 9 Vet. App. 88, 94 (1996). An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Thun, 22 Vet. App. at 115-116. When those two elements are met, the appeal must be referred for consideration of the assignment of an extra-schedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116. Here, the rating criteria reasonably describe and contemplate the severity and symptomatology of the Veteran's service-connected disability. The Veteran reported symptoms essentially of rectal bleeding, pain, large hemorrhoids, and hard stool. The Veteran described the effects of the pain as making walking unbearable at times, and self-treatment of Tucks, a salt water bath multiple times daily, and suppositories. The ratings schedule for the 10 percent evaluation contemplates large, irreducible hemorrhoids with frequent recurrences. Additionally, the rating criteria allow for additional signs and symptoms of disability, or greater degrees of disability. There is no evidence in the record of an exceptional or unusual clinical picture to render impractical the application of the regular schedular standards. The Schedular criteria are therefore adequate, and referral for extra-schedular consideration is not warranted. Finally, the Board notes that, under Johnson v. McDonald, 762 F.3d 1362, 1365-66 (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, after applying the benefit of the doubt under of Mittleider v. West, 11 Vet. App. 181 (1998), there are no additional symptoms that have not been attributed to a specific service-connected disability. Consequently, referral for extraschedular consideration is not required under 38 C.F.R. § 3.321(b)(1). ORDER An evaluation in excess of 10 percent for hemorrhoids is denied. REMAND The Board finds that further development is required prior to adjudicating the Veteran's claims. See 38 C.F.R. § 19.9 (2016). The Veteran's claim of entitlement to service connection for diabetes mellitus is based upon exposure to herbicides. The Veteran contends that he traveled to Vietnam while he was stationed at the Royal Thai Air Force Base (RTAFB) in Udorn, Thailand. He further claims that, while he does not have the military occupational specialty (MOS) that indicates he worked near the Udorn RTAFB perimeter, he maintains that someone who is stationed at such outpost would still need to cross the affected perimeter to go on liberty, leave, off base activities, etc. that are the norm for all base personnel. See November 2016 Appellant's Brief. The Board notes that the VA Adjudication Procedures Manual M21-1 describes that a special consideration of herbicide exposure on a factual basis should be extended to Veterans whose duties placed them on or near the perimeters of Thailand military bases. VA ADJUDICATION PROCEDURES MANUAL, M21-1, Pt. IV, subp. ii, ch. 1, § H, subs. 5. The development procedures prescribed that if the available evidence does not show service along the base perimeter or otherwise indicate exposure to herbicides, a request for information should be sent to U.S. Army and Joint Services Records Research Center ("JSRRC"). See id. The Veteran's personnel records show he served in Thailand at Udorn Air Force Base from May 2, 1971 to August 26, 1972. The Veteran was assigned to432 Combat Support Group, Udorn, Thailand, APO, SF 96237. His MOS was an Operations Systems Management Specialist. The RO conducted research to determine whether the Veteran was exposed to herbicides via travel to Vietnam. However, the RO did not conduct research as to whether the Veteran was exposed to herbicides in Thailand. Accordingly, remand is required for this purpose. With respect to the evaluation of the right great toe, the United States Court of Appeals for Veterans Claims (CAVC) in Correia v. McDonald, 28 Vet. App. 158 (2016), held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Thus, the CAVC's holding in Correia establishes additional requirements that must be met prior to finding that a VA examination is adequate. The VA examination report here reveals that testing in passive motion, weight-bearing, and nonweight-bearing situations were not conducted. In light of Correia, the Veteran must be provided a new VA examination, which provides testing in active motion, passive motion, weight-bearing, and nonweight-bearing. The issue of a TDIU is inextricably intertwined with the evaluation of the right great toe. Moreover, medical and vocational opinions on the combined effects of the service connected disabilities are required. Finally, the Veteran has not been provided VCAA notice or a Statement of the Case notifying him of the laws and regulations associated with a TDIU. On remand, this should be accomplished. Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to identify the details of his claimed exposure to herbicides while at Udorn RTAFB, to include work duties, and frequency and approximate dates of ingress and egress from the base, and the destination to which the Veteran was traveling when leaving base. Furthermore, ask the Veteran to submit any additional records supporting his claim of exposure to herbicides. 2. Ask the Veteran to identify and provide authorization to obtain any outstanding, relevant treatment records. After securing the necessary authorization, these records should be requested. If any records are not available, the Veteran should be notified of such. 3. Attempt to verify the Veteran's claimed exposure to herbicides while stationed at the Udorn RTAFB, to include whether his duties placed him near the base perimeter, whether herbicides were used at the entrances to the base, and his travel to and from the base. In attempting to verify exposure, the JSRRC must be contacted as well as any other appropriate agency. See M21-1, Pt. IV, subp. ii, ch. 1, § H. 4. Issue VCAA-compliant notice with respect to a TDIU and include the laws and regulations applicable to a TDIU. 5. Conduct any necessary development with respect to a TDIU. 6. Thereafter, schedule the Veteran for VA examination(s) to ascertain the current severity and manifestations of the Veteran's service-connected right toe disability and to determine the combined effects of his service-connected disabilities on his employability. The claims file should be made available to the examiner for review in connection with the examination. The examiner must include testing in the following areas for both the right and left great toes: • Active motion; • Passive motion; • Weight-bearing; and • Nonweight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should also provide an opinion as to the combined effects on the Veteran's employability of his service-connected disabilities. 6. Thereafter, forward the claims folder to a vocational specialist for an opinion on the functional impact the Veteran's service-connected right toe, hemorrhoid, hypertension, and posttraumatic stress disorder disabilities have on his employability, and identify whether - given the Veteran's education, training and previous work experience, there are employment opportunities wherein he could earn income above the poverty level for an individual with one dependent. If the Veteran is found to have been capable of performing substantially gainful employment, please provide an example or examples of the type of employment within the Veteran's capabilities. 7. If, upon completion of the above action, any benefit sought on appeal remains denied, the case should be returned to the Board after compliance with appellate procedure. The Veteran has the right to submit additional evidence and argument on the matter or 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). ______________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs