Citation Nr: 1627692 Decision Date: 07/12/16 Archive Date: 07/22/16 DOCKET NO. 09-30 448 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for a disability manifested by swollen lymph nodes, to include as due to service within Southwest Asia during the Persian Gulf War. 2. Entitlement to service connection for a disability manifested by frequent fevers, night chills, and sweats, to include as due to service within Southwest Asia during the Persian Gulf War. 3. Entitlement to service connection for recurrent tonsillitis and pharyngitis. 4. Entitlement to an initial compensable evaluation for residuals of internal hemorrhoids. 5. Entitlement to an initial compensable evaluation for residuals of a right indirect hernia repair, excluding residual scarring. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Christopher Murray, Counsel INTRODUCTION The Veteran had active military service from May 2002 to May 2008, including service within Southwest Asia during the Persian Gulf War. This case comes before the Board of Veterans' Appeals (Board) on appeal of an October 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. Jurisdiction of the Veteran's claim lies with the RO in Roanoke, Virginia. The Veteran testified before the Board at a June 2014 hearing. A transcript of the hearing is of record. This case was previously before the Board in September 2014, at which time the appeal was remanded to the Agency of Original Jurisdiction (AOJ) for further development. Following the remand, an examiner noted a December 2011 diagnosis of recurrent tonsillitis and pharyngitis. As the Board requested information as to tonsillitis and pharyngitis as part of the claimed disability manifested by frequent fevers, night chills and sweats, and diagnoses were noted on remand, the issues are as set forth on the title page. The issues of service connection for disabilities manifested by swollen lymph nodes and fevers, night chills and sweats, as well as service connection for recurrent tonsillitis and pharyngitis are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDINGS OF FACT 1. The Veteran's service-connected hemorrhoids are no more than mild to moderate; there is no competent evidence of large or thrombotic internal or external hemorrhoids. 2. The Veteran's service-connected residuals of a right indirect hernia repair are manifested solely by healed postoperative wounds without the need for a supporting belt. CONCLUSIONS OF LAW 1. The criteria for an initial compensable evaluation for residuals of internal hemorrhoids have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.2, 4.3, 4.7, 4.114, Diagnostic Code 7336 (2015). 2. The criteria for an initial compensable evaluation for a right indirect hernia repair have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.2, 4.3, 4.7, 4.114, Diagnostic Code 7339 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist When VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). See also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Veteran has been provided notice letters throughout the appeal that address all notice elements required. There has been no allegation of notice error in this case. See Shinseki v. Sanders/Simmons, 556 U.S. 396 (2009). VA must also make reasonable efforts to assist the appellant 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 claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2015). Service treatment records are associated with claims file. All post-service treatment records identified by the Veteran have also been obtained. VA's duty to further assist the Veteran in locating additional records has been satisfied. The Veteran has been afforded VA examinations in conjunction with his appeal. See 38 U.S.C.A. § 5103A(d); see also 38 C.F.R. § 3.159(c)(4) (2015). These VA examinations are adequate for the purposes of the instant appeal, as they involved a review of the Veteran's pertinent medical history as well as a clinical evaluation of the Veteran, and provide an adequate discussion of relevant symptomatology. See generally Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Board acknowledges the Veteran's representative's assertion that the VA examination reports reflect the VA examiners did not review the claims file, and requested remand. However, the Board notes the Veteran's claims file has been converted into an electronic format, and the VA examination reports in question note the examiners did not review the paper claims file, but did review relevant service, VA, and private records. Therefore, the Board finds remand is not necessary with regards to the issues decided below. In addition, there has been substantial compliance with the Board's prior remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Finally, the Board finds that the undersigned Veterans Law Judge complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) with regards to the provision of the Veteran's Board hearing and adjudication of the instant appeal may proceed. See Bryant v. Shinseki, 23 Vet. App. 488 (2010). In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103 and 5103A; 38 C.F.R. § 3.159. Analysis Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability evaluations. See generally, 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). In Fenderson v. West, 12 Vet. App. 119 (1999), the Court held that evidence to be considered in the appeal of an initial assignment of a disability rating is not limited to that reflecting the then current severity of the disorder. In Fenderson, the Court also discussed the concept of the "staging" of ratings, finding that in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Fenderson at 126-28; see also Hart v. Mansfield, 21 Vet. App. 505 (2007). Residuals of Internal Hemorrhoids The October 2008 rating decision on appeal awarded service connection for residuals of internal hemorrhoids and assigned a noncompensable evaluation, which has remained in effect throughout the appeal period. The Veteran asserts a compensable evaluation is warranted, as he experiences periodic, painful recurrent hemorrhoids. Pursuant to Diagnostic Code 7336, a noncompensable evaluation is assigned for hemorrhoids that are mild or moderate in degree. A 10 percent evaluation is assigned for hemorrhoids which are large or thrombotic, irreducible, with excessive redundant tissue, evidencing frequent recurrences. A maximum 20 percent evaluation is assigned for internal or external hemorrhoids with persistent bleeding and with secondary anemia, or with fissures. 38 C.F.R. § 4.114, Diagnostic Code 7336 (2015). At an August 2008 VA examination, the Veteran reported internal hemorrhoids diagnosed after a colonoscopy in 2005. He was provided hydrocortisone suppositories, he used twice a week with good success. On examination, there were no external hemorrhoids identified, and the Veteran exhibited good sphincter control without fissures. At a December 2011 VA examination, the Veteran reported bleeding one a month for two to three days associated with hard stool and constipation, but did not receive treatment at the time. There were no hemorrhoids present at the time, and the Veteran declined a rectal examination. Finally, at a January 2016 VA examination, the Veteran reported he still experiences bleeding once or twice per week with a small amount of bright red stool on wiping paper, but not in the stool. He had not taken hemorrhoid medication for two years, and there were no external hemorrhoids present. Again, a rectal examination was not performed, however, the examiner noted that examination of the rectal area showed there were no external hemorrhoids, anal fissures or other abnormalities. The examiner indicated that the condition was mild to moderate in severity and did not impact his ability to work. In light of the evidence above, the Board finds that the Veteran's hemorrhoids disability is no more than mild or moderate in severity. There is no objective medical evidence of large, thrombotic, or irreducible hemorrhoids, persistent bleeding with secondary anemia, or fissures. Furthermore, the Veteran has not identified treatment records which may indicate such symptomatology, or any other manifestations that may result in a compensable evaluation under another Diagnostic Code. Accordingly, the Board finds that the evidence of record does not support a compensable rating for the Veteran's residuals of internal hemorrhoids at any point in appeal period. The preponderance of the evidence is against his claim for a compensable evaluation. Consequently, the benefit-of-the-doubt rule does not apply. 38 U.S.C.A. § 5107(b) (West 2014). Residuals of Right Indirect Hernia Repair The October 2008 rating decision on appeal also awarded service connection for residuals of a right indirect hernia repair and assigned a noncompensable evaluation, which has remained in effect throughout the appeal period. The Veteran asserts a compensable evaluation is warranted, as he asserts he suffers from residuals including a weak abdominal wall. Pursuant to Diagnostic Code 7339, healed postoperative wounds without disability or requirement of a supporting belt warrants a noncompensable evaluation. Small, not well supported by belt under ordinary conditions, or healed ventral hernia or post-operative wounds with weakening of abdominal wall and indication for a supporting belt warrants a 20 percent evaluation. See 38 C.F.R. § 4.114, Diagnostic Code 7339 (2015). A large hernia, not well supported by belt under ordinary conditions, warrants a 40 percent evaluation. Finally, a maximum 100 percent evaluation is warranted with a massive and persistent hernia with severe diastasis of recti muscles or extensive diffuse destruction or weakening of muscular and fascial support of abdominal wall so as to be inoperable. Id. At the August 2008 VA examination, the Veteran reported a hernia repair in approximately July 2003, with good results and a mesh placed. For the hernia repair, there was no dehiscence, infection, or medical management in the previous twelve months. A physical examination found no inguinal masses or muscle wall abnormalities. The examiner diagnosed a status post right indirect hernia repair without residuals. At a December 2011 VA examination, the Veteran reported experiencing daily pain lasting a few seconds, but did not then receive medical treatment. Upon examination, the abdomen was normal without a palpable mass or hernia present, nor was there abdominal guarding or tenderness. Finally, at a January 2016 VA examination, the Veteran reported a painful scar if pushing on it, or performing sit-ups and/or stretching. Otherwise, the Veteran reported no other symptomatology associated with his right hernia repair. On examination, there was no hernia found, and no indication for a supporting belt. In light of the evidence above, the Board finds that the Veteran's residuals of a right indirect hernia repair is manifest only by a painful scar, which is separately service-connected and not subject to the instant appeal. There is no objective medical evidence of a current hernia, weak abdominal wall, or an indication for a supporting belt and the Veteran's ability to work was not affected. Accordingly, the Board finds that the evidence of record does not support a compensable rating for the Veteran's residuals of a right indirect hernia repair at any point in appeal period. The preponderance of the evidence is against his claim for a compensable evaluation. Consequently, the benefit-of-the-doubt rule does not apply. 38 U.S.C.A. § 5107(b) (West 2014). Final Considerations The Board also has considered whether the Veteran is entitled to a greater level of compensation on an extra-schedular basis. The evidence fails to show anything unique or unusual about the Veteran's residuals of internal hemorrhoids and/or hernia repair that would render the schedular criteria inadequate. Further, there is no indication that the other service-connected disabilities have an impact on the service-connected disabilities at issue here such that the schedular criteria are inadequate. Accordingly, referral for consideration of an extraschedular rating is not warranted either based on symptoms related to service-connected residuals of internal hemorrhoids and/or right indirect hernia repair, or on a disability picture that can be attributed only to the combined effect of multiple conditions. See Thun v. Peake, 22 Vet. App. 111 (2008); see also Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014). ORDER An initial compensable evaluation for residuals of internal hemorrhoids is denied. An initial compensable evaluation for residuals of a right indirect hernia repair is denied. REMAND The Veteran seeks service connection for swollen lymph nodes and symptoms of fever, chills and night sweats, each as possibly due to an undiagnosed illness. Further, records indicate he has been diagnosed with recurrent tonsillitis and pharyngitis. For the reasons discussed below, the Board finds the January 2016 VA examiner did not adequately address the questions posed by the Board in its September 2014 remand. Therefore, another remand is unfortunately required. See Stegall v. West, 11 Vet. App. 268, 271 (1998). With regard to the claimed swollen lymph nodes, records throughout the appeal period vary as to whether swollen nodes are present and, if so, whether this is an indication of a chronic disability. In the September 2014 remand, the Board requested an opinion as to whether such symptomatology is a manifestation of a diagnosable disability or, in the alternative, a manifestation of a undiagnosed illness. In the January 2016 VA examination report, the VA examiner noted that it is not likely a doctor would not biopsy or aspirate the "lump" on the Veteran's neck. However, the VA examiner did indicate that a CT scan of the neck may assist in determining whether a diagnosable disability exists. However, such testing was not performed. A new VA examination is required to provide any necessary testing so as to allow the Board to properly adjudicate the Veteran's claim. With respect to symptoms of fever, chills, and night sweats, the VA examiner declined to provide an opinion as to whether these symptoms are a manifestation of a chronic multi-system or undiagnosed illness, as there are only subjective, and not objective symptomatology. However, the Board notes that the Veteran is competent to report such symptomatology and, while these symptoms are not among those listed in 38 C.F.R. § 3.317(b), this list is not exhaustive. As such, an addendum opinion is required. Finally, at the January 2016 VA examination, the Veteran was diagnosed with recurrent tonsillitis and pharyngitis, and the VA examiner rendered a negative etiological opinion. However, the Board notes the VA examiner based this opinion solely on the consideration of environmental exposure during the Veteran's service in Southwest Asia, and did not consider other theories of entitlement, to include related to complaints of a sore throat in service. See generally 38 C.F.R. § 3.303. As such, an addendum opinion must be obtained. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a new VA examination to address the nature and etiology of his claimed swollen lymph nodes, symptoms of fever, night sweats, and chills, and recurrent tonsillitis and pharyngitis. The entire claims file, including a copy of this REMAND, must be provided to the examiner for review, and the examination report must reflect that such a review was accomplished, including all private treatment records. Any clinically indicated testing and/or consultation must be performed. In this regard, the January 2016 examiner indicated that a CT scan of the neck might indicate for sure if there are nodes. If the examiner finds that a CT scan is not warranted, the examiner should explain why. Following a review of the claims file and examination of the Veteran, the VA examiner is requested to address the following: a. Provide a clinical diagnosis of any current disability as applicable resulting in symptoms of swollen lymph nodes, fever, night sweats, and chills. In considering such symptomatology, the examiner is instructed that the Veteran is competent to report symptoms observable by a layperson, to include fever, chills, and night sweats. If the examiner determines such symptoms are not attributable to a clinical diagnosis, please state the basis for this determination. b. For any disability diagnosed above, provide an opinion as to whether it is at least as likely as not (probability of at least 50 percent) that such disability had its onset or is otherwise etiologically related to the Veteran's active service to include, but not limited to, environmental exposures during service within Southwest Asia. c. Provide an opinion as to whether it is at least as likely as not (probability of at least 50 percent) that the Veteran's diagnosed recurrent tonsillitis and pharyngitis had its onset or is otherwise etiologically related to the Veteran's active service, specifically commenting on documented complaints of a sore throat in service. A complete rationale must be provided for all opinions expressed, including a discussion of the evidence and medical principles which led to the conclusions reached. 2. Review the examination report and ensure its compliance with the instruction above. If the report or addendum opinion is deficient, corrective measures must be undertaken prior to recertification of the appeal to the Board. 3. After completing the above, and any other development deemed necessary, readjudicate the Veteran's appeal based on the entirety of the evidence. If the benefits sought on appeal are not granted to the appellant's satisfaction, he and his representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. The appellant 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). ______________________________________________ S.S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs