Citation Nr: 1754042 Decision Date: 11/28/17 Archive Date: 12/07/17 DOCKET NO. 10-31 471 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for a neck disability. 2. Entitlement to service connection for irritable bowel syndrome. 3. Entitlement to service connection for tinnitus. 4. Entitlement to a compensable rating for service-connected hemorrhoids prior to June 22, 2009. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Yuan, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from June 1988 to May 2008. These matters are before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision of a Department of Veteran Affairs (VA) Regional Office (RO). The Veteran had originally also appealed several other matters, but limited his substantive appeal to those listed above. Thus, the other issues are no longer on appeal. In addition, a February 2017 rating decision during the pendency of this appeal granted a 20 percent rating for hemorrhoids effective June 22, 2009. As this is the maximum available schedular rating for such disability, the rating from June 22, 2009 onwards will not be discussed, and the only relevant question on appeal is whether a higher rating is warranted prior to such date. The issues of service connection for neck disability and tinnitus are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The evidence shows that May and June 2009 postservice records note, respectively, that the Veteran had diarrhea and irritable bowel syndrome that had been a problem since 2006 and that the Veteran reported symptoms suggesting irritable bowel syndrome; the Veteran served in Iraq during active duty, and irritable bowel syndrome is a functional gastrointestinal disorder qualifying as a medically unexplained chronic multisymptom illness under 38 C.F.R. § 3.317. 2. The evidence reasonably shows that the Veteran's hemorrhoids were frequently recurrent prior to June 22, 2009, but nothing in the record suggests that they were productive of persistent bleeding, secondary anemia, or fissures. CONCLUSIONS OF LAW 1. Service connection for irritable bowel syndrome is warranted. 38 U.S.C. §§ 1110, 1117, 1131, 5107 (2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.317 (2017). 2. Prior to June 22, 2009, a 10 percent rating (but not higher) is warranted for service-connected hemorrhoids. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.1, 43114, Diagnostic Code (Code) 7336 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) Inasmuch as this decision grants service connection for irritable bowel syndrome and remands service connection for neck and tinnitus disabilities, there is no reason to belabor the impact of the VCAA on the matter; any notice or duty to assist omission is harmless. Moreover, the Veteran's increased rating claim is on appeal from the initial rating assigned with the grant of service connection. The statutory scheme contemplates that once a decision awarding service connection, disability ratings, and effective dates has been made, statutory notice has served its purpose, and its application is no longer required because the claim has already been substantiated. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490-91 (2006). Thus, VA's duty to notify was satisfied by a March 2009 letter. Notably, the Veteran has had ample opportunity to respond and has not alleged that notice was less than adequate. See 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). In addition, the Veteran's service treatment records (STRs) and pertinent postservice treatment records have been secured. A May 2008 VA examination was conducted in conjunction with the Veteran's appeal seeking a higher rating for hemorrhoids; the report of that examination describes his hemorrhoids during the period on appeal in sufficient detail to allow for application of the relevant rating criteria. Crucially, the Veteran has not identified any pertinent records or evidence that remains outstanding. To the extent that any pertinent private records may be outstanding, the Board notes that the ultimate burden to submit such evidence lies with the Veteran. Hayes v. Brown, 5 Vet. App. 60, 68 (1993); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Therefore, VA's duty to assist is met. Legal Criteria, Factual Background, and Analysis The Board notes that it has reviewed all of the evidence in the record. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss every piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as deemed appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claims. Service Connection: Irritable Bowel Syndrome VA will pay compensation to a Persian Gulf veteran, such as the Veteran here, who exhibits objective indications of an undiagnosed illness or medically unexplained chronic multisymptom illness defined by a cluster of signs and symptoms, if such became manifest either (1) during active military, naval, or air service in the Southwest Asia theater of operations or (2) to a compensable degree not later than December 31, 2021. Moreover, "medically unexplained chronic multisymptom illness" is defined to explicitly include irritable bowel syndrome. Here, STRs show the Veteran complained of nausea and diarrhea in service for five days in April 2002. A June 2006 post-deployment questionnaire indicates the Veteran served in Baghdad. He reported developing diarrhea and frequent indigestion during his deployment. In April 2009, the Veteran endorsed problems with diarrhea and upset stomach for at least ten years. However, he felt they had gotten worse over the prior few years and, in particular, remembered a worsening after returning from his deployment to Iraq. A May 2009 treatment record notes increased diarrhea and reports of irritable bowel syndrome that had been a problem since 2006. A June 2009 private colonoscopy report includes a notation that the Veteran reported symptoms suggestive of irritable bowel syndrome. After reviewing the evidence, the Board finds the evidence is at least in relative equipoise as to whether the Veteran currently has irritable bowel syndrome. In light of that and his qualifying service in southwest Asia, the Board resolves any remaining reasonable doubt in the Veteran's favor and finds that presumptive service connection is warranted for irritable bowel syndrome under 38 C.F.R. § 3.317. Increased Rating: Hemorrhoids Disability ratings are assigned in accordance with VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from a disability. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. When a question arises as to which of two ratings shall be applied under a particular diagnostic code, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Where, as here, the rating appealed is the initial rating assigned with a grant of service connection, the entire appeal period is for consideration, and separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." See Fenderson v. West, 12 Vet. App, 119 (1999). The Veteran's hemorrhoids are rated under Code 7336, which provides that a noncompensable rating is warranted for mild or moderate external or internal hemorrhoids; a 10 percent rating is warranted for hemorrhoids that are large or thrombotic, irreducible, with excessive redundant tissue, or evidencing frequent recurrences; and a maximum 20 percent rating is warranted for internal or external hemorrhoids with persistent bleeding and with secondary anemia, or with fissures. 38 C.F.R. § 4.114, Code 7336. STRs note exacerbation of external hemorrhoids in December 1995. At that time, the Veteran was observed with a marble-sized, soft, tender external hemorrhoid and a separate anal tag without bleeding. In September 2004, external hemorrhoids were noted during a private colonoscopy. On May 2008 VA examination, the Veteran reported a history of external and internal hemorrhoids. He said he had occasionally noticed blood on tissue paper once a month on average. He denied any outright rectal bleeding or feelings of protruding masses in the rectum. He also denied any major flare-ups, but said in the past he had an episode of discomfort and itching that lasted a few days and resolved on its own. He denied any constipation. On examination, the examiner found external hemorrhoids at the 2 and 4 o'clock positions. The examiner did not report any other remarkable findings. May 2009 treatment records note reports of recurrent hemorrhoids that had become a daily problem for months. They were said to itch occasionally, but the greater concern was the associated bleeding. On examination, the examiner found multiple non-irritated hemorrhoidal tags. In June 2009, the Veteran alleged that he had a history of problems with both internal and external hemorrhoids for years that involved swelling, pain, and bleeding that, at times, could become extreme. A June 22, 2009 records notes, for the first time, an anal fissure with external skin tags. A digital rectal examination was not performed because of the pain it would cause the Veteran at that time. At the outset, the Board notes that the Veteran is perfectly competent to report observable symptomatology such as itching, bleeding, swelling, pain, and generalized discomfort such as that associated with his hemorrhoids. Moreover, the Board finds no reason to question the veracity of his allegations in this regard. Thus, his own reports in both clinical evaluations and statements in support of this appeal reasonably establish that, in May 2009 and several preceding months, the Veteran's hemorrhoids had been frequently recurrent, causing problems as often as daily. Moreover, his June 3, 2009 statement endorses a history of internal and external hemorrhoids for years that involved bleeding that, among other symptoms, could become "extreme" at times. In light of this, the Board finds that the evidence is at least in relative equipoise as to whether the Veteran's hemorrhoids were productive of symptoms that evidenced frequent recurrences and, therefore, most closely approximated the disability picture contemplated by the criteria for a 10 percent rating. However, there is unfortunately no evidence that the Veteran's hemorrhoids were similarly productive of persistent bleeding, secondary anemia, or anal fissures prior to June 22, 2009. The evidence at most supports a finding that the Veteran's hemorrhoids were productive of intermittent bleeding during this period and the first clinical documentation of anal fissures is on June 22, 2009. Therefore, there is no basis for awarding a still higher 20 percent rating for his service-connected hemorrhoids. In light of the above, the Board finds the evidence is at least in relative equipoise as to whether a higher 10 percent rating is warranted prior to June 22, 2009, but the preponderance of the evidence is against finding a higher still 20 percent rating is warranted. Thus, the appeal must be granted in part and denied in part. ORDER Service connection for irritable bowel syndrome is granted. A 10 percent rating (but not higher) is granted for service-connected hemorrhoids. REMAND The Veteran alleges that he has a neck disability which began during service. Specifically, he indicates that he first injured his neck during a motor vehicle accident in the line of duty. However, the evidence in this regard is incomplete. In particular, a review of his STRs shows the accident in question did lead to a neck injury, but also involved alcohol use. There is a lingering question as to whether the accident was the result of willful misconduct. To that end, the Board notes that a May 1987 hospital record notes that the Veteran was undergoing a line of duty determination, despite his current statements indicating he did not recall such a determination being made. Unfortunately, there is no contemporaneous line of duty determination in the record or any correspondence or finding indicating that one was not made or found. As any line of duty determination made in service would be critical to this appeal, and possibly outcome-determinative, an effort to locate such record, if it exists, must be made. Regarding the Veteran's tinnitus, the Board notes that he is competent to self-diagnose such disability. However, he has, quite critically, not alleged that tinnitus began in service, but rather relates it to noise exposure he sustained in service. Whether such a relationship exists is a medical question beyond the scope of the Veteran's lay observation. As no examination has yet been conducted in this matter, a remand is needed. Accordingly, the case is REMANDED for the following action: 1. Obtain all updated records of VA or adequately identified other evaluations or treatment the Veteran has received for the disabilities remaining on appeal. 2. Conduct exhaustive development to secure any line of duty determinations made during the Veteran's service regarding a May 1987 motor vehicle accident in which the Veteran fractured his neck. All efforts to find and secure such evidence must be documented for the record. If it is determined that a line of duty determination was not made in this matter during service or that copies of such determination are unavailable, the AOJ must also document that fact, as well as the reason for any unavailability encountered, for the record. 3. Then, arrange for the Veteran to be examined by an audiologist to determine the nature and likely etiology of his tinnitus. Based on an examination, review of the record, and any tests or studies deemed necessary, the examiner should opine as to whether it is AT LEAST AS LIKELY AS NOT (A 50 PERCENT PROBABILITY OR GREATER) that the Veteran's tinnitus is related to his military service and reported noise exposure therein. A detailed explanation (rationale) is requested for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested). 4. The AOJ should then review the record and readjudicate the claim. If it remains denied, the AOJ should issue an appropriate supplemental statement of the case, afford the Veteran and his representative opportunity to respond, and return the record to the Board. The Veteran has the right to submit additional evidence and argument on the remanded matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). As a remand, this matter must be handled expeditiously. 38 U.S.C.A. §§ 5109B, 7112 (2014). _________________________________________________ VICTORIA MOSHIASHWILI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs