Citation Nr: 1754714 Decision Date: 11/29/17 Archive Date: 12/07/17 DOCKET NO. 10-08 341A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to an effective date prior to March 31, 2009 for a rating of 20 percent for hemorrhoids. 2. Entitlement to an increased rating for a left knee disability, rated as 10 percent disabling for instability and 10 percent disabling for arthritis. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD P. M. Johnson, Counsel INTRODUCTION The Veteran served on active duty from July 1978 to April 1998. This case comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina in June 2009 and July 2017. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2014). The issue of entitlement to an increased rating for a left knee disability was remanded for further development in February 2016 and July 2017. Review of the completed development reveals that, at the very least, substantial compliance with the remand directives was obtained. Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The issues of entitlement to service connection for bilateral elbow disabilities were remanded by the Board in July 2017. Service connection for left elbow strain and right elbow strain were granted by an October 2017 rating decision; therefore, these issues are no longer on appeal before the Board. See generally Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997); Barrera v. Gober, 122 F.3d 1030 (Fed. Cir. 1997). The issue of entitlement to an increased rating for a left knee disability is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Following a final January 2005 rating decision, the earliest claim for an increased rating for hemorrhoids was received on March 31, 2009. 2. It is not factually ascertainable that the Veteran's increase in disability of his service-connected hemorrhoids manifested within one year prior to receipt of his March 31, 2009 claim. CONCLUSION OF LAW The criteria for an effective date prior to March 31, 2009, for the award of a 20 percent rating for hemorrhoids have not been met. 38 U.S.C. §§ 1155, 5110 (2014); 38 C.F.R. §§ 3.155, 3.157(a), 3.400(o), 4.7, 4.130, Diagnostic Code 7336 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The relevant law and regulations provide that the effective date of an award of increased compensation "shall not be earlier than the date of receipt of the application thereof." 38 U.S.C. § 5110(a). The effective date for an award of increased compensation will be the date of receipt of claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(o)(1). An exception to that rule applies, however, where the evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of a claim for increased compensation. If an increase in disability occurred within one year prior to date of receipt of the claim, the increase is effective as of the date the increase was "factually ascertainable." If the increase occurred more than one year prior to date of receipt of the claim, the increase is effective the date of receipt of the claim. If the increase occurred after the date of receipt of the claim, the effective date is the date of increase. 38 U.S.C. § 5110(b)(2); Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. 3.400 (o)(1)(2); VAOPGCPREC 12-98 (1998). The United States Court of Veterans Appeals (Court) has indicated that it is axiomatic that the fact that must be found, in order for entitlement to an increase in disability compensation to arise, is that the service-connected disability must have increased in severity to a degree warranting an increase in compensation. See Hazan v. Gober, 10 Vet. App. 511, 519 (1992) (noting that, under section 5110(b)(2), which provides that the effective date of an award of increased compensation shall be the earliest date of which it is ascertainable that an increase in disability had occurred, "the only cognizable 'increase' for this purpose is one to the next disability level" provided by law for the particular disability). Thus, determining whether an effective date assigned for an increased rating is correct or proper under the law requires (1) a determination of the date of the receipt of the claim for the increased rating as well as (2) a review of all the evidence of record to determine when an increase in disability was "ascertainable." Id. at 521. Any communication or action indicating intent to apply for one or more benefits under the laws administered by VA from a claimant may be considered an informal claim. An informal claim must identify the benefit sought. 38 C.F.R. § 3.155(a). Once a formal claim for pension or compensation has been allowed or a formal claim for compensation disallowed for the reason that the service-connected disability is not compensable in degree, receipt of one of the following will be accepted as an informal claim for increased benefits or an informal claim to reopen: (1) A report of examination or hospitalization by VA or uniformed services, where such report relates to examination or treatment of a disability for which service-connection has previously been established or when a claim specifying the benefit sought is received within one year from the date of such examination, treatment or hospital admission; (2) Evidence from a private physician or layman, with the date of receipt of such evidence accepted when the evidence is within the competence of the physician or lay person and shows the reasonable probability of entitlement to benefits; (3) When submitted by or on behalf of the Veteran and entitlement is shown, date of receipt by VA of examination reports, clinical records, and transcripts of records will be accepted as the date of receipt of a claim if received from State, county, municipal, recognized private institutions, or other Government hospitals. 38 C.F.R. § 3.157(b). In a June 1998 rating decision the RO granted service connection for hemorrhoids, and assigned a noncompensable percent rating, effective May 1, 1998, the date of the claim for service connection. The Veteran filed a notice of disagreement with the evaluation assigned. In October 2002, the Veteran was granted a 10 percent rating for hemorrhoids, effective May 1, 1998. In June 2003, a rating in excess of 10 percent was denied by the Board. The Veteran did not appeal this decision and it became final. 38 U.S.C. § 7105 (2014); 38 C.F.R. §§ 3.104 (a), 20.1100 (2017). Subsequently, the Veteran filed a claim for increase regarding his service-connected hemorrhoids. In January 2005, the RO denied entitlement to a rating in excess of 10 percent for the Veteran's hemorrhoids. A notification letter dated January 25, 2005 informed the Veteran of this decision. While the Veteran was provided notice of this decision, he did not perfect an appeal. As such, the January 2005 rating decision is final. 38 U.S.C. § 7105. In July 2017, an increased evaluation of 20 percent was granted for the Veteran's service-connected hemorrhoids, effective March 31, 2009, the date his claim for an increased evaluation was received. In July 2017, the Veteran filed a notice of disagreement (NOD) and disagreed with the effective date of the 20 percent rating for his service-connected hemorrhoids assigned by the July 2017 rating decision. The NOD argues that an effective date for the 20 percent rating should have been assigned since some point in 2002. In the Veteran's August 2017 VA Form 9, he reported that he has symptoms of blood due to his hemorrhoids for over twenty years. He stated that increased ratings should have been granted in October 2002, August 2004, and in 2005. While the Board notes the Veteran's contentions that his hemorrhoids warranted a higher rating in October 2002, August 2004, and in 2005, the Veteran's previous claims for a higher rating were denied and decisions in June 2003 and January 2005 became final. The finality of the January 2005 rating decision precludes assignment of an effective date prior to that time, absent a finding of clear and unmistakable error. As the Veteran's previous claims became final, a higher rating cannot be granted prior to the filing of a new claim for an increase in rating. Review of the record does not demonstrate that the Veteran filed a claim for increase in his service-connected hemorrhoids until March 31, 2009. As the Veteran's date of claim for the increase was March 31, 2009, an earlier date than March 31, 2009, cannot be granted unless the evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of a claim. 38 C.F.R. 3.400 (o)(1)(2). As it must be factually ascertainable increase in disability occurred, the Board must determine whether the evidence indicates that the criteria for a 20 percent rating (rather than the Veteran's 10 percent rating for hemorrhoids) became manifest within a year prior to March 31, 2009. Under Diagnostic Code 7336, external or internal hemorrhoids are assigned a 10 percent disability rating is assigned when external or internal hemorrhoids are large or thrombotic, irreducible, with excessive redundant tissue, evidencing frequent recurrences. 38 C.F.R. § 4.114, DC 7336. A maximum 20 percent disability rating is assigned when there are external or internal hemorrhoids with persistent bleeding and with secondary anemia, or with fissures. Id. Accordingly, the Board will review the evidence of record to determine if it is factually ascertainable that the Veteran developed either external or internal hemorrhoids with persistent bleeding and secondary anemia or with fissures within a year prior to March 31, 2009. The evidence of record does not document that the Veteran was diagnosed with anal fissures within a year prior to March 31, 2009. The Veteran's VA examination in May 2009 is negative for a finding of fissures and does not document a history of fissures that began in the previous year. The Veteran's medical records also do not demonstrate that the Veteran developed anal fissures within a year prior to March 31, 2009. Accordingly, a higher rating of 20 percent was not factually ascertainable within a year prior to March 31, 2009 based upon a finding of fissures. The Board also finds that it is not factually ascertainable that the Veteran developed persistent bleeding and secondary anemia within a year prior to March 31, 2009. Records from the Columbia VAMC report that the Veteran was found to have mild macrocytic anemia at least as early as May 2007 (noting normal findings in 2006). As the Veteran's secondary anemia was found over a year before his application for an increase, the Board finds that it is not factually ascertainable that the Veteran developed anemia secondary to his hemorrhoids within the year prior to March 31, 2009. Accordingly, the effective date of the Veteran's claim for increase is warranted as of the date of claim for the increase, March 31, 2009. 38 C.F.R. 3.400 (o)(1)(2). In sum, as the January 2005 rating decision became final and based upon the evidence from the one-year period prior to the Veteran's March 2009 claim for an increased rating, entitlement to an effective date prior to March 31, 2009 for the Veteran's award of a 20 percent disability rating for hemorrhoids is not warranted. As the preponderance of the evidence is against the Veteran's claim for an earlier effective date for the increased rating for hemorrhoids, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C. § 5107(b) (2014); 38 C.F.R. §§ 4.3, 4.7 (2017); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Duties to Notify and Assist Finally, VA has met all statutory and regulatory notice and duty to assist provisions and the Veteran has not asserted otherwise. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). ORDER An effective date prior to March 31, 2009, for the award of a 20 percent disability rating for hemorrhoids is denied. REMAND Unfortunately, the Board finds that the Veteran's claim for an increased rating for his left knee disability must again be remanded by the Board. In July 2017, the Board remanded the Veteran's claim for a new, examination to determine the current severity of his service-connected left knee disability. The Board notes that the Veteran is rated as 10 percent disabling for instability and 10 percent disabling for arthritis of his left knee; however, the 2017 examiner stated that the Veteran did not have arthritis of his left knee. VA examiners in May 2009 and April 2016 both documented that the Veteran had arthritis of his left knee upon examination. The 2017 examiner also opined that the Veteran's symptoms of pain would significantly limit his functional ability with repeated use over a period of time, but opined that the degree of functional impairment could not be described as the Veteran was not being examined under those conditions. The Board finds that the rationale for this opinion is inadequate as the examiner did not explain whether other evidence in the claims file, other than the examination findings, could be used to determine the extent of the Veteran's additional limitations. Accordingly, the Board finds that a new, VA examination to determine the severity of his service-connected left knee disability should be afforded. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Undertake appropriate efforts to schedule the Veteran for a current VA examination to determine the severity, manifestations, and effects of his service-connected left knee disabilities. The examiner must review the claims file in conjunction with the examination. The examiner must specifically provide an opinion regarding whether the Veteran's condition would result in additional functional limitations during periods of flare-ups or after repetitive use over time. If the examination is not conducted during a period of a flare-up or after repetitive use over time, the examiner must provide an estimated opinion of additional functional limitations based upon the evidence of record, including the Veteran's lay statements and the statements provided during his examinations in May 2009, April 2016, and September 2017. If the examiner is unable to provide such an opinion, the inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. 2. After the above-development has been completed, readjudicate the Veteran's claim. If the claim remains denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC) and an adequate opportunity to respond, after which the matter should be returned to the Board for further adjudication, if otherwise in order. 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. §§ 5109B, 7112 (2014). ______________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs