Citation Nr: 1759958 Decision Date: 12/22/17 Archive Date: 01/02/18 DOCKET NO. 12-19 759 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include mood disorder, psychotic disorder, and post-traumatic stress disorder (PTSD). 2. Entitlement to a compensable rating of the Veteran's service-connected hemorrhoid disability, prior to September 22, 2016. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran, his mother, and his acquaintance ATTORNEY FOR THE BOARD P. Stephan, Associate Counsel INTRODUCTION The Veteran had active service from September 1978 to February 1994. This matter is before the Board of Veterans' Appeals (Board) on appeal of a September 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The St. Petersburg RO is the agency of original jurisdiction (AOJ) for this matter. The AOJ denied the benefits sought on appeal. The issues on appeal were remanded by the Board in December 2015 to retrieve Social Security Administration (SSA) records, VA Medical Center (VAMC) records from Tallahassee since June 2014, and to schedule the Veteran for a VA examination to determine the severity of his hemorrhoid disability. In response, the AOJ provided the Veteran with a VA examination in September 2016; SSA and VA treatment records were added to the record. The Board notes its prior remand contained directives for dysphonia, pes planus, and allergic rhinitis claims that are still with the AOJ. The AOJ has substantially complied with the remand directives as to the issues presently before the Board, but has not yet recertified these issues to the Board. Accordingly, the Board will refrain from taking jurisdiction over them at this time. During the course of the appeal, in a July 2017 decision, the AOJ increased the evaluation of the Veteran's hemorrhoid disability from an initial, noncompensable rating to 20 percent, effective September 22, 2016. This increased rating now represents the maximum disability rating assignable for this disability, and the Veteran has indicated through his representative's informal hearing presentation that he is seeking an increased rating from an earlier date. FINDINGS OF FACT 1. The Veteran has a current diagnosis of post-traumatic stress disorder, with a documented in-service stressor, that is causally related to his service. 2. Affording the Veteran the benefit of the doubt, from May 15, 2009, the Veteran experienced hemorrhoids with flare-up symptoms that included frequent recurrence, itching, swelling, pain, bleeding, and anemia. CONCLUSIONS OF LAW 1. The criteria for service connection for a psychiatric disorder, to include PTSD, have been met. 38 U.S.C. § 1110, 1131 (2012); 38 C.F.R. § 4.130 (2017). 2. Since May 15, 2009, a 20 percent rating for service connected hemorrhoids has been met. 38 U.S.C. §§ 1155, 5110 (2012); 38 C.F.R. §§ 3.159, 3.400, Diagnostic Code 7336 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The VA's duty to notify and assist was satisfied by letters sent by the AOJ in October 2008 and April 2009. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126; Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II); 38 C.F.R. §§ 3.102, 3.159 and 3.326(a). The letter also notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. Dingess/Hartman v Nicholson, 19 Vet. App. 473 (2006). Furthermore, for increased rating claims, the VCAA requires only generic notice. See Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009); Vazquez-Flores v. Shinseki, 24 Vet. App. 94, 102 (2010). The Veteran has not alleged any error in the VCAA notice, and the VA has fulfilled its duty to notify. Dela Cruz v. Principi, 15 Vet. App. 143 (2001). The VA has also satisfied its duty to assist. The VA has undertaken appropriate actions to obtain all evidence relevant to this claim. The AOJ has secured the Veteran's service treatment records (STRs), VA Medical Center (VAMC) treatment records, and Social Security Administration (SSA) records. The Veteran has submitted personal statements as well as arguments from his representative. 38 U.S.C. § 5103A, 38 C.F.R. § 3.159. This appeal was certified on September 10, 2012. The April 2012 VA examination for PTSD was correctly conducted in connection with this claim by a licensed clinical psychologist in accordance with the American Psychiatric Association, Diagnostic and Statistical Manual for Mental Disorders, Fourth Edition (DSM-IV). McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4). See also 38 C.F.R. § 4.125(a); Schedule for Rating Disabilities-Mental Disorders and Definition of Psychosis for Certain VA Purposes, 80 Fed. Reg. 14,303 (March 19, 2015) (updating 38 C.F.R. § 4.125 to reference DSM-V). Additionally, this VA examiner based the opinion on the evidence before him, included a rationale, and considered the Veteran's lay assertions in reaching a conclusion. Therefore, this medical opinion is adequate to adjudicate the claim. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). No further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Psychiatric Disorder The Veteran submitted a claim for PTSD in October 2008. In his claim, the Veteran specified the death of his son was the in-service stressor that triggered his PTSD. Generally, to establish service connection, "the veteran must show: (1) a present disability; (2) the in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between them." Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for PTSD resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110, 1131. To establish service connection for PTSD, the Veteran must have: (1) medical evidence establishing a clear diagnosis of PTSD under 38 C.F.R. § 4.125(a); (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) a link, established by medical evidence, between current symptoms and a claimed in-service stressor. 38 C.F.R. § 3.304(f). Effective August 4, 2014, 38 C.F.R. § 4.125(a) requires a diagnosis that conforms to the DSM-V (Diagnostic and Statistical Manual of Mental Disorders). However, prior to that date, the regulation required a diagnosis consistent with the DSM-IV. Because the Veteran filed his current claim prior to August 2014, in affording all benefit of the doubt to the Veteran, the Board finds a diagnosis under DSM-IV or DSM-V shall fulfill the requirements of 38 C.F.R. § 4.125(a). The first and most fundamental requirement for any service-connection claim is the existence of a current disability. 38 U.S.C. §§ 1110, 1131; Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Here, the Veteran has been diagnosed with varying psychiatric disorders, including PTSD, a mood disorder not otherwise specified, and moderate to severe depression by the Tallahassee VAMC under the DSM-IV in November 2009. The April 2012 VA examiner diagnosed the Veteran with a mood disorder not otherwise specified, and a personality disorder not otherwise specified under the DSM-IV. As these diagnoses were made by licensed clinical psychologists, the evidence shows the presence of a current psychiatric disorder. Therefore, the Board finds the first element of service connection is met. Second, the Veteran's alleged in-service stressor must qualify for service connection for his claimed psychiatric disorder. The record must contain credible supporting evidence that corroborates the Veteran's testimony to establish occurrence of the in-service stressor under 38 C.F.R. § 3.304(f). Stone v. Nicholson, 480 F.3d 1111 (Fed. Cir. 2007); Cohen v. Brown, 10 Vet. App. 128, 147 (1997); Moreau v. Brown, 9 Vet. App. 389, 395 (1996). The Veteran states he experienced significant trauma at the loss of his son in active service. Given the consistency of the Veteran's lay testimony over time that the death of his son was his in-service stressor for an acquired psychiatric disorder, the Board finds the Veteran's testimony is highly credible and probative. Here the Veteran submitted credible supporting evidence of a death certificate indicating that his two year old son passed away in January 1987, corroborating his testimony. Accordingly, the Veteran's in-service stressor is established by credible supporting evidence and the second element for service connection is met. Cohen, 10 Vet App. at 142. The third element of a link between the current symptoms and the claimed in-service stressors must be established by medical evidence. Three opinions in the record appear competent and credible because they were made by licensed clinical psychologists or psychiatrists in accordance with the DSM-IV and are corroborated by evidence in the record. The first opinion in November 2009 was recorded by a psychologist who opined in a psychological assessment that the Veteran appears to meet the criteria for PTSD under the DSM-IV due to the death of his son. The second opinion was recorded in an April 2012 VA examination. The 2012 VA examiner concurred that the death of the Veteran's son is adequate to support the diagnosis of PTSD. However, he disagreed with the earlier PTSD diagnosis because it was based on an unstructured interview that did not account for the severity or longevity of symptoms as a structured interview would. The 2012 VA examiner opined that the Veteran had both a mood disorder and personality disorder and could not differentiate symptoms attributable to each. The VA examiner further elaborated that the Veteran's mood disorder was due to personality traits that pre-existed his active duty service, and was not caused by or a result of active service. Due to the ambiguity of this opinion and the examiner's inability to attribute symptoms between service and non-service incurred disabilities, this 2012 VA opinion is probative on the issue of verifying the in-service stressor as sufficient to support a diagnosis of PTSD. The third opinion comes from a four question PTSD screening test at the Tallahassee VAMC in October 2014. The test, conducted by a psychiatrist, was negative. However, the Board finds this test less probative because the brevity of the assessment, and the psychiatrist's rationale noting that the Veteran was already receiving needed treatment, and "no mental health condition required further intervention." The Board ultimately finds the most probative evidence of record to be the opinion from the November 2009 VAMC examiner, and evidence from the 2012 VA examination that the passing of the Veteran's son was sufficient to satisfy a diagnosis of PTSD. As a result, the preponderance of the evidence shows the Veteran has a current acquired psychiatric disorder that is causally linked to his active duty service. In reaching this determination, the Board has considered any and all psychiatric diagnoses reasonably raised by the record. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). In other words, the Board has considered all of the Veteran's reported symptoms and limitations in considering the scope of his claim for service connection. Hemorrhoids Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. As such, instances in which a veteran is seeking an increased rating from a previously adjudicated rating, the relevant focus for adjudicating the claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Fenderson v. West, 12 Vet. App. 119, 126 (1999). Moreover, the Board acknowledges that a Veteran may experience multiple distinct degrees of disability that might result in different levels of compensation. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The following analysis is therefore undertaken with consideration that different ratings may be warranted for different time periods. Lastly, the Board must also assess the competence and credibility of lay statements and testimony. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). In increased rating claims, a Veteran's lay statements alone, absent a negative credibility determination, may constitute competent evidence of worsening, at least with respect to observable symptoms. See Vazquez-Flores v. Shinseki, 24 Vet. App. 94, 102 (2010), rev'd on other grounds by Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (Fed. Cir. 2009). The Veteran is seeking an increased evaluation for symptoms of his hemorrhoids. In statements to the Board, the Veteran argues that he should be assigned the highest 20 percent disability evaluation, prior to the assigned September 22, 2016 effective date for his service-connected hemorrhoids. As will be explained below, the Board agrees. Initially, the Veteran was awarded entitlement to service connection for hemorrhoids in a September 1994 Rating Decision. The AOJ assigned an effective date of February 12, 1994 and granted an initial compensable evaluation of zero percent under Diagnostic Code 7336. In support of the assignment of a zero percent disability evaluation, the AOJ cited to the Veteran's service records that showed diagnosis of hemorrhoids in 1988 with occasional treatment, but did not show evidence of large or thrombotic, irreducible hemorrhoids with excessive redundant tissue, indicating frequent recurrences. No notice of disagreement was received and the decision became final. In a March 2009 letter, the Veteran requested an increase to a compensable rating for his service-connected hemorrhoids. The AOJ denied the request in a September 2009 rating decision because the evidence from the Veteran's VAMC records from 2002 to 2009 and the VA examination in 2009 did not show evidence of large or thrombotic hemorrhoids which are irreducible with evidence of frequent recurrences. The Veteran timely filed a notice of disagreement. At the 2015 Board hearing, the Veteran testified that he had periodic bloody stool, monthly flare-ups that last about four days, and an inability to sit for more than an hour due to his hemorrhoids. The Board remanded the issue in December 2015 for more recent medical records and a more contemporaneous VA examination, which was conducted in September 2016. Subsequently, the AOJ awarded the Veteran an increased rating to 20 percent effective from September 22, 2016, the date of the VA examination. On return to the Board, the Veteran has requested this rating from an earlier date. The Veteran's service-connected hemorrhoid disability is rated under Code 7336. Under that Code, a zero percent rating is warranted for mild or moderate external or internal hemorrhoids. A 10 percent rating is warranted for large or thrombotic external or internal hemorrhoids, irreducible, with excessive redundant tissue, evidencing frequent recurrences. A (maximum) 20 percent rating is warranted for external or internal hemorrhoids with persistent bleeding and with secondary anemia, or with fissures. 38 C.F.R. § 4.114. Code 7336 specifically allows only a maximum 20 percent rating unless there are exceptional or unusual circumstances to warrant referring the case for extra-schedular consideration. 38 C.F.R. § 3.321. As for the effective date of this increased disability evaluation for hemorrhoids, the AOJ explained that there was no medical evidence of record which warranted the assignment of a 20 percent evaluation prior to September 22, 2016. Specifically, the AOJ explained that the basis for the increased rating was the findings and medical opinion expressed in a September 22, 2016 VA examination. However, in reviewing the evidentiary record, the Board finds no discernable difference between the Veteran's treatments on May 15, 2009, when the first noted prescriptions for hemorrhoids are noted, through September 22, 2016. Prior to May 15, 2009 hemorrhoids are noted under the list of problems for the Veteran but there is no evidence of ongoing symptoms or treatment for recurring hemorrhoids to support a compensable rating. Consequently, prior to May 15, 2009, the Board must deny a compensable rating. The Board finds that before the September 22, 2016 effective date, evidence of hemorrhoid treatment in the record from the Tallahassee VA clinic is scant. However, affording all benefit of the doubt to the Veteran, circumstantial evidence through treatment records and a few notes describing symptoms support an increased rating prior to September 2016. For example, treatment records from May 15, 2009 onward consistently list the Veteran's active outpatient prescriptions for daily anemia medication, and multiple medications for hemorrhoidal irritation. Treatment records from May and September 2009 indicate the Veteran had hemorrhoidal flare-ups, and that he was miserable from hemorrhoids due to uncomfortable itching and soiling of his clothes. The Veteran was noted to have anemia and was considering surgery for his hemorrhoids. Treatment records from September 2010 indicate the Veteran was experiencing a hemorrhoid flare up, and was referred to a VA doctor for additional treatment. A review of the Veteran's more recent medical records indicates that hemorrhoids continue to be an active problem. The VA examination from August 2009 also indicates the Veteran had a history of rectal bleeding from hemorrhoids, along with itching, swelling, and pain, but no history of thrombosis or excessive redundant tissue. The Board has considered the application of various regulations, whether or not they were raised by the Veteran, to include the entire history of his disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). 38 C.F.R. §§ 4.1, 4.2, 4.41 (2016); Peyton v. Derwinski, 1 Vet. App. 282 (1991); Powell v. West, 13 Vet. App. 31, 34 (1999). Giving the benefit of the doubt to the Veteran, the Board finds that there is sufficient circumstantial evidence to warrant an assignment of a 20 percent disability evaluation beginning on May 15, 2009, the date of the Veteran's first treatment records indicating worsened hemorrhoids. The Veteran is not entitled to a compensable rating before May 15, 2009. From the time of his claim for an increased rating until May 15, 2009 he remains at a zero percent compensable rating because there is insufficient evidence in the record to suggest a higher rating. The Veteran has not contended, and the record does not otherwise suggest, that he is unemployable as a result of his service-connected disabilities. He has been employed variously as a postal service worker and a truck driver. Moreover, his September 2016 VA examination noted his disability does not impact his ability to work. Accordingly, the issue of entitlement to total disability due to individual unemployability has not been raised. Rice v. Shinseki, 22 Vet. App. 447 (2009). In making this favorable determination for the Veteran, the Board has considered that evidence is rarely neat and tidy. Therefore, it is expected that the Board will at times have to construct a complete narrative by filling in gaps with inferences and common sense. There is no requirement that all factual questions be resolved by reliance on direct, rather than circumstantial, evidence. The fact finding of the Board in this case is entitled to deference. To the extent that the Board made inferences and considered circumstantial evidence in its analysis of the evidence, this type of reasoning is well within the discretion of a fact finder. Although another fact finder may have declined to make the same inference that does not mean that the Board in the present case is clearly erroneous. Bastien v. Shinseki, 599 F.3d 1301, 1306 (Fed. Cir. 2010) ("The evaluation and weighing of evidence and the drawing of appropriate inferences from it are factual determinations committed to the discretion of the fact finder."). It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. In conclusion, after resolving all doubt in the Veteran's favor, the Board finds the evidence supports a grant of an initial 20 percent disability evaluation beginning on and after May 15, 2009. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. ORDER Subject to the laws and regulations governing the payment of VA compensation, entitlement to service connection for a psychiatric disorder disability is granted. Subject to the laws and regulations governing the payment of VA compensation, 20 percent rating of his hemorrhoid disability is granted for the period from May 15, 2009 to September 22, 2016. Entitlement to a compensable evaluation for hemorrhoids prior to May 15, 2009, is denied. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs