Citation Nr: 1805100	
Decision Date: 01/25/18    Archive Date: 02/05/18

DOCKET NO.  98-01 962	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUE

Entitlement to a separate rating for fistula in ano and/or impairment of sphincter control associated with internal and external hemorrhoids with history of anal fissure.


REPRESENTATION

Appellant represented by:	Daniel G. Krasnegor, Attorney at Law


ATTORNEY FOR THE BOARD

J. Dworkin, Associate Counsel



INTRODUCTION

The Veteran had active duty service from March 1976 to June 1978. 

Initially, this matter came before the Board of Veterans' Appeals (Board) on appeal from a July 1997 Department of Veterans Affairs (VA) rating decision in which the Regional Office (RO) in Montgomery, Alabama, granted an increased rating of 20 percent for hemorrhoids with history of anal fissure. 

In a May 2001 decision, the Board denied a rating in excess of 20 percent for hemorrhoids with history of anal fissure. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (the Court).

In July 2002, the Court granted a joint motion for remand of the Board's May 2001 decision. The May 2001 decision was vacated and remanded to the Board. The Board remanded the claim in June 2003 and again in April 2004. 

A June 2013 Board decision denied an evaluation in excess of 20 percent for hemorrhoids with history of anal fissure. In addition, the Board observed that the Veteran and his attorney specifically maintained that a separate evaluation was warranted for impairment of sphincter control, and had requested consideration of 38 C.F.R. § 4.114, Diagnostic Codes 7335 and 7332 for impaired sphincter control, to include based on a fistula in ano. The Board noted that this required consideration of symptoms separate and distinct from the Veteran's service-connected hemorrhoids, and that the evidentiary record was inadequate to evaluate that contention. As a result, the Board found that the issue of entitlement to a separate rating for fistula in ano and/or impairment of sphincter control associated with internal and external hemorrhoids with history of anal fissure should be considered separately. The Board included it as a separate issue on the title page of the decision, and remanded it for additional development. 

In January 2015, the Board issued a decision denying a separate rating for fistula in ano and/or impairment of sphincter control associated with internal and external hemorrhoids with history of anal fissure. However, the Board in November 2015 vacated that decision and remanded for due process considerations. This matter has now returned to the Board.

The issue of entitlement to a rating in excess of 20 percent for internal and external hemorrhoids has been raised by the record in a July 2017 statement, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action.  38 C.F.R. § 19.9(b) (2017).


FINDING OF FACT

The competent medical evidence and competent and credible lay evidence of record does not show that the Veteran has a fistula in ano and/or impairment of sphincter control associated with internal and external hemorrhoids with history of anal fissure.


CONCLUSION OF LAW

The criteria for a separate rating for fistula in ano and/or impairment of sphincter control associated with internal and external hemorrhoids with history of anal fissure have not been met. 38 U.S.C. §§ 1110, 1155, 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.114, Diagnostic Codes 7332 and 7335 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

I. Duty to Notify and Assist

Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C. §§ 5103, 5103A, 5107 (2012); 38 C.F.R. § 3.159 (2017); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Notice for the Veteran's increased evaluation claim was provided in a February 2003 letter. The increased evaluation claim was readjudicated in July 2006, December 2009, July 2012, and November 2014 supplemental statements of the case. 

The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The Veteran was provided VA examinations with respect to the claim decided herein, most recently in January 2014. Despite the contentions of the Veteran regarding the adequacy of the January 2014 examination, as discussed below, the Board finds that the examinations adequately provide the findings necessary to a resolution to the appeal. The Veteran has not referred to any additional, unobtained, relevant, available evidence. Thus, the Board finds that VA has satisfied the duty to assist. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002).

II. Increased Rating

Disability ratings are determined by application of the criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155 (2012); 38 C.F.R. Part 4 (2017). When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating applies. 38 C.F.R. § 4.7 (2017). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2017). 

The Veteran's entire history is to be considered when making disability evaluations. 38 C.F.R. § 4.1 (2017); Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where the question for consideration is the propriety of the initial rating assigned, evaluation of the medical evidence since the effective date of the grant of service connection and consideration of the appropriateness of assignment of different ratings for distinct periods of time, based on the facts found is required. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).

The Board reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that all of the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claim file shows, or fails to show, with respect to the claim. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). 

The Veteran contends that his hemorrhoids result in a fistula in ano under Diagnostic Code 7335 and/or impairment of sphincter control under Diagnostic Code 7332. 

Under Diagnostic Code 7335, ano in fistula is to be rated as impairment of sphincter control. Under Diagnostic Code 7332, impairment of sphincter control of the rectum and anus is rated 0 percent when healed or slight, without leakage; 10 percent with constant slight or occasional moderate leakage; 30 percent with occasional involuntary bowel movements, necessitating the wearing of a pad; 60 percent with extensive leakage and fairly frequent involuntary bowel movement; and 100 percent for complete loss of sphincter control. 

Based on a thorough review of the evidence, the Board finds that the preponderance of the evidence is against entitlement to a separate rating for fistula in ano and/or impairment of sphincter control associated with internal and external hemorrhoids with history of anal fissure.

An April 1998 statement submitted by the Veteran indicated that his symptoms included excessive bleeding from the anal sphincter due to fistula. He also indicated that he had frequent bowel movements which he could not control, and leakage which required him to wear padding. However, at a VA examination in December 2003, while the Veteran indicated that he had profuse bleeding after bowel movements and sometimes had to wear pads when bleeding was present and persistent, sphincter control was described as good with no fecal leakage. 

A review of VA records dated from 1996 to June 2006 are entirely negative for evidence of fecal leakage or impairment of sphincter control. 

A November 2006 VA record documents the Veteran's complaints of rectal bleeding and occasional fecal incontinence. Additionally, in a statement provided in July 2008, the Veteran indicated that he had suffered from bleeding and fecal incontinence off and on since 1977. Furthermore, in August 2008, the Veteran provided diary entries dated from January to March 2008 documenting bleeding and instances purportedly representing indications of impairment of sphincter control.

At the May 2012 VA examination, the Veteran's reported symptoms included anal/perianal fistula, described as slight impairment of sphincter control, without leakage. The Veteran reported having difficulty holding bowel movements and having blood in his underwear, none of which was shown on examination. Photos of blood on toilet paper were presented by the Veteran on examination. There was no indication that a pad was required. A small anal fissure with no bleeding was shown on examination. No other physical findings were noted on examination. 

On a February 2014 questionnaire, a private physician noted that he was completing it from memory as the Veteran's VA records were not available to him. He stated that the Veteran had rectal stricture with impairment of rectal stricture control. He noted that, as he recalled, the Veteran would occasionally have moderate leakage/bleeding that required him to wear a pad. From memory, when he last saw the Veteran, the Veteran had mild to moderate stricture that caused considerable discomfort during rectal exams. The physician stated that he did remember the Veteran having intermittent episodes of significant bleeding and anal leakage requiring the use of pads. At these times, the Veteran would have significant pain on rectal exam and the physician stated that he thought the Veteran had stricture but he did not remember the exact severity. The private physician also indicated that the Veteran's impairment of sphincter control was related to his internal and external hemorrhoids with history of anal fissure. He explained that the fissure might directly affect the sphincter. The hemorrhoids and fissure, considering the Veteran's repeated episodes, had likely caused scarring that affected his continence as well as causing stricture. 

The January 2014 VA medical opinion provides that the examiner reviewed the Veteran's claims file and VA treatment records. The examiner noted that a small rectal fissure with no bleeding was noted at the May 2012 VA examination and pointed out that although the Veteran reported frequent blood on his underwear, none was visualized and there was no soiling of the underwear with stool. The examiner opined that such a small anal fistula would not be expected to affect sphincter control. An anoscopy performed in June 2012 visualized no bleeding, no rectal fissure and small external hemorrhoids. There was no rectal fistula; thus, there would be no impairment of sphincter control from an anal fistula. The VA examiner commented that the Veteran was seen frequently by VA medical providers and she was unable to identify a report of fecal incontinence or request for pads or Depends which one would expect if there was impairment of anal sphincter control. The VA examiner stated that the Veteran did not have an anal fistula associated with his hemorrhoids as the anal fissure had resolved. Therefore, he did not have impairment of sphincter control due to anal fissure and he did not have manifestations from an anal fissure. 

The Board finds that the January 2014 VA medical opinion constitutes probative evidence against the Veteran's claim, and outweighs the February 2014 questionnaire from the Veteran's private physician. The January 2014 VA medical opinion is based on thorough review of the medical record by that examiner, including review of the 2012 VA examiner's report. By contrast, the private physician completed the February 2014 questionnaire from memory, and in fact qualified his comments to that effect several times. Despite the Veteran's representative's contentions to the contrary in February and December 2015 statements, the Board finds that the statements from the private physician made from memory to be less probative than those of the May 2012 and January 2014 VA examiner, who had the benefit of physical examination of the Veteran at the May 2012 examination as well as close review of the Veteran's entire claims file to bolster her findings. The Board further finds the VA examiner's findings both adequate and probative as to the questions posed in the June 2013 remand regarding the presence and onset of a fistula in ano, as the examiner specifically noted that a small fistula such as the one documented by the VA examiner in May 2012 would not cause impairment of sphincter control. This opinion was based on consideration of the Veteran's entire medical history, including as recounted by him and as captured by his treatment providers in the medical records in his claims file.

Thus, while the private physician relied on memory, the VA examiner explained her opinions with specific references to the Veteran's medical history. The examiner explained the opinion by analyzing the Veteran's medical records in terms of medical principles. The Board finds the examiner's discussion of the significance of the Veteran's lack of requests for pads or Depends particularly probative. The VA examiner's specific references to the Veteran's medical treatment records is particularly important, in the Board's judgment, as the references makes for a more convincing rationale. Bloom v. West, 12 Vet. App. 185, 187 (1999) (the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion"); Prejean v. West, 13 Vet. App. 444, 448-49 (2000) (factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion.); Elkins v. Brown, 5 Vet. App. 474, 478 (1993) (medical opinions as to a nexus may decline in probative value where the physician fails to discuss relevant medical history).

The Board is aware of the Veteran's credible complaints, made during VA medical appointments and the May 2012 VA examination, and in the 2008 diary. As a general matter, lay statements are considered to be competent evidence when describing the features or symptoms of an injury or illness. Falzone v. Brown, 8 Vet. App. 398 (1995). Lay assertions may serve to support a claim by supporting the occurrence of lay-observable events or the presence of symptoms of disability subject to lay observation. 38 U.S.C. § 1153 (a); 38 C.F.R. § 3.303 (a); Jandreau, supra; Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Davidson v. Shinseki, 581 F.3d 1313 (Fed Cir. 2009).

Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In this case, the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. The Veteran is not, however, competent to identify a specific level of disability of any disability according to the appropriate diagnostic code. Robinson v. Shinseki, 557 F.3d 1355 (2009).

Such competent evidence concerning whether the Veteran has fistula in ano and/or impairment of sphincter control has been provided by the medical personnel who have treated and examined him throughout the course of the current appeal. The medical findings, as provided in the medical records, directly address whether the Veteran has fistula in ano and/or impairment of sphincter control. The medical findings do not support the Veteran's reported symptoms. As noted above, the evidence does not show that the Veteran warrants a separate rating for fistula in ano and/or impairment of sphincter control associated with internal and external hemorrhoids with history of anal fissure. 

In sum, the preponderance of the evidence demonstrates that the Veteran is not entitled to a separate rating for fistula in ano and/or impairment of sphincter control associated with internal and external hemorrhoids with history of anal fissure. Thus, the benefit of the doubt doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001).


ORDER

A separate rating for fistula in ano and/or impairment of sphincter control associated with internal and external hemorrhoids with history of anal fissure is denied.



____________________________________________
CAROLINE B. FLEMING
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs