Citation Nr: 1805263	
Decision Date: 01/26/18    Archive Date: 02/07/18

DOCKET NO.  13-34 702	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUES

1. Entitlement to service connection for residuals of rectal fissure.

2. Entitlement to an initial compensable rating for hemorrhoids.


REPRESENTATION

Appellant represented by:	Brendan Garcia, Attorney


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Alexia E. Palacios-Peters, Associate Counsel
INTRODUCTION

The Veteran had active service from July 1990 to July 1992.

This matter comes before the Board of Veteran's Appeals (Board) on appeal from July 2012 and September 2014 rating decisions of the Department of Veterans Affairs Regional Office (RO) in Winston-Salem, North Carolina.

In October 2012, the Veteran filed a Notice of Disagreement (NOD) with the June 2012 rating decision denying service connection for rectal fissure.  The statement of case (SOC) was issued in October 2013.  The Veteran filed a substantive appeal (VA Form 9) in November 2013.

The Veteran filed a claim for hemorrhoids in October 2013.  In February 2015, the Veteran filed an NOD with the September 2014 rating decision which granted service connection for hemorrhoids rated as noncompensable.  The SOC was issued in December 2015 and the Veteran filed a substantive appeal (VA Form 9) in March 2016.

The Veteran was afforded a hearing before the undersigned Veterans Law Judge in May 2016 on the issues of service connection for rectal fissures and increased rating for hemorrhoids.  A written transcript of this hearing has been prepared and incorporated into the evidence of record.


FINDINGS OF FACT

1.  The evidence is in relative equipoise as to whether the Veteran's rectal fissure is related to his hemorrhoids.

2.  The evidence indicates the Veteran suffers from chronic hemorrhoids with anal fissure.


CONCLUSIONS OF LAW

1.  Resolving all doubt in favor of the Veteran, the criteria for establishing entitlement to service connection for residuals of rectal fissure have been met.  38 U.S.C. §§ 1110, 1154(b), 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017).

2.  The criteria for a 20 percent rating for hemorrhoids have been met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.114, Diagnostic Code 7336 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

VCAA

Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist.  See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument).

Service Connection

Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby.  38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2017).  

Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability.  Shedden v. Principi, 381 F. 3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table); 38 C.F.R. § 3.303.  

Service connection may also be granted for any disease diagnosed after the military discharge, when all the evidence, including that pertinent to the period of military service, establishes that the disease was incurred during the active military service.  38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d).

The Veteran contends his rectal fissure was incurred in service or is secondary to his service-connected hemorrhoids.

The Veteran's service treatment records reflect that in October 1990, the Veteran sought treatment for non-thrombosed hemorrhoids.  The Veteran's June 1992 separation examination did not show any complaint of hemorrhoids or rectal bleeding.  Following service, the Veteran was seen in an emergency department for rectal fissure in September 2011 and has received various private and VA treatment concerning rectal bleeding.

While the February 2012 VA examiner opined that the hemorrhoids the Veteran suffered from in service did not result in the current rectal fissure and that the two disabilities were separate, a September 2014 VA treatment record noted that rectal fissures are often the result of recurrent hemorrhoids.  Indeed, the Board recognizes that the diagnostic criteria for evaluating hemorrhoids (set forth in detail below) include the presence of fissures.  The Board finds the evidence is in relevant equipoise.  Accordingly, all reasonable doubt is resolved in the Veteran's favor, and service connection is warranted.  See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.  

Hemorrhoids

Disability evaluations are assigned to reflect levels of current disability.  The appropriate rating is determined by the application of a schedule of ratings which is based on average impairment of earning capacity.  Separate diagnostic codes identify the various disabilities.  38 U.S.C. § 1155; 38 C.F.R. Part 4.  When there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  In evaluating claims for increased ratings, we must evaluate the Veteran's condition with a critical eye toward the lack of usefulness of the body or system in question.  38 C.F.R. § 4.10.

In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition.  Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991).  With regard to the hemorrhoids issue, as an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability.  Francisco v. Brown, 7 Vet. App. 55 (1994).  Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made.  Hart v. Mansfield, 21 Vet. App. 505 (2007).  The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods.

Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule).  38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10.

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 evaluation will be assigned.  38 C.F.R. § 4.7.

The Veteran's service-connected hemorrhoids are rated as noncompensable pursuant to Diagnostic Code 7336.  Under 38 C.F.R. § 4, Diagnostic Code 7336 provides criteria for rating hemorrhoids, external or internal.  Hemorrhoids with persistent bleeding and with secondary anemia, or with fissures are rated as 20 percent disabling.  Large or thrombotic hemorrhoids, irreducible, with excessive redundant tissue, evidencing frequent recurrences are rated as 10 percent disabling.  Mild or moderate hemorrhoids are rated noncompensably. 38 C.F.R. § 4.114.

A June 2014 VA examination diagnosed the Veteran with internal or external hemorrhoids.  See June 2014 VA examination.  The Veteran noted bleeding about three to four times a month which remained present for approximately a day.  Id.  He also noted brief, sharp rectal pain.  Id.  VA notes showed a rectal fissure in June 2014.  See September 2014 VA examination.

The Veteran was given a VA examination in September 2014 for hemorrhoids.  The Veteran stated he continued to have recurrent episodes of rectal bleeding associated with bowel movements.  Id.  The examiner noted scarring at the anus likely due to previous anal fissures, with none noted on the day of exam.  Id.  The Veteran noted rectal bleeding about three to four times a month.  Id.  At times, the Veteran notices blood on the stool, in the toilet bowl, and when he wipes.  Id.  He noticed brief, sharp rectal pain.  Id.  The examiner did not perform a physical exam, due to the recent June 2014 VA examination.

The Veteran sought treatment in April 2015 when he passed blood from his rectum and felt pain in his rectum which was known to have hemorrhoids and fissure.  See April 2015 VA treatment records.  In July 2015, the Veteran had some blood in the toilet bowl.  See July 2015 VA treatment records.  The Veteran had ligation of hemorrhoid procedures in June 2016 and July 2016 due to internal hemorrhoids and hematochezia.  See November 2016 VA treatment records.

The Veteran's private treatment records found rectal bleeding and hemorrhoids in June 2016.  See June 2016 Private Treatment Records. The Veteran testified he has had continuing problems with rectal bleeding.  See Transcript of May 2016 Videoconference Hearing at 5.  He stated his bleeding has caused him to receive treatment at the emergency room on several occasions.  Id. at 7.

The Veteran's VA treatment records show he had a hemorrhoid banding performed in November 2016.  See November 2016 VA Treatment Records.  The Veteran's symptoms showed less bleeding and pain until around November 2016 when the Veteran began to have worse pain and bleeding.  Id.  The Veteran experienced bleeding every time he wipes, with enough blood to cover half a toilet paper square.  Id.

Based on the evidence of record, the Board finds the criteria for a rating of 20 percent have been met.  The Veteran's hemorrhoids have produced anal fissures as evidenced by a note of anal fissure in September 2011 and June 2014.  The Veteran has had three hemorrhoid bandings performed, in June 2016, July 2016 and November 2016.  He continues to have pain and bleeding approximately three to four times a month, sometimes so severe as to seek emergency room treatment.  His bleeding has been persistent.  Therefore, a rating of 20 percent for hemorrhoids is warranted.

In so finding, the Board recognizes the Veteran's contention that his earlier claim for service connection for residuals of rectal fissure is the same claim for which he was eventually awarded service connection for hemorrhoids during the course of this appeal.  The Board agrees that the two claims represent a continuous prosecution under the principles set forth in Brokowski v. Shinseki, 23 Vet. App. 79 (2009) (holding that a claimant may adequately identify the disability for which compensation benefits are sought by referring to a body part or system that is disabled, or by describing the symptoms of that disability).  Thus, the proper effective date for the 20 percent disability rating is February 4, 2011, the date of the Veteran's original claim.

ORDER

Entitlement to service connection for residuals of rectal fissure is granted. 

Entitlement to a disability rating of 20 percent for hemorrhoids (with residuals of rectal fissure) is granted effective February 4, 2011, subject to the law and regulations governing the award of monetary benefits.



______________________________________________
TANYA SMITH
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs