Citation Nr: 18142045 Decision Date: 10/12/18 Archive Date: 10/12/18 DOCKET NO. 12-29 580 DATE: October 12, 2018 ORDER Entitlement to an initial compensable rating for hemorrhoids is denied. Entitlement to an extraschedular rating for hemorrhoids is denied. FINDINGS OF FACT 1. Throughout the entire period on appeal, the Veteran’s hemorrhoid condition has been manifested by no more than mild or moderate internal or external hemorrhoids. 2. Throughout the entire period on appeal, the Veteran’s hemorrhoid symptoms are adequately contemplated by the rating schedule. CONCLUSIONS OF LAW 1. For the entire period on appeal, the criteria for a compensable initial rating for hemorrhoids have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.114, Diagnostic Code 7336 (2018). 2. For the entire period on appeal, the criteria for a rating in excess of zero percent for hemorrhoids on an extraschedular basis have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.114, Diagnostic Code 7336 (2018); Thun v. Peake, 22 Vet. App. 111, 114 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant in this case, had service from April 1963 to April 1966. In July 2015, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ); a transcript of the hearing is associated with the claims file. In December 2016, the Board denied both an initial compensable rating and an extraschedular rating for hemorrhoids. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In February 2018, the Court issued a Memorandum Decision, vacating the decision with respect to the issues described above, and remanding the matter to the Board for further action. The Board has thoroughly reviewed all the evidence in the Veteran’s claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence in the record; not every item of evidence has the same probative value. When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2018). The Court has held that an appellant need only demonstrate that there is an “approximate balance of positive and negative evidence” in order to prevail. See Gilbert, 1 Vet. App. at 53. The Court has also stated, “It is clear that to deny a claim on its merits, the evidence must preponderate against the claim.” Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. 1. Entitlement to an initial compensable rating for hemorrhoids. The Veteran contends that he is entitled to a compensable rating for his hemorrhoids. Specifically, he claims that the Board did not consider VA treatment records from July 2007 that noted one thrombosed hemorrhoid or from April 2008 that found “some large hemorrhoids, one of which shows that it has recently thrombosed and erupted.” The effective date for the Veteran’s service-connected hemorrhoids is November 10, 2011. Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2018). The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran’s disability. 38 C.F.R. § 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where, as here, the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate. See Fenderson v. West, 12 Vet. App. 119 (1999). Additionally, the evaluation of the same disability under several Diagnostic Codes, known as pyramiding, must be avoided. Separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The Veteran’s service-connected hemorrhoids were assigned a noncompensable (zero percent) rating under Diagnostic Code 7336, which contemplates mild or moderate internal or external hemorrhoids. A 10 percent rating is warranted for external or internal hemorrhoids that are large or thrombotic, irreducible, with excessive redundant tissue, evidencing frequent recurrences. A 20 percent rating is assigned for external or internal hemorrhoids, with persistent bleeding and with secondary anemia, or with fissures. 38 C.F.R. § 4.114, Diagnostic Code 7336 (2018). Descriptive words such as “mild” and “moderate,” as used in the various Diagnostic Codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence for “equitable and just decisions.” 38 C.F.R. § 4.6. After a full review of the record, and as discussed below, the Board concludes that an initial compensable rating for hemorrhoids is not warranted at any point during the appeal period. The Veteran received a VA examination in January 2012. The examiner diagnosed the Veteran with mild or moderate internal or external hemorrhoids. Physical examination revealed small or moderate external hemorrhoids. A rectal examination was negative for internal hemorrhoids. No bleeding from the external hemorrhoid was noted. At the July 2015 Board hearing, the Veteran presented evidence that his condition was manifested by fairly frequent recurrences of hemorrhoids that cause persistent itching and sometimes cause bleeding, and interfere with his ability to walk, sit, and perform certain job duties. Following the hearing, he submitted medical evidence indicating that he was scheduled to have hemorrhoid surgery. Pursuant to the October 2015 Board remand, the Veteran was provided another VA examination in January 2016. The examiner noted that the Veteran recently had hemorrhoid banding surgery. A surveillance colonoscopy, which the examiner noted was for colon polyps that are unrelated to the hemorrhoids, was performed at the same time as the banding. The Veteran reported that he had intermittent rectal bleeding prior to the banding, and that he has not had any bleeding or activity limitations since the banding. Upon physical examination, no hemorrhoids were found. Upon receipt of evidence showing that the Veteran underwent surgical hemorrhoid banding in October 2015, the RO in March 2016 granted a temporary 100 percent evaluation for a period of convalescence following surgery. At no time during the appeal period has there been any clinical finding of external or internal hemorrhoids that are large or thrombotic, irreducible, with excessive redundant tissue, evidencing frequent recurrences; or with persistent bleeding and with secondary anemia, or with fissures. The Veteran himself testified that his hemorrhoids, when present, cause no more than intermittent bleeding. Thus, the Board finds that a compensable rating is not warranted. The Board has considered the Veteran’s assertions that a higher rating is warranted, and it is acknowledged that the Veteran is competent to report on that which he has personal knowledge, i.e., what comes to him through his senses. Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, as a layperson, he is not competent to assess the nature and severity of his hemorrhoids, as that medical question requires imaging studies and other complex diagnostic examinations. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (explaining in footnote 4 that a Veteran may be competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions); see also Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (reiterating this axiom in a claim for rheumatic heart disease). As such, the Board affords more probative value to the clinical evidence provided by medical professionals. To the extent that the Veteran alleges greater severity, the Board finds that the probative value of his allegations is outweighed by the aforementioned examiners’ findings. Competent evidence concerning the nature and extent of the Veteran’s disability has been provided by the VA examiners during the current appeal and provided relevant medical findings in conjunction with the examinations. In this regard, the medical findings (as provided in the examination reports) directly address the evaluation criteria for this disability. Accordingly, the Board finds that the medical examination opinions and findings are of greater probative value than the Veteran’s allegations regarding the severity of his hemorrhoids. The Veteran does not meet the DC 7336 criteria for a compensable rating because he has not been shown to have symptoms that more nearly approximate, at the least, external or internal hemorrhoids that are large or thrombotic, irreducible, with excessive redundant tissue, evidencing frequent recurrences. Furthermore, the evidence does not show external or internal hemorrhoids with persistent bleeding and with secondary anemia, or with fissures. Thus, the Veteran’s symptoms more nearly approximate mild to moderate symptoms and they do not meet the criteria found in the higher ratings. The Board has also considered whether higher or separate Diagnostic Codes are applicable. The evidence of record indicates that the Veteran’s service-connected hemorrhoids is primarily manifested by mild or moderate hemorrhoids. There is no medical or lay evidence of related symptoms that would not result in the pyramiding of other hemorrhoid-related Diagnostic Codes. The Board has considered whether higher ratings are available under DC 7336, but finds that at no time during the pendency of this appeal has the Veteran’s hemorrhoids disability been shown to result in findings above mild to moderate disability as reported on the VA examinations. The Veteran contends that the Board should consider the VA treatment records from July 2007 that noted one thrombosed hemorrhoid and from April 2008 that found “some large hemorrhoids, one of which shows that it has recently thrombosed and erupted.” He cites Moore v. Shinseki, 555F.3d1369, 1373 (Fed. Cir. 2009), and Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013), for the proposition that medical records created prior to the effective date of a claim are still relevant in determining the proper rating for a disability after the effective date of the claim. The Moore Court held that VA is required to obtain potentially relevant records even when those records concern periods prior to the effective date of a disability, because VA must assess a disability "in relation to its history" when determining the proper rating to assign. 555 F.3d at 1373; see also 38 C.F.R. § 4.1. In Romanowsky, the Court held that “when the record contains a recent diagnosis of disability prior to a veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address” when determining “whether a current disability existed at the time the claim was filed or during its pendency.” 26 Vet. App. at 294. The Veteran asserts that because the Board failed to discuss these records, he is only left to speculate as to what value, if any, the Board assigned them. However, the Board has considered these VA treatment records and has assigned them limited probative value because of a lack of temporal proximity. Even considering the one-year period prior to the assigned effective date from when the Veteran’s claim was filed, it is not discernable that a higher rating is warranted as the Veteran’s hemorrhoids did not show symptoms more than mild to moderate. Furthermore, even if both occurred during the appeal period they reflect only two instances of such severity which does not reflect they were evidencing frequent recurrences as required for a higher rating, especially when other evidence of record clearly indicates symptomatology less severe than that required for the higher rating. The Board has evaluated all of the evidence to arrive at an “equitable and just decision.” 38 C.F.R. § 4.6. The Veteran’s hemorrhoid symptoms are clearly accounted for in the noncompensable rating pursuant to DC 7336 based on symptoms shown during the appeal period. Thus, other Diagnostic Codes are not for application. Based on the foregoing, the Board concludes that the Veteran’s hemorrhoids have been no more than zero percent disabling for the period on appeal. All evidence has been considered and there is no doubt to be resolved. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. 2. Entitlement to an extraschedular rating for hemorrhoids. The Board has considered whether the Veteran’s service-connected hemorrhoid disability warrants the assignment of an extraschedular disability evaluation. An extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1); see Fanning v. Brown, 4 Vet. App. 225, 229 (1993). The determination of whether a claimant is entitled to an extraschedular rating under § 3.321(b)(1) is a three-step inquiry. Thun v. Peake, 22 Vet. App. 111, 115-116 (2008). If the RO or Board determines that (1) the schedular evaluation does not contemplate the claimant’s level of disability and symptomatology, and (2) the disability picture exhibits other related factors such as marked interference with employment or frequent periods of hospitalization, then (3) the case must be referred to an authorized official to determine whether, to accord justice, an extra-schedular rating is warranted. Id.; see also 38 C.F.R. § 3.321(b)(1). Neither the RO nor the Board is permitted to assign an extraschedular rating in the first instance; rather the matter must initially be referred to those officials who possess the delegated authority to assign such a rating. See Anderson v. Shinseki, 22 Vet. App. 423, 427-8 (2009); Floyd v. Brown, 9 Vet. App. 88, 96-97 (1996). Having reviewed this case thoroughly, and with due application of the substantive standards for the assignment of an extraschedular rating under 38 C.F.R. § 3.321(b)(1), the Board finds that no higher rating is warranted on an extraschedular basis. The Board does not find that the longitudinal evidence of record shows such an exceptional disability picture that the available schedular evaluation for the service-connected hemorrhoid disability is inadequate or impractical for evaluating a disability of the severity experienced by the Veteran. Rather, a comparison between the level of severity and symptomatology of the Veteran’s assigned evaluation with the established criteria found in the rating schedule shows that the rating criteria reasonably describe the Veteran’s disability level and symptomatology, including occasional bleeding, and interference with his ability to walk, sit, and perform certain activities due to internal and external hemorrhoids. Specifically, the criteria for rating hemorrhoids under DC 7336 include consideration of overall “mild or moderate” hemorrhoid symptomatology, which the Board has done in evaluating all of the evidence to arrive at an “equitable and just decision.” 38 C.F.R. § 4.6. Hence, the criteria under DC 7336 encompass a broad range of effects of the symptoms associated with the Veteran’s hemorrhoids, to include those described by the Veteran; he testified that his hemorrhoids, when present, cause no more than intermittent bleeding. The rating criteria allows for the categorization of hemorrhoids as mild or moderate, giving the Board the flexibility to consider symptoms that are not explicitly considered. As such, the schedular rating criteria that have been applied in this case reasonably and adequately describe the Veteran’s hemorrhoid disability picture and therefore referral for consideration of extraschedular ratings is not warranted. As a result, the Board finds that these symptoms shown during the appeal period have not amounted, overall, to more than mild to moderate symptomatology. Therefore, the rating assigned for the service-connected hemorrhoids during the applicable period contemplate all of the Veteran’s reported and observed symptoms during that time, as set forth above, and the Veteran has not demonstrated any symptomatology that is not already within the scope of the applicable criteria. Under these circumstances, the Board concludes that the threshold requirement for invoking the procedures set forth in 38 C.F.R. § 3.321(b)(1) is not met, and that referral of the claim for extra-schedular consideration is not warranted. See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). H. SEESEL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Connally, Counsel