Citation Nr: 18143305 Decision Date: 10/18/18 Archive Date: 10/18/18 DOCKET NO. 16-24 848 DATE: October 18, 2018 ORDER Entitlement to a compensable rating for hemorrhoids prior to April 8, 2016, is denied. Entitlement to a rating in excess of 10 percent for hemorrhoids after April 8, 2016, is denied. Entitlement to an initial rating in excess of 10 percent for specified trauma and stress related disorder prior to April 8, 2016, is denied. Entitlement to an initial rating in excess of 30 percent for specified trauma and stress related disorder from April 8, 2016, is denied. REMANDED Whether new and material evidence has been submitted to reopen a claim seeking service connection for PTSD is remanded. FINDINGS OF FACT 1. Prior to April 8, 2016, the Veteran’s hemorrhoids were manifested by mild or moderate external or internal hemorrhoids. 2. From April 8, 2016, the Veteran’s hemorrhoids were manifested as large or thrombotic, irreducible, with excessive redundant tissue, evidencing frequent recurrences. 3. Prior to April 8, 2016, the Veteran’s service connected specified trauma and stress related disorder has been manifested by symptoms that most nearly approximated occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress. 4. From April 8, 2016, the Veteran’s service connected specified trauma and stress related disorder has been manifested by symptoms that most nearly approximated occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. CONCLUSIONS OF LAW 1. Prior to April 8, 2016, the criteria for a compensable rating for hemorrhoids have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.114, Diagnostic Code (DC) 7336. 2. From April 8, 2016, the criteria for a rating in excess of 10 percent for hemorrhoids have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.114, DC 7336. 3. Prior to April 8, 2016, the criteria for an initial rating in excess of 10 percent for specified trauma and stress related disorder are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.130, DC 9435. 4. From April 8, 2016, the criteria for an initial rating in excess of 30 percent for specified trauma and stress related disorder are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.130, DC 9435. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 2000 to December 2004. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a February 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that the February 2015 decision granted service connection for specified trauma and stress related disorder and assigned a 10 percent rating and continued a noncompensable rating for hemorrhoids. A December 2016 rating decision increased the rating for hemorrhoids to 10 percent and increased the rating for specified trauma and stress related disorder to 30 percent, both effective April 8, 2016. A. Duties to Notify and Assist VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159. As to the increased rating claims, 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 a duty to assist argument). B. Increased Rating The Board notes that it has reviewed all of the evidence in the Veteran’s claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss in detail every piece of evidence. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as deemed appropriate, and the Board’s analysis will focus on what the evidence shows, or fails to show, as to the claim. Disability ratings are determined by applying the criteria set forth in 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; 38 C.F.R. § 4.1. 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 importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate ratings may be assigned for separate periods of time based on the facts found, a practice known as “staged” ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Where 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. Reasonable doubt as to the degree of disability will be resolved in the veteran’s favor. 38 C.F.R. § 4.3. 1. Hemorrhoids The Veteran’s hemorrhoids are rated under Code 7336, which provides the following ratings for external or internal hemorrhoids. A 0 percent rating is warranted for hemorrhoids that are mild or moderate. A 10 percent rating is warranted for hemorrhoids that are large or thrombotic, irreducible, with excessive redundant tissue, evidencing frequent recurrences. A 20 percent rating is warranted for hemorrhoids with persistent bleeding and with secondary anemia, or with fissures. 38 C.F.R. § 4.114, Code 7336. a. Entitlement to a Compensable Rating Prior to April 8, 2016 The Veteran contends he is entitled to a compensable rating for his hemorrhoids prior to April 8, 2016. During a December 2014 VA examination, the Veteran reported symptoms of constant pain, and an uncomfortable feeling. An examination of the rectal/anal area showed the Veteran suffered from small or moderate hemorrhoids. The examiner described the Veteran’s external hemorrhoids as mild or moderate. There was no evidence that the Veteran’s hemorrhoids were large or thrombotic, irreducible, with excessive redundant tissue, evidencing frequent recurrences. Likewise, there was no evidence that the Veteran’s symptoms included persistent bleeding with secondary anemia, or fissures. At the December 2014 VA examination, it was specifically noted that the Veteran’s hemorrhoids were small or moderate. While the Veteran reported pain, the evidence of record, including VA and private treatment records, shows that he did not have large or thrombotic irreducible hemorrhoids with excessive redundant tissue, or hemorrhoids with persistent bleeding with secondary anemia or with fissures during the period on appeal prior to April 8, 2016. Accordingly, for the Veteran’s hemorrhoids, the Board finds that a compensable rating is not warranted prior to April 8, 2016. See 38 C.F.R. § 4.114, Code 7336; see also Francisco, 7 Vet. App. at 55, 58; see also Hart, 21 Vet. App. at 505. b. Entitlement to a Rating in Excess of 10 Percent from April 8, 2016 The Veteran contends he is entitled to a rating in excess of 10 percent from April 8, 2016. During an April 2016 VA examination, the Veteran reported that he experienced intermittent bleeding after stools. He indicated he did not have a history of anemia. An examination of the rectal/anal area showed one thrombosed hemorrhoid and two small hemorrhoids. The examiner described the Veteran’s hemorrhoids as large or thrombotic, irreducible, with excessive redundant tissue, evidencing frequent recurrences. Blood test results were included and the examiner indicated the Veteran did not have anemia. The examiner did not indicate the Veteran’s symptoms included persistent bleeding with secondary anemia, or fissures. The examiner indicated that the Veteran’s hemorrhoids resulted in an inability to sit for prolonged periods of time without pain. At the April 2016 VA examination, it was specifically noted that the Veteran’s hemorrhoids were thrombosed and were described as large or thrombotic, irreducible, with excessive redundant tissue, evidencing frequent recurrences, which translates to a 10 percent rating. Although the Veteran reported experiencing intermittent bleeding after stools, he did not report having persistent bleeding. He also indicated he did not have a history of anemia and after completing blood testing, the examiner also indicated the Veteran did not have anemia. Private and VA treatment records during this time period do not reflect treatment for hemorrhoids, evidence of anemia, persistent bleeding, or fissures. Therefore, a preponderance of the evidence is against a finding that the Veteran’s hemorrhoid symptoms since April 8, 2016 have more nearly approximated persistent bleeding with secondary anemia, or fissures. Accordingly, the Board finds that a rating in excess of 10 percent from April 8, 2016 is not warranted. See 38 C.F.R. § 4.114, Code 7336; see also Francisco, 7 Vet. App. at 55, 58; see also Hart, 21 Vet. App. at 505. 2. Other Specified Trauma and Stress Related Disorder The Veteran’s other specified trauma and stress related disorder is rated under DC 9435, 38 C.F.R. § 4.130. A 10 percent rating is warranted for occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication. A 30 percent rating is warranted for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is warranted when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is warranted when there is occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. A 100 percent evaluation is warranted when there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, DC 9411. The use of the phrase “such symptoms as,” followed by a list of examples, provides guidance as to the severity of symptoms contemplated for each rating, in addition to permitting consideration of other symptoms, particular to each veteran and disorder, and the effect of those symptoms on the claimant’s social and work situation. Mauerhan v. Principi, 16 Vet. App. 436, 443 (2002). Because “[a]ll non-zero disability levels [in § 4.130] are also associated with objectively-observable symptomatology,” and the plain language of this regulation makes it clear that “the veteran’s impairment must be ‘due to’ those symptoms,” “a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration.” Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). “[I]n the context of a 70[%] rating, § 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas.” Id. at 117. Therefore, although the veteran’s symptoms are the “primary consideration” in assigning a disability evaluation under § 4.130, the determination as to whether the veteran is entitled to a 70 percent disability evaluation “also requires an ultimate factual conclusion as to the veteran’s level of impairment in ‘most areas.’” Id. at 118. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran’s capacity for adjustment during periods of remissions. 38 C.F.R. § 4.126(a). The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner’s assessment of the level of disability at the moment of the examination. Id. However, when evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation on the basis of social impairment. 38 C.F.R. § 4.126(b). a. Entitlement to a Rating in Excess of 10 Percent prior to April 8, 2016 The Veteran contends he is entitled to a rating in excess of 10 percent prior to April 8, 2016. During a December 2014 VA examination, the Veteran denied a history of psychiatric counseling and described his mood as even and easy. The Veteran reported occasional symptoms of nighttime intrusive thoughts, nightmares, and thoughts about his friend’s suicide. The Veteran indicated low energy. The Veteran denied suicidal ideations, homicidal ideations, flashbacks, and symptoms of psychosis. His appetite, memory, and motivation were noted to be within normal limits. The Veteran reported being engaged and having two children. Regarding employment, the Veteran stated he worked as a police officer full time and denied any work-related complaints. The examiner diagnosed the Veteran with other specified trauma and stress related disorder. The examiner also diagnosed the Veteran with attention deficit disorder (ADD) and reported that it was possible to differentiate what symptoms were attributable to each diagnosis. Specifically, the examiner noted that nightmares, some memories, and some avoidance behavior were attributable to the other specified trauma and stress related disorder, and concentration problems were related to the ADD. The examiner noted that the Veteran suffered from chronic sleep impairment as a result of his diagnoses. The examiner described the Veteran as pleasant, cooperative, alert, and oriented. The examiner stated there was no evidence of psychosis and thought processes were logical, coherent, and organized. Mood was described as euthymic and affect as congruent, but tearful at times. The examiner opined that the Veteran’s disorders caused occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. The examiner added that it was possible to differentiate what portion of the occupational and social impairment was caused by each mental disorder. The examiner specified that symptoms associated with the Veteran’s ADD may affect functioning, but that symptoms related to the other specified trauma and stress related disorder, including dreams, thoughts and/or memories, and avoidance did not affect the Veteran’s occupational and social impairment. After evaluating the evidence of record, the Board finds that symptoms of the Veteran’s other specified trauma and stress related disorder, prior to April 8, 2016, most nearly approximated the criteria for the assigned 10 percent rating, as they reflected occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress. The record indicates that the Veteran’s symptoms were limited to occasional nighttime intrusive thoughts, some avoidance behavior, nightmares, thoughts about his friend’s suicide, low energy, and chronic sleep impairment. The evidence did not show that prior to April 8, 2016, the frequency, duration, and severity of these symptoms resulted in an occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. Namely, during the December 2014 VA examination, the Veteran reported being engaged and having two children. He also denied any complaints regarding his ability to engage in his full-time employment. Additionally, while the Veteran exhibited symptoms of dreams, thoughts and/or memories, and avoidance, these did not affect the Veteran’s occupational and social impairment beyond during periods of significant stress. Moreover, the Veteran denied suicidal ideations, homicidal ideations, flashbacks, and symptoms of psychosis. His appetite, memory, and motivation were noted to be within normal limits. Additionally, the examiner described the Veteran as pleasant, cooperative, alert, and oriented. The examiner stated there was no evidence of psychosis and thought processes were logical, coherent, and organized. The Board acknowledges that the examiner noted that the Veteran suffered from chronic sleep impairment. Although this symptom is noted in the higher 30 percent rating, the Board finds that the frequency, duration, and severity of this symptom did not result in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. The frequency, duration, and severity of this symptom and his other symptoms are more consistent with a finding of occupational and social impairment due to mild or transient symptoms. Therefore, the Board finds that a preponderance of the evidence is against a rating in excess of 10 percent prior to April 8, 2016. b. Entitlement to a Rating in Excess of 30 Percent from April 8, 2016 The Veteran argues he is entitled to rating in excess of 30 percent from April 8, 2016. During an April 2016 VA examination, the Veteran reported an increase in nightmares since the last VA examination. The Veteran added that he suffered from chronic sleep issues. The Veteran denied symptoms of psychosis. The Veteran reported being engaged and having two children. He indicated that he was open with his fiancé and that she was supportive of him. Regarding employment, the Veteran stated he worked as a police officer full time and added that he suffered from increased stress due to weapons qualifications. The examiner diagnosed the Veteran with other specified trauma and stress related disorder. The examiner also diagnosed the Veteran with ADD and reported that it was possible to differentiate what symptoms were attributable to each diagnosis. Specifically, the examiner noted that the nightmares, some memories, some avoidance behavior, and sleep issues were associated with the Veteran’s other specified trauma and stress disorder. The examiner added that concentration problems were attributable to the ADD. The examiner noted that the Veteran suffered from chronic sleep impairment as a result of his diagnoses. The examiner noted increased symptoms since the December 2014 examination in that his work duties had changed and intrusive thoughts were triggered by new work requirements, such as weapons qualifications. The examiner described the Veteran as pleasant, cooperative, alert, and oriented. The examiner stated there was no evidence of psychosis and thought processes were logical, coherent, and organized. Mood was described as euthymic and affect as congruent. There was no evidence of suicidal ideations or homicidal ideations. Speech was noted to be normal. The examiner opined that the Veteran’s disorders caused occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. The examiner indicated it was not possible to differentiate what portion of the occupational and social impairment was caused by each mental disorder. Following a thorough review of the evidence of record, the Board finds that the criteria for a rating in excess of 30 percent for other specified trauma and stress related disorder have not been met at any time from April 8, 2016. The record indicates the Veteran’s other specified trauma and stress related disorder has been characterized by nightmares, chronic sleep issues, some intrusive memories, and some avoidance behavior. The Veteran’s medical records during the appeal period reflect that the Veteran exhibited good hygiene and grooming and was fully oriented. There was no evidence of flattened affect; circumstantial, circumlocutory or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. Additionally, the Veteran was able to perform activities of daily living and continued to be engaged and to maintain full-time employment. The record indicates that the Veteran’s symptoms since April 8, 2016 are limited to occasional nighttime intrusive thoughts, some avoidance behavior, nightmares, thoughts about his friend’s suicide, low energy, and chronic sleep impairment. Although intrusive memories caused an occasional decrease in work efficiency, the frequency, duration, and severity of this symptom and others did not result in occupational and social impairment with reduced reliability and productivity. Therefore, the Board finds that a rating in excess of 30 percent for other specified trauma and stress related disorder is not warranted from April 8, 2016. The Board has also considered the Veteran’s statements regarding the severity of his psychiatric disorder. The Veteran is competent to report the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1154(a); 38 C.F.R. § 3.159(a)(2); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). Ultimately, however, the opinions and observations of the Veteran do not meet the burden for a higher rating imposed by the rating criteria under 38 C.F.R. § 4.130 with respect to determining the severity of his service-connected psychiatric disorder. In summary, a preponderance of the evidence is against a finding that the Veteran is entitled to a rating in excess of 10 percent prior to April 8, 2016, and in excess of 30 percent from April 8, 2016. 38 U.S.C. § 5107; 38 C.F.R. § 4.3. REASONS FOR REMAND The Veteran is seeking to reopen a claim seeking entitlement to service connection for PTSD, a claim which was previously finally denied by a March 2011 rating decision. Specifically, in October 2014, the Veteran filed a claim for PTSD. The February 2015 rating decision granted service connection for specified trauma and stress related disorder and noted that the Veteran did not have a diagnosis of PTSD. In the Veteran’s April 2015 notice of disagreement, he specifically indicated he was disagreeing with the denial of service connection for PTSD. In a January 2016 statement of the case (SOC), the RO addressed whether the Veteran was entitled to a higher evaluation for the service-connected specified trauma and stress related disorder, but did not address the Veteran’s PTSD claim. In April 2016, the Veteran filed a claim for increased rating for hemorrhoids and his service-connected specified trauma and stress related disorder and indicated a separate claim for service connection for PTSD. A December 2016 rating decision and supplemental SOC (SSOC) failed to address the Veteran’s PTSD claim, but rather adjudicated the issue under the umbrella of his increased rating claim for specified trauma and stress related disorder. The Veteran’s aforementioned submissions make it apparent that he desires service connection for PTSD. The fact that he is service-connected for specified trauma and stress related disorder does not preclude service connection for another psychiatric disability. See Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009) (noting that different psychiatric diagnoses may have symptoms that are not overlapping). A statement of the case has not been issued following a timely notice of disagreement regarding the petition to reopen the claim seeking entitlement to service connection for PTSD. When a statement of the case is not issued following a timely filing of a notice of disagreement, the Board is required to remand the case for such action. Manlincon v. West, 12 Vet. App. 238 (1999). The matters are REMANDED for the following action: Furnish the Veteran an SOC regarding the petition to reopen the claim seeking service connection for PTSD. Advise him and his representative of the time limit for perfecting the appeal of this claim and that the issue will not be returned to the Board for appellate consideration following the issuance of the SOC unless he perfects his appeal with the submission of a substantive appeal. M. SORISIO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Patel, Associate Counsel