Citation Nr: 18143365 Decision Date: 10/19/18 Archive Date: 10/18/18 DOCKET NO. 16-17 704 DATE: October 19, 2018 ORDER Service connection for diabetes mellitus, type II is granted. Service connection for hypertension is granted. A rating in excess of 10 percent for hemorrhoids is denied. An effective date prior to June 15, 2012 for the grant of service connection for hemorrhoids is denied. REMANDED Service connection for a right hip disorder is remanded. Service connection for a left hip disorder is remanded. Service connection for a right knee disorder is remanded. Service connection for a left leg disorder is remanded. Service connection for a lumbar spine disorder is remanded.   FINDINGS OF FACT 1. The Veteran’s diabetes mellitus manifested to a compensable degree within one year from his service discharge. 2. The Veteran’s hypertension manifested to a compensable degree within one year from his service discharge. 3. Throughout the appeal period, the Veteran’s hemorrhoids have manifested as large or thrombotic hemorrhoids with excessive redundant tissue and evidenced frequent recurrences without persistent bleeding, secondary anemia, or fissures. 4. The claim upon which service connection for hemorrhoids was granted was received by VA on June 15, 2012. CONCLUSIONS OF LAW 1. The criteria for service connection for diabetes mellitus have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 2. The criteria for service connection for hypertension have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 3. The criteria for a rating in excess of 10 percent for hemorrhoids have not been met. 38 U.S.C. § § 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1—4.14, 4.114, Diagnostic Code (DC) 7336 (2017). 4. The criteria for an effective date prior to June 15, 2012 for the award of service connection for hemorrhoids, have not been met. 38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. §§ 3.102, 3.151, 3.155, 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 2003 to June 2004, with prior service in the Army National Guard. The case is on appeal from June 2013 and September 2013 rating decisions. In the April 2016 substantive appeal, the Veteran requested a Travel Board hearing. Thereafter, in a February 2017 submission, he requested the hearing be withdrawn. Accordingly, the Board considers the Veteran’s request for a hearing to be withdrawn. See 38 C.F.R. § 20.704(e) (2017). The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran, his representative and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Service Connection 1. Service connection for diabetes mellitus and hypertension. The Veteran contends that his diabetes mellitus, type II and hypertension had its onset during service, or within the first post-service year. Legal Criteria Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. “To establish a right to compensation for a present disability, a veteran must show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service”-the so-called “nexus” requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for certain chronic diseases listed at 38 C.F.R. § 3.309(a), such as diabetes mellitus and hypertension, if manifested to a compensable degree within one year from the date of separation from service. See 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a), 3.309(a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Analysis The Board finds the Veteran’s service treatment records, in correlation with the records following his active service period, support that his diabetes and hypertension had its onset in service or within the first post-service year. A January 2006 treatment record supported the presence of diabetes, with an elevated A1C level of 6.9 percent; a July 2006 treatment record indicated an A1C level of 6.6 percent; and a March 2007 record noted an A1C level of 6.9 percent. With regard to hypertension, a March 2007 VA record noted blood pressure of 148/98. June 2009 and August 2009 VA records indicated the Veteran was diagnosed with diabetes and hypertension and that he began treatment for such in 2005. Additionally, an April 2010 medical record noted the Veteran had diabetes since 2003. The VA treatment records confirm the Veteran is diagnosed with, and continues to receive treatment for, diabetes mellitus and hypertension. The Veteran has a current disability as he has been diagnosed as suffering from diabetes mellitus and arthritis. The Board notes that for veterans who served more than 90 days during a war period, arthritis is presumed to have been incurred in service if it manifests to a compensable degree within one year of separation of service. Here, the Veteran served for more than 90 days during a war period, namely the Persian Gulf War. See 38 C.F.R. § 3.2(f). An undated service record indicates that the Veteran had been diagnosed with diabetes type II that was treated with medication as well as hypertension and that the Veteran was being referred to a “Fitness for Duty Board.” An undated statement from a private physician indicates that the Veteran had diabetes type II and hypertension and that these disabilities were treated with medication. In an August 2009 Memorandum, the Veteran’s National Guard commanding officer stated that his medical conditions of blood pressure and diabetes were diagnosed in 2005 and that treatment began in 2005. A January 2006 treatment record, approximately 18 months after service, indicated an elevated A1C level of 6.9 percent and was suggestive of diabetes. A March 2007 private treatment note reflected assessments of hypertension and diabetes mellitus, that a prescription for diabetic strips was made and that samples for hypertension medication was provided to the Veteran. Further, June and August 2009 VA records indicated the Veteran’s diabetes and hypertension were diagnosed and treated in 2005, and an April 2010 record noted diabetes since 2003. The Board notes that a compensable rating for hypertension requires a history of diastolic pressure that was predominately 100 or more who requires continuous medication or control while a compensable rating for diabetes mellitus requires it to be manageable by diet only. See 38 C.F.R. §§ 4.104, 4.119, 7101, 7913. The post service treatment records suggest a diagnosis of diabetes and hypertension since 2005. In addition, the August 2009 Memorandum from the Veteran’s commanding officer states that his blood pressure and diabetes were diagnosed in 2005 and that treatment began in 2005. The Board notes that an etiology opinion for the claimed diabetes mellitus and hypertension has not been obtained. No other evidence rebutting this presumption has been submitted. Accordingly, based on the analysis above and when resolving the benefit of the doubt in favor of the Veteran, the Board finds that service connection for diabetes mellitus and hypertension are warranted. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Increased Ratings 2. A rating in excess of 10 percent for hemorrhoids. Disability ratings are determined by comparing a Veteran’s present symptoms with criteria set forth in VA’s Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 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 is assigned. 38 C.F.R. § 4.7. After consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. The Veteran’s hemorrhoids are currently rated under Diagnostic Code 7336. Under DC 7336, hemorrhoids are assigned a zero percent rating where there is evidence of mild to moderate symptomatology. A 10 percent rating is warranted where there is evidence of large or thrombotic hemorrhoids, which are irreducible, with excessive redundant tissue, evidencing frequent recurrences. Finally, a 20 percent rating, the maximum schedular rating, is warranted where hemorrhoids are present, with persistent bleeding and secondary anemia, or with fissures. Words such as “mild,” “moderate,” “moderately severe,” and “severe” are not defined in the Rating Schedule or in the regulations. Consequently, the Board must evaluate all of the evidence to ensure that its decisions are “equitable and just.” 38 C.F.R. § 4.6. The Veteran was afforded an April 2013 VA examination in which he was diagnosed with hemorrhoids. The Veteran reported requiring continuous medication for the disorder, including over the counter daily stool softener and wet wipes. Upon examination, the examiner noted symptoms of large or thrombotic external hemorrhoids, found irreducible, with excessive redundant tissue and evidence of frequent recurrences. There was no evidence of anal fissures or persistent bleeding and anemia. A June 2013 VA opinion was obtained. The examiner confirmed the symptoms reported by the April 2013 examiner, including large or thrombotic hemorrhoids, with excessive redundant tissue, frequent recurrences and which require daily stool softener and multiple medications. The Board determines a rating in excess of 10 percent for hemorrhoids is not warranted. The record does not establish, and the Veteran has not alleged, persistent bleeding, anemia or fissures. Therefore, the Board finds that the Veteran’s hemorrhoids do not more nearly approximate the level of severity contemplated by the criteria for a 20 percent rating under Diagnostic Code 7336. The Board has also considered the applicability of other, potentially applicable diagnostic criteria for rating the Veteran’s hemorrhoids, but finds that no higher rating is assignable under any other diagnostic code. Indeed, there have been no objective findings of any rectum prolapse, stricture, or loss of sphincter control to warrant evaluation under other diagnostic codes. See 38 C.F.R. § 4.114, DCs 7332, 7333, and 7334. As such, no other diagnostic code is more applicable in this case. The evidence also shows that the Veteran’s hemorrhoids have remained stable throughout the appeal period. Therefore, the Board finds that there is no basis for staged ratings for the Veteran’s hemorrhoid disability, pursuant to Fenderson, supra. 3. An effective date prior to June 15, 2012 for service connection for hemorrhoids. The June 2013 rating decision granted service connection for hemorrhoids and awarded the Veteran a 10 percent rating from June 15, 2012. Thereafter, the Veteran’s representative submitted an October 2013 notice of disagreement in which he indicated the Veteran disagrees with the ratings and seeks earlier effective dates, if applicable. No specific argument was provided in support of this appeal. The effective date of an award is the date after separation from service or date entitlement arose, whichever is later, for claims filed within one year of separation; or the date the claim was received by VA or the date entitlement arose, whichever is later, for claims filed more than one year after separation from service. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400; Rodriguez v. West, 189 F.3d 1351, 1354 (Fed. Cir. 1999). For reopened claims, the effective date will be the date of receipt of claim or date entitlement arose, whichever is later. See 38 C.F.R. § 3.400(r). The essential elements for any claim, whether formal or informal, are “(1) an intent to apply for benefits, (2) an identification of the benefits sought, and (3) a communication in writing.” Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009); see 38 C.F.R. § 3.155. The Veteran’s first claim of service connection for hemorrhoids was received by VA on June 15, 2012 and that was the date assigned as the effective date for service connection. The record does not establish, and the Veteran does not allege, that he filed a claim for service connection for hemorrhoids prior to June 15, 2012. No earlier effective date for service connection is available or supported by the evidence. 38 C.F.R. § 3.400. The Board notes even if a diagnosis of hemorrhoids was afforded to the Veteran prior to June 15, 2012, a claim of service connection for hemorrhoids was not received by VA until June 15, 2012. Thus, the preponderance of the evidence is against the claim, there is no reasonable doubt to resolved, and an earlier effective date for service connection prior to June 15, 2012 for hemorrhoids is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND Service connection for disorders of the right hip, left hip, right knee, left leg and lumbar spine disorder are remanded. The Veteran generally contends the five musculoskeletal conditions are related to service. In July 1998, the Veteran fell on the trailer of a truck and injured his right leg, knee and thigh on the tracks. He reported pain at 8 out of 10, stiffness, and also pain upon movement. He indicated standing caused pain to his leg, as well as bending. The Board notes the Veteran underwent a right hip replacement in 2001 and a left hip replacement in 2011. Additionally, an August 2003 service record shows the Veteran complained of leg and back pain for two or three days. The Board notes that the Veteran’s July 1998 fall appears to have occurred during a period of annual training or active duty for training (ACDUTRA). The Veteran was afforded a March 2013 VA examination in which the examiner diagnosed the Veteran with lumbar osteoarthritis. He stated the disorder is multifactorial in nature, and may be caused by aging, genetics, sports, or activities of daily living. He noted it also may result in leg pain. He indicated it is highly unlikely that the Veteran’s leg and low back conditions were caused by the singular noted in-service incident from August 2003. With regard to the left hip, the examiner stated the Veteran has osteoarthritis of the left hip and underwent a total left hip arthroplasty in October 2011. He indicated the Veteran suffered a fall in 2003 which resulted in a contusion, which normally resolved in six to eight weeks. He noted the Veteran’s continued left hip pain was likely secondary to his osteoarthritis, caused by a variety of etiologies, including aging, genetics, sports and activities of daily living. However, this examiner did not address the impact, if any, of the Veteran’s July 1998 fall on his claimed disabilities. On remand, an addendum opinion should be obtained. With regard to the claimed right hip and knee disorders, the Veteran was afforded an August 2013 VA examination in which the examiner diagnosed him with right knee and right hip osteoarthritis. He stated the conditions were not related to service. The examiner noted that the Veteran stated that he fell off a truck 15 years prior which led to him requiring a right hip replacement in 2001, as well as right knee osteoarthritis. The examiner opined that the Veteran’s hip replacement was not service related as he also had a left hip replacement, that his osteoarthritis was more likely genetic rather than environmental and that his right knee pain was more likely related to osteoarthritis and not related to his injury. However, this examiner did not address whether the Veteran’s disabilities pre-existed his active duty service and whether they were aggravated by it. On remand, an addendum opinion should be obtained. In a November 2016 VA posttraumatic stress disorder (PTSD) examination, the Veteran reported that he received benefits from the Social Security Administration (SSA) due to his hips. As such records may be potentially relevant to the instant claim, a remand is necessary in order to obtain his complete SSA records, including all administrative decision(s) on his application for SSA disability benefits and all underlying medical records. On remand, the Veteran should be asked to furnish, or to furnish an authorization to enable VA to obtain, any additional private treatment records from providers who treated him for his claimed disabilities. Additionally, given the time that will pass during the processing of this remand, updated VA treatment records should be associated with the record. The matters are REMANDED for the following action: 1. The Veteran should be given an opportunity to identify any outstanding private or VA treatment records relevant to the claim on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records, to include updated VA treatment records dated from September 2014 to the present, should be obtained. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and afford him an opportunity to submit any copies in his possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Obtain the Veteran’s complete SSA records, including all administrative decision(s) on his application for SSA disability benefits and all underlying medical records, which are in SSA’s possession. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159. 3. After obtaining all outstanding records, return the claims file, to include a copy of this remand, to the March 2013 examiner for an addendum opinion. If the examiner who drafted the March 2013 report is unavailable, the opinion should be rendered by another appropriate medical professional. The need for another examination is left to the discretion of the medical professional offering the addendum opinion. The examiner should answer the following questions: (A) Identify all current disorders of the hips, right knee, left leg and/or lumbar spine. The examiner should identify all such disorders that have been diagnosed at any time since June 2012. (B) For each diagnosed disorder, the examiner should state whether it clearly and unmistakably pre-existed the Veteran’s service from February 2003 to June 2004. The examiner should specifically address the Veteran’s July 1998 fall as well as the 2001 right hip surgery. (C) If so, and for each such disorder, is there clear and unmistakable evidence that the pre-existing disorder did not undergo an increase in the underlying pathology during service? If there was an increase in the severity of the Veteran’s disorder, was such increase clearly and unmistakably due to the natural progress of the disease? (D) If not, and for each such disorder, is it at least as likely as not (a 50 percent or higher probability) that the Veteran’s disorder had its onset during or is otherwise the result of his service? The Board notes that the Veteran’s July 1998 fall occurred during a period of active duty for training (ACDUTRA). A complete rationale for all opinions expressed should be provided. KRISTY L. ZADORA Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Isaacs, Associate Counsel