Citation Nr: 18148002 Decision Date: 11/06/18 Archive Date: 11/06/18 DOCKET NO. 10-37 257 DATE: November 6, 2018 ORDER Entitlement to an initial 10 percent rating, but no higher, for hemorrhoids (internal/external), effective April 28, 2010, is granted. (The issues of whether the withholding compensation payments for autoimmune thyroiditis with euthyroid goiter for the purpose of recouping severance pay was proper and entitlement to an effective date earlier than June 1, 1995 for termination of withholding of severance pay and reinstatement of 10 percent rate are addressed in a separate Board decision.) FINDING OF FACT From the date of award of service, April 28, 2010, the Veteran’s service-connected hemorrhoids have been thrombotic with frequent bleeding; but there are no objecting findings of persistent bleeding with anemia or fissures. CONCLUSION OF LAW The criteria for an initial 10 percent disability evaluation, but no higher, for the Veteran’s service-connected hemorrhoids have been met, effective April 28, 2010. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. Part 4, including §§ 4.7, 4.114, Diagnostic Code 7336. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from July 1985 to May 1993. The Board previously remanded this case in December 2013 to afford the Veteran a hearing before a Decision Review Officer (DRO) at the Regional Office, and thereafter, Board video conference hearing. A DRO hearing was held in March 2015. A transcript of the hearing has been associated with the record. However, despite numerous attempts for three years, which are outlined in a May 2018 deferred rating action, to schedule the Veteran for a Board video conference, the Agency of Original Jurisdiction (AOJ) has not been able to schedule a hearing. Most recently, the Veteran refused to report for a Board hearing and gave no good cause for not scheduling a hearing in the future. Thus, the Board finds that the Veteran’s hearing request has been withdrawn and the AOJ has substantially complied with the Board remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board also remanded the issue of entitlement to a compensable disability rating for recurrent bronchitis. However, at the March 2015 DRO hearing, the Veteran withdrew her appeal of this issue. As such, this matter is no longer before the Board. Entitlement to an initial higher rating for hemorrhoids The Veteran has generally asserted that a higher rating is warranted for hemorrhoids as she experiences bleeding and thrombosis. Disability evaluations are determined by the application of the Schedule For Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. 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. Where 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. See Fenderson v. West, 12 Vet. App. 119 (1999). As in the instant case, at the time of an initial rating, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as “staged” ratings. Id. at 126. The Veteran hemorrhoids have been evaluated pursuant to Diagnostic Code 7336. Under this code, a noncompensable rating is assigned if the hemorrhoids are mild or moderate. To be entitled to the next-higher 10 percent rating, the evidence must show hemorrhoids that are large or thrombotic, irreducible, with excessive redundant tissue, evidencing frequent recurrences. A 20 percent rating is warranted if persistent bleeding is present and with secondary anemia, or with fissures. See 38 C.F.R. § 4.114, Diagnostic Code 7336. The Board must determine whether a compensable rating is warranted prior to April 6, 2015, and whether a rating higher than 10 percent is warranted thereafter. Initially, the Board finds that a 10 percent rating is warranted for the Veteran’s hemorrhoids from the date of award of service connection. In this regard, at the DRO hearing, the Veteran reported that her hemorrhoids were blood-filled or thrombotic and irreducible. Further, at the April 2015 VA examination, the Veteran reported episodes of thrombosis in the past due to her hemorrhoids. During flare-ups that occurred every two to three months, she experienced pain, bleeding, burning, itching and swelling. Although the July 2010 VA examination found no such symptoms upon examination, the Veteran reported a history of persistent bleeding at the examination. Thus, the Board finds that the Veteran’s disability picture more nearly approximates a 10 percent rating. Accordingly, when resolving the benefit of the doubt in favor of the Veteran, the Board finds that a 10 percent rating is warranted, effective the date of the original claim, April 28, 2010. Nevertheless, the Board finds that the medical evidence of record does not show hemorrhoid manifestations of the type described in the criteria for a 20 percent disability rating. Although the Veteran has reported episodes of thrombosis and bleeding, there has been no objective finding of persistent bleeding with anemia or fissures as set forth in the criteria for a higher rating. Both VA examinations are silent with respect to any such findings. The Board notes that the rating criteria under this code is conjunctive as it uses the word “and,” which means that all the criteria must be met to award a rating. See Melson v. Derwinski, 1 Vet. App. 334 (June 1991) [use of the conjunctive “and” in a statutory provision meant that all of the conditions listed in the provision must be met]; compare Johnson v. Brown, 7 Vet. App. 95 (1994) [only one disjunctive “or” requirement must be met in order for an increased rating to be assigned]. Thus, the preponderance of the evidence is against finding that a rating higher than 10 percent is warranted for hemorrhoids. As the preponderance of the evidence weighs against the claim, the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C. § 5107(b). The Board has carefully reviewed and considered the Veteran’s statements regarding the severity of her hemorrhoids. The Board acknowledges that the Veteran, in advancing this appeal, believes that the disability on appeal has been more severe than the assigned disability rating reflects. See Layno v. Brown, 6 Vet. App. at 469. When applying the case law discussed above, the Board must find that the competent medical evidence offering detailed specific specialized determinations pertinent to the rating criteria are the most probative evidence with regard to evaluating the pertinent symptoms for the disability on appeal; the medical evidence also largely contemplates the Veteran’s descriptions of symptoms. Importantly, the Board considered the Veteran’s statements when awarding the current 10 percent rating back to the date of award of service connection. The lay testimony has been considered together with the probative medical evidence clinically evaluating the severity of the pertinent disability symptoms.   In sum, an initial 10 percent rating, but no higher, is warranted for the Veteran’s service-connected hemorrhoids, effective April 28, 2010. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J.N. Moats