Citation Nr: 18148231 Decision Date: 11/07/18 Archive Date: 11/07/18 DOCKET NO. 17-37 140 DATE: November 7, 2018 ORDER Service connection for bilateral pes planus is granted. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for sleep apnea is dismissed. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for breast cancer is dismissed. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a dental disorder is dismissed. A 60 percent disability rating for status post hemorrhoidectomy with narrowed rectal opening and fecal leakage (stricture of the rectum/anus) is granted from December 5, 2011. REMANDED Entitlement to service connection for hypertension is remanded. Entitlement to service connection for gastroesophageal reflux disease (GERD) is remanded. Entitlement to service connection for an acquired psychiatric disorder is remanded. Entitlement to a rating in excess of 60 percent for status post hemorrhoidectomy with narrowed rectal opening and fecal leakage (stricture of the rectum/anus). Entitlement to a rating in excess of 10 percent for large recurrent internal and external hemorrhoids is remanded. Entitlement to a compensable rating for residuals of status post cervical biopsy with Class III PAP smear and associated vaginal bleeding is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. FINDINGS OF FACT 1. The evidence shows that the Veteran’s bilateral pes planus had its onset during her period of active duty. 2. During the Veteran’s March 2018 Board hearing, prior to the promulgation of a decision in the appeal, the Veteran’s attorney requested a withdrawal of the petition to reopen claims for service connection for sleep apnea, breast cancer, and a dental disorder. 3. The Veteran’s status post hemorrhoidectomy with narrowed rectal opening and fecal leakage (stricture of the rectum/anus) has been characterized by extensive leakage and fairly frequent involuntary bowel movements since December 5, 2011. CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to service connection for bilateral pes planus are met. 38 U.S.C. § 1110 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 2. The criteria for withdrawal of the petition to reopen claims for service connection for sleep apnea, breast cancer, and a dental disorder are met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). 3. The criteria for a rating of 60 percent for status post hemorrhoidectomy with narrowed rectal opening and fecal leakage (stricture of the rectum/anus) are met from December 5, 2011. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.21, 4.114, Diagnostic Code 7332 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from February 1975 to August 1975 and has additional service in the Army Reserve. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2013 rating decision that was issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. In March 2018, the Veteran testified at a hearing before the undersigned Veterans Law Judge. Claims for service connection for an acquired psychiatric disorder were previously denied in rating decisions that are now final, as the Veteran either failed to perfect her appeal, file a notice of disagreement, or submit additional evidence pertinent to the issue within one year of the rating decisions. See 38 U.S.C. §§ 7104, 7105 (2012); 38 C.F.R. §§ 3.156(b), 20.1105 (2017); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). In the last final decision, which was issued in November 2006, the RO denied the Veteran’s petition to reopen a claim for service connection for a psychiatric disorder because it was not shown in service and the evidence did not show a link between a psychiatric disorder and a service-connected disability. A March 2013 Disability Benefits Questionnaire documents a clinician’s finding that it is as likely as not that the Veteran’s depression is secondary to a service-connected condition. In light of this conclusion, the Board finds that reopening is warranted. See Morris v. Principi, 239 F.3d 1292, 1296 (Fed. Cir. 2001) (refusing to require the Board to explain its reasoning in the section of its opinion entitled “Reasons and Bases” rather than in the “Introduction”). Additionally, with regard to the claim for service connection for hypertension, the Veteran did not file a notice of disagreement or submit relevant evidence within one year of a May 2004 rating decision that denied the claim on the merits. Thus, the decision is final. The Board notes that the claim was denied in May 2004 because hypertension was not shown in service or within one year of the Veteran’s discharge from service. In light of the Veteran’s March 2018 testimony, to include reports that she was treated for hypertension during active service and took medication at that time, the Board finds that new and material evidence has been submitted and reopening is warranted. See id. Service Connection 1. Entitlement to service connection for bilateral pes planus. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). During the March 2018 Board hearing, the Veteran reported that her pes planus had its onset during service and her service treatment records (STRs) document treatment for foot problems. The Board’s review of the evidence is consistent with the Veteran’s testimony. Specifically, a January 1974 Report of Medical Examination indicates that the Veteran was clinically normal upon her entry into service and STRs dated in March 1975 document a diagnosis of pes planus after the Veteran complained of pain in both feet. Thus, notwithstanding any evidence to the contrary, the Board finds that the Veteran’s current bilateral pes planus had its onset in service and the appeal is granted. 2. Whether new and material evidence has been received to reopen claims of entitlement to service connection for sleep apnea, breast cancer, and a dental disorder. The Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105(2012). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2017). Withdrawal may be made by the appellant or by his or her authorized representative. Id. In the present case, the Veteran’s attorney requested a withdrawal of the petition to reopen claims for service connection for sleep apnea, breast cancer, and a dental disorder during the March 2018 Board hearing. This request was memorialized in writing and is of record. See Tomlin v. Brown, 5 Vet. App. 355, 357-58 (1993). Hence, there remain no allegations of errors of fact or law for appellate consideration. The Board does not have jurisdiction to review the appeal as to these issues and they are dismissed. Increased Rating 3. Entitlement to a rating in excess of 30 percent for status post hemorrhoidectomy with narrowed rectal opening and fecal leakage (stricture of the rectum/anus). Disability ratings are determined by applying the rating criteria set forth in VA’s schedule for rating disabilities and represent the average impairment of earning capacity. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). 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 (2017). 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 compensation as well as the whole recorded history of the Veteran’s disability. 38 C.F.R. §§ 4.1, 4.2 (2017); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria for that rating. 38 C.F.R. § 4.7 (2017). Otherwise, the lower rating is assigned. Id. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of her current symptomatology that is observable to the senses. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). Additionally, the Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998). Here, the Veteran’s disability is rated under 38 C.F.R. § 4.114, Diagnostic Code 7336-7333. See 38 C.F.R. § 4.27 (2017) (hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen). Diagnostic Codes 7336 and 7333 set forth the criteria for rating hemorrhoids and stricture of rectum and anus, respectively. The Board notes that the Veteran has a separate rating under Diagnostic Code 7336 for her service-connected hemorrhoids and the matter of her entitlement to an increased rating under this code is being remanded for additional development. Thus, the Board turns to Diagnostic Code 7333, which indicates that a 30 percent rating is warranted for moderate reduction of lumen or moderate constant leakage; a 50 percent rating is warranted for great reduction of lumen or extensive leakage; and a 100 percent rating is warranted if a colostomy is required. During her March 2018 Board hearing, the Veteran asserted that her disability more closely approximates a 60 percent rating under Diagnostic Code 7332, which sets forth the criteria for rating impairment of sphincter control of the rectum and anus. Under Diagnostic Code 7332, a noncompensable rating is warranted for healed or slight impairment, without leakage; a 10 percent rating is warranted for constant slight impairment, or occasional moderate leakage; a 30 percent rating is warranted for occasional involuntary bowel movements, necessitating wearing of a pad; a 60 percent rating is warranted for extensive leakage and fairly frequent involuntary bowel movements; and a 100 percent rating is warranted for complete loss of sphincter control. She testified that a 60 percent rating is warranted under Diagnostic Code 7332 because she experiences fecal incontinence daily and has no control over the leakage. To this point, the Veteran’s attorney indicated that a July 2006 examination report documents her complaint that she had leakage for two-thirds of the day and changed her pads five times daily, and April 2013 examination reports indicate that her condition was active, indicate that she used pads, and document that she had no control. The attorney reported that the Veteran has experienced frequent fecal incontinence with no control and this has also occurred in her sleep. Generally, the Board will consider whether the Veteran’s disability is ratable under a diagnostic code other than the code under which he is currently rated. See Butts v. Brown, 5 Vet. App. 532, 539 (1993) (holding that the Board’s choice of diagnostic code should be upheld so long as it is supported by explanation and evidence). Considering the Veteran’s credible reports of extensive leakage and frequent involuntary bowel movements, the Board finds that the Veteran’s disability has approximated a rating of 60 percent under Diagnostic Code 7332 from December 5, 2011, which is the date that the Veteran filed a claim for an increased rating. As indicated below, the Board remands the matter of the Veteran’s entitlement to a rating in excess of 60 percent. REASONS FOR REMAND 1. Entitlement to service connection for hypertension is remanded. During the March 2018 Board hearing, the Veteran reported that she was treated for hypertension during active service and took medication at that time. The Board notes that a June 1975 STR documents the Veteran’s endorsement that she has never had high blood pressure, the Veteran was clinically normal at her August 1975 separation examination, and her separation medical history documents her endorsement that she did not have high or low blood pressure. However, a May 1978 medical history form notes that she had hypertension at that time. In light of the foregoing and evidence indicating that the Veteran has additional Reserve service, the Board finds that VA should take reasonable steps to clearly identify and characterize the Veteran’s period(s) of Reserve service. Thereafter, an examination should be provided to determine the likely date of onset and etiology of the Veteran’s hypertension. McLendon v. Nicholson, 20 Vet. App. 79 (2006). 2. Entitlement to service connection for GERD. The Veteran’s attorney asserted two theories of entitlement to service connection for GERD. First, that the Veteran’s GERD had its onset in service, as an August 1975 STR documents a complaint of frequent indigestion, and second, that the Veteran’s GERD developed secondary to her service-connected fecal incontinence. Regarding the second theory, the Veteran asserted that, in June 2008, her physician Dr. Wearing opined that her GERD developed secondary to a motility disorder and the Veteran asserts that her fecal leakage is the identified motility disorder. See March 2018 Board hearing transcript. Treatment records from Dr. Wearing should be obtained on remand. 38 U.S.C. § 5103A. The Board also observes that the Veteran’s STRs include a January 1974 entrance medical history form that documents the Veteran’s endorsement of “frequent indigestion,” which she reported was relieved by antacids. Frequent indigestion was also endorsed on her August 1975 separation medical history form, an August 1978 treatment record documents lower abdominal pain and cramps, heartburn, and gas, and an August 1994 treatment record documents a complaint of gas and stomach discomfort in addition to an assessment of dyspepsia and irritable bowel syndrome. As acknowledged previously, the Veteran has an unspecified period of Reserve service. The Board finds that the present claim for service connection for GERD must be remanded pending the identification and characterization of the Veteran’s Reserve service and an examination. 3. Entitlement to service connection for an acquired psychiatric disorder is remanded. The aforementioned May 1978 medical history form also documents “psychiatric problems or hospitalizations” and anxiety. In addition, a July 1998 physical documents a physician’s conclusion that the Veteran’s inability to carry pregnancies to term status post cervical biopsy and her problems with hemorrhoids and anal narrowing have combined to cause some problems with depression. During the March 2018 Board hearing, the Veteran’s attorney reported correctly that a March 2013 Disability Benefits Questionnaire indicates that it is as likely as not that the Veteran’s depression is secondary to her service-connected conditions, but the same physician provided a contradictory opinion in June 2014. The Veteran testified in March 2018 that she has depression due to her service-connected disabilities in combination, but she believes the single biggest cause of her depression is her anal leakage. The Veteran’s most recent examination was conducted in June 2014, at which time a VA clinician only addressed whether the Veteran’s currently diagnosed psychiatric disorder is due to anal stricture specifically and not all the Veteran’s service-connected disabilities. The Board finds that this oversight renders the examination inadequate, as the examiner failed to address a theory of entitlement that was expressly raised, and another examination should be provided on remand. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (indicating that VA must ensure that an examination or opinion is adequate when it undertakes to provide an examination or obtain an opinion). 4. Entitlement to a rating in excess of 60 percent for status post hemorrhoidectomy with narrowed rectal opening and fecal leakage (stricture of the rectum/anus). 5. Entitlement to a rating in excess of 10 percent for large recurrent internal and external hemorrhoids is remanded. As a preliminary matter, the Veteran testified that she no longer wishes to pursue a temporary total rating for hemorrhoids as part of her claim for an increased rating. See March 2018 Board Hearing transcript, pp. 2-3. Thus, the Board will not address this issue. During the March 2018 hearing, the Veteran reported that she experiences weekly bleeding from her hemorrhoids and noted correctly that treatment records document anal fissures. She and her attorney also reported that she has anemia, but this condition has not been attributed to her hemorrhoid condition specifically. In light of the foregoing, the Board finds that a remand is necessary to provide an examination to ascertain the current manifestations of the Veteran’s disability, as there may have been an increase in its severity. Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). The matter of the Veteran’s entitlement to an increased rating for stricture of the rectum/anus is also remanded, as this issue is inextricably intertwined the claim for an increased rating for hemorrhoids. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). 6. Entitlement to a compensable rating for residuals of status post cervical biopsy with Class III PAP smear and associated vaginal bleeding is remanded. During the March 2018 Board hearing, the Veteran’s attorney asserted that her service-connected gynecological disability should be rated under 38 C.F.R. § 4.117, Diagnostic Code 7629, which provides the rating criteria for rating endometriosis, because the Veteran’s service records note not just chronic cervicitis but endometriosis as well. Additionally, the attorney asserted that a 30 percent rating is warranted considering the Veteran’s bladder symptoms, urinary frequency, and pelvic and abdominal pain. The Board notes that a June 2014 examination report documents a physician’s finding that the Veteran’s reported urinary incontinence is not a residual of the status post cervical biopsy disability, but also indicates that the Veteran’s endometriosis has resulted in “bowel or bladder symptoms.” In light of the foregoing, the Board finds that a remand is necessary to provide an examination and determine whether the Veteran’s service-connected gynecological disability is inclusive of endometriosis or residuals of endometriosis, which has been productive of bowel or bladder symptoms. 7. Entitlement to a TDIU is remanded. As the Veteran’s claim for a TDIU is inextricably intertwined with the claims being remanded, the Board finds that this issue must be remanded as well. Harris, 1 Vet. App. at 183. The matters are REMANDED for the following action: 1. Associate all outstanding VA treatment records with the claims file and ask the Veteran to provide or authorize VA to obtain records of her non-VA treatment, to include records of her treatment by Dr. Wearing. 2. Attempt to verify all periods of the Veteran’s service by contacting all appropriate record sources. As precisely as possible, identify the Veteran’s periods of active duty, active duty for training, and inactive duty for training. In doing so, note the sources of the information obtained to identify the Veteran’s periods of recognized service. All efforts to contact record sources and any negative responses should be documented in the claims file. 3. Notify the Veteran that she may submit lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed her in-service and post-service symptoms. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 4. After completing the development requested above, schedule the Veteran for appropriate examinations that are responsive to the following remand directives. 5. Schedule an examination to determine the extent and severity of her service-connected hemorrhoid conditions. All necessary tests must be conducted and all symptoms related with the Veteran’s conditions should be described in detail. The examiner is asked to provide an opinion as to whether the Veteran has anemia due to her service-connected hemorrhoids or status post hemorrhoidectomy. 6. Schedule an examination to determine the extent and severity of her service-connected residuals of status post cervical biopsy with Class III PAP smear and associated vaginal bleeding. All necessary tests must be conducted and all symptoms related with the Veteran’s condition should be described in detail. The examiner is asked to state specifically whether the Veteran has urinary incontinence and/or endometriosis secondary to her service-connected gynecological condition. 7. Schedule an examination to address her hypertension. The claims file must be reviewed by the examiner in conjunction with the examination. All appropriate testing should be conducted and all findings reported in detail. The examiner should answer each of the following: (a) Provide a likely date of onset (to the extent that it is possible). (b) Please provide an opinion as to whether it is at least as likely as not that the Veteran’s hypertension had its onset during a period of active service. (c) Please provide an opinion as to whether it is at least as likely as not that the Veteran’s hypertension was otherwise caused or aggravated by the Veteran’s service, to include a service-connected disability (hemorrhoid-related disorders, a gynecological disorder, and bilateral pes planus). A full explanation should be provided to support all opinions expressed. 8. Schedule an examination to address her GERD. The claims file must be reviewed by the examiner in conjunction with the examination. All appropriate testing should be conducted and all findings reported in detail. The examiner should answer each of the following: (a) Please provide a likely date of onset of the Veteran’s GERD (to the extent that it is possible). (b) Please provide an opinion as to whether it is at least as likely as not that it had its onset during a period of active service. (c) Please provide an opinion as to whether it is at least as likely as not that it was otherwise caused or aggravated by the Veteran’s service, to include a service-connected disability (hemorrhoid-related disorders, a gynecological disorder, and bilateral pes planus). In providing the requested opinion, the examiner is asked to address whether the Veteran’s GERD developed secondary to a motility disorder, and if so, whether her fecal leakage is a motility disorder. A full explanation should be provided to support all opinions expressed. 9. Schedule an examination to address her psychiatric disorder. The claims file must be reviewed by the examiner in conjunction with the examination. All appropriate testing should be conducted and all findings reported in detail. The examiner should answer each of the following: (a) Identify all psychiatric disorders present on examination or that were present during the appeal period (since December 2011). (b) For every disorder identified in (a), the examiner should provide a likely date of onset (to the extent that it is possible). (c) For every disorder identified in (a), please provide an opinion as to whether it is at least as likely as not that it had its onset during a period of active service. (d) For every disorder identified in (a), please provide an opinion as to whether it is at least as likely as not that it was otherwise caused or aggravated by the Veteran’s service, to include a service-connected disability (hemorrhoid-related disorders, a gynecological disorder, and bilateral pes planus). A full explanation should be provided to support all opinions expressed. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. C. Wilson, Counsel