Citation Nr: 18149082 Decision Date: 11/08/18 Archive Date: 11/08/18 DOCKET NO. 15-42 105 DATE: November 8, 2018 ORDER An initial compensable disability rating for service-connected hemorrhoids is denied. An effective date earlier than July 8, 2013, for the grant of service connection for hemorrhoids is denied. REMANDED The appeal for service connection for joint pains is remanded. The appeal for service connection for a disability involving the left arm is remanded. The appeal for service connection for a disability of the right middle finger is remanded. The appeal for service connection for a back disability is remanded. The appeal for service connection for bilateral shin splints is remanded. The appeal for service connection for a disability of the feet is remanded. The appeal for service connection for a muscle condition is remanded. The appeal for service connection for bilateral hearing loss is remanded. The appeal for service connection for tinnitus (ringing in ears) is remanded. The appeal for service connection for a disability manifested by sleep disturbance is remanded. The appeal for service connection for a digestive disorder is remanded. The appeal for service connection for a stomach condition is remanded. The appeal for service connection for colon syndrome is remanded. The appeal for service connection for a bowel condition is remanded. The appeal for service connection for prolapsed esophageal sphincter is remanded. The appeal for service connection for a bladder condition is remanded. The appeal for service connection for a penile condition is remanded. The appeal for service connection for prostatitis is remanded. The appeal for service connection for a groin condition is remanded. The appeal for service connection for headaches is remanded. The appeal for service connection for an anxiety condition is remanded. The appeal for service connection for nervousness is remanded. The appeal for service connection for stress is remanded. The appeal for service connection for a jaw condition, to include jaw clenching, is remanded. FINDINGS OF FACT 1. The Veteran’s hemorrhoids as small or moderate, and external in nature. 2. The Veteran filed the claim for entitlement to service connection for hemorrhoids on July 8, 2013. CONCLUSIONS OF LAW 1. The criteria for a schedular compensable disability rating for hemorrhoids have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.114, Diagnostic Code 7336. 2. The criteria for an effective date earlier than July 8, 2013, for the grant of service connection for hemorrhoids have not been met. 38 U.S.C. §§ 5101, 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 2001 to December 2004, with subsequent National Guard service through February 2011. The Veteran had appointed a private attorney to represent him in this matter. However, the attorney properly withdrew representation in June 2016. The Board accepted this motion for withdrawal in July 2016 and notified the Veteran of his right to appoint a new representative the same month. The Veteran has not done so; therefore, we will proceed with review of his appeal at this time. 1. An initial compensable disability rating for hemorrhoids Disability evaluations are assigned to reflect levels of current disability. The appropriate rating is determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When 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. Hemorrhoids are rated under the provisions of 38 C.F.R. § 4.114, Diagnostic Code 7336. Mild or moderate hemorrhoids are rated as zero percent, or noncompensably disabling. Hemorrhoids which are large or thrombotic, irreducible, with excessive redundant tissue, evidencing frequent recurrences, are rated as 10 percent disabling. Hemorrhoids with persistent bleeding and with secondary anemia or with fissures are rated as 20 percent disabling. The Veteran underwent a VA examination with regard to his hemorrhoids in March 2014. This examination is the only piece of medical evidence pertaining to the Veteran’s hemorrhoids during the appeal period. During the examination, the Veteran reported that he has had hemorrhoids since 2001, and that he still experiences flares with blood after nearly every bowel movement. He also has pain and discomfort. He uses over the counter medication. During a flare, he has difficult sitting down due to discomfort. He had never undergone surgery for the hemorrhoids. Upon clinical examination, the examiner described the Veteran’s hemorrhoids as small or moderate, and external in nature. He did not have large, thrombotic, irreducible hemorrhoids, or excessive redundant tissue. He also did not have persistent bleeding with secondary anemia or anal fissures. There were no other significant findings. The examiner opined that the Veteran’s hemorrhoidal flares affected his ability to sit at work. Upon review, the Board holds that the Veteran’s hemorrhoid symptoms fit squarely within the schedular criteria for the currently-assigned noncompensable disability rating. His symptoms do not rise to the level described in the rating criteria for a 10 percent rating, as they are not large or thrombotic, irreducible, with excessive redundant tissue, or with frequent recurrences. There is no lay description of such features. As such, the Veteran does not meet the criteria for a compensable rating. Thus, the preponderance of the evidence is against the assignment of a compensable schedular disability rating for hemorrhoids. 2. An earlier effective date for the grant of service connection for hemorrhoids In the Veteran’s November 2014 notice of disagreement, he indicated he disagreed with the effective date of the award of service connection for hemorrhoids. He did not, however, provide an explanation as to why he believes the effective date assigned was incorrect. Therefore, we will simply explain why the effective date of July 8, 2013 was selected. In general, the effective date of an award based on an original claim for benefits is based on the filing of a claim for such benefits. 38 U.S.C. § 5110; 38 C.F.R. § 3.151. See Wells v. Derwinski, 3 Vet. App. 307 (1992). Benefits are generally awarded based on the date of receipt of the claim. 38 C.F.R. § 3.1(r), 3.400. Specifically with respect to service connection granted on a direct basis, such as the Veteran’s hemorrhoids which were established as directly related to military service, governing regulation provides that the effective date will be the day following separation from active service or the date entitlement arose, if the claim was received within one year after separation from active duty; otherwise the effective date will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(2)(i). All effective date determinations must be based upon the facts found, unless otherwise specifically provided. 38 U.S.C. §§ 5101, 5110; 38 C.F.R. § 3.400. We observe that the Veteran was informed of these legal provisions when he filed his claim, as they are printed on the claim form that he used. In this case, the Veteran filed the claim for entitlement to service connection for hemorrhoids in July 2013. The electronic submission date on this document is July 8, 2013. Thus, the effective date assigned to the grant of service connection for hemorrhoids was in fact the date his claim was received. Because the claim was received nine years after his discharge from active duty, rather than within the first year after his discharge, the law does not provide any possibility of an earlier effective date. The preponderance of the evidence is therefore against the award of an effective date earlier than July 8, 2013, for the grant of service connection for hemorrhoids. REASONS FOR REMAND The remaining issues require further evidentiary and procedural development. The Veteran asserted in his initial claim that he experienced personal trauma during service, which he believes caused a stress-related anxiety type of disorder. He also asserted that the personal trauma caused shin splints and hearing loss. He asserts tinnitus is secondary to the hearing loss. He asserts the remainder of his claimed disabilities are secondary to anxiety. The Veteran’s active duty treatment reports reflect that he received mental health treatment, including counseling and medication, during service. An October 2004 treatment note from Nellis Air Force Base indicates that, “Further information available in records maintained at LSSC.” However, complete mental health service records have not yet been separately requested. No evidentiary development regarding the nature and occurrence of the Veteran’s reported personal trauma during service has been conducted. A remand is required to allow VA to attempt to corroborate the Veteran’s reported stressor[s] and to send the Veteran notification as required under 38 C.F.R. § 3.304(f)(5). The great majority of these service connection claims were denied on the basis that no current disability is shown. The Veteran has not reported receiving any post-service treatment; the most recent treatment records available for review consist of his National Guard medical records. He has not reported any post-service VA medical care either. Upon remand, he should be invited to submit medical, or other evidence showing the existence of his claimed disabilities for review by adjudicators. Several of the claimed disabilities are noted in the Veteran’s post-active service National Guard records. Treatment for prostatitis and cystitis is reflected in these records; however, there is no indication that he experienced these problems during active service. He had regular hearing tests during service and the National Guard; however, none of these tests showed hearing loss by VA standards. Similarly, during a National Guard examination, he denied experiencing tinnitus at that time. Service treatment records reflect the Veteran sustained a crush injury involving his right middle finger in November 2003. As noted above, there is no indication that the Veteran currently has residuals of this injury, other than the fact that he has claimed service connection for a disability involving the finger. Because the record contains evidence of an inservice event, the VA has a responsibility to provide the Veteran with an examination to identify any current impairment of the right middle finger and if a current disability is identified, to explore whether there is any nexus to the injury in service. It is important to note that the Veteran had three years of active service, and approximately six years of National Guard service. There is no indication that his National Guard unit was called to active duty during this time. Active military service includes any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty, or any period of INACDUTRA during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty. 38 U.S.C. §§ 101(21) and (24); 38 C.F.R. §§ 3.6(a) and (d). It follows that service connection may be granted for disability resulting from disease or injury incurred or aggravated while performing ACDUTRA, or from injury incurred or aggravated while performing INACDUTRA. 38 U.S.C. §§ 101(24), 106, 1131. ACDUTRA is, among other things, full-time duty in the Armed Forces performed by Reserves for training purposes or by members of the National Guard of any state. 38 U.S.C. § 101(22); 38 C.F.R. § 3.6(c)(1). INACDUTRA is part-time duty in the Armed Forces performed by Reserves for training purposes or by members of the National Guard of any state. 38 U.S.C. § 101(22); 38 C.F.R. § 3.6(c)(1). Active service also includes authorized travel to or from such duty or service. 38 U.S.C. § 106(d); 38 C.F.R. § 3.6(e). In summary, when a claim for service connection is based only on a period of ACDUTRA or INACDUTRA, there must be evidence that the appellant became disabled as a result of a disease or injury incurred or aggravated in the line of duty during that period of ACDUTRA or INACDUTRA. See 38 U.S.C. §§ 101(2), (22), (24); 38 C.F.R. § 3.6(a); Donnellan v. Shinseki, 24 Vet. App. 167, 172 (2010); Acciola v. Peake, 22 Vet. App. 320, 324 (2008) (citing Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998); Paulson v. Brown, 7 Vet. App. 466, 470 (1995)). In the absence of such evidence, the period of ACDUTRA or INACDUTRA would not qualify as “active military, naval, or air service,” and the appellant would not qualify as a “veteran” for that period of ACDUTRA or INACDUTRA service alone. 38 U.S.C. § 101 (2), (24); see Acciola, 22 Vet. App. at 324 Therefore, on remand, the appellant must specify for each claimed disability the onset and etiology, if known. The matters are REMANDED for the following action: 1. Send the Veteran all notice required for PTSD claims based on personal assaults, and allow time for a response. Then, attempt to corroborate the Veteran’s in-service stressor[s] based on personal assault. If more details are needed, contact the Veteran to request the information. 2. Obtain records reflecting all mental health treatment provided to the Veteran during his period of active service from December 2001 to December 2004 for inclusion in his claims file. Document all requests for information as well as all responses in the claims file. 3. Request information from the Veteran as to all post-service medical care. Ask him to complete a VA Form 21-4142 for all sources of private medical care. Additionally, for each disease and/or disability claimed, the Veteran must specify for each claimed disability the date of onset and etiology, if known. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any right middle finger disability. The examiner must opine whether it is at least as likely as not related to the November 2003 injury. 5. Prior to readjudicating the Veteran’s appeal, perform any additional evidentiary development which may become apparent, such as additional examinations and/or medical opinions. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Heather J. Harter