Citation Nr: 18150345 Decision Date: 11/15/18 Archive Date: 11/14/18 DOCKET NO. 16-47 139 DATE: November 15, 2018 ORDER Entitlement to an initial 10 percent rating for hemorrhoids is granted. Entitlement to a separate initial 30 percent disability rating for anal fistula is granted. FINDINGS OF FACT 1. The Veteran’s hemorrhoid disability more nearly approximates impairment associated with large or thrombotic, irreducible, hemorrhoids with excessive redundant tissue manifested by moderate to severe symptomatology without persistent bleeding or secondary anemia. 2. The Veteran has bowel impairment from anal fistula associated with hemorrhoids which results in occasional involuntary bowel movements, necessitating wearing of a pad. CONCLUSIONS OF LAW 1. The criteria for an initial 10 percent rating, but no higher, for hemorrhoids have been met. 38 U.S.C. §§ 1155, 5103, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.114, Diagnostic Code 7336 (2017). 2. The criteria for a separate 30 percent disability rating, and no higher, under Diagnostic Code 7332 for anal fistula associated with hemorrhoids have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.114, Diagnostic Code 7332 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from September 1998 to September 2003. This matter came before the Board of Veterans’ Appeals (Board) on appeal from August 2014, February 2015 and October 2016 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). In June 2018 the Veteran testified at a hearing in front of the undersigned Veteran’s Law Judge. A transcript of the hearing has been associated with the claim file. Higher Initial Ratings Laws and Regulations The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claims or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claims, in which case, the claims are denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Disability evaluations are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2017). Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2017). The Veteran’s entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1 (2017). Where service connection has already been established, and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, in Fenderson v. West, 12 Vet. App. 119 (1999), it was held that evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder. The Court also discussed the concept of the “staging” of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. See also Hart v. Mansfield, 21 Vet. App. 505 (2008). The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14 (2017). The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261- 62 (1994). Where there is a question as to which of two ratings shall be applied, the higher rating 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 (2017). In this case, the Veteran is competent to testify on factual matters of which he has first-hand knowledge. Washington v. Nicholson, 19 Vet. App. 362 (2005). He is also competent to report symptoms of his hemorrhoids. Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). The Veteran is competent to describe his symptoms and their effects on employment or daily activities. His statements have been consistent with the medical evidence of record, and are probative for resolving the matter on appeal. The Board will consider not only the criteria of the currently assigned diagnostic codes, but also the criteria of other potentially applicable diagnostic codes. In this case, an August 2014 rating decision effectuated a March 2014 Board decision which granted service connection for hemorrhoids. The RO assigned an initial noncompensable evaluation, effective November 15, 2006 under Diagnostic Code 7336. Under Diagnostic Code 7336, a noncompensable rating is warranted when there is mild or moderate symptomatology. A 10 percent rating is warranted when hemorrhoids are large or thrombotic and irreducible, with excessive redundant tissue evidencing frequent recurrences. A 20 percent rating is warranted when there is persistent bleeding and with secondary anemia, or with fissures. 38 C.F.R. § 4.114, Diagnostic Code 7336. Under Diagnostic Code 7332, a 10 percent rating is warranted for constant slight impairment of sphincter control, or occasional moderate leakage. A 30 percent rating is warranted for occasional involuntary bowel movements, necessitating the wearing of a pad. A 60 percent rating is warranted for extensive leakage and fairly frequent involuntary bowel movements. A 100 percent rating is warranted for complete loss of sphincter control. 38 C.F.R. § 4.114, Diagnostic Code 7332 (2017). Factual Background and Analysis The Veteran underwent a VA examination in April 2011. The Veteran reported having blood on toilet paper occurring once a month and in the toilet bowl or underwear twice a year with the last occurrence of blood over one month ago. He did not have diarrhea or constipation. He had good sphincter control and no fecal leakage or involuntary bowel movements. He had no thrombosis or hemorrhoids. There were no fissures and no signs of anemia. He had a hemorrhoid on examination but no evidence of bleeding. The diagnosis was a rectal cyst of small hemorrhoid with minimal episodic bleeding that had no effect on his work or daily activities. The Veteran underwent a VA examination in January 2015. The examiner noted that the Veteran had internal or external hemorrhoids and anal/perianal fistula. The examiner noted that in 2014 the Veteran had his first colonoscopy which showed internal and external hemorrhoids and associated fistula. He currently had to wear a mini-pad daily for rectal bleeding. He stated that about every other night the pad was saturated while on the other days he just noticed bright red spotting. He also used a rectal cream for treatment. The examiner indicated that the Veteran had mild or moderate internal or external hemorrhoids as small, non-hemorrhagic hemorrhoids were noted on anal scope and colonoscopy. There was no indication of persistent bleeding, fissures or secondary anemia. The Veteran also had a fistula anterior to the rectum about 1.5cm from the anal verge found on his anal scope. The examiner noted that the Veteran reported that he got leakage of blood for which he wore a mini-pad daily and seemed to note that about every other day the pad was totally saturated. On examination, there was no external hemorrhoids noted as the Veteran had small internal hemorrhoids noted on the anal scope and colonoscopy. The Veteran’s hemorrhoids impacted his ability to work as he had to go home from work when got profuse bleeding and the blood got all over his clothes. In an August 2016 Disability Benefits Questionnaire (DBQ) for rectum and anus conditions, the physician noted that the Veteran had internal or external hemorrhoids and anal/perianal fistula. His treatment did not include taking continuous medications for this treatment. The physician noted that the Veteran had moderate to severe hemorrhoids. There was no indication of persistent bleeding, fissures or secondary anemia. He had an anal/perianal fistula with leakage that necessitated the wearing of a pad, occasional moderate leakage and occasional involuntary bowel movements. The Veteran’s conditions impacted his ability to work as he reported needing access to the restroom while having concerns about stool incontinence around his coworkers. The physician indicated that the Veteran’s condition of internal hemorrhoids and rectal bleeding had progressed to perianal fistula with rectal bleeding and stool leakage and incontinence. The physician also noted that while hemorrhoids and perianal fistula can have similar symptoms, both were standalone diagnoses in the same anatomical area. Based on a review of the evidence of record and resolving the benefit of the doubt in the Veteran’s favor, the Board finds that the Veteran’s hemorrhoids disability more nearly approximates the symptomatology associated with an initial 10 percent disability rating under Diagnostic Code 7336. Notably, the January 2015 VA examiner noted that in 2014 the Veteran had his first colonoscopy which showed internal and external hemorrhoids and associated fistula. Additionally, the August 2016 DBQ physician specifically indicated that the Veteran had moderate to severe hemorrhoids as the Veteran’s condition of internal hemorrhoids and rectal bleeding had progressed to perianal fistula with rectal bleeding and stool leakage and incontinence. Additionally, both the January 2015 VA examiner and August 2016 DBQ physician indicated that the Veteran’s hemorrhoids had impacted the Veteran’s ability to work. As a result, when affording the Veteran the benefit of the doubt, the Board finds that an initial 10 percent evaluation under Diagnostic Code 7336 is warranted as the Veteran’s hemorrhoid disability more nearly approximates impairment associated with large or thrombotic, irreducible, hemorrhoids with excessive redundant tissue manifested by moderate to severe symptomatology. However, the Board further finds that a maximum 20 percent disability under Diagnostic Code 7336 is not warranted at any time of the appeal period. Notably, there is no competent medical evidence which demonstrates that the Veteran’s hemorrhoids are manifested by persistent bleeding and with secondary anemia, or with fissures. Although the Veteran has reported symptoms of hemorrhoids bleeding, at no time has he been found as having secondary anemia. Also, the competent and probative evidence during the appeal period is absent any findings of anal fissures. The Board has also specifically considered any possible evaluation under Diagnostic Codes 7333, 7334, and 7337 for stricture of the rectum and anus, prolapse of the rectum, and pruritus ani; however, there is no medical evidence to support the presence of any of these conditions. However, while Diagnostic Codes 7333, 7334, and 7337 are not applicable, the Board finds that an initial separate 30 percent disability rating under Diagnostic Code 7332 is warranted for bowel impairment, secondary to anal fistula due to hemorrhoids. The Board notes that the October 2016 rating decision denied service connection for anal fistula and the Veteran subsequently perfected this appeal. However, the January 2015 VA examiner noted that the Veteran had internal or external hemorrhoids and anal/perianal fistula while the October 2016 DBQ specifically indicated that the Veteran’s condition of internal hemorrhoids and rectal bleeding had progressed to perianal fistula. As a result, the competent evidence of record demonstrates that the Veteran has anal fistula as a result of his hemorrhoids. Notably, the Veteran has reported fecal leakage associated with his hemorrhoids and such symptomatology is not contemplated by Diagnostic Code 7336. Diagnostic Code 7335 pertains to a fistula in ano and indicates that the disability should be rated as impairment of sphincter control. See 38 C.F.R. § 4.114, Diagnostic Code 7335. As noted above, under Diagnostic Code 7332, a 10 percent rating is warranted for constant slight impairment of sphincter control, or occasional moderate leakage. A 30 percent rating is warranted for occasional involuntary bowel movements, necessitating the wearing of a pad. A 60 percent rating is warranted for extensive leakage and fairly frequent involuntary bowel movements. A 100 percent rating is warranted for complete loss of sphincter control. 38 C.F.R. § 4.114, Diagnostic Code 7332 (2017). Additionally, the August 2016 BDQ physician also specifically indicated that while hemorrhoids and perianal fistula can have similar symptoms, both were standalone diagnoses in the same anatomical area. As a result, the Board finds that the symptoms contemplated by Diagnostic Code 7336, such as hemorrhoids and bleeding, are distinct from the symptoms of rectal and anal leakage contemplated by Diagnostic Code 7332. Thus, the assignment of a separate evaluation under Diagnostic Code 7332 would not violate the rule against pyramiding. See 38 C.F.R. § 4.14. The August 2016 DBQ reflects that the Veteran had an anal/perianal fistula with leakage that necessitated the wearing of a pad, occasional moderate leakage and occasional involuntary bowel movements. These symptoms meet the criteria for a 30 percent rating under Diagnostic Code 7332. Accordingly, a separate 30 percent rating for bowel impairment, secondary to anal fistula, is granted under Diagnostic Code 7332. (Continued on the next page)   However, a higher, 30 percent rating is not warranted because the evidence does not show that the Veteran experiences extensive leakage and fairly frequent involuntary bowel movements. Accordingly, the Board finds that a 10 percent rating under Diagnostic Code 7336 for the Veteran’s hemorrhoids is warranted, and a separate 30 percent rating under Diagnostic Code 7332 for fecal leakage associated with anal fistula is warranted. C. TRUEBA Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD James A. DeFrank, Counsel