Citation Nr: 18150805 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 16-35 594A DATE: November 15, 2018 ORDER Service connection for bronchitis with symptoms of methicillin-resistant Staphylococcus aureus (MRSA) infection is denied. Service connection for sarcoidosis is denied. An initial compensable rating for hemorrhoids prior to March 11, 2013 is denied. REMANDED Service connection for a left hip disability is remanded. Service connection for a right hip disability is remanded. Service connection for a right ankle disability is remanded. Service connection for a right femoral nerve disability is remanded. Service connection for a left femoral nerve disability is remanded. FINDINGS OF FACT 1. The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of bronchitis with symptoms of MRSA infection. 2. The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of sarcoidosis. 3. Prior to March 11, 2013, the Veteran’s hemorrhoids have not been shown to be large or thrombotic, irreducible, and with excessive redundant tissue, evidencing frequent recurrences. CONCLUSIONS OF LAW 1. The criteria for service connection for bronchitis with symptoms of MRSA infection have not been met. 38 U.S.C. §§ 1110 (wartime), 1131 (peacetime), 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 2. The criteria for service connection for sarcoidosis have not been met. 38 U.S.C. §§ 1110 (wartime), 1131 (peacetime), 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 3. The criteria for an initial compensable rating for hemorrhoids prior to March 11, 2013 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.114, Diagnostic Code 7336. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS An April 2012 rating decision granted service connection for hemorrhoids and assigned an initial noncompensable (0 percent) rating under Diagnostic Code 7336 effective January 1, 2010. An August 2015 rating decision increased the rating for hemorrhoids to 20 percent effective March 11, 2013. As a 20 percent rating is the maximum allowed under Diagnostic Code 7336, the remaining issue is that of an initial compensable rating for hemorrhoids prior to March 11, 2013. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2018). Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2018). Service connection requires competent evidence of (1) a current disability; (2) the incurrence or aggravation of a disease or injury during service; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). 1. Service connection for bronchitis with symptoms of MRSA infection The Board notes that the Veteran was treated for bronchitis and MRSA in service. However, post service medical records do not show that he has had a recurrence of bronchitis or MRSA, or that he has any residual disability from either disorder. In a March 2011 VA examination report, the examiner provided a diagnosis of status post bronchitis. The examiner stated that lung examination, chest x-ray, and pulmonary function test were normal. The examiner noted that the Veteran does not have any complications such as cor pulmonale, right ventricular hypertrophy, pulmonary hypertension, or chronic respiratory failure with carbon dioxide retention. In an October 2011 VA examination report, another examiner reiterated that the Veteran does not have any complications of bronchitis such as cor pulmonale, right ventricular hypertrophy, pulmonary hypertension, or chronic respiratory failure with carbon dioxide retention. Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in a disability. 38 U.S.C. §§ 1110, 1131 (2012). In the absence of proof of present disability, there can be no valid claim. Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223 (1992). In this case, the preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of bronchitis with symptoms of MRSA infection. As there is no disability that can be related to service, the claim for service connection for bronchitis with symptoms of MRSA infection must be denied. In conclusion, service connection for bronchitis with symptoms of MRSA infection is not warranted. As the preponderance of the evidence is against the claim, the claim must be denied. 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Service connection for sarcoidosis The Board notes that the Veteran was treated for sarcoidosis in service. However, post service medical records show that he does not have sarcoidosis and may not have ever had the disorder. In a March 2011 VA examination report, the examiner stated that a diagnosis of sarcoidosis was not possible because of normal chest examination and x-ray. The examiner noted that the Veteran does not have any complications such as cor pulmonale, right ventricular hypertrophy, pulmonary hypertension, or chronic respiratory failure with carbon dioxide retention. In a March 2012 VA examination report, another examiner noted the diagnosis of sarcoidosis in the medical records but stated that the diagnosis was not proven by biopsy. After examining the Veteran, the examiner stated that the Veteran does not have sarcoidosis. The examiner noted that sarcoidosis requires verification by biopsy and all biopsies of record have failed to show sarcoidosis. The examiner further noted that normal chest x-rays since 1998 do not support sarcoidosis. The examiner acknowledged that the Veteran had been treated for sarcoidosis with medication but stated that the use of such medication for unproven sarcoidosis does not alone establish a diagnosis of sarcoidosis. A June 2012 letter from a private physician reflects the opinion that the rash and inflammatory arthritis the Veteran has is very likely related to sarcoidosis. An October 2012 VA medical record reflects a physician’s comment that the Veteran is on medication for sarcoidosis for an unknown reason for his x-ray is normal and he has no eye, central nervous system, or cardiac manifestations of sarcoidosis. A December 2014 VA medical record still reflects the Veteran’s complaints of sarcoidosis but that the diagnosis remains questionable. Given the above, while a private physician has indicated that the Veteran has sarcoidosis, the remainder of the medical evidence shows that the Veteran does not have the disorder. Of particular note, the Board finds the March 2012 examiner’s opinion based on biopsy evidence to be most probative of whether the Veteran has sarcoidosis. Hayes v. Brown, 9 Vet. App. 67 (1996). Thus, the preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of sarcoidosis. As there is no disability that can be related to service, the claim for service connection for must be denied. 38 U.S.C. §§ 1110, 1131; Gilpin, 155 F.3d 1353; Brammer, 3 Vet. App. 223. In conclusion, service connection for sarcoidosis is not warranted. As the preponderance of the evidence is against the claim, the claim must be denied. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. 49. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2018). 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 (2018). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2018). 3. A compensable rating for hemorrhoids prior to March 11, 2013 Effective January 1, 2010, the Veteran’s hemorrhoids have been assigned a 0 percent rating under Diagnostic Code 7336. 38 C.F.R. § 4.114 (2018). As the maximum 20 percent rating has been assigned from March 11, 2013, the only remaining issue is whether a compensable rating is warranted at any time prior to that date. Under Diagnostic Code 7336, hemorrhoids with persistent bleeding and secondary anemia, or with fissures warrant a 20 percent rating. Hemorrhoids that are large or thrombotic, irreducible, and with excessive redundant tissue, evidencing frequent recurrences warrant a 10 percent rating. Mild or moderate hemorrhoids warrant a 0 percent rating. At a February 2011 VA examination, the Veteran reported frequently recurring hemorrhoids. Rectal examination revealed 2-cm external hemorrhoids that were reducible with no bleeding or thrombosis. There was no evidence of fissures or frequent recurrence with excessive redundant tissue. The examiner noted that the Veteran’s hemorrhoids do not cause anemia. VA medical records show complaints of rectal bleeding related to hemorrhoids but no associated findings. Private medical records also show complaints of rectal bleeding related to hemorrhoids but no associated findings. On the June 2012 notice of disagreement, the Veteran stated that he had had large irreducible hemorrhoids removed in 2009 but that he still has frequent recurrences of hemorrhoids with persistent bleeding. Given the above, the Board acknowledges that the Veteran had large irreducible hemorrhoids removed in 2009. However, that was prior to the effective date of service connection. As the record stands, during the appeal period from January 1, 2010 to March 10, 2013, the Veteran’s hemorrhoids have not been shown to be large or thrombotic, irreducible, and with excessive redundant tissue, evidencing frequent recurrences. Thus, a compensable 10 percent rating is not warranted. While the Veteran asserts that he has had frequent recurrences of hemorrhoids, without the necessary findings, a compensable rating is simply not warranted. In conclusion, an initial compensable rating for hemorrhoids prior to March 11, 2013 is not warranted. As the preponderance of the evidence is against the claim, the claim must be denied. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. 49. REASONS FOR REMAND 1. Service connection for a left hip disability is remanded. 2. Service connection for a right hip disability is remanded. 3. Service connection for a right ankle disability is remanded. A March 2011 VA examination report reflects decreased ranges of motion of the hips and right ankle, and diagnoses of strains of the hips and right ankle. However, an October 2011 VA examination report reflects normal ranges of motion of the hips and right ankle. A March 2012 VA examination report reflects the examiner’s opinion that the Veteran does not have a strain of the hips or right ankle. At an August 2013 VA Gulf War examination, the Veteran reported pain all over his body, but only noted pain in the calves, thighs, stomach, upper and lower arms, and shoulders. The examiner opined that the Veteran’s symptoms of myalgia and myositis are related to active duty reported muscle pain and abnormal CK enzyme which are likely related to an environmental exposure in the Gulf War region. A September 2013 rating decision granted service connection for myalgia with myositis. In an April 2014 statement, the Veteran indicated that his hip and ankle pain is due to fibromyalgia. A September 2014 rating decision recharacterized myalgia with myositis to fibromyalgia. Given the above, the Veteran should be afforded a VA examination to determine whether he has disabilities of the hips and right ankle secondary to his service-connected fibromyalgia. 4. Service connection for a left femoral nerve disability is remanded. 5. Service connection for a right femoral nerve disability is remanded. A September 2013 rating decision denied service connection for disabilities of the left and right femoral nerves. In correspondence received later that month, the Veteran’s representative requested reconsideration of that denial. In October 2014, the Veteran testified about his femoral nerve disability before a Decision Review Officer (DRO) who indicated that the issue of entitlement to service connection for a bilateral femoral nerve disability was on appeal. In May 2016, the DRO issued two statements of the case. However, the right and left femoral nerve disabilities were not included in either statement of the case. On two substantive appeals received in July 2016, the Veteran asserted that the femoral nerve disabilities should be part of the appeal. Given the procedural history in this case and resolving the benefit of the doubt in the Veteran’s favor, the Board will construe the representative’s request for a reconsideration as a timely notice of disagreement. Thus, the Board is required to remand the issue of entitlement to service connection for disabilities of the left and right femoral nerves for issuance of a statement of the case. Manlincon v. West, 12 Vet. App. 238 (1999). The matters are REMANDED for the following actions: 1. Issue a statement of the case on the issue of entitlement to service connection for disabilities of the left and right femoral nerves. Advise the Veteran that a timely substantive appeal is necessary to perfect the appeal to the Board. If the appeal is perfected, then return the case to the Board. 2. Schedule the Veteran for a VA examination to determine the nature and etiology of his bilateral hip and right ankle disabilities. The examiner should review the claims file and note that review in the report. The examiner should ensure that all indicated tests and studies are conducted. The examiner should provide an opinion on whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s left hip, right hip, or right ankle disability was caused or aggravated by, or otherwise a part of, his service-connected fibromyalgia. The examiner should provide a complete rationale for all conclusions. (Continued on the next page)   3. Then, readjudicate the claims. If any decision remains adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. W. Kim, Counsel