Citation Nr: 18154239 Decision Date: 11/29/18 Archive Date: 11/29/18 DOCKET NO. 16-51 558 DATE: November 29, 2018 ORDER Entitlement to a compensable rating for hemorrhoids is denied. Entitlement to a rating in excess of 40 percent for fracture right hand radius postoperative weakness in the right hand (right hand condition) is denied. FINDINGS OF FACT 1. The Veteran’s service-connected hemorrhoids manifested as mild or moderate in severity. 2. The Veteran’s righthand condition has been manifested by moderate incomplete paralysis of the radial and ulnar nerves with symptoms to include numbness with muscle weakness and decreased sensation in his hand/fingers (c6-8) without trophic changes or muscle atrophy, which more closely approximates moderate impairment of the lower radicular group. CONCLUSIONS OF LAW 1. The criteria for compensable rating for service-connected hemorrhoids have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.14, 4.114, Diagnostic Code (DC) 7336. 2. The criteria for a rating in excess of 40 percent for righthand condition have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.14, 4.120-4.124a, DCs 5309-8512. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1975 to April 1978. In his October 2016 Substantive Appeal (Form 9), the Veteran requested a Board hearing. In May 2017, the Veteran withdrew his request for a hearing. Thus, his request for a Board hearing is considered withdrawn. 38 C.F.R. § 20.704(e). Increased Rating Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which allows for 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. To evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of a Veteran’s condition. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where the question for consideration is the propriety of the initial rating assigned, evaluation of the evidence since the effective date of the grant of service connection is required. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in this decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to a compensable rating for hemorrhoids The Veteran’s service-connected condition is rated under DC 7336 (hemorrhoids). Under the applicable criteria, mild or moderate internal or external hemorrhoids warrant a noncompensable (0 percent) rating. Large or thrombotic, irreducible hemorrhoids, with excessive redundant tissue, evidencing frequent recurrences, warrant a 10 percent rating. With persistent bleeding and with secondary anemia, or with fissures, a 20 percent rating is warranted, which is the highest schedular rating under this Diagnostic Code. 38 C.F.R. § 4.114, DC 7336. Analysis The Veteran contends that his disability is more severe than the rating depicts. In April 2014, the Veteran was afforded a VA examination to determine the severity of his hemorrhoids. The Veteran stated that the hemorrhoids began in service, and in 1976, he had surgery. He stated that he still suffers and uses topical products to control his hemorrhoids. The examiner confirmed the Veteran’s internal or external hemorrhoids. The Veteran’s treatment plan did not include taking continuous medication for his condition. The examiner noted findings, signs, or symptoms attributable to the Veteran’s condition, to include mild internal or external hemorrhoids. The Veteran declined a rectal/anal exam because the following conditions were not currently acting up: external hemorrhoids, anal fissures or other abnormalities; external hemorrhoids skin tags only; small or moderate external hemorrhoids; large external hemorrhoids; thrombotic external hemorrhoids; reducible external hemorrhoids; irreducible external hemorrhoids; excessive redundant tissue; anal fissure(s). He did not have scars (surgical or otherwise) related to his condition, and there were no other pertinent physical findings, complications, conditions, signs, and/or symptoms related to his condition. His rectum or anus condition did not impact his ability to work. The Veteran’s post-service treatment records note treatment for hemorrhoids. In September 2014, the Veteran was seen at the Sam Rayburn Veteran Center. The Veteran stated that he was having problems with his hemorrhoids and needed a cream. In July 2014; January, May, and September 2015; and March 2016, the Veteran’s hemorrhoids were not “problem some.” In September 2016, the Veteran was afforded a VA examination to determine the severity of his hemorrhoids. The Veteran stated that while in service, he had two surgical procedures for his hemorrhoids. He stated that he continued to have mild occasional pain, bleeding, and/or itching. The examiner confirmed the Veteran’s internal or external hemorrhoids. The Veteran’s treatment plan included taking continuous medication, i.e., over the counter (OTC) topical. He had mild to moderate pain and itching that were attributable to his external hemorrhoids. Physical examination revealed small or moderate external hemorrhoids. There were no other pertinent physical findings, complications, conditions, signs, symptoms, or scars related to his hemorrhoids. The Veteran’s rectum or anus condition did not impact his ability to work. Based on the evidence of record, the Board finds that a compensable evaluation for the Veteran’s hemorrhoids is not warranted. The Board notes that during his April 2014 VA examination, the Veteran declined the rectal examination because his condition was not “acting up.” During his September 2016 examination, he reported bleeding. However, the evidence does not show that the Veteran has persistent bleeding and with secondary anemia or fissures due to hemorrhoids. Moreover, there is no indication that the Veteran’s hemorrhoids are large or thrombotic, irreducible, or with redundant tissue. On the contrary, the September 2016 examination revealed small or moderate external hemorrhoids. Therefore, the Board finds that the Veteran’s symptoms more closely approximate the mild or moderate symptoms described in the noncompensable rating evaluation under DC 7336. The Board acknowledges the Veteran and his representative’s statements regarding the Veteran’s hemorrhoids to be both competent and credible. However, as lay persons, they do not have the training or expertise to render a competent opinion which is more probative than the VA examiners’ opinions or the evidence of record, as this is a medical determination that is complex. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007); Layno v. Brown, 6 Vet. App. 465, 469-71 (1994)). Thus, the Board finds that the lay opinions by themselves are outweighed by the VA examiners’ findings. The Board notes that in his July 2018 Appellate Brief, the Veteran, through his representative, stated that although the Veteran was not suffering from a flare-up during the examination, the fluctuating nature of the disability should be taken into consideration, and if possible, an examination should be scheduled during a period of flare-up. However, for the period on appeal, except for September 2014, the Veteran’s hemorrhoids were not “problem some.” The Board finds that the opinions are consistent with the evidence of record. 38 U.S.C. § 5103A(d); 38 C.F.R § 3.159(c)(4). Thus, the opinions are adequate for rating purposes and additional examinations are not necessary. See also 38 C.F.R. §§ 3.326, 3.327, 4.2. Therefore, the Board finds that the preponderance of the evidence is against a finding that the Veteran’s disability picture more nearly approximates a compensable rating. 2. Entitlement to a rating in excess of 40 percent for fracture right hand radius postoperative weakness in the right hand The Veteran’s righthand condition is rated under DC 5309-8512. Hyphenated DCs signify that the rating for a service-connected disability is based upon how another disability would be rated. 38 C.F.R. § 4.27. The DC for the service-connected disability is before the hyphen. Id. Thus, the current DCs indicate that the Veteran’s righthand condition is based upon limitation of motion, but rated on the Veteran’s nerve condition. Under DC 8512, a 40 percent rating requires moderate incomplete paralysis of the major lower radicular group or severe incomplete paralysis of the minor lower radicular group. A 50 percent rating requires severe incomplete paralysis of the major lower radicular group. A 60 percent rating requires complete paralysis of all intrinsic muscles of the minor hand, and some or all of flexors of wrist and fingers, paralyzed (substantial loss of use of hand). A 70 percent rating requires complete paralysis of all intrinsic muscles of the major hand, and some or all of flexors of wrist and fingers, paralyzed (substantial loss of use of hand). 38 C.F.R. § 4.124a, DC 8512. The term “incomplete paralysis,” with these and other peripheral nerve injuries, indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. The ratings for the peripheral nerves are for unilateral involvement; when bilateral, combine with application of the bilateral factor. 38 C.F.R. § 4.124a. In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury and the relative impairment in motor function, trophic changes, or sensory disturbances. 38 C.F.R. § 4.120. Analysis The Veteran contends that his right-hand disability is more severe than the rating depicts. In April 2014, the Veteran was afforded a VA examination to determine the severity of his right-hand disability. In April 1977, an army vehicle ran into the Veteran resulting in radius fracture of his right forearm. His arm was surgically repaired with metal plate and screws. Since the incident, the Veteran has experienced pain. In the early 1980’s, he noticed functional loss in the right hand. He was told that nothing could be done. He has been prescribed medications to relieve pain. The examiner diagnosed the Veteran with right forearm neuropathy from forearm fracture with repair and residual scar. The Veteran is right hand dominant. His left hand was normal. He experienced moderate constant pain and moderate paresthesias and/or dysesthesias in his right upper extremity. The Veteran had normal muscle strength in his wrists, elbows, thump to index fingers, knees, and ankles. His righthand gripping muscle strength was 3/5. The Veteran did not have muscle atrophy. His reflex and sensory exams were all normal. There were no trophic changes (characterized by loss of extremity hair, smooth, shiny skin, etc.) attributable to peripheral neuropathy. His gait was normal. The Veteran’s radial nerve was affected (musculospiral nerve). He experienced mild right radial nerve incomplete paralysis. The Veteran did not use any assistive devices as a normal mode of locomotion, and functioning was not so diminished that amputation with prosthesis would equally serve him. He had a scar (surgical or otherwise) related to his condition. There were no other pertinent physical findings, complications, conditions, signs, or symptoms. The Veteran’s condition had an impact on his ability to work. The Veteran reported weakness in his right hand and chronic pain in his right forearm and hand, and he found it more difficult to perform tasks with his right arm/hand with this condition. In September 2016, the Veteran was afforded a VA examination to determine the severity of his hand condition. The examiner diagnosed the Veteran with incomplete paralysis of right median nerve and incomplete paralysis of right ulnar nerve. The Veteran experienced moderate constant pain; moderate paresthesias and/or dysesthesias; and moderate numbness in his right upper extremity. The Veteran had normal muscle strength in his elbows, right and left wrist flexion, left wrist extension, left gripping, left pinch, knees, and ankles. Muscle strength in his right wrist extension and grip were 4/5 and right pinch was 3/5. The Veteran’s reflex exam was normal. He had a normal sensory exam except for decreased sensation in his hand/fingers (c6-8). There were no trophic changes attributable to peripheral neuropathy. His gait was normal. The Veteran’s radial and ulnar nerves were affected (musculospiral nerve). For both nerves, he experienced right moderate incomplete paralysis. Functioning was not so diminished that amputation with prosthesis would equally serve the Veteran. There were no other pertinent physical findings, complications, conditions, signs, or symptoms. The Veteran’s condition had an impact on his ability to work, to include decreased manual dexterity in his right hand, as well as decreased strength and endurance. Based on the evidence of record, the Board finds that a rating in excess of 40 percent for the Veteran’s righthand condition is not warranted. The objective findings do not reflect severe incomplete paralysis. As worst, the Veteran’s condition manifested to moderate constant pain; moderate paresthesias/dysesthesias; and moderate numbness with muscle weakness and decreased sensation in his hand/fingers (c6-8) without trophic changes or muscle atrophy. The 40 percent rating awarded for moderate incomplete paralysis contemplate any muscle weakness affecting the extremities as a result of peripheral neuropathy. While the Veteran had decreased strength and some decreased sensation, he did exhibit some strength and was not without sensation. Based on the complaints and objective findings, the Veteran’s peripheral neuropathy, right upper extremity does not meet or nearly approximate the criteria for increased disability ratings. See 38 C.F.R. § 4.124a, DC 8512. The Board has considered whether a higher or separate rating is warranted under another DC. During his 2014 VA exam, the examiner noted that the Veteran had a scar related to his condition. However, the Board notes that the Veteran is service connected for scar, residuals, fracture right radius, postoperative with weakness in the right hand. The Board acknowledges the Veteran and his representative’s statements regarding the severity of the Veteran’s condition to be both competent and credible. However, as lay persons, they do not have the training or expertise to render a competent opinion which is more probative than the VA examiners’ opinions or the evidence of record, as this is a medical determination that is complex. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007); Layno v. Brown, 6 Vet. App. 465, 469-71 (1994)). Thus, the Board finds that the lay opinions by themselves are outweighed by the VA examiners’ findings. Therefore, the Board finds that the preponderance of the evidence is against a finding that the Veteran’s disability picture more nearly approximates a rating in excess of 40 percent. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Henry, Associate Counsel