Citation Nr: 18156451 Decision Date: 12/11/18 Archive Date: 12/10/18 DOCKET NO. 15-14 741A DATE: December 11, 2018 ORDER 1. Entitlement to service connection for a back disability is denied. 2. Entitlement to a temporary total rating based on surgical or other treatment necessitating convalescence associated with cervical spine surgery in November 2011 is denied. 3. Entitlement to a compensable rating for hemorrhoids is denied. REMANDED 1. The issue of entitlement to a rating in excess of 10 percent for a scar of the posterior trunk region, secondary to the service-connected hemorrhoids, is remanded. 2. The issue of entitlement to a compensable rating for a scar of the posterior trunk region, secondary to the service-connected hemorrhoids, is remanded. FINDINGS OF FACT 1. The preponderance of the evidence shows that the Veteran’s back disability did not have its onset in service and is not etiologically related to service. 2. Service connection is not in effect for any cervical spine disabilities. 3. The Veteran’s hemorrhoids are mild or moderate in severity. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a back disability have not been met. 38 U.S.C. §§ 1101, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. 2. The criteria for a temporary total rating based on surgical or other treatment necessitating convalescence associated with cervical spine surgery in November 2011 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.30. 3. The criteria for a compensable rating for hemorrhoids have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.114, Diagnostic Code (DC) 7336. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1969 to December 1970. These matters come before the Board of Veterans’ Appeals (BVA or Board) on appeal from July 2011, August 2012, and November 2013 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. Additionally, the Veteran originally requested a hearing regarding his appeal. However, in August 2018 correspondence, his representative indicated that the Veteran was withdrawing his hearing request. Thus, the request is deemed withdrawn and the Board will proceed with adjudication of the claim. The Board further notes that the service connection claim for a back disability was incorrectly considered a new and material evidence claim by the RO in the August 2012 rating decision. The evidence of record indicates that this claim was originally denied in a July 2011 rating decision, after which the Veteran submitted new evidence of back surgery in January 2012 and the August 2012 rating decision was issued. Thus, the new evidence was submitted within one year of the July 2011 rating decision and it did not become final, as the claim was reconsidered in the August 2012 rating decision. Accordingly, the Board will adjudicate the claim as one for service connection for a back disability. Service Connection Entitlement to service connection for a back disability is denied. Under the relevant laws and regulations, service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). In general, service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Additionally, where symptoms are capable of lay observation, a lay witness is competent to testify to a lack of symptoms prior to service, continuity of symptoms after in-service injury or disease, and receipt of medical treatment for such symptoms. Charles v. Principi, 16 Vet. App 370, 374 (2002). When considering whether lay evidence is competent, the Board must determine, on a case by case basis, whether the Veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). However, although the Veteran is competent in certain situations to provide a diagnosis of a simple condition such as a headache, varicose veins, or tinnitus, the Veteran is not competent to provide evidence as to more complex medical questions, such as the etiology of psychiatric, respiratory, or orthopedic disorders. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Furthermore, in determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of matter, the benefit of the doubt will be given to the Veteran. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. VA treatment records indicate that the Veteran has spinal stenosis. See VA Treatment Record dated December 19, 2013. Thus, there is no dispute that the Veteran has a current disability. However, the Board finds that service connection is not warranted for a back disability. The preponderance of the evidence shows that a back disability was not present during active duty. Additionally, the Veteran’s service treatment records do not show any complaints, treatment or diagnoses related to the back. There is no competent evidence of record indicating that the diagnosed back disability is due to any disease or injury from military service. Although the Veteran contends that he injured his back during jump school training while on active duty, the record does not include probative evidence linking his back disability to service. Furthermore, his lay opinion concerning this matter requiring medical expertise is not competent evidence of the alleged nexus. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board notes that the record contains no probative evidence in support of a relationship between the diagnosed back disability and the Veteran’s active duty service. As such, the preponderance of the evidence is against entitlement to service connection for a back disability. Reasonable doubt does not arise, and the benefit-of-the-doubt doctrine does not apply; the Veteran’s claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. As there is no indication in the evidence that the back disability is related to service beyond the Veteran’s assertion, there is no duty to provide the Veteran with a VA examination. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see 38 U.S.C. § 5103A (d)(2); 38 C.F.R. § 3.159 (c)(4)(i); see also Waters v. Shinseki, 601 F.3d 1274, 1278-79 (Fed. Cir. 2010) (distinguishing cases where only a conclusory generalized statement is provided by the veteran and rejecting the theory that medical examinations are to be routinely and virtually automatically provided to all veterans in disability cases involving nexus issues). Temporary Total Rating Entitlement to a temporary total rating based on surgical or other treatment necessitating convalescence associated with cervical spine surgery in November 2011 is denied. The Veteran contends that he is entitled to a temporary total disability rating based on surgical or other treatment necessitating convalescence associated with cervical spine surgery in November 2011. A temporary total disability rating may be assigned under either 38 C.F.R. § 4.29 or 38 C.F.R. § 4.30. As relevant to the Veteran’s currently appealed claim, a temporary total disability rating will be assigned under 38 C.F.R. § 4.30 when it is established by report at hospital discharge or outpatient release that treatment of a service-connected disability resulted in surgery necessitating at least one month of convalescence, surgery with severe post-operative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body case, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches, or immobilization by cast, without surgery, of one major joint or more. 38 C.F.R. § 4.30. A temporary total disability rating will be assigned, effective from the date of a hospital admission and continuing for a period of 1, 2, or 3 months from the first day of the month following such hospital discharge, if the hospital treatment of a service-connected disability resulted in: (1) surgery necessitating at least one month of convalescence, (2) surgery with respect to postoperative residuals such as incompletely healed surgical wounds, stumps and recent amputations, therapeutic immobilization of one major joint or more, application of a body cast, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches (regular weight-bearing prohibited), or (3) immobilization by cast, without surgery, of one major joint or more. 38 C.F.R. § 4.30 (a). The Board finds that the Veteran’s claim of entitlement to a temporary total disability rating based on surgical or other treatment necessitating convalescence associated with cervical spine surgery in November 2011 must be denied as a matter of law. It is undisputed that the Veteran is seeking a temporary total disability rating based on surgical or other treatment necessitating convalescence associated with a non-service-connected cervical spine surgery in November 2011. Service connection was not in effect for any neck disabilities at the time that the Veteran was underwent a C3-C7 laminoplasty in November 2011. Service connection further has not been awarded for any neck disabilities since November 2011. The evidence does not show, nor does the Veteran contend, that he was hospitalized during the appeal period for treatment of a service-connected disability which resulted in: (1) surgery necessitating at least one month of convalescence, (2) surgery with respect to postoperative residuals such as incompletely healed surgical wounds, stumps and recent amputations, therapeutic immobilization of one major joint or more, application of a body cast, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches (regular weight-bearing prohibited), or (3) immobilization by cast, without surgery, of one major joint or more. See 38 C.F.R. § 4.30 (a). The Board observes here that the fundamental prerequisite for prosecuting a temporary total disability rating claim successfully is the existence of a service-connected disability for which the Veteran seeks a temporary total disability rating based on surgical or other treatment necessitating convalescence. The Veteran has not met that fundamental prerequisite in this appeal. He also has not identified or submitted any evidence, to include a medical nexus, demonstrating that he is entitled to a temporary total temporary total disability rating based on surgical or other treatment of a service-connected disability necessitating convalescence. In summary, the Board finds that the Veteran’s claim of entitlement to a temporary total disability rating based on surgical or other treatment necessitating convalescence associated with cervical spine surgery in November 2011 must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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 for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. All benefit of the doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. Where a veteran is appealing the rating for an already established service-connected condition, his present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Staged ratings are appropriate for an increased rating claim whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 50 (2007). Entitlement to a compensable rating for hemorrhoids is denied. Under DC 7336, a noncompensable rating is warranted for external or internal hemorrhoids that are mild or moderate. A 10 percent disability rating is warranted when hemorrhoids are large or thrombotic, irreducible, with excessive redundant tissue, evidencing frequent recurrences. The maximum 20 percent disability rating is warranted when there are hemorrhoids with persistent bleeding and secondary anemia or fissures. 38 C.F.R. § 4.114, DC 7336. In February 2011, the Veteran underwent a VA examination for his hemorrhoids. He reported bleeding on a daily basis. However, there was no evidence of fissures. The examiner further found no evidence of bleeding upon examination. In April 2012, the Veteran was afforded a second VA examination to evaluate the severity of his hemorrhoids. He reported experiencing occasional episodes of flare-ups. The examiner noted that the hemorrhoids were skin tags that were mild or moderate in severity, and non-thrombosed. There was no evidence that the hemorrhoids were large or thrombotic, irreducible, or with excessive redundant tissue, as characteristic of frequent recurrences. Additionally, there was no evidence of persistent bleeding or secondary anemia. The Board finds a compensable rating is not warranted for the Veteran’s service-connected hemorrhoids. While the Board acknowledges the Veteran has experienced bleeding, VA examinations revealed skin tags that were mild to moderate in severity. The evidence of record does not reflect that the hemorrhoids are large or thrombotic, irreducible, with excessive redundant tissue, or that they result in persistent bleeding, anemia, or fissures. Thus, the preponderance of the evidence is against the claim and a compensable rating is not warranted for the Veteran’s hemorrhoids disability. REASONS FOR REMAND The issues of entitlement to increased ratings for scars of the posterior trunk, secondary to the service-connected hemorrhoids, are remanded. The Veteran has been assigned a 10 percent evaluation under DC 7804 for a posterior trunk scar, and a non-compensable evaluation under DC 7802 for a posterior trunk scar. At the April 2012 VA examination, only one scar related to the service-connected hemorrhoids was identified. It is not clear from the record how many scars the Veteran has, or if there is more than one, if they are painful, nonlinear, deep, or unstable. An examination is needed to clarify the exact number of posterior trunk scars, related to the service-connected hemorrhoids, with a detailed description of the scar(s). The matters are REMANDED for the following action: Schedule the Veteran for an appropriate VA examination to identify the nature, extent and severity of all manifestations of his posterior trunk scar(s). The examiner is asked to identify the nature and severity of each scar. The number and location of the scars should be set out. The claims file should be made available to and reviewed by the examiner and all necessary tests should be performed. All findings should be reported in detail. MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Erin J. Trojanowski, Associate Counsel