Citation Nr: 18158051 Decision Date: 12/14/18 Archive Date: 12/14/18 DOCKET NO. 16-13 545 DATE: December 14, 2018 ORDER Entitlement to a compensable disability rating for hemorrhoids prior to March 24, 2016 is denied. Entitlement to a disability rating of 10 percent, but no higher, for hemorrhoids, effective March 24, 2016, is granted. REMANDED Entitlement to service connection for a left hand condition is remanded. Entitlement to a disability rating in excess of 40 percent for residuals of right hand injury, with deformity and arthritis, to include whether the reduction to a noncompensable evaluation effective October 1, 2018, was proper, is remanded. Entitlement to an initial disability rating in excess of 30 percent for right carpal tunnel syndrome is remanded. FINDING OF FACT Affording the Veteran the benefit of the doubt, his hemorrhoid symptoms as of March 24, 2016 (but not earlier) more closely approximate a higher disability rating, and are characterized by subjective complaints of intermittent rectal bleeding. CONCLUSION OF LAW 1. The criteria for a compensable disability rating, for hemorrhoids, have not been met for the period prior to March 24, 2016. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.7, 4.114, Diagnostic Code (DC) 7336. 2. The criteria for a disability rating of 10 percent, for hemorrhoids, have been met for the period beginning March 24, 2016. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.7, 4.114, DC 7336. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1989 to January 1998. These matters are before the Board of Veterans’ Appeals (Board) on appeal from August 2012, July 2014, and June 2018 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle Washington. In January 2018, the Veteran testified before a Decision Review Officer (DRO). In a June 2018 notice, the Veteran was notified that the DRO who presided over his hearing was unavailable to readjudicate the case and the Veteran was offered the opportunity to have a new DRO hearing. In a July 2018 Form 646, the Veteran’s representative requested a new DRO hearing. However, in a November 2018 correspondence, the Veteran’s representative clarified that the new hearing request was in error and that the Veteran did not want a new DRO hearing. As a result, the case is now before the Board. Additionally, in a January 2018 statement in support of claim, the Veteran withdrew his claim for a disability rating in excess of 30 percent for chronic tendonitis, right lateral hamstring tendon injury. This was before the appeal was certified to the Board in a July 2018 Form 8. As a result, this claim is not before the Board. Entitlement to a compensable disability rating for hemorrhoids. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. With initial evaluations, as here, separate evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as “staged” ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). 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. See 38 C.F.R. § 4.7. Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Under DC 7336, for external or internal hemorrhoids, the minimum noncompensable rating is warranted for mild or moderate hemorrhoids. See 38 C.F.R. § 4.114, DC 7336. A 10 percent evaluation is warranted for large or thrombotic, irreducible hemorrhoids, with excessive redundant tissue, evidencing frequent recurrences. Id. The maximum 20 percent evaluation is warranted for hemorrhoids with persistent bleeding and with secondary anemia, or with fissures. Id. In April 2014, March 2016, and March 2017 VA examination reports, the Veteran reported hemorrhoids that gradually flared-up twice a month and that he experienced rectal bleeding. While the examiner in the March 2016 examination report characterized the Veteran’s hemorrhoids as mild or moderate, in the March 2017 report, the examiner noted that the Veteran complained of intermittent rectal bleeding. VA treatment records from 2016 noted subjective complaints of “overall more frequent rectal blood since… 2016.” Additionally, the Veteran reported that he had much more frequent protrusions of internal hemorrhoids, and had to perform self-reduction of protruding hemorrhoids about ten times in the last two months. The Board notes that the Veteran has consistently noted increased rectal bleeding for over two years, and in multiple VA treatment reports. As the Veteran is competent and credible to report rectal bleeding, the Board finds that his hemorrhoid symptoms are presently more severe than the current noncompensable rating reflects. See 38 C.F.R. § 4.114, DC 7336. As a result, affording the Veteran the benefit of the doubt, from March 24, 2016, the date of the VA examination where the Veteran reported increased bleeding, his hemorrhoids more nearly approximate a 10 percent rating, but no higher, and not earlier. This represents a partial grant of this appeal. The Board finds that the April 2014, March 2016, and March 2017 VA examination reports, describing the Veteran’s hemorrhoid symptoms, to be the most probative evidence of record, as the examiner reviewed the claims file and provided a detailed rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). While the Veteran is competent to observe his hemorrhoid symptoms, he does not have the training or credentials to determine the precise severity and impact of those symptoms. Additionally, he does not have the training or credentials to determine the proper disability evaluations concerning his hemorrhoids. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). As indicated, however, his complaints as to rectal bleeding have been taken into account in assigning a 10 percent evaluation as of March 24, 2016. Neither the Veteran nor his representative have raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). Additionally, the Board is cognizant of the ruling of the Court in Rice v. Shinseki, 22 Vet. App. 447 (2009). In the present case, the Veteran has not specifically argued, and the record does not otherwise reflect, that his service-connected disabilities render him unable to secure or follow a substantially gainful occupation. Specifically, in his January 2018 DRO hearing, the Veteran testified that he was employed as a phone operator. Accordingly, the Board concludes that a claim for a total disability rating has not been raised. The Veteran certainly may raise this claim in the future, should he choose to do so. REASONS FOR REMAND Entitlement to service connection for a left hand condition. The Board notes that despite having had several VA examinations to evaluate his right hand, the Veteran’s claimed left hand condition has never been diagnosed, nor has a VA examiner ever provided a nexus opinion related to service. The Board further notes that in a June 2014 examination, the Veteran was diagnosed with incomplete paralysis of the median nerve in his left hand. In his January 2018 hearing, the Veteran testified that his left hand condition was first diagnosed in 1997 or 1998. As a result, and in light of the Veteran’s testimony, a new VA examination is necessary to determine if the Veteran has a left hand condition, and if so, whether it is etiologically related to active service. 38 C.F.R. § 3.159(c)(4). Entitlement to disability ratings in excess of 40 percent for residuals of right hand injury, with deformity and arthritis, to include whether the reduction to a noncompensable evaluation effective October 1, 2018, was proper; and in excess of 30 percent for right carpal tunnel syndrome. In a January 2016 Rating Decision, the RO proposed to reduce the Veteran’s service-connected residuals of right hand injury, with deformity and arthritis, from 40 percent to 10 percent. In a subsequent June 2018 Rating Decision, the Veteran’s service-connected residuals of a right hand injury disability was reduced from 40 percent to a noncompensable rating, effective October 1, 2018. In the same decision, the RO granted a separate evaluation for right carpal tunnel syndrome, evaluated as 30 percent disabling, effective October 1, 2018, that the Board views as being on appeal in light of AB v. Brown, 6 Vet. App. 35 (1993). At the January 2018 DRO hearing, the Veteran testified that his right hand had gotten “a lot worse” over time. As a result, and in light of the Veteran’s testimony, a new VA examination is necessary to determine the current nature, extent, and severity of the Veteran’s right hand conditions. Id. The matters are REMANDED for the following actions: 1. In accordance with the provisions of 38 C.F.R. § 3.159(c)(1), make efforts to obtain all VA and private treatment records concerning these claims. 2. After the above has been completed, schedule the Veteran for an appropriate VA neurological examination to determine the nature and etiology of any diagnosed left hand condition, as well as the current severity and manifestations of his residuals of right hand injury and right hand carpal tunnel syndrome. The entire claims file, to include a complete copy of this REMAND, must be made available to the examiners for review in conjunction with the examination. The examiner is requested to opine whether any left hand condition, if diagnosed, is at least as likely as not (a 50 percent or greater probability) directly related to active military service. With regard to the service-connected residuals of right hand injury and right hand carpal tunnel syndrome, the most up-to-date Disability Benefits Questionnaire must be employed in ascertaining the symptoms and severity of these disorders. The Veteran’s subjective symptoms must be fully considered, along with the objective findings shown on examination. All opinions must be supported by a detailed rationale. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Abrams, Associate Counsel