Citation Nr: 18159332 Decision Date: 12/18/18 Archive Date: 12/18/18 DOCKET NO. 16-61 172 DATE: December 18, 2018 ORDER Entitlement to an initial disability rating of 20 percent for service-connected hemorrhoids is granted. REMANDED Entitlement to an initial disability rating in excess of 30 percent for service-connected migraine headaches is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include major depressive disorder and posttraumatic stress disorder (PTSD), is remanded. FINDING OF FACT Throughout the appeal period, the Veteran’s hemorrhoid disability has manifested in internal or external hemorrhoids, at times large or thrombotic, irreducible, and recurrent, with persistent bleeding as well as secondary anemia. CONCLUSION OF LAW The criteria for an initial disability rating of 20 percent for hemorrhoids have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.114, Diagnostic Code 7336. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from June 1983 to September 1994 and from February 2003 to July 2003. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a July 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). Generally, the scope of a disability claim includes any disability that may reasonably be encompassed by the claimant’s description of the claim, reported symptoms, and any other information of record. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). In this case, although the Veteran filed a claim for depression, a review of her medical treatment records indicate that she has a diagnosis for PTSD. Therefore, the Board has expanded the Veteran’s claim as noted above. The Veteran’s hemorrhoids have been assigned an initial noncompensable rating. She contends that she is entitled to a compensable rating for her disability. A disability rating is determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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. The Board will consider whether separate ratings may be assigned for separate periods of time based on the facts found, a practice known as ‘staged ratings.’ Fenderson v. West, 12 Vet. App. 119, 126–27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Under Diagnostic Code 7336, a noncompensable rating is warranted for mild or moderate internal or external hemorrhoids. 38 C.F.R. § 4.114, Diagnostic Code 7336. A 10 percent rating is warranted for internal or external hemorrhoids that are large or thrombotic, irreducible, with excessive redundant tissue and evidencing frequent recurrences. A 20 percent rating is warranted for internal or external hemorrhoids with persistent bleeding and with secondary anemia, or with fissures. In November 2012, the Veteran underwent a VA examination in reference to this disorder. The Veteran reported flares with swelling as well as bleeding three to four times a week. She stated that due to the bleeding she uses absorbent materials which must be changed twice a day. Lastly, the Veteran reported treatment with Preparation H every other day. The examiner noted large or thrombotic, irreducible internal or external hemorrhoids, with excessive redundant tissue, evidencing frequent recurrences with secondary anemia. The Board notes that in another portion of the examination report, they are noted to be small or moderate, but with the finding of anemia that the evidence supports a finding of significant severity. The examiner conducted an examination and found small or moderate external hemorrhoids at the time of the examination. The Board has considered the Veteran’s statements regarding the severity of her hemorrhoids and bleeding throughout the pendency of this appeal, which she is certainly competent to provide. See Layno v. Brown, 6 Vet. App. 465 (1994); 38 C.F.R. § 3.159(a)(2). Upon review of the lay and medical evidence of record, the Board finds that the Veteran’s hemorrhoid symptomatology more accurately reflects a maximum rating of 20 percent for the entire appellate period. Persistent bleeding has been shown by the record, and the Veteran’s hemorrhoids are indeed recurrent. Additionally, the VA examiner noted large or thrombotic, irreducible hemorrhoids with secondary anemia. Accordingly, the Board concludes that the preponderance of the evidence indicates that the Veteran is entitled to an initial disability rating of 20 percent disability for her service-connected hemorrhoids. Gilbert v. Derwinski, 1 Vet. App. 49 (1990), 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND Although further delay is regrettable, the Board finds that additional development is necessary prior to appellate review. The Veteran seeks an initial disability rating in excess of 30 percent for her service-connected migraines. The Board observes that the Veteran was last afforded a VA examination addressing the severity of her service-connected migraines in November 2012 and that the Veteran’s 2015 VA medical treatment records indicate that her symptomatology may have worsened. When the evidence indicates that a disability has worsened since the last VA examination, and the last examination is too remote to constitute a contemporaneous examination, a new examination is required. See 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); see also Weggenmann v. Brown, 5 Vet. App. 281 (1993). Therefore, in light of the evidence suggesting that the Veteran’s service-connected migraines may have worsened since the November 2012 VA examination, the Board finds that a new VA examination is necessary to assess the current severity of the Veteran’s migraines. The Veteran is also seeking entitlement to service connection for an acquired psychiatric disorder, to include depression and PTSD. The Board finds that the Veteran’s private medical treatment records indicate that she has a diagnosis of depression and PTSD and that she has been seeking treatment for these two disorders on a regular basis since 2012. While the Veteran was presented with a VA Mental Disorders (other than PTSD and Eating Disorders) examination in November 2012, the Board finds that an additional VA examination is necessary. See 38 C.F.R. § 3.159(c)(4); McClendon v. Nicholson, 20 Vet. App. 79 (2006). The matters are REMANDED for the following action: 1. Obtain updated VA treatment records. 2. With any needed assistance (authorization and consent) from the Veteran, the Agency of Original Jurisdiction should secure, for association with the claims file, updated (to present) records of any/all private treatment that the Veteran has received for the disabilities in appellate status, to specifically include records from Landmark Counseling Services, LLC. 3. Upon completion of directives (1)–(2), schedule the Veteran for a VA examination by an appropriate clinician to determine the current severity of her service-connected migraines. The Veteran’s claims file and a copy of this remand should be provided to the examiner and the examination report should reflect that these items were reviewed. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. To the extent possible, the examiner should identify any symptoms and functional impairments due to migraines alone and discuss the effect of the Veteran’s migraines on any occupational functioning and activities of daily living. 4. Upon completion of directives (1)–(2), schedule the Veteran for a VA examination by an appropriate clinician to determine the nature and etiology of any acquired psychiatric disorders, to include PTSD. The Veteran’s claims file and a copy of this remand should be provided to the examiner and the examination report should reflect that these items were reviewed. The examiner should identify all current psychiatric disorders and provide an opinion as to whether it is at least as likely as not (50 percent of greater probability) that any such psychiatric disorder occurred in or is otherwise etiologically related to the Veteran’s military service. If PTSD is diagnosed, the examiner should detail the stressor(s) upon which diagnosis is based. (CONTINED ON NEXT PAGE) The examiner should cite to the medical and competent lay evidence of record, including the Veteran’s statements, and provide an explanation for all opinions given. If the examiner cannot respond to the inquiries posed without resort to mere speculation, he or she should further explain why it is not feasible to provide a medical opinion. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Robinson, Associate Counsel