Citation Nr: 18159427 Decision Date: 12/19/18 Archive Date: 12/19/18 DOCKET NO. 14-04 982 DATE: December 19, 2018 ORDER Service connection for erectile dysfunction is denied. An increased rating of 20 percent for hemorrhoids is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that the Veteran’s erectile dysfunction is related to his active military service or that it was caused or aggravated by any service-connected disability. 2. The preponderance of the evidence is against a finding that the Veteran’s service-connected hemorrhoids meet the criteria for the next highest schedular rating. CONCLUSIONS OF LAW 1. Service connection for erectile dysfunction is not warranted. 38 U.S.C. §§ 1110, 1112, 1113, 1131 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 2. An increased rating higher than 10 percent is not warranted for service-connected hemorrhoids. 38 U.S.C. §§ 1110, 1112, 1113, 1131 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from August 1952 to August 1954. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from October 2012 and April 2016 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. An informal conference was held at the RO in September 2015. Regarding the claim of service connection for erectile dysfunction, this claim is before the Board after a September 2017 remand for a VA examination. The RO issued a SSOC in June 2018 affirming denial for service connection. The Veteran timely appealed an April 2016 rating denying an increased 20 percent rating for his service-connected hemorrhoids, the highest possible schedular rating. Service Connection Service Connection for Erectile Dysfunction I. Legal Criteria 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 (West 2014); 38 C.F.R. § 3.303(a) (2016). In general, service connection requires (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 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) (2017). II. Factual Background & Analysis VA medical records indicate that the Veteran began receiving treatment for erectile dysfunction in 2004. As of 2004, he was under the care of a private urologist for erectile dysfunction and benign prostatic hyperplasia. At the June 2018 VA examination, the Veteran reported that, during service, he was treated for four STIs due to frequenting “prostitutes and call girls.” The Veteran also reported that his erectile dysfunction began immediately after separation from service. During the June 2018 VA examination, the examiner noted the Veteran’s long-standing history of tobacco use into his forties, the key lifestyle cause of erectile dysfunction, as well as his other atherosclerotic vascular risk factors. In addition, the examiner explained that the Veteran’s age, coupled with the development of comorbid diseases, and medication and therapies used to treat those diseases, have likely aggravated his erectile dysfunction such that damage to his vascular system by tobacco use could not be rectified by simple smoking cessation. The examiner considered the Veteran’s statements (about contracting STIs while in service) but explained that this might impact fertility but would not cause erectile dysfunction. The examiner ultimately opined that it was less likely than not that the Veteran’s erectile dysfunction occurred in service or was the result of in-service event or episode. The Board finds that the examiner provided a reasoned medical explanation connecting his negative nexus opinion with supporting data (including medical facts specific to the Veteran and medical principles derived from the literature as well as the examiner’s training and experience). The opinion is thorough, carefully explained, and persuasive. The Board assigns it substantial probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). As for the Veteran’s report that his erectile dysfunction began immediately after service, the Board finds that these statements cannot be assigned significant probative value because they are inconsistent with his contemporaneous medical record and facially implausible. The Veteran reported engaging in frequent sexual activity during service and the Board finds it implausible that, after being sexually active during service, he would fail to seek medical treatment for sudden-onset erectile dysfunction at the age of twenty-four, and there would be no documentation of this problem in the record. Although, in general, the Board may not rely on the absence of evidence as substantive negative evidence, the exception is when a fact in question would ordinarily be recorded. See Horn v. Shinseki, 25 Vet. App. 231, 239 & n. 7 (2012) (citing Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011) and Kahana v. Shinseki, 24 Vet. App. 428 (2011)); see also AZ v. Shinseki, 731 F.3d 1303, 1315 (Fed. Cir. 2013) (noting the general common law evidentiary principle that “[t]he absence of a record of an event which would ordinarily be recorded gives rise to a legitimate negative inference that the event did not occur” (emphasis omitted)). Accordingly, the Board cannot assign significant probative value to the Veteran’s statements. In contrast, the June 2018 examiner provided a thorough explanation for why the Veteran’s erectile dysfunction is not related to service, citing the numerous non-service-related risk factors present. Accordingly, the Board finds that the preponderance of the evidence is against the claim and service connection for erectile dysfunction is denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinksi, 1 Vet. App. 49 (1990). Increased Rating An increased rating to 20 percent for hemorrhoids. I. Legal Criteria The Veteran’s service-connected hemorrhoids condition is currently rated at 10 percent disabling. Disability ratings are determined by comparing a Veteran’s present symptoms with criteria set forth in VA’s Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. After consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. The Veteran’s hemorrhoids are currently rated under Diagnostic Code 7336. Under DC 7336, hemorrhoids are assigned a zero percent rating where there is evidence of mild to moderate symptoms. A 10 percent rating is warranted where there is evidence of large or thrombotic hemorrhoids, which are irreducible, with excessive redundant tissue, evidencing frequent recurrences. Finally, a 20 percent rating, the maximum schedular rating, is warranted where hemorrhoids are present, with persistent bleeding and secondary anemia, or with fissures. The words “mild,” “moderate,” “moderately severe,” and “severe” are not defined in the Rating Schedule or in the regulations and, consequently, the Board must evaluate all the evidence in context to make its determination. 38 C.F.R. § 4.6. II. Factual Background & Analysis The Veteran contends that he is entitled to an increased rating to 20 percent, the highest possible schedular rating, for his service-connected hemorrhoids. During the May 2008 VA examination, the Veteran reported blood on the tissue and pain after bowel movements. He reported two flare-ups annually and the examiner noted a large internal hemorrhoid. The Veteran was formally diagnosed with hemorrhoids during an April 2013 VA examination. The Veteran reported requiring continuous medication for the disorder, including over the counter daily stool softener and wet wipes. Upon examination, the examiner noted symptoms of large or thrombotic external hemorrhoids, found to be irreducible, with excessive redundant tissue and evidence of frequent recurrences. There was no evidence of anal fissures or persistent bleeding and anemia. A June 2013 VA opinion was obtained. The examiner confirmed the symptoms reported by the April 2013 examiner, including large or thrombotic hemorrhoids, with excessive redundant tissue, frequent recurrences and which require daily stool softener and multiple medications. During the April 2016 VA examination, the Veteran reported consistent anorectal irritation and reported blood spotting and occasional soiling, requiring him to use a pad. The examiner recorded that the Veteran had small or moderate external hemorrhoids. The examiner noted that the Veteran does not suffer from iron deficiency anemia such as secondary to gastrointestinal blood loss. The examiner also did not note any fissures. The examiner summarized by saying that the Veteran’s hemorrhoid condition was stable and could be dealt with through topical treatments. During the February 2018 VA examination, the Veteran reported having intermittent rectal pain that improved after application of Hydrocortisone cream. He denied having pain with bowel movements. The Veteran also reported burning, itching and occasional bleeding. The Veteran has also stated on several occasions that he experiences bleeding at night requiring him to change his bed linens. After a careful review of the evidence, the Board finds that an increased rating of 20 percent is not warranted. There is no evidence that the Veteran’s hemorrhoids were associated with anemia or fissures (required findings for the next highest rating) during the appellate period, confirmed by the April 2016 VA examination. The 10 percent rating assigned here accounts for the Veteran’s reported symptoms and findings of mild to moderate hemorrhoid symptoms in several VA examinations. Therefore, there is no basis for awarding a still higher 20 percent rating for service-connected hemorrhoids at any point during the appellate period. Accordingly, a rating of 10 percent, but no higher, is warranted for hemorrhoids. The Board has also considered the applicability of other, potentially applicable diagnostic criteria for rating the Veteran’s hemorrhoids, but finds that no higher rating is assignable under any other diagnostic code. Indeed, there have been no objective findings of any rectum prolapse, stricture, or loss of sphincter control to warrant evaluation under other diagnostic codes. See 38 C.F.R. § 4.114, DCs 7332, 7333, and 7334. As such, no other diagnostic code is more applicable in this case. The evidence also shows that the Veteran’s hemorrhoids have remained stable throughout the appeal period. Therefore, the Board finds that there is no basis for staged ratings for the Veteran’s hemorrhoid disability, pursuant to Fenderson, supra. VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Kyle McKone