Citation Nr: 18161186 Decision Date: 12/28/18 Archive Date: 12/28/18 DOCKET NO. 16-26 554 DATE: December 28, 2018 ORDER Entitlement to an initial compensable disability rating for service-connected hemorrhoids is denied. REMANDED Entitlement to an initial disability evaluation in excess of 30 percent for service-connected migraine headaches is remanded. Entitlement to an initial compensable disability evaluation for service-connected left ear hearing loss is remanded. FINDING OF FACT The Veteran’s hemorrhoids were not manifested by irreducible large or thrombotic tissue with excessive redundant tissue, evidencing frequent recurrences, or persistent bleeding with secondary anemia, or with fissures. CONCLUSION OF LAW The criteria for an initial compensable evaluation for hemorrhoids are not met. 38 U.S.C. §§ 1155, 5103, 5107 (2014); 38 C.F.R. 4.1 - 4.7, 4.10, 4.21, 4.114, Diagnostic Code (DC) 7336 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 2009 to November 2009, and from July 2011 to September 2012. He served in the United States Army. 1. Entitlement to an initial compensable disability rating for service-connected hemorrhoids Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4 (2018). The 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 (2018). 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 (2018). When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3 (2018). In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2018). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran’s medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where an appeal is based on an initial rating for a disability, however, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence “used to decide whether an original rating on appeal was erroneous.” Fenderson v. West, 12 Vet. App. 119, 126 (1999). In either case, if later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, staged ratings may be assigned for separate periods of time. Fenderson, 12 Vet. App. at 126; Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings). When adjudicating a claim for an increased initial evaluation, the relevant time period is from the date of the claim. Moore v. Nicholson, 21 Vet. App. 211, 215 (2007), rev’d in irrelevant part, Moore v. Shinseki, 555 F.3d 1369 (2009). Hemorrhoids are rated under 38 C.F.R. § 4.114, DC 7336. Under that DC, mild or moderate hemorrhoids are rated noncompensable. A 10 percent rating is assigned for large or thrombotic irreducible hemorrhoids, with excessive redundant tissue, evidencing frequent recurrences. A 20 percent rating is warranted for persistent bleeding and with secondary anemia, or with fissures. In an October 2011 service treatment record (STR) note, the Veteran was noted to have a history of chronic constipation, with occasional problems with hemorrhoids. A March 2013 VA treatment note showed that the Veteran reported suffering from hemorrhoids from time to time causing bleeding, but was not experiencing it currently. The Veteran stated that he wanted the hemorrhoids to be removed because they are painful when he has a bowel movement. A March 2013 VA treatment note showed that the Veteran had been prescribed a hemorrhoidal ointment to be applied twice a day as needed for pain and itching associated with hemorrhoids. An April 2013 VA treatment note indicated that the Veteran complained of bleeding hemorrhoids for which he wanted to a get a surgical evaluation for treatment options. A May 2015 Rectum and Anus (including Hemorrhoids) Disability Benefit Questionnaire (DBQ) was completed. The Veteran had a diagnosis of internal or external hemorrhoids. The examiner described the Veteran’s hemorrhoid condition as mild or moderate. Upon examination, the examiner found one external hemorrhoid that occasionally flared up and bled with bowel movements. The Veteran was not taking any medication and did not undergo any procedures for his hemorrhoid condition. A May 2015 VA treatment note indicated that the Veteran had quite a bit of constipation and hemorrhoids, but that he does not use anything for his condition. In a July 2015 notice of disagreement, the Veteran stated that his hemorrhoids affect him every time he passes stool because they are very painful. The Veteran stated that he experienced bleeding. The Veteran reported that he has self-confidence and pain threshold issues due to the constant ache after passing. In a June 2016 VA substantive appeal, the Veteran stated that his hemorrhoids flare up and bleed about three to four times per month. The Veteran is competent to report his observations, including his symptoms of pain and bleeding, and the frequency of occurrences. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board also finds that the Veteran’s reports are credible, as they have been consistent through the course of the appeal. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (noting that the credibility of a witness may be determined by his or her demeanor and impeached by a showing of interest, bias, or inconsistent statements), aff’d, 78 F.3d 604 (Fed. Cir. 1996).   Nevertheless, the Board finds that the Veteran’s hemorrhoids have been mild to moderate, and entitlement to an initial compensable evaluation is not warranted under DC 7336. The evidence does not show irreducible large or thrombotic tissue with excessive redundant tissue, evidencing frequent recurrences required for a 10 percent evaluation. Furthermore, there is no evidence of anemia or anal fissures that would warrant assignment of a 20 percent evaluation. The May 2015 DBQ indicated that the Veteran had one external hemorrhoid, and that it occasionally flared up and bled with bowel movements. Occasional flare-ups do not equate to frequent, and the examiner did not indicate that the one external hemorrhoid found on examination was irreducible large or thrombotic tissue with excessive redundant tissue. Moreover, although the evidence shows that the Veteran was prescribed hemorrhoidal ointment, the record shows that the Veteran reported not using anything for his condition. The Board also notes that the May 2015 VA treatment note indicated that the Veteran had quite of bit of constipation and hemorrhoids; however, there is no evidence in the record which supports the existence of large or thrombotic, irreducible with excessive redundant tissue, evidencing frequent recurrences, or persistent bleeding with secondary anemia, or with fissures. The Veteran reported not using any medication for the condition. The Board concludes that the Veteran’s symptoms are more nearly contemplated by the noncompensable rating criteria for mild or moderate hemorrhoids and entitlement to a higher evaluation is not warranted. 38 C.F.R. § 4.114, DC 7336.   REASONS FOR REMAND When a claimant asserts, or the evidence shows, that the severity of a disability has increased since the most recent rating examination, an additional examination is appropriate. VAOPGCPREC 11-95 (April 7, 1995); Snuffer v. Gober, 10 Vet. App. 400 (1997). 1. Entitlement to an initial disability evaluation in excess of 30 percent for service-connected migraine headaches. A May 2015 Headaches DBQ was completed. The Veteran had a diagnosis of migraine including migraine variants. The Veteran reported that he gets migraines one or two times per month and that he had a normal head CT scan recently. The Veteran also reported that he experienced constant head pain, nausea, vomiting, sensitivity to light, and sensitivity to sound. The Veteran reported that his typical occipital head pain lasted less than one day. The examiner determined that the Veteran had characteristic prostrating attacks of migraine/non-migraine headache pain on average once per month, and that it was not productive of severe economic adaptability. The examiner also noted that the Veteran’s headache condition impacted his ability to work; specifically, if the migraines were severe enough, the Veteran would have to leave work. However, the Veteran reported that this did not happen frequently. In a November 2015 VA treatment note addendum, the Veteran reported that his migraines had increased in frequency, occurring up to one time per week. The Veteran also stated that the medication for his headaches is no longer effective. He also requested an MRI. Because the Veteran has indicated that his migraine headaches have increased in frequency and severity, a new VA examination is warranted. 2. Entitlement to an initial compensable disability evaluation for service-connected left ear hearing loss. The most recent VA examination was conducted in April 2015. In a November 2018 Appellant’s Brief, the Veteran argued that his service-connected left ear hearing loss has increased in severity. The Veteran alleges that he experiences constant misunderstanding and over use of the word “what” because of his inability to understand people frequently. The Veteran believes that his service-connected other specified trauma and stressor related disorder to include sleep disturbances aggravates the severity of his left ear hearing impairment. A new VA examination is thus warranted. The matters are REMANDED for the following action: 1. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his representative. 2. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant medical records. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 3. After any additional records are associated with the claims file, schedule the Veteran for appropriate VA examination to assess the severity of the service-connected migraine headaches. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The appropriate DBQ shall be utilized. The examiner must elicit a full history from the Veteran regarding the frequency and severity of his migraine headaches since 2015. 4. After any additional records are associated with the claims file, schedule the Veteran for appropriate VA examination to assess the severity of the service-connected left ear hearing loss. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The appropriate DBQ shall be utilized. 5. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claims, and that the consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2018). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P. Nguyen, Associate Counsel