Citation Nr: 1807769 Decision Date: 02/06/18 Archive Date: 02/14/18 DOCKET NO. 12-16 593A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to an initial rating in excess of 10 percent for service-connected hemorrhoids. WITNESSES AT HEARING ON APPEAL Veteran and his spouse ATTORNEY FOR THE BOARD E. Mine, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from June 1977 to November 1977 and from March 1978 to August 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a Travel Board hearing in May 2016 before the undersigned Veterans Law Judge. In June 2016, and again in June 2017, the Board remanded the matter for additional development. FINDING OF FACT The Veteran's hemorrhoids have been manifested by persistent bleeding, but not by secondary anemia or fissures. CONCLUSION OF LAW The criteria for an initial rating in excess of 10 percent for hemorrhoids have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. § 4.114, Diagnostic Code 7336 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Regarding the duty to notify, once a claim of service connection has been granted, the filing of a notice of disagreement with the RO's rating of a disability does not trigger additional 38 U.S.C. § 5103 (a) notice. See 38 C.F.R. § 3.159 (b)(3). Therefore, further VCAA notice is not applicable in the Veteran's claim for a higher initial rating. See id.; see also, e.g., Dunlap v. Nicholson, 21 Vet. App. 112, 116-117 (2007); Goodwin v. Peake, 22 Vet. App. 128, 136 (2008). The Veteran has not raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). Accordingly, the Board will address the merits of the claim. II. Increased Rating The Veteran is currently in receipt of a 10 percent rating for hemorrhoids under Diagnostic Code 7336 for the entire period on appeal. See 38 C.F.R. § 4.114. Under Diagnostic Code 7336, mild or moderate hemorrhoids are to receive a 0 percent (noncompensable) rating. Hemorrhoids that are large or thrombotic, irreducible, with excessive redundant tissue, evidencing frequent recurrences are assigned a 10 percent rating. Id. Hemorrhoids with persistent bleeding and with secondary anemia, or with fissures are assigned a 20 percent rating. Id. The Veteran generally contends that he is entitled to a higher rating for the service-connected hemorrhoids. He contends that his hemorrhoids flare up regularly, causing pain and persistent bleeding, and necessitating surgery. Upon review of all of the evidence of record, both lay and medical, the Board finds that the rating criteria for an initial 20 percent disability rating have not been met. Specifically, there is no evidence that the Veteran's hemorrhoids have been manifested by anemia or fissures. Turning to the evidence of record, on VA examination in March 2010, the Veteran described treatment for his hemorrhoids with Anucort HC suppositories twice daily, Dibucaine ointment as needed for pain, and Sitz baths twice per day. He reported a history of hemorrhoidectomies in 1990 and 2003. The Veteran described frequent rectal bleeding. He noted anal itching, burning, difficulty passing stool, pain, tenesmus, and swelling. He denied a history of thrombosis. On examination, hemorrhoids were present internally and externally. The hemorrhoids were two to three centimeters large. There was no evidence of thrombosis or bleeding. Fissures were not present. There was evidence of excessive redundant tissue. The examiner diagnosed hemorrhoids. The examiner found significant effects on the Veteran's usual occupation, such as decreased mobility and pain resulting in increased absenteeism. Private treatment records reveal that the Veteran underwent a hemorrhoidectomy in July 2010. Discharge instructions showed that the Veteran was instructed to follow a high fiber diet, take hot baths twice daily, and avoid constipation. On VA examination in February 2012, the examiner noted a diagnosis of hemorrhoids. The Veteran reported that he worked 50 hours per week as a grocer. He indicated that his hemorrhoids made prolonged walking or sitting more irritating. He indicated that this was aggravated by constipation and alleviated by Sitz baths or lying on his stomach. He described the present pain level as 8/10; he noted that the pain averaged 8/10 every two months for a duration of two hours lasting three days. The Veteran indicated that his current treatment was Dibucaine topical without side effects. He noted a history of hemorrhoidectomies in 1990, 2003, and 2011. The examiner found mild or moderate external hemorrhoids. The examiner noted that since the Veteran had surgery last year, he no longer had bleeding. The examiner noted that the Veteran still had itching and burning. There was no evidence of active hemorrhoids on examination. The examiner indicated that the examination was "much better" since the Veteran's last examination in 2010 due to his hemorrhoid surgery in 2011. The examiner found that the Veteran's hemorrhoid condition impacted his ability to work, as it made prolonged walking or sitting more irritating. In the Veteran's appeal on a VA Form 9 dated in June 2012, the Veteran indicated that his treating doctor informed him that his chronic hemorrhoid condition would continue. He noted that the bleeding was recurring and continued to cause him absence from his job. The Veteran noted that at his last examination, his physician recommended more surgery to reduce the bleeding, itching, burning, and loss of work. He noted that since 1990, he had had multiple surgeries to relieve the pain and problem with bleeding. The Veteran indicated that although his symptoms were calm at his February 2012 VA examination, they were not eliminated. He described another flare-up in March 2012, where he missed several days from work. In the Veteran's appeal on a VA Form 9 dated in September 2013, the Veteran indicated that his hemorrhoid problem was ongoing despite two surgeries and an ongoing treatment regimen. He noted that the condition was painful and continued to cause him to miss work due to frequent flare-ups. The Veteran indicated that the flare-ups included swelling, rectal bleeding, constipation, and nausea. He noted that most flare-ups required a doctor's visit. The Veteran noted that the condition was affecting his stomach, and he now had to take medication for his digestion. The Veteran noted that over the last few months, the flare-ups resulted in weight loss, as eating less food was a way for him to avoid flare-ups. The Veteran indicated that the flare-ups limited his mobility and ability to perform routine daily chores and tasks. In the Veteran's Travel Board hearing dated in May 2016, the Veteran testified that he had several surgeries in the past for his hemorrhoids. He noted that his doctor wanted him to have more surgery. The Veteran testified that his hemorrhoid condition was causing him to miss days out of work. The Veteran testified that he had to step down from his management position, which had a lot to do with his hemorrhoid condition. The Veteran testified that his hemorrhoid condition affected his ability to sit or stand for long periods of time. He described constant bleeding and swelling. He noted bleeding about two to three times per month, especially if he was sitting or standing for long periods of time. He indicated that it was a very painful situation. The Veteran also described constipation. He described relief with lying on his stomach or taking Sitz baths. He also noted treatment with Preparation H. The Veteran noted that his flare-ups debilitated him for three or four days. He denied ever having anemia. The Veteran's wife testified that his hemorrhoid condition made him weak. The Veteran was provided a VA examination in November 2016. The examination report shows that the Veteran declined physical examination, and none was performed. The Veteran's claims file was not requested and was not reviewed. The examiner indicated that the Veteran had pain with bowel movements, itching, and bleeding, but failed to indicate whether the Veteran's hemorrhoids were mild or moderate in severity; large or thrombotic, irreducible, with excessive redundant tissue, evidencing frequent recurrences; or, with persistent bleeding and with secondary anemia, or with fissures. The examiner opined that there was no change in Veteran's diagnosis, and that at the time of the DBQ the condition was active; however, as the examiner neither examined the Veteran, reviewed the claims file, nor provided any rationale for that opinion, the Board affords the opinion very little probative weight. The Veteran was again afforded a VA examination in July 2017. The examiner reviewed the Veteran's claim file, completed a physical examination, and performed laboratory blood testing to determine if the Veteran was anemic. During the examination the Veteran reported that he continued to have intermittent flares approximately six to seven times a year. He noted intermittent episodes of rectal pain, burning, and pruritus, with bleeding and reports bulging of the hemorrhoids periodically. He reported using Sitz baths and Preparation H or other over the counter hemorrhoidal creams for flares with partial improvement in symptoms. Finally, the Veteran reported that he worked in grocery retail and had to stand and walk most of the day, which he stated exacerbated his symptoms. The examiner reported that the Veteran had a history of hemorrhoids with intermittent flares and a history of thrombosis and bleeding, which had required hemorrhoidectomies in the past. The examiner found that the Veteran continued to have intermittent flares with symptoms of rectal pain and bleeding, which required treatment with over-the-counter medication. However, the examiner ultimately concluded that the Veteran's hemorrhoids were mild in severity and there was no evidence of persistent bleeding with secondary anemia or fissures. While there is evidence that the Veteran experiences frequent bleeding as a result of his service-connected hemorrhoids, there is no evidence in the record that the Veteran has been manifested by secondary anemia or fissures. Specifically, during the May 2016 hearing the Veteran denied ever having had anemia and the July 2017 VA examiner, after blood testing, opined that the Veteran did not have secondary anemia. As to fissures, the March 2010 and July 2017 VA examiners found no evidence of fissures. After a thorough review of the evidence in the record, the Board finds that the Veteran's hemorrhoids have resulted in persistent bleeding, but have not been manifested by anemia or fissures. Accordingly, the preponderance of the evidence is against assignment of an increased initial evaluation in excess of 10 percent for the Veteran's service-connected hemorrhoids and the benefit-of-the-doubt doctrine does not apply. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Entitlement to an initial rating in excess of 10 percent for service-connected hemorrhoids is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs