Citation Nr: 1808865 Decision Date: 02/12/18 Archive Date: 02/23/18 DOCKET NO. 14-01 65 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to a rating in excess of 10 percent for hemorrhoids, after February 21, 2008. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran and his wife ATTORNEY FOR THE BOARD Rachel E. Jensen, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from September 1969 to September 1991. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego. This appeal has a complicated history. The Veteran was service connected for hemorrhoids at a noncompensable rate, effective October 1, 1991. Following a claim for increase and for a temporary 100 percent evaluation for convalescence, in a June 2009 decision, the RO evaluated the Veteran's disability at 20 percent from June 20, 2007, and 10 percent from October 8, 2007. The Veteran perfected an appeal and the Board issued a decision in May 2011 granting a 20 percent rating from June 20, 2007, to February 20, 2008, and a 10 percent rating thereafter. A June 2011 rating decision effectuated the 20 percent rating from June 20, 2007, to February 20, 2008, and 10 percent rating thereafter. The Veteran submitted a timely Notice of Disagreement. In a February 2013 Board decision, the appeal was remanded for issuance of a Statement of the Case. Subsequently, a Statement of the Case and Supplemental Statement of the Case were issued confirming a 10 percent rating from February 21, 2008. Although the procedural steps taken to appeal the 10 percent evaluation after February 2008 are irregular, VA has been treating this as a claim for increase for many years, and the issue will be construed as such. In January 2011, the Veteran testified at a travel board hearing before a Veterans Law Judge (VLJ) who has since left the Board. In December 2016, the Veteran testified at a travel board hearing before the undersigned VLJ. Copies of the transcripts have been associated with the Veteran's claim file. FINDING OF FACT Throughout the period on appeal, the Veteran's service-connected hemorrhoids have been productive of frequent recurrences ( internal and external), pain, itching, and occasional bleeding and leakage, with no persuasive evidence of persistent bleeding or fissures. CONCLUSION OF LAW The criteria for a disability rating in excess of 10 percent for hemorrhoids after February 21, 2008, have not been met. 38 U.S.C. §§ 1155, 5103A, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.7, 4.114, Diagnostic Code (DC) 7336 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Neither the Veteran nor his representative has 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 a duty to assist argument). Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 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 the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). That said, higher evaluations may be assigned for separate periods based on the facts found during the appeal period. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). This practice is known as staged ratings. Id; see also Hart v. Mansfield, 21 Vet. App. 505 (2007). If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The Veteran's service-connected hemorrhoids are currently evaluated at 10 percent disabling under Diagnostic Code 7336, governing external or internal hemorrhoids. 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. Id. A 20 percent rating is warranted for internal or external hemorrhoids with persistent bleeding and with secondary anemia, or with fissures. Id. During the period on appeal, the Veteran has stated that his hemorrhoids are characterized by pain, itching, slight bleeding, and fecal leakage. According to the Veteran's medical history, in June 2007, he had prolapsed bleeding hemorrhoids and anemia. In July 2007, he underwent a private hemorrhoidectomy and was awarded a 20 percent disability rating from June 20, 2007, to February 20, 2008, due to his worsened symptoms. He also began an eight-week iron injection program to treat his severe anemia. An October 2007 private treatment record reported no further bleeding symptoms and a negative anemia work-up. In February 2008, the Veteran was afforded a VA examination which revealed a normal sphincter tone, no fissure, no bleeding, no tenderness, no mass, and no anemia. Mild to moderate internal hemorrhoids and a moderate external hemorrhoid with an attached skin tag were observed. The Veteran underwent another VA examination in April 2009 at which he reported having external hemorrhoids, anal itching, and perianal discharge once per day. No pain, no swelling, and no fecal incontinence requiring pads were recorded. The examiner noted there was no history of anal infection, proctitis, fistula in ano, or neoplasm. Upon examination, the examiner observed two external hemorrhoids measuring 0.5 cm in diameter, and observed no masses, no internal hemorrhoids, no active bleeding, no fecal leakage, no sign of fissure, no sign of rectal prolapse, and no evidence of anemia. The size of the lumen and rectum were normal, the hemorrhoids were not thrombosed, and there was good sphincter tone. It was noted that the condition did not affect the Veteran's daily activity but did affect his occupation and recreation due to pain with sitting. The Veteran submitted a statement in June 2009 that after using the bathroom every day, he experienced fecal leakage, fissures, and itching. At another VA examination in August 2010, the Veteran reported anal itching, pain, perianal discharge, and a wet feeling that required him to frequently wipe himself. The examiner recorded no involuntary bowel movement, no history of thrombosis, and no history of proctitis, fistula in ano, or neoplasm. He noted a history of rectal bleeding, but no recent bleeding and no current treatment. Upon examination, there was no evidence of fecal leakage, colostomy, anemia, fissure, bleeding, or rectal prolapse. The size of the lumen of the rectum and anus were normal. The sphincter tone was normal. There were internal and external hemorrhoids of small to moderate size with a minimal to mild degree of functional impairment. In a statement the Veteran submitted in September 2010, he contended that the VA examinations did not capture his symptoms as he would clean himself prior to the examinations, but that he always experienced wetness. The Veteran reported at the January 2011 hearing that he no longer had bleeding from his hemorrhoids but had accidents. He reported a thrombus leaking for a few hours after using the bathroom every day. He stated his regular physician told him to use Metamucil for symptoms. In an April 2012 VA treatment record, the Veteran reported to clinicians that when he had his hemorrhoids removed, the bleeding he had previously experienced stopped. The Veteran submitted a statement in December 2013 that reported that after using the bathroom, within an hour he would experience wetness and itchiness. When this happened at work, he would have to call someone to take his place so he could use the bathroom. He stated this was irritating for his coworkers. At a March 2014 VA examination the Veteran reported slight bleeding a couple of times a week with hard stools, mild pain, and itching. He stated the hemorrhoids were not interfering with his routine activities. He took over-the-counter psyllium powder to relieve symptoms. Upon examination, there were no visible external hemorrhoids. A complete blood count (CBC) panel revealed a hemoglobin level of 12.5. At an October 2014 VA appointment, mild internal hemorrhoids were observed. No treatment was prescribed. Future appointments continued to note internal hemorrhoids as an ongoing diagnosis but did not provide any further information or prescribe any treatment. The Veteran reported at the December 2016 hearing that he still experienced anal fissures, pain, and itching. He reported fecal leakage every two to three days. He stated he had a thrombosis, has skin tags, and has anemia. He described using baby wipes to treat his symptoms. During a December 2017 VA examination, the Veteran reported that he experienced rectal itching once a week, usually preceded by a hard stool and bleeding. He treated his symptoms with baby wipes. The examiner determined the Veteran had a history of mild to moderate symptoms, and upon examination, observed no external hemorrhoids, anal fissures, or other abnormalities. An anuscopic examination was negative for internal hemorrhoids. A CBC panel revealed a hemoglobin level of 13. According to the medical evidence of record, the Veteran has experienced mild to moderate internal and external hemorrhoids since February 2008. He has also been diagnosed with and treated for anemia throughout the appeal period. At one point, the Veteran reported fissures. However, the VA examinations of record are negative for fissures. By his own account, the bleeding he previously experienced from his hemorrhoids ceased following the July 2007 hemorrhoidectomy. He has since reported slight bleeding at least once a week. The Board finds that the symptoms described by the Veteran and observed by VA clinicians and examiners do not approximate persistent bleeding, so as to warrant a 20 percent evaluation under DC 7336. Although the Veteran had a diagnosis of anemia, the lack of persistent bleeding and evidence of fissures is determinative. As such, a rating in excess of 10 percent under DC 7336 is denied. Application of 38 C.F.R. § 4.114, Diagnostic Codes 7332, 7333, 7334, and 7335, which pertain to other conditions of the rectum and anus, have been considered. DC 7332, which applies to impairment of sphincter control, is not applicable. The VA examinations of record observed normal sphincter control. No examination recorded observed fecal leakage. At no point have clinicians reported involuntary bowel movements and the Veteran has stated he does not wear a pad. He has consistently reported experiencing fecal leakage once a week or every few days. Even giving the Veteran the benefit of the doubt regarding the description of his symptoms, he would not warrant a disability rating under DC 7332, as there is no evidence of impairment of sphincter control. DC 7333 regarding stricture of the rectum and anus is not applicable, as the Veteran's VA examinations reported normal-sized lumen and no medical records have diagnosed stricture of the anus or rectum. DC 7334 is also not for application, as the Veteran has not been diagnosed with prolapse of the rectum. Finally, DC 7335 is also not applicable, as the Veteran's VA examinations and medical records have been negative for fistula in ano. The Board recognizes the Veteran's reports of leakage. However, his VA treatment records do not indicate that he has reported such symptoms or sought treatment from his regular providers, he does not wear pads, and there has been no observation of any impairment of the Veteran's rectum or anus, by those trained to perform appropriate examination. As such, the Board gives more weight to the medical treatment records and VA examination reports as the most probative evidence of record in evaluating the Veteran's symptoms. Therefore, a rating in excess of 10 percent disabling for the Veteran's service-connected hemorrhoids is not warranted. The Board finds that the preponderance of the evidence is against the claim. The benefit of the doubt doctrine is not applicable in this case as there is no doubt to be resolved. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. at 57. ORDER A rating in excess of 10 percent for hemorrhoids after February 21, 2008, is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs