Citation Nr: 1811684	
Decision Date: 02/22/18    Archive Date: 03/06/18

DOCKET NO.  09-25 066	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUE

Entitlement to an evaluation in excess of 10 percent for hemorrhoids with a history of anal fissures, for the period on appeal prior to August 18, 2014. 


REPRESENTATION

Veteran represented by:	Texas Veterans Commission


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

J. Gallagher, Associate Counsel


INTRODUCTION

The Veteran served on active duty from July 1989 to May 1995.

This appeal is before the Board of Veterans' Appeals (Board) from an October 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri.  Jurisdiction has since been transferred to the RO in Houston, Texas.

In March 2015, the Veteran testified during a Board hearing in Houston, Texas, before the undersigned Veterans Law Judge.  A transcript is included in the claims file.

In June 2015, the Board remanded the Veteran's appeal to the RO with instruction to associate the Veteran's VA treatment records with his claims file.  The appropriate records were obtained.  In August 2015, the Board denied the claim on appeal, as well as claims for service connection for a low back injury and a left ankle disability.  The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court), which in a January 2017 memorandum decision vacated the Board's denial of an increased rating for hemorrhoids.  In the same decision, the Court affirmed the Board's denial of service connection for a low back injury and dismissed any appeal for service connection for a left ankle disability.  These two issues are therefore no longer before the Board.  In September 2017, the Board again remanded the Veteran's appeal with instruction to obtain current treatment records and provide a current VA examination.  The appropriate records were obtained and the Veteran underwent an examination in November 2017.  The Board is therefore satisfied that the instructions in its remands of June 2015 and September 2017 have been satisfactorily complied with.  See Stegall v. West, 11 Vet. App. 268 (1998).

Subsequent to the September 2017 remand, the Veteran was awarded for his hemorrhoids a 10 percent evaluation for the period on appeal prior to August 18, 2014, and a 20 percent evaluation for the period thereafter.  As 20 percent is the maximum evaluation available for hemorrhoids, this was considered a full grant of the appeal for that period.  Therefore the Board will not further address the period since that date.


FINDING OF FACT

For the period on appeal prior to August 18, 2014, the Veteran's hemorrhoids were not productive of anal fissures or of persistent bleeding with secondary anemia.


CONCLUSION OF LAW

The criteria for an evaluation in excess of 10 percent for hemorrhoids with a history of anal fissures, for the period on appeal prior to August 18, 2014, have not been met.  38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.114, Diagnostic Code 7336 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran seeks an increase to his evaluation for hemorrhoids for the period prior to August 18, 2014.

Under applicable criteria, VA has certain notice and assistance obligations to claimants.  See 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  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 duty to assist argument).  There is thus no prejudice to the Veteran in deciding this appeal.

Disability evaluations are determined by application of the criteria set forth in the 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.  An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment.  38 C.F.R. § 4.10.  

"Staged" ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings.  See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App 119 (1999).

When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating.  38 C.F.R. § 4.7.  After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran.  38 C.F.R. § 4.3.  The Veteran's entire history is to be considered when making disability evaluations.  See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995).

External or internal hemorrhoids are rated under 38 C.F.R. § 4.114, Diagnostic Code 7336.  The Veteran's current 10 percent rating for the period on appeal is warranted for hemorrhoids that are large or thrombotic, irreducible, with excessive redundant tissue, evidencing frequent recurrences.  A maximum rating of 20 percent is warranted for hemorrhoids with persistent bleeding and with secondary anemia, or with fissures.

The Board incorporates herein by reference the relevant facts as summarized in its vacated August 2015 decision.  While new evidence regarding hemorrhoids has been submitted to the record since that time, this evidence is not probative to the period which remains on appeal.

The Board finds that an evaluation in excess of 10 percent is not warranted for the Veteran's hemorrhoids for the period prior to August 18, 2014.  Higher ratings are available for of anal fissures or of persistent bleeding with secondary anemia.  The evidence weighs against such manifestations.  The Veteran reported intermittent bleeding during this period, but there is no associated diagnosis of anemia in the record.  Furthermore, there is no evidence of current anal fissures during this period.  At his VA examinations in July 2008 and on August 18, 2014, no anal fissures were found on visual inspection.  For these reasons, the Board finds that an evaluation in excess of 10 percent is not warranted for the Veteran's hemorrhoids for the period prior to August 18, 2014.  As discussed in the introduction, the Veteran is already in receipt of the maximum 20 percent rating for the period thereafter.


ORDER

An evaluation in excess of 10 percent for hemorrhoids with a history of anal fissures, for the period on appeal prior to August 18, 2014, is denied.



____________________________________________
JONATHAN B. KRAMER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs