Citation Nr: 21000303 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 16-38 925 DATE: January 5, 2021 ORDER Entitlement to a 10 percent disability rating, but no higher, for hemorrhoids, is granted for the entire appellate period. Entitlement to a 50 percent disability rating, but no higher, for migraines, is granted effective February 18, 2011. REMANDED Entitlement to a total disability rating due to individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. For the entire appellate period, the Veteran’s hemorrhoids were manifested by frequent recurrences and bleeding; with no medical or lay evidence of secondary anemia or fissures. 2. As of February 18, 2011, the Veteran’s migraines manifested in very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. CONCLUSIONS OF LAW 1. For the entire appellate period, the criteria for a 10 percent disability rating, but no higher, for hemorrhoids have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.114, Diagnostic Code 7336. 2. As of February 18, 2011, the criteria for a 50 percent disability rating, but no higher, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1999 to September 2003. This matter comes before the Board of Veterans’ Appeals (Board) from May 2014 and May 2016 rating decisions from the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge in September 2019 regarding the claims of entitlement to an increased rating for hemorrhoids, entitlement to a total disability rating due to individual unemployability (TDIU), and service connection for hypertension. A transcript of the proceeding is of record. The Board remanded these claims in December 2019. In a May 2020 rating decision, the RO increased the Veteran’s rating for hemorrhoids to 10 percent effective January 20, 2020 and granted service connection for hypertension. The Veteran did not appeal the decision granting service connection for hypertension. Regarding the claim for an increased rating for migraines, a May 2014 rating decision increased the rating to 50 percent effective September 18, 2012. Pursuant to the Veteran’s timely appeal, a June 2016 rating decision increased the rating to 50 percent effective May 24, 2012; an earlier effective date was denied. The Veteran did not request a hearing regarding this claim. Accordingly, the issues currently before the Board are entitlement to a compensable rating for hemorrhoids prior to January 20, 2020, and greater than 10 percent thereafter; a rating for migraines greater than 50 percent prior to May 24, 2012; and entitlement to a TDIU. Regarding the issues of increased ratings for hemorrhoids and migraines, the Board finds substantial compliance with the remand directives and therefore another remand is not necessary. Stegall v. West, 11 Vet. App. 268 (1998). However, there has not been substantial compliance with the Board’s previous remand directives regarding entitlement to a TDIU. Another remand is required for reasons discussed below. Stegall v. West, 11 Vet. App. 268, 271 (1998). Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Increased Rating Generally, the effective date of compensation based on a claim for increase will be on the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C.§ 5110 (a); 38 C.F.R. § 3.400. However, the effective date for an increased rating claim may date back as much as one year before the date of the claim for increase if it is factually “ascertainable that an increase in disability had occurred” within that timeframe. See 38 U.S.C. § 5110 (b)(2). The VA’s Schedule for Rating Disabilities is used to determine disability ratings once a disability is service-connected. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In the Rating Schedule, Diagnostic Codes (DC) are assigned to specific disabilities. These DCs designate percentage ratings based on the average functional impairment of the Veteran due to a service-connected disability. 38 C.F.R. §§ 3.321, 4.10. 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. 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 assigning disability ratings. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). A claimant may experience multiple distinct degrees of disability that may result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The following analysis is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. 1. Entitlement to a 10 percent disability rating, but no higher, for hemorrhoids, for the entire period on appeal The Veteran submitted an increased rating claim for his hemorrhoids in February 2016. As an increased rating claim, the Board looks at the evidence in the year prior to this date to see the earliest date that it is factually ascertainable that an increase occurred. 38 C.F.R. § 3.400. The Veteran’s hemorrhoids are rated as noncompensable prior to January 20, 2020, and as 10 percent disabling thereafter, pursuant to Diagnostic Code 7336. Under Diagnostic Code 7336, a noncompensable rating is warranted for mild or moderate internal or external 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. A 20 percent rating is warranted for internal or external hemorrhoids with persistent bleeding and with secondary anemia, or with fissures. 38 C.F.R. § 4.114. The Board notes that words such as “moderate” and “mild” are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6. A 2012 colonoscopy found internal hemorrhoids. See May 2015 VA treatment records. May 2015 VA treatment records reveal that the Veteran returned to the gastroenterology clinic for the first time since 2011 for complaints of constipation. The Veteran reported bleeding hemorrhoids in February 2016. Examination revealed several non-thrombosed hemorrhoids. A March 2016 VA examination indicated the Veteran reported spotting on toilet paper with passing of hard stools. He was prescribed a stool softener. The examiner noted that the Veteran had anal skin tags and mild or moderate hemorrhoids. In August 2016 the Veteran was diagnosed with thrombosed hemorrhoids and underwent an irrigation and debridement procedure. See August 2016 VA and private treatment records. January 2017 VA treatment records indicate the thrombosed hemorrhoids had resolved. However, the physical exam noted small soft anal skin tags. While no anal fissure was visualized, the assessment was that the Veteran most likely had an anal fissure which was causing his pain and bleeding. He was referred for a colonoscopy, which was normal in March 2017. In June 2017 the Veteran’s hemorrhoids were stable. The Veteran was hospitalized in March 2018 for external, painful hemorrhoids with a small amount of bleeding for five days. He underwent no procedures and was discharged with home medications to manage his hemorrhoids. See March 2018 VA treatment records. Two weeks later he was seen in follow-up, where it was noted the hemorrhoid reduced on its own with some residual itching but no pain or bleeding. No external hemorrhoids were present on examination. The Veteran elected conservative management. See April 2018 VA treatment records. At the January 2020 VA examination, upon which the Veteran was granted a 10 percent rating, the Veteran reported waxing and waning hemorrhoids treated with cream and suppositories, with flare-ups consisting of itching, burning, and pain. No hemorrhoids were present on examination. However, the examiner characterized the Veteran’s hemorrhoids as large or thrombotic, irreducible with excessive redundant tissue, evidencing frequent recurrences. Regarding the March 2016 VA examination, the Veteran contends that this examination was not thorough, and the examiner missed some of the Veteran’s symptoms. See June 2016 Notice of Disagreement. Accordingly, the Board remanded for an additional VA examination in December 2019. Considering the evidence of records, the Board finds the March 2016 VA examination findings were inconsistent with the preponderance of the medical evidence, including VA treatment records before and after the examination. Accordingly, it is given little weight. After a careful review of the evidence of record, the Board finds that a rating of 10 percent, but no higher, is warranted for the entire period on appeal. The Board finds that the Veteran’s consistent and competent reports of recurring hemorrhoids and frequent bleeding, VA treatment records indicating frequent recurrences and at least one occurrence of thrombosed hemorrhoids, and the VA examiners’ findings of anal skin tags are consistent with the criteria for a 10 percent rating. The Board finds that a higher, 20 percent rating, is not warranted at any time during the appellate period. Though January 2017 VA treatment records indicated a probable fissure based on reported symptoms, a follow-up colonoscopy was normal. The medical evidence, based on review of the Veteran’s condition and based on medical expertise related to what constitutes a fissure, is the most probative evidence regarding the presence of fissures. The Veteran is competent to report symptoms but is not competent to diagnose a fissure. Therefore, the Board finds that at no time during the appellate period has the lay or medical evidence of record demonstrated either secondary anemia or fissures, one of which is required in conjunction with persistent bleeding to warrant a 20 percent rating. In conclusion, the Board finds the Veteran’s hemorrhoids warrant a 10 percent rating for the entire appellate period. To the extent that the Veteran contends entitlement to a higher rating, the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to a 50 percent disability rating, but no higher, for migraines, prior to May 24, 2012 The Veteran contends that he is entitled to a 50 percent rating as of February 18, 2011, the date he first filed a claim for an increased rating. As an initial matter, the Board notes that a claim for an increased rating for migraines was received on February 18, 2011, resulting in a September 2011 rating decision denying a rating greater than 30 percent. The Veteran did not file a notice of disagreement to this rating decision. However, a rating decision is not final if the Veteran files a notice of disagreement, or new and material evidence is received, within one year of notification of the decision. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156(b), 20.200, 20.300, 20.1103. On May 24, 2012, within one year of the September 2011 rating decision, the Veteran filed a supplemental claim for increased rating for migraines. In August 2012 he was afforded a VA examination for his migraines. The Veteran then filed a claim for TDIU in September 2012. A September 2013 rating decision continued the Veteran’s rating for migraines, but a May 2014 rating decision increased the Veteran’s rating to 50 percent effective September 12, 2012, the date of his claim for TDIU. The Veteran timely appealed, requesting an earlier effective date of February 18, 2011 based on his initial claim for an increased rating. Accordingly, in a June 2016 rating decision, the RO increased his rating to 50 percent effective May 24, 2012, the date the second increased rating claim was received. The Veteran did not appeal the September 2011 rating decision. However, the May 2012 supplemental claim was filed within one year of the September 2011 rating decision, and the August 2012 VA examination constituted new and material evidence associated with the file within that year. Accordingly, the Board finds the September 2011 rating decision was not final based on new and material evidence being added to the record within one year of the earlier rating decision; thus, this claim has been pending since February 18, 2011. The remaining question for the Board is whether the Veteran is entitled to a 50 percent rating between February 18, 2011 and May 24, 2012. The Veteran contends his condition warrants a 50 percent rating effective February 18, 2011 despite contrary findings in the March 2011 and August 2012 VA examinations. In support of this, he points to VA treatment records in the 18 months prior to the August 2012 VA examination indicating reports of frequent reoccurring headaches that interfere with his work and daily activities. See May 2020 VA 646. The Veteran reports his migraines were prostrating prior to 2011, causing him to miss many days of work. See August 2013 and June 2020 Statements in Support of Claim; August 2016 Substantive Appeal. Further, the Veteran contends that the March 2011 VA examination was inadequate and misstated the severity of his symptoms and impact on work. See August 2020 IHP. Migraine headaches are rated pursuant to 38 C.F.R. § 4.124a, Diagnostic Code (DC) 8100, for migraine. Under DC 8100, a noncompensable rating is warranted for migraines with less frequent attacks. A 10 percent rating is warranted for migraines with characteristic prostrating attacks averaging one in 2 months over the last several months. A 30 percent rating is warranted for migraines with characteristic prostrating attacks occurring on an average once a month over the last several months. A 50 percent rating is warranted for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. A 50 percent rating is the highest schedular rating under DC 8100. The rating criteria of DC 8100 are considered successive, meaning that a claimant cannot fulfill the criteria of the higher rating without fulfilling those of the next lower rating. Johnson v. Wilkie, 30 Vet. App. 245, 252 (2018). The phrase “characteristic prostrating attacks” is used in the criteria corresponding to 10 percent and 30 percent ratings under DC 8100 to describe the nature and severity of migraines, but it is not defined in the regulation. Pursuant to Dorland’s Illustrated Medical Dictionary 1531 (32d ed. 2012), prostration is defined as “extreme exhaustion or powerlessness.” Thus, the phrase “characteristic prostrating attacks” is understood to describe migraine attacks that typically produce extreme exhaustion or powerlessness. The descriptive phrase “very frequent” connotes a frequency at least greater than once a month, as is required by the rating criteria corresponding to a lesser 30 percent rating. Johnson, 30 Vet. App. at 253. The phrase “completely prostrating” generally means that the migraines attack must render the veteran entirely powerless. Id. The completely prostrating attacks must also be “prolonged,” which is defined as “to lengthen in time: extend duration: draw out: continue, protract.” Id. (internal citation omitted). Lastly, the 50 percent rating criteria requires that the very frequent completely prostrating and prolonged attacks be “productive of severe economic inadaptability.” Productive can be read as having either the meaning of “producing” or “capable of producing,” and, with regard to severe economic inadaptability, nothing in DC 8100 requires that the claimant be completely unable to work in order to qualify for a 50 percent rating. Pierce v. Principi, 18 Vet. App. 440, 445-46 (2004). The Board concludes that, as of February 18, 2011, the Veteran has had very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability, corresponding to the criteria for a 50 percent rating under DC 8100. At a November 2009 VA examination the Veteran reported two to three episodes per week of migraines with nausea and sensitivity to light and sounds, and that they can take from hours to three days to resolve. To relieve his migraines, he reported having to take medicine and lay down in a dark room. Further, his migraines affect work and activities of daily living. The Veteran reported migraines with nausea in February 2011 VA treatment records. At a March 2011 VA examination, the Veteran reported combination tension and migraine headaches three times per week with occasional nausea and emesis, and light and sound sensitivity. He reported that most attacks are prostrating and last for hours. His medications cause side effects of nausea, sedation, and constipation. The examiner indicated there was no effect on his work or activities of daily living. At the August 2012 VA examination, the Veteran reported migraines that last from two to five days and are associated with nausea and sensitivity to light and sound. He reported prostrating attacks more than once per month. The examiner opined that he had very frequent prostrating and prolonged attacks. The Veteran also reported not being able to work due to migraines, though he worked out daily, mowed the yard, and volunteered at his church. October 2011 and September 2012 VA treatment records reflect continued headaches multiple times per week lasting from hours to up to five days. The Veteran reported a hospitalization in June 2012 for a four-day migraine. In December 2012 he reported occasional headaches. In March 2013 he reported two to three migraines per week with aura which interfere with his daily activities and work. See also October 2013 and March 2014 VA treatment records. The Veteran is competent to report his readily observable symptoms. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran’s reports regarding the frequency and severity of his migraines are generally consistent throughout the record. Additionally, the Veteran’s statements are generally consistent regarding missing days of work due to symptoms, and consistent with the objective medical evidence reflective of a long history of uncontrolled, frequent prostrating migraines. Accordingly, the Board finds his statements to be credible. As above, the Veteran contends that the March 2011 VA examination was inadequate. The probative value of medical opinion evidence is based on the medical expert’s personal examination of the patient, the physician’s knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Whether a physician provides a basis for his or her medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician’s access to the claims folder and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000); Nieves-Rodriguez, 22 Vet. App. 295 (2008). Considering all relevant evidence of record, the Board finds the August 2012 VA examination to be more probative than the March 2011 VA examination. Here, the August 2012 opinion was provided by a VA medical professional who possesses the necessary education, training, and expertise to provide the requested opinions. Additionally, the opinion is also shown to have been based on a review of the Veteran’s record and is accompanied by a sufficient explanation as to why the Veteran’s migraines are very frequent prostrating attacks. The opinion is also consistent with competent and credible lay and medical evidence prior to and after the examination. In contrast, the March 2011 opinion was internally inconsistent and inconsistent with other competent and credible evidence of record indicating an impact on work and daily activities. Accordingly, the Board concludes that the Veteran has had migraines with very frequent completely prostrating attacks occurring on average more than once per month, productive of severe economic inadaptability as of February 18, 2011, the date of his initial increased rating claim, corresponding to the criteria for a 50 percent rating under DC 8100. A 50 percent rating is the maximum rating available under DC 8100. The Board notes that the Veteran does not contend, and the record does not show, entitlement to a rating greater than 50 percent on an extraschedular basis. REASONS FOR REMAND Entitlement to a total disability rating due to individual unemployability is remanded. Unfortunately, there has not been substantial compliance with the Board’s previous remand directives regarding obtaining Vocational Rehabilition records as there is no indication in the claims file that the RO attempted to obtain the records. Another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). The matters are REMANDED for the following action: 1. Obtain updated VA treatment records. 2. Obtain records of Vocational Rehabilitation participation and associate with the claims file. All attempts to obtain the records must be documented in the claims file. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K.L. Blevins, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.