Citation Nr: 21004325 Decision Date: 01/26/21 Archive Date: 01/26/21 DOCKET NO. 13-30 361 DATE: January 26, 2021 REMANDED Entitlement to an initial compensable rating for external hemorrhoids is remanded. Entitlement to an initial evaluation in excess of 10 percent for right knee patellofemoral syndrome is remanded. Entitlement to an initial evaluation in excess of 10 percent for left knee patellofemoral syndrome is remanded. Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) prior to October 9, 2019 is remanded. REASONS FOR REMAND The Veteran had active service from January 2009 to June 2011. These matters come before the Board of Veterans’ Appeals (Board) on appeal of an April 2012 rating decision issued by a Regional Office (RO) of the Department of Veterans Affairs (VA). The April 2012 rating decision, in pertinent part, granted service connection for right knee patellofemoral syndrome, left knee patellofemoral syndrome, and external hemorrhoids, and assigned noncompensable ratings for each disability, effective from June 2, 2011. During the pendency of the appeals for a higher initial ratings for the Veteran’s right and left knee disabilities, a January 2019 rating decision granted 10 percent ratings for each knee effective from July 17, 2018 and a June 2019 rating decision granted 10 percent ratings for each knee effective from June 2, 2011. Because these increased evaluations do not represent a grant of the maximum benefits allowable under the VA Schedule for Rating Disabilities, the Veteran’s appeal as to these issue remain in appellate status. AB v. Brown, 6 Vet. App. 35, 38 (1993). These matters were previously before the Board in September 2018, when they were remanded for further development. They now return for appellate review. Additional relevant evidence developed by VA, to include additional VA treatment records and a January 2020 knee and lower leg conditions disability benefits questionnaire (DBQ), was associated subsequent to the most recent, June 2019 Supplemental Statement of the Case (SSOC) issued for the appeal herein, and after transfer of the appeal to the Board. In November 2020, VA sent a letter to the Veteran and her representative inquiring whether they wished to waive AOJ review of this new evidence. They were informed that if they did not respond within 45 days, VA would assume that they did not waive AOJ review. No response has been received. In these circumstances, the law requires that the Board return the appeal to the AOJ for initial consideration of the new evidence. 38 C.F.R. §§ 19.37(b), 20.1305(c). In August 2019 applications for TDIU, the Veteran, in part, raised entitlement to a TDIU as part and parcel of her claims for increased initial ratings her external hemorrhoids and right and left knee disabilities. Rice v. Shinseki, 22 Vet. App. 447 (2009). As noted above, service connection was awarded for the Veteran’s external hemorrhoids and right and left knee disabilities from June 2, 2011. During the pendency of these claims, a December 2019 rating decision granted special monthly compensation (SMC) under 38 U.S.C. § 1114(s) on account of unspecified depressive disorder with unspecified psychotic disorder, rated 100 percent and additional service-connected disabilities of right ankle lateral collateral ligament sprain with tendonitis and migraine headaches, independently ratable at 60 percent or more from October 9, 2019. As the Veteran has already been awarded a 100 percent schedular rating and SMC under 38 U.S.C. § 1114(s) as of October 9, 2019, no additional benefits may be paid by an award of a TDIU from October 9, 2019, the holding in Bradley is not applicable for the period from October 9, 2019, and the matter of entitlement to a TDIU from October 9, 2019 is moot and not for adjudication by the Board. See Bradley v. Peake, 22 Vet. App. 280, 294 (2008). However, as such is not in effect prior to October 9, 2019, the issue of entitlement to a TDIU, remains on appeal for the period prior to October 9, 2019. As a final initial matter, in a statement associated with the record in September 2020, the Veteran’s representative explained that due to staffing and program changes, they no longer wished to be a co-located Veteran Service Organization at the Board and, as such, would no longer have the opportunity to submit an Informal Hearing Presentation (IHP). Accordingly, as the Veteran’s representative will not provide an IHP, the Board may proceed with appellate review. 1. Entitlement to an initial compensable rating for external hemorrhoids is remanded. As discussed above, additional relevant evidence developed by VA, to include additional VA treatment records, was associated with the record subsequent to the most recent, June 2019 SSOC, issued, in part, as to the increased initial rating claim for the Veteran’s external hemorrhoids, and after transfer of the claim to the Board. Neither the Veteran or her representative waived AOJ review of this additional evidence nor did they respond to VA correspondence inquiring whether they wish to waive AOJ review of this new evidence. Thus, a remand for AOJ consideration of this evidence is warranted. Additionally, in an August 2019 application for benefits, the Veteran claimed anal fissures as a separate disability; however, this disability part of the assigned rating criteria, under Diagnostic Code 7336, for external or internal hemorrhoids, and a January 2020 VA treatment record, documented, in part, the Veteran was using hydrocortisone Anusol supplements, a Xulane patch, and witch hazel to treat her hemorrhoids. As the record reflects the Veteran’s service-connected external hemorrhoids may have increased in severity since she was last examined by VA in August 2018, she should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of hemorrhoids. 2. Entitlement to an initial evaluation in excess of 10 percent for right knee patellofemoral syndrome is remanded. 3. Entitlement to an initial evaluation in excess of 10 percent for left knee patellofemoral syndrome is remanded. As discussed above, additional relevant evidence developed by VA, to include a January 2020 knee and lower leg conditions DBQ, was associated with the record subsequent to the most recent, June 2019 SSOC, issued, in part, as to the increased initial rating claim for the Veteran’s right and left knee disabilities, and after transfer of the claim to the Board. Neither the Veteran or her representative waived AOJ review of this additional evidence nor did they respond to VA correspondence inquiring whether they wish to waive AOJ review of this new evidence. Thus, a remand for AOJ consideration of this evidence is warranted. The record also reflects the Veteran receives private treatment, treatment from the Naval Medical Center San Diego and treatment from the VA San Diego Healthcare System. Thus, in light of the remand for other matters, updated records for private treatment, treatment from the Naval Medical Center San Diego, since March 2019, and VA treatment records from the VA San Diego Healthcare System, to include all associated outpatient clinics, since February 2020, should be obtained and associated with the claims file. 4. Entitlement to TDIU prior to October 9, 2019 is remanded. As discussed above, issue of entitlement to a TDIU prior to October 9, 2019 is, in part, based on the Veteran’s service-connected external hemorrhoids and right and left knee disabilities. Thus, as the issue of entitlement to a TDIU is intertwined with the increased initial rating claims for external hemorrhoids and right and left knee disabilities, adjudication of the issue of entitlement to a TDIU prior to October 9, 2019 must be deferred pending completion of the actions requested below. Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following actions: 1. Obtain any of the Veteran’s updated VA and non-VA treatment records, including: a. from the VA San Diego Healthcare System, from February 2020 to the present, and b. from the Naval Medical Center San Diego, from March 2019 to the present. 2. Ask the Veteran to complete a VA Form 21-4142 for updated records for any relevant private medical providers. Make two requests for the authorized records from any identified medical providers, unless it is clear after the first request that a second request would be futile. 3. Schedule the Veteran for an examination and a medical opinion by an appropriate clinician to determine the current severity of her service-connected hemorrhoids. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. In particular the opinion should address whether the Veteran has had anal fissures during the appeal (in an August 2019 application for benefits, the Veteran claimed anal fissures). 4. Thereafter, readjudicate the issues on appeal with review of all evidence received since the last prior adjudication of the Veteran’s claims, and also adjudicate entitlement to a TDIU prior to October 9, 2019. If any benefit sought is not granted, furnish the Veteran and her representative with a supplemental statement of the case   and afford them an opportunity to respond before the record is returned to the Board for further review. M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Espinoza, 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.