Citation Nr: 21066634 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 18-41 435 DATE: November 1, 2021 ORDER 1. Entitlement to an increased rating in excess of 10 percent for reoccurring rectal abscess with thrombosed hemorrhoids is denied. 2. Entitlement to an increased rating in excess of 10 percent for right inguinal hernia is denied. REMANDED 3. Entitlement to a compensable rating for hearing loss is remanded. FINDINGS OF FACT 1. The Veteran's reoccurring rectal abscess with thrombosed hemorrhoids is not manifested with occasional involuntary bowel movements, necessitating wearing of pad and is not manifested with hemorrhoids with persistent bleeding and with secondary anemia, or with fissures. 2. The Veteran's right inguinal hernia is not manifested by a small, postoperative recurrent hernia, or unoperated irremediable hernia that is not well supported by truss, or not readily reducible. CONCLUSIONS OF LAW 1. The criteria for an increased rating in excess of 10 percent for reoccurring rectal abscess with thrombosed hemorrhoids have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.114, DC 7336-7332. 2. The criteria for an increased rating in excess of 10 percent for right inguinal hernia have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.114, DC 7338. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from June 1974 to October 1977. The Veteran testified at a virtual hearing before the undersigned Veterans Law Judge in May 2020. The Board notes that the Veteran has a separate appeal stream for the issue of entitlement to a clothing allowance due to a service-connected disability which will be addressed in a separate decision at a later date. Increased Rating Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects the Veteran's ability to function under the ordinary conditions of daily life, including employment, by comparing the Veteran's symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 C.F.R. Part 4. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. 1. Entitlement to an increased rating in excess of 10 percent for reoccurring rectal abscess with thrombosed hemorrhoids In an October 2011 Board decision, the Veteran was granted service connection for recurring perirectal abscess. In a November 2011 rating decision implementing the October 2011 Board decision, the disability was recharacterized as reoccurring rectal abscess and assigned a 10 percent rating effective November 3, 2005. In a January 2014 rating decision, the disability was recharacterized as reoccurring rectal abscess with thrombosed hemorrhoids and the 10 percent rating was continued. In a June 2014 rating decision, it was proposed to reduce the 10 percent rating to a noncompensable rating. In a February 2015 rating decision, the 10 percent rating was continued. In the August 2017 rating decision currently on appeal, the 10 percent rating was once again continued. This disability is rated under DC 7336-7332. Hyphenated DCs are used when a rating under one DC requires use of an additional DC to identify the basis for the disability rating assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. DC 7336 pertains to external or internal hemorrhoids. DC 7332 pertains to the impairment of sphincter control of the rectum and anus. 38 C.F.R. § 4.114, DCs 7332, 7336. Under DC 7332, for impairment of sphincter control of the rectum and anus, a 10 percent rating is warranted for constant slight or occasional moderate leakage. A 30 percent rating is warranted for occasional involuntary bowel movements, necessitating wearing of pad. A 60 percent rating is warranted for extensive leakage and fairly frequent involuntary bowel movements. A maximum 100 percent rating is warranted for complete loss of sphincter control. Under DC 7336, hemorrhoids, external or internal, a 10 percent rating is warranted when hemorrhoids are large or thrombotic, irreducible, with excessive redundant tissue, evidencing frequent recurrences. A maximum 20 percent rating is warranted when there are hemorrhoids with persistent bleeding and with secondary anemia, or with fissures. At the May 2020 Board hearing, the Veteran testified that he experiences rectal abscesses and related pain on a regular basis. Although the Veteran reported that the frequency of the symptoms has decreased, he stated that when they do appear, they cause the Veteran a significant degree of difficulty. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the award of an increased rating in excess of 10 percent for reoccurring rectal abscess with thrombosed hemorrhoids. The reasons follow. The evidence shows that the Veteran's reoccurring rectal abscess with thrombosed hemorrhoids is not manifested with occasional involuntary bowel movements, necessitating wearing of pad and is not manifested with hemorrhoids with persistent bleeding and with secondary anemia, or with fissures. Although the October 2013 VA examination and June 2014 VA examinations are prior to the period on appeal, the Board makes reference to these records as later treatment records state that there are no changes to symptoms reported prior to the appeal period. At the October 2013 VA examination, the Veteran stated that he did not experience hemorrhoids but experienced rectal abscesses that needed to be drained. At the June 2014 VA examination, the Veteran once again reported rectal abscesses, and noted itchiness, irritation, pain, bleeding, and constipation when he did have an active rectal abcess. The Veteran reported that the abcess will stay for seven to 10 days. With respect to these earlier records, in VA treatment records from January 2017, February 2017, March 2017, April 2017, June 2017, February 2018, April 2018, May 2018, and June 2018 the Veteran stated that he did not have any bowel or bladder changes. These records do not support a finding that the Veteran's rectal disability is manifested by occasional involuntary bowel movements, necessitating wearing of pad and is not manifested with hemorrhoids with persistent bleeding and with secondary anemia, or with fissures. In the August 2017 VA examination report, the examiner concluded the Veteran experienced mild intermittent perianal pain with relation to his hemorrhoids; however, the examiner documented no hemorrhoids, anal fissures, or other abnormalities were found on examination. The Veteran did not report involuntary bowel movements or leakage to the examiner. The examiner noted that the course of the Veteran's condition had stayed the same since its onset. The clinical findings documented in this examination report also do not support a finding that the Veteran's disability is manifested by occasional involuntary bowel movements, necessitating wearing of pad and does not support a finding that this disability is manifested with hemorrhoids with persistent bleeding and with secondary anemia, or with fissures or symptoms of similar severity. In a September 2017 VA treatment record, it was documented that the Veteran had no external hemorrhoids. In another September 2017 VA treatment record, the Veteran underwent a rectal examination that found that no sphincter defects were appreciated. In a January 2018 VA treatment record, it was documented that the Veteran underwent a recent hospitalization where his rectal abscess was drained, however upon examination no fistulas were found. A June 2018 VA treatment record shows the Veteran reported that his rectal abscess was stable and that he was not concerned about it. In a January 2021 VA treatment record, the Veteran reported that his rectal cyst is under control and is doing very well. In an August 2021 VA treatment record, the Veteran was found to have normal findings after perianal and digital rectal examinations. These records also do not support that the Veteran meets the criteria for an increased rating under the relevant diagnostic criteria. At the May 2020 Board hearing, the Veteran testified that due to the continuous bleeding from his rectal abscess, he is required to wear a pad to protect his clothing. However, as the Veteran wears a pad due to bleeding, but not due to bowel movements, this evidence does not support that his disability results in occasional involuntary bowel movements that necessitates wearing of pad, which is the criteria necessary to warrant a 30 percent rating under DC 7332. At the May 2020 Board hearing, the Veteran stated that he was counseled on surgical intervention for his disability, but due to its low probability of success, he did not pursue such a treatment. In a May 2021 VA Form 21-4138, Statement in Support of Claim, the Veteran wrote that his rectal disability causes difficulty with working, walking, and laying down. The Veteran also stated that he experiences pain from his rectal abscess. To the extent that the Board is denying entitlement to a disability rating in excess of 10 percent, the Board notes specifically that the Veteran's reports of severe symptoms related to his rectal abscesses and medical recommendations by his VA treatment providers have been considered in evaluating the Veteran's reoccurring rectal abscess with thrombosed hemorrhoids. See 38 C.F.R. § 4.6. In sum, for the reasons laid out above, the preponderance of the evidence is against a disability rating in excess of 10 percent for reoccurring rectal abscess with thrombosed hemorrhoids is warranted. As the preponderance of the evidence is against the claim for a higher rating, the benefit of the doubt doctrine is not for application, and the Veteran's claim for an increased rating is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. 2. Entitlement to an increased rating in excess of 10 percent for right inguinal hernia In a June 1978 rating decision, the Veteran was granted service connection for right inguinal hernia and assigned a noncompensable rating, effective October 7, 1977. In a July 2008 rating decision, the Veteran was assigned a 10 percent rating, effective February 26, 2008. Rating decisions from August 2009, April 2013, and October 2015 continued the 10 percent rating. In the August 2017 rating decision currently on appeal, the 10 percent rating was once again continued. The Veteran's service-connected right inguinal hernia is rated under 38 C.F.R. § 4.114, DC 7338. Under DC 7338, a 10 percent evaluation is warranted if a hernia is postoperative recurrent, readily reducible and well supported by truss or belt. A 30 percent evaluation is warranted for a small, postoperative recurrent hernia, or unoperated irremediable hernia that is not well-supported by truss, or not readily reducible. A maximum schedular evaluation of 60 percent is warranted for a large, postoperative recurrent hernia that is not well-supported under ordinary conditions and not readily reducible, when it is considered inoperable. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the award of an increased rating in excess of 10 percent for right inguinal hernia. The reasons follow. The evidence shows that the Veteran's right inguinal hernia does not result in a small, postoperative recurrent hernia, or unoperated irremediable hernia that is not well-supported by truss, or not readily reducible, to warrant a 30 percent rating. Instead, the Veteran's right inguinal hernia was found to be a small hernia that can be well supported by truss or belt, as documented in the August 2017 VA examination report. The August 2017 VA examiner noted that the Veteran had not undergone surgery for his hernia, which means that the Veteran's hernia cannot be evaluated as "postoperative" regardless of size or recurrence. In a January 2018 VA treatment record, the Veteran reported that he has an abdominal binder for his ventral hernia. An April 2018 VA treatment record documents the Veteran requested a new binder for his hernia. These records do not support that the Veteran's hernia was not well supported by a truss or binder, or that his hernia was not readily reducible. In fact, due to the Veteran's continued use of the abdominal binder, the evidence shows that the hernia is well supported by a binder. At the May 2020 Board hearing, the Veteran testified that he experiences pain that comes and goes in relation to his hernia. The Veteran stated that he experiences pain while performing regular activities, such as loading dishes into his dishwasher or while lifting anything above 10 pounds. This evidence does not support that the Veteran's hernia was not well supported by a truss or binder, or that his hernia was not readily reducible. A January 2021 VA treatment record shows the Veteran reported that his hernia was "flaring up" and is more noticeable. With regard to this record, although the Veteran utilizes an abdominal binder and has regularly sought treatment for numerous medical issues, he did not report any issues with regard to his binder or that his hernia was not reducible, nor were such problems documented by VA treatment providers. Accordingly, the Board finds that the Veteran's report of a flared hernia does not constitute evidence that the Veteran's hernia was not well supported by a truss or binder, or that his hernia was not readily reducible. In sum, the preponderance of the evidence is against a disability rating in excess of 10 percent for right inguinal hernia is warranted. As the preponderance of the evidence is against the claim for a higher rating, the benefit of the doubt doctrine is not for application, and the Veteran's claim for an increased rating is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. REASONS FOR REMAND 3. Entitlement to a compensable rating for bilateral hearing loss is remanded. At the May 2020 Board hearing, the Veteran asserted that his hearing loss disability has increased in severity since he was last examined by VA, which was in August 2017. The Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of service-connected hearing loss. The matter is REMANDED for the following action: Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of the service-connected bilateral hearing loss. A. P. SIMPSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Husain, 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.