Citation Nr: 21067230 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 15-03 617A DATE: November 3, 2021 REMANDED Entitlement to a compensable rating for hemorrhoids, prior to November 14, 2013, is remanded. Entitlement to an increased rating in excess of 20 percent for hemorrhoids, since November 14, 2013, is remanded. Entitlement to an increased rating in excess of 20 percent for postoperative bond block, secondary to anterior subluxation of perineal tendon, of the left ankle is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from June 1984 to April 1987 and from November 1990 to May 1991, and additional service in the Army National Guard. This appeal arises from a June 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) denying an increased rating claim in excess of 10 percent for postoperative bond block secondary to anterior subluxation of perineal tendon, left ankle, and a TDIU. This appeal also arises from a February 2015 rating decision, which increased the Veteran's service-connected hemorrhoids to 20 percent disabling, effective November 14, 2013. In November 2018, the Board of Veterans' Appeals (Board) remanded the case for additional development and consideration. In April 2020, the Board issued a decision denying the increased rating claims for hemorrhoids and the left ankle disability, a compensable rating for bilateral hearing loss, and a TDIU rating. On appeal, the U.S. Court of Appeals for Veterans Claims (Court) issued a January 2021 Order that granted a January 2021 Joint Motion for Remand (JMR) and vacated the Board's denials of the hemorrhoids, left ankle and TDIU claims, but did not disturb the denial of a compensable rating for bilateral hearing loss. The remaining issues were returned to the Board for further consideration. Pursuant to the JMR the Board remanded the case in May 2021 and it has now been returned for further appellate consideration. 1. Entitlement to a compensable rating for hemorrhoids, prior to November 14, 2013 is remanded. 2. Entitlement to an increased rating in excess of 20 percent for hemorrhoids since November 14, 2013 is remanded. The April 2020 Board denials of a compensable rating prior to November 14, 2013 and a rating greater than 20percent for hemorrhoids since November 14, 2013 were vacated pursuant to a JMR for two reasons. First, the JMR stated Board errored in considering the effects of medication, as reported at a September 2012 VA rating examination, citing Jones v. Shinseki, 26 Vet. App. 56, 63 (2012), because the use of medication is not a rating criterion in 38 C.F.R. § 4.114, Diagnostic Code 7336. Second, the JMR stated there was error in not addressing the probative value of the Veteran's lay statements. Specifically, (a) the Veteran's statement at the September 2012 rating examination of experiencing large or thrombotic, irreducible hemorrhoids with excessive redundant tissue and frequent recurrences with persistent bleeding, and (b) his description in a July 2013 VA treatment record of having a "a [l]ot" of hemorrhoidal bleeding, resulting in a loss of approximately one half a cup of blood. Although the 20 percent rating currently assigned is the maximum schedular rating, the JMR also stated that as to the period since the 20 percent rating has been assigned, i.e., since November 14, 2013, the Board should consider if a higher rating than 20 percent was warranted "without" considering the Veteran's use of medication and in doing so should address the Veteran's April 2013 statement that he had "bad issues with [hemorrhoids] because his correctional institution was not letting him have his medications and that he had 'passed out [eight] or [nine] times from pain being so bad." See JMR at page 4. Thus, a May 2021 Board remand requested "a retrospective medical opinion ... to determine the severity of the Veteran's hemorrhoids both prior to November 14, 2013, and since November 14, 2013, to include addressing effect of the Veteran's hemorrhoids on any occupational functioning and activities of daily living. The examiner was requested to reconcile the Veteran's lay statements as to the severity of his hemorrhoid symptoms, without considering the ameliorative effects of prescribed hemorrhoidal medication. This was to include consideration of (a) the notation by the September 2012 VA hemorrhoid examiner that the Veteran described experiencing large or thrombotic, irreducible hemorrhoids with excessive redundant tissue and frequent recurrences with persistent bleeding; (b) the Veteran' report in an April 2013 statement that pain from his hemorrhoids was so severe that it caused him to lose consciousness; (c) the Veteran's report in a July 2013 VA treatment record of "a [l]ot" of hemorrhoidal bleeding, resulting in about a one half cup of blood; and (d) at his February 2019 VA hemorrhoids examination, he reported occasional rectal discomfort and very minor bleeding on the toilet paper. The Veteran was then provided an additional VA hemorrhoid rating examination in August 2021, at which time he reported having mild hemorrhoidal bleeding, with irritation and itching. Noting that the Veteran used stool softeners and suppositories, the examiner stated that the Veteran's hemorrhoidal condition had improved and he had only mild or moderate hemorrhoids, with no actual external hemorrhoids and only skin tags. The examiner reported that the hemorrhoidal condition did not impact the Veteran's ability to work. The examiner's response to the queries posed in the May 2021 remand consisted only of a summary of the findings of the August 2021 rating examination and stating that such findings were consistent with findings at the February 2019 rating examination. However, the examiner did not render a "retrospective" medical opinion as requested in the May 2021 remand. Specifically, the examiner did not address the severity of the condition prior to November 14, 2013, including addressing the significance, if any, of the lay evidence described above. Also, the examiner did not address the severity of the condition since November 14, 2013, including addressing the significance, if any, the lay evidence described above, including the Veteran's report at the February 2019 VA hemorrhoids examination of rectal bleeding. Accordingly, the claims for a compensable rating prior to November 14, 2013 and for a rating in excess of 20percent thereafter for hemorrhoids must be remanded for compliance with the May 2021 Board remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 3. Entitlement to an increased rating in excess of 20 percent for postoperative bond block, secondary to anterior subluxation of perineal tendon, of the left ankle is remanded. An April 2020 Board decision denial of a rating in excess of 10 percent for postoperative bond block, secondary to anterior subluxation of perineal tendon, left ankle (left ankle disability) was vacated pursuant to a JMR, which noted that a February 2014 VA examiner related the Veteran's report of flareups of left ankle disability and that it impacted the function of the ankle, but there was no limitation of motion (LOM) due to flare-ups. The JMR stated that the conclusion that there was no LOM due to flare-ups did not "reflect whether the examiner elicited information on LOM due to flare-ups from [the Veteran] or whether such information as to LOM during flare-ups could be gleaned from medical records or other sources." Further, the JMR noted that at a s February 2019 VA examination the Veteran again reported experiencing flares that interfered with his ability to walk. Although that examination was not done during a flare-up, the examiner was unable to describe the flareups in terms of range of motion because "[t]he degree of [ROM] changes varies depending on the level severity of the symptoms and cannot be expressed in terms of one set of values." The JMR stated that it was "unclear if the February 2019 VA examiner's statement was predicated on a lack of knowledge among the 'medical community at large' and not on insufficient information or unprocured testing" in accordance with the holding in Sharp v. Shulkin, 29 Vet. App. 26, 35 (2017). The Board remanded the claim in May 2021 for an examination to "specifically test both passive and active range of motion for the Veteran's left ankle condition, in weight-bearing and non-weight-bearing, indicating on both right and left ankles where any pain begins. If the examiner finds that active and passive range of motion cannot be tested, explain why, with a complete rationale." The Veteran was afforded an additional VA rating examination in February 2021. However, the examination did not include, as requested in the 2021 remand, testing of both passive and active left ankle range of motion, or testing of left ankle motion in weight-bearing and non-weight-bearing, indicating on both right and left ankles where any pain begins. Also, as to flare-ups, the February 2021 examination was not conducted during a flare but said no more than that the procured evidence, including the Veteran's statements, did not suggest that that pain, fatigability, weakness, lack of endurance, or incoordination significantly limited functional ability during flare-ups. The report of the February 2021 examination gives no indication that there was any attempt by the examiner to estimate the Veteran's range of left ankle motion during a flare-up, and there was no explanation of why such an estimate could not be made. As noted in the JMR, at pages 4 and 5, quoting Sharp v. Shulkin, 29 Vet. App. 26, 36 (2017), "before the Board can accept an examiner's statement that an opinion cannot be provided without resort to speculation, it must be clear that this is predicated on a lack of knowledge among the 'medical community at large'" and not on insufficient information or unprocured testing." Accordingly, the Veteran must be afforded another VA rating examination which complies with the instructions within the May 2021 Board remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 4. Entitlement to a TDIU rating is remanded. The issue of entitlement to a TDIU rating is inextricably intertwined with the increased rating claims on appeal. Thus, the adjudication of the claim is deferred. However, the Board notes that the JMR stated that "the Board did not define "sedentary work," as required under Withers v. Wilkie, 30 Vet. App. 139, 143 (2018)." This matter will be addressed if the claim for a TDIU rating is returned following the development requested herein. The matters are REMANDED for the following action: 1. Return the report of the August 2021 examination conducted for rating the service connected hemorrhoids for addendum opinions which comply with the comments above. If the examiner that conducted the August 2001 examination is unavailable, the requested opinions should be rendered by another qualified clinician. The opining clinician should render a retrospective medical opinion to determine the severity of the Veteran's hemorrhoids both prior to November 14, 2013, and since November 14, 2013. Specifically, as to entitlement to a compensable rating prior to November 14, 2013, the examiner should address the significance, if any, of: (a) the notation by the September 2012 VA hemorrhoid examiner that the Veteran described experiencing large or thrombotic, irreducible hemorrhoids with excessive redundant tissue and frequent recurrences with persistent bleeding; (b) the Veteran' report in an April 2013 statement that pain from his hemorrhoids was so severe that it caused him to lose consciousness; and; (c) the Veteran's report in a July 2013 VA treatment record of "a [l]ot" of hemorrhoidal bleeding, resulting in about a one half cup of blood. Also, as to period prior to November 14, 2013, the examiner should discuss the effect of the Veteran's hemorrhoids on any occupational functioning and activities of daily living. A complete rationale should be provided but consideration may not be given to the ameliorative effects of prescribed medication taken for treatment of the hemorrhoids. As to entitlement to rating in excess of 20percent since November 14, 2013, the examiner should address the significance, if any, of [as noted above] (d) that at his February 2019 VA hemorrhoids examination, the Veteran reported occasional rectal discomfort and very minor bleeding on the toilet paper. As to period since November 14, 2013, the examiner should discuss the effect of the Veteran's hemorrhoids on any occupational functioning and activities of daily living. A complete rationale should be provided but consideration may not be given to the ameliorative effects of prescribed medication taken for treatment of the hemorrhoids. If the requested opinions cannot be rendered, the examiner must explain why this is so. 2. Schedule the Veteran for an examination of the current severity of his left ankle disability. 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. The examiner must specifically test both passive and active range of motion for the Veteran's left ankle condition, in weight-bearing and non-weight-bearing, indicating on both right and left ankles where any pain begins. If the examiner finds that active and passive range of motion cannot be tested, explain why, with a complete rationale. The examination must also include an opinion on the issue of functional loss with repeated use over time, or adequately explain why an opinion cannot be provided. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. The examiner must also elicit and consider the Veteran's lay statements on any other functional loss and ankle instability. If it is not possible to provide a specific measurement of any additional loss of motion during a flare-up, or an opinion regarding flare-ups, symptoms, or functional impairment based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). To the extent possible, the examiner should identify any symptoms and functional impairments due to his left ankle disability alone and discuss the effect of the Veteran's left ankle disability on any occupational functioning and activities of daily living. KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Fussell, 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.