Citation Nr: 21068277 Decision Date: 11/09/21 Archive Date: 11/09/21 DOCKET NO. 13-34 149A DATE: November 9, 2021 ORDER Entitlement to a 20 percent rating (but no higher) for hemorrhoids is granted. REMANDED Entitlement to an effective date earlier than December 11, 2013, for the grant of service connection for impaired sphincter control is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT During the period on appeal, the Veteran's hemorrhoid disability has been characterized by pain, persistent bleeding, and fissures. CONCLUSION OF LAW The criteria for entitlement to a rating of 20 percent, but no higher, for hemorrhoids have been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.114, Diagnostic Code (DC) 7336 (2021). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1954 to February 1957. The issues on appeal arise out of the Veteran's August 2008 claim for service connection for hemorrhoids. In July 2013, the Board of Veterans' Appeals (Board) granted service connection for hemorrhoids, which was effectuated by the agency of original jurisdiction (AOJ) in an August 2013 rating decision, effective from August 25, 2008. A non-compensable initial disability rating was assigned. The Veteran subsequently appealed the assigned non-compensable initial disability rating. A Board hearing was held in May 2017; a transcript is of record. In September 2017, the Board denied a compensable rating for hemorrhoids. The Veteran appealed that decision to the Court of Appeals for Veterans Claims (Court), which vacated the decision pursuant to a July 2018 Joint Motion for Remand (JMR). In September 2019, the Board granted a 10 percent rating for hemorrhoids and denied entitlement to TDIU. The Veteran again appealed that decision, which was vacated pursuant to the terms of a February 2020 JMR. The Board remanded the issues in July and December 2020 for additional development and compliance with the JMR; this matter is once again before the Board and has been reassigned to the undersigned Veterans Law Judge (VLJ). As a separate preliminary matter, the Veteran was notified that the VLJ who presided over his May 2017 Board hearing was no longer employed at the Board. He was afforded the option to request a new Board hearing with a current sitting member of the Board. In a November 2020 response, he stated that he did not wish to appear at another Board hearing. Entitlement to a 20 percent rating (but no higher) for hemorrhoids is granted. The Veteran contends that he is entitled to an increased rating for his hemorrhoid disability, which is currently rated 10 percent disabling. The Board finds that a rating of 20 percent for hemorrhoids is warranted for the entire appeal period. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. When there is a question as to which of two evaluations applies, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for the rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). That said, higher evaluations may be assigned for separate periods based on the facts found during the appeal period. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). This practice is known as staged ratings. Id. When 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; 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). For the entire period on appeal, the Veteran's hemorrhoid disability has been rated under DC 7336. Under that DC, a noncompensable rating is assigned for mild or moderate hemorrhoids. A 10 percent rating is warranted for hemorrhoids that are large or thrombotic, irreducible, with excessive redundant tissue, evidencing frequent recurrences. A 20 percent rating is warranted for hemorrhoids with persistent bleeding and with secondary anemia, or with fissures. A 20 percent rating is the highest rating available under this DC. 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.114, DC 7336. As an initial matter, the Board remanded this matter in December 2020 to obtain private treatment records and schedule the Veteran for a VA examination. In April 2021 correspondence, VA requested that the Veteran complete a VA Form 21-4142, medical authorization, to obtain private treatment records. In an April 2021 Report of General Information, the Veteran notified VA that all of the information needed for his claim is already in his file and that there should be no other information needed; he did not provide a completed VA Form 21-4142 as requested. Additionally, although a VA examination was scheduled, the claim file shows that it was cancelled at the Veteran's request; he did not want to attend the exam and wanted his claim decided. The Board notes that this claim has been pending since 2008 in response to multiple JMRs and prior remands. The Board understands and agrees with the Veteran's desire to have finality with respect to his claim for an increased rating for hemorrhoids. VA treatment records from December 2009 and March 2010 document visible hemorrhoids at 5 o'clock and 7 o'clock with no lesions or fissures. Various VA treatment records from 2010 to 2013 note a denial of hemorrhoids, although the Veteran's prior medical history notes such. The Veteran has challenged the accuracy of these statements in his medical records. See April 2015 notations to VA treatment records. He has repeatedly stated that he and his spouse have self-treated his hemorrhoidal condition without medical intervention and has provided photographs showing the severity of his hemorrhoids. In January 2010 correspondence, the Veteran stated that his hemorrhoids do not always bleed. However, in September 2010 and March 2013 correspondence, the Veteran reported itching, bleeding, swelling, and pain associated with his hemorrhoids. In May 2013 Board testimony (with respect to his claim of entitlement to service connection for hemorrhoids), the Veteran testified that his hemorrhoids would bleed and protrude. In an October 2013 statement, the Veteran reported self-treating his hemorrhoids over the years with occasions of protruding hemorrhoids, and internal hemorrhoids that become thrombotic with incidences of loose tissue, aching, bleeding, leakage of fluid, and blood clots; he described pain, itching, burning, bleeding, and oozing smelly mucus from his rectum. In a December 2013 statement, the Veteran reported a history of thrombosed hemorrhoids and fissures with loose skin resulting in scar tissue and tags. "There were times when fissures occurred, bleeding, itching, burning, smelly mucus expelled from the anal opening, it seemed like the surrounding tissue of the anus (sic) tore loose from the rectal area, which was very painful." See List of Problems Encountered with Rectal Impairment Since 1954, received December 2013. A private physician completed a Rectum and Anus Conditions Disability Benefits Questionnaire (DBQ), dated August 2014. The examination showed external and internal hemorrhoids. The examiner described the hemorrhoids as moderate, grade III, irreducible, with persistent bleeding, and prolapse. The examiner noted the hemorrhoids cause pain and leakage. However, the examiner did not find the hemorrhoids to be large or thrombotic, with excessive redundant tissue, evidencing frequent recurrences, nor did she find secondary anemia or fissures. In correspondence received in April 2015, the Veteran again reasserted that his prolapsed hemorrhoids have led to mucus discharge, bleeding, aching pain, a burning sensation, and itching. A September 2017 DBQ indicated that the Veteran's hemorrhoids were internal and external, large or thrombotic, irreducible, with excessive redundant tissue, evidencing frequent recurrences. The examiner also noted persistent bleeding. Again, to warrant a 20 percent rating under DC 7336, the evidence must show hemorrhoids with persistent bleeding and with secondary anemia, or with fissures. Here, the Board finds that the competent evidence of record supports the conclusion that the Veteran's hemorrhoids have been characterized by pain, persistent bleeding, and fissures. The Board finds the Veteran competent and credible to report the symptoms resulting from his hemorrhoids, including the fact that he has fissures and persistent bleeding associated with and resulting from his hemorrhoids. Given the above, a 20 percent rating for hemorrhoids is warranted. Because hemorrhoids are specifically listed in the rating schedule, it may not be rated by analogy under a different DC. Copeland v. McDonald, 27 Vet. App. 333, 337 (2015). The Board notes for the record, however, that the Veteran is in receipt of a separate 30 percent rating for impaired sphincter control associated with his hemorrhoids and that many of the Veteran's complaints are contemplated under that rating. Additionally, the Board notes that the Veteran has not disagreed with the rating assigned for that disability, only the effective date assigned (which is discussed in the remand portion below). There are no other diagnostic codes potentially applicable which might afford a higher rating on an alternative basis. The Veteran is now in receipt of the maximum schedular rating for internal and external hemorrhoids for the entire rating period on appeal. In written argument, the Veteran and his representatives have argued that his hemorrhoidal symptoms that are not explicitly listed in DC 7336 warrant referral for an extraschedular rating. As explained below, the clinical evidence does not reflect evidence of any symptomatology or specialized treatment not contemplated by the schedular criteria of DC 7336, despite the Veteran's argument to the contrary. In January 2020 written argument (received by VA in February 2020), the Veteran's representatives argued that the Board failed to address how the definition it relied on in Dorland's Illustrated Medical Dictionary addresses the severity of the Veteran's symptoms or the additional symptoms he reported. They also argued that the Board failed to explain its reliance on the definition in Dorland's defining hemorrhoids as painful "when other medical dictionaries and the medical treatise evidence submitted by the Appellant note that hemorrhoids are often asymptomatic, internal hemorrhoids are usually not painful, and that external hemorrhoids only become painful as the disease progresses (due to become (sic) thrombosed, resulting in painful, purplish swelling or ulcerating causing minor bleeding)." There is no question that the Veteran has reported symptoms of hemorrhoids that are painful with persistent bleeding. While pain is not explicitly addressed in the rating criteria applicable to hemorrhoids, these symptoms are inherent symptoms of the condition being described in the rating criteria. The Board includes the definition from several medical dictionaries and authorities in support of its position that pain is an inherent symptom of hemorrhoids, including sources cited by the Veteran's representative. A hemorrhoid is defined as "prolapse of an anal cushion, resulting in bleeding and painful swelling in the anal canal." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY, 842 (32nd ed. 2012). Additionally, the "cardinal features of hemorrhoidal disease include bleeding, anal pruritis, prolapse, and pain due to thrombosis." See UpToDate, Hemorrhoids: Clinical manifestations and diagnosis, https://www.uptodate.com/ contents/ hemorrhoids-clinical-manifestations-and-diagnosis?search=hemorrhoids &source=search_ result&selectedTitle=2~150&usage_type=default&display _rank=2 (accessed November 3, 2021). The Veteran's attorney cited to Merck Manual for the position that internal hemorrhoids are not usually painful and that external hemorrhoids only become painful as the disease progresses, due to becoming thrombosed. However, the Merck Manual specifically states that thrombosed hemorrhoids are usually painful. See Merck Manual, Professional Version, Hemorrhoids, https://www.merckmanuals.com/professional/ gastrointestinal-disorders/anorectal-disorders/hemorrhoids (accessed November 3, 2021). Additionally, the Mayo Clinic notes the following signs and symptoms for external hemorrhoids: itching and irritation in the anal region; pain or discomfort; swelling around the anus; and bleeding. Internal hemorrhoids are inside the rectum and rarely cause discomfort, although straining or irritation when passing stool can cause painless bleeding during bowel movements or cause a hemorrhoid to push through the anal opening resulting in pain and irritation. Thrombosed hemorrhoids can result in severe pain, swelling, inflammation, and a hard lump near the anus. See Mayo Clinic, Hemorrhoids, https://www.mayoclinic.org/ diseases-conditions /hemorrhoids/ symptoms-causes/syc-20360268#:~:text= Hemorrhoids%20are% 20swollen%20 veins%20in,rectum%2C%20similar%20to%20varicose%20veins. (accessed November 3, 2021). It is clear from the various medical dictionaries cited above (including one cited to by the Veteran's representatives) that pain is an inherent symptom with hemorrhoids (including internal hemorrhoids that are pushed through the anal opening). Again, thrombosed hemorrhoids are specifically identified in the criteria for a 10 percent rating. Additionally, the Veteran describes itching as a symptom of his hemorrhoids. Pruritis ani is defined as "intense chronic itching in the anal region." See DORLAND'S ILLUSTRATED MEDICAL DICTIONARY, 1540 (32nd ed. 2012). This condition is evaluated under DC 7337 for pruritis ani, which states that it is to be "rate[d] for the underlying condition," which in this case is hemorrhoids under DC 7336. Pruritis ani may be associated with irritated and large hemorrhoidal veins, but it can also occur independently of any cutaneous lesions in association with systemic disease, or it may be associated with seborrheic dermatitis or moniliasis. See STEDMAN'S ILLUSTRATED MEDICAL DICTIONARY, 1468 (27th ed. 2000). Accordingly, any itching is contemplated in the criteria for rating hemorrhoids, as the medical dictionary establishes that the itching is a symptom of the underlying hemorrhoidal disability. As mentioned above, the Veteran is separately service connected for impaired sphincter control related to his hemorrhoids. Many of the symptoms relayed by the Veteran, including leakage, are the exact reason for a separate rating under DC 7333 addressing impairment of sphincter control. [The Veteran has not appealed the 30 percent rating assigned for this disability, but is encouraged to file a claim for increased compensation if he believes that disability has increased in severity and warrants a higher rating.] Extraschedular evaluation requires evidence showing that (1) the schedular rating criteria do not contemplate the veteran's level of disability and symptomatology, and (2) the disability picture exhibits other related factors that are consistent with an extraschedular rating, such as marked interference with employment or frequent periods of hospitalization. 38 C.F.R. § 3.321; Thun v. Peake, 22 Vet. App. 111, 115-116 (2008). As explained, there is no question that the diagnostic code contemplates painful and itching hemorrhoids. The Veteran has argued that the definitions provided for hemorrhoids do not address the severity of his symptoms, specifically the fact that his hemorrhoids are so painful and ache for weeks and are unbearable with flareups once or twice a month that take weeks to work themselves out. However, the Board finds that the rating schedule offers an increased disability rating for more severe symptoms associated with hemorrhoids. Specifically, a noncompensable rating is assigned for mild or moderate hemorrhoids with higher ratings assigned for more severe hemorrhoids, which are what the Veteran has and the reason why the Board has granted the highest rating allowable under the diagnostic code. Ultimately, a comparison between the level of severity of the Veteran's 20 percent evaluation with the established criteria found in the rating schedule shows that the rating criteria reasonably describe his disability level and symptoms for his service-connected hemorrhoids. The Board has considered the requirement of 38 C.F.R. § 4.3 to resolve any reasonable doubt regarding the level of the Veteran's disability in his favor. The Veteran's overall disability picture more nearly approximates that of a 20 percent disability rating, which is the highest available under the DC. The Board concludes that the Veteran's hemorrhoids have been characterized by pain and persistent bleeding, which was found to be consistent with fissures. A rating of 20 percent, but no higher, is therefore warranted. REASONS FOR REMAND 1. Entitlement to an effective date earlier than December 11, 2013, for the grant of service connection for impaired sphincter control is remanded. A March 2015 rating decision granted service connection for impaired sphincter control and assigned a 30 percent rating from December 11, 2013. The Veteran timely filed a notice of disagreement (NOD) with the effective date assigned. He reiterated his disagreement and his filing of an NOD in correspondence date August 2015, February 2016, and March 2016 correspondence. To date, the RO has not issued a statement of the case (SOC) in this matter. In such circumstances, the Board is required to remand for the issuance of an SOC. See Manlincon v. West, 12 Vet. App. 238, 240 (1999). This matter is not now before the Board and will only be on appeal to the Board if the Veteran timely files an appeal after an SOC is issued. 2. Entitlement to a TDIU is remanded. Currently, the Veteran does not meet the schedular requirements to be entitled to TDIU. See 38 C.F.R. § 4.16(a). Thus, the Board will refer the matter to the Director, Compensation Service, for extraschedular consideration of TDIU. See 38 C.F.R. § 4.16(b). The matters are REMANDED for the following action: 1. Issue an appropriate SOC addressing the issue of the effective date assigned for the grant of service connection for impaired sphincter control. The Board notes for the Veteran that this issue is NOT now before the Board and WILL ONLY BE ON APPEAL to the Board IF the Veteran files a timely appeal after an SOC is issued. 2. Refer this case to the Director, Compensation Service, for extraschedular consideration of TDIU pursuant to 38 C.F.R. § 4.16(b). (CONTINUED ON NEXT PAGE) 3. If upon completion of the above action the issues remain denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Matta, 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.