Citation Nr: 21070424 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 13-08 774 DATE: November 23, 2021 ORDER Prior to June 3, 2019, a 10 percent rating for status post anal fissure is granted. As of June 3, 2019, a rating higher than 20 percent for status post anal fissure is denied. FINDINGS OF FACT 1. Prior to June 3, 2019, the Veteran's status post anal fissure was manifested by constant slight or occasional moderate fecal leakage; hemorrhoids with persistent bleeding and fissures or anemia, involuntary bowel movements necessitating a pad, and impairment of sphincter control were not shown. 2. As of June 3, 2019, the Veteran's status post anal fissure was manifested by hemorrhoids with persistent bleeding and fissures and impairment of sphincter control; involuntary bowel movements necessitating a pad were not shown. CONCLUSIONS OF LAW 1. Prior to June 3, 2019, the criteria for a disability rating of 10 percent, but not higher, for status post anal fissure have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.114, Diagnostic Code 7332. 2. As of June 3, 2019, the criteria for a disability rating higher than 20 percent for status post anal fissure have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.114, Diagnostic Code 7336. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1976 to January 1980, and from November 1990 to April 1991, including service in Southwest Asia. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2011 rating decision in which the Department of Veterans Affairs (VA) Regional Office (RO), among other things, denied a compensable rating for status post anal fissure with recurrent rectal bleeding. In an August 2019 rating decision, the RO granted a 20 percent rating, effective June 3, 2019. Entitlement to a compensable rating prior to June 3, 2019, and higher than 20 percent thereafter, for status post anal fissure The Veteran's representative contends that a higher rating is warranted throughout the appeal period based on the Veteran's statements. See Appellate Brief (February 2021). Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Any reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. If two evaluations are potentially applicable, the higher evaluation 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. "7399-733 An unappealed November 2003 rating decision granted service connection for status-post anal fissure with recurrent bleeding and assigned a noncompensable rating under 38 C.F.R. § 4.114, Diagnostic Code 7399-7336. Hyphenated diagnostic codes are used when a rating under one diagnostic code (DC) requires use of an additional DC to identify the basis for the rating. 38 C.F.R. § 4.27. Here, the hyphenated DC indicates that the Veteran's disability was previously rated, by analogy, under the criteria for hemorrhoids (DC 7336). In August 2019, the AOJ assessed the Veteran's disability under DC 7336. Under DC 7336, a 0 percent rating is provided for mild or moderate hemorrhoids; a 10 percent rating is provided for large or thrombotic, irreducible, hemorrhoids with excessive redundant tissue, evidencing frequent recurrences; a maximum 20 percent rating is provided for hemorrhoids with persistent bleeding and with secondary anemia, or with fissures. 38 C.F.R. § 4.114, Diagnostic Code 7336. DC 7335, for ano fistula, directs to rate the disability under DC 7332 for impairment of sphincter control. Under DC 7332, for impairment of sphincter control, a 0 percent rating is provided for healed or slight impairment, without leakage; a 10 percent rating is provided for constant slight, or occasional moderate leakage; a 30 percent rating is provided for occasional involuntary bowel movements, necessitating wearing of pad; a 60 percent rating is provided for extensive leakage and fairly frequent involuntary bowel movements; a maximum 100 percent rating is provided for complete loss of sphincter control. 38 C.F.R. § 4.114, Diagnostic Code 7332. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." Butts v. Brown, 5 Vet. App. 532, 538 (1993). One DC may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis, and demonstrated symptomatology. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). Any change in a diagnostic code by VA must be specifically explained. Id. Turning to the evidence, VA treatment records from August 2009, prior to receipt of the increased rating claim, show that the Veteran denied any current problems with hemorrhoids. In March 2010, the Veteran reported moderate leakage requiring him to wash and change his undergarments at least three times per day. See VA Form 21-4138 (March 2010). An August 2011 report of VA examination shows that the Veteran reported occasional rectal bleeding of varying degrees ranging from streaks on toilet tissue to filling the toilet. He also reported difficulty passing stool and occasional bleeding from hemorrhoids (once or less per year). He denied fecal incontinence. The examiner noted symptoms of pain and recurring bleeding about once per year. The examiner noted no hemorrhoids, thrombosis, fistula, fecal incontinence, or sphincter impairment on examination. A colonoscopy showed the presence of polyps. The Veteran worked full time and reported losing 8 weeks of work in the last 12 months although the reason is unclear, with the examiner finding no significant effects on his usual occupation. In March 2013, the Veteran reported that he had hemorrhoids which caused weekly bleeding, and fecal incontinence requiring the use of about 9 pads per week. See Form 9 (March 2013). An August 2013 colonoscopy was interpreted as showing a normal rectal exam, with normal ileum and normal colon with mild melanosis (hyperpigmentation of colon). Hemorrhoids, fistula, or fissure were not indicated. During his October 2014 Board hearing, the Veteran reported bloody bowel movements 2-4 times per week. See Hearing Transcript. A September 2015 report of VA examination shows that the Veteran reported rectal bleeding 2-3 times per week with bowel movements as well as bleeding with constipation. The examiner noted internal hemorrhoids with persistent bleeding. The examiner found no external hemorrhoids, fissure, fistula, fecal incontinence, or sphincter impairment on examination. The examiner further noted that the slightly abnormal blood test results were insignificant. There was no functional impact on his ability to work. In a September 2016 letter, the Veteran reported having had several colonoscopies during which polyps were removed and stated that the medical providers "had to inject, clip, burn, stitch, or tie off" areas of his colon to stop or prevent bleeding. A November 2018 VA treatment record shows that the Veteran reported occasional fecal soiling. The attending clinician assessed irregular bowel with loose stools, some blood, and some incontinence. A January 2019 colonoscopy was interpreted as showing internal hemorrhoids and a polyp. Fistula or fissure were not indicated. As poor preparation was encountered, the clinician recommended a repeat colonoscopy within one year. A March 2019 colonoscopy was interpreted as showing internal and external hemorrhoids, and a polyp. Fistula or fissure were not indicated. The clinician noted good visualization. The Veteran submitted to a June 2019 VA examination. He reported pain and bleeding with bowel movements, as well as pain with prolonged sitting, walking, and standing. He noted a significant decrease in his productivity at work and reported that most days he did not perform at an acceptable level. The examiner found small or moderate external hemorrhoids with redundant tissue, a small anal tear, and slight impairment of sphincter control without leakage. He also noted that the Veteran's sphincter was mildly decreased, which was consistent with "some fecal leakage associated with bowel movements." The examiner noted that the diagnosis had changed to decreased sphincter tone and that it was a progression of the previous diagnosis. The examiner found that there was no functional impact on the Veteran's ability to work. Board decisions in April 2015, August 2017, April 2020, and June 2021 remanded the claim for additional development, to include obtaining treatment records, colonoscopy reports, and a VA medical opinion. Notably, summaries of the August 213, January 2019, and March 2019 colonoscopies are associated with the Veteran's VA treatment records that were obtained. In April 2020 and June 2021, the Board directed that a retrospective medical opinion be obtained as to the severity of the Veteran's symptoms since March 2009 and the approximate dates of such change; the approximate dates during which the Veteran's anal fissure and internal hemorrhoids were manifested, and the severity of each; and the approximate dates that the Veteran experienced impairment of sphincter control. In December 2020, a VA examiner reviewed the Veteran's treatment records, to include colonoscopy reports from 2013 and 2019. He noted that the post-colonoscopy bleeding in 2019 mentioned by the Veteran was to be expected from that procedure, and that the bleeding was controlled without any snare or cautery. He opined that "it is less likely than not" that there was any change in severity of the Veteran's disability since March 2009. He noted that the June 2019 examiner found small or moderate internal hemorrhoids with small anal tearing fissure. He also noted that "there are limited medical objective evidence[] to show complaints or post-operative complication of impairment of sphincter control." In August 2021, another VA examiner found no change in the severity of the Veteran's disability since March 2009. With respect to when the Veteran's anal fissure and internal hemorrhoids were manifested, and the severity of each, the examiner determined that "medical record review did not reveal consistent evidence to answer this question without merely speculating." With respect to the approximate dates that the Veteran experienced impairment of sphincter control, he stated that "medical record review did not reveal consistent clinical evidence for impairment of sphincter control." To the extent that the December 2020 and August 2021 VA examiners were unable to provide an opinion as to when the Veteran's anal fissure and internal hemorrhoids were manifested and/or when he experienced impairment of sphincter control without resort to speculation, this determination is accompanied by an adequate explanation, i.e., that the medical evidence was not consistent. The Board acknowledges that the VA medical opinions in December 2020 and August 2021 finding no changes in the Veteran's disability until the June 2019 examination appear to conflict with the medical evidence but finds that the evidence of record is adequate to rate the severity of the Veteran's disability. Accordingly, the Board finds that there has been substantial compliance with the previous remand directives. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002); Stegall v. West, 11 Vet. App. 268 (1998). After consideration of the relevant evidence, the Board finds that a switch from DC 7336 to DC 7332 for the period prior to June 3, 2019 for the Veteran's disability is warranted because the Veteran's most prominent symptom during this time period was constant slight or occasional moderate fecal leakage, which is directly listed under DC 7332's criteria. At the time service connection was granted, the Veteran denied any hemorrhoids and the August 2011 VA examiner noted no hemorrhoids on examination. The Board acknowledges the Veteran's lay report of hemorrhoids in August 2013. However, the August 2013 colonoscopy revealed no indication of hemorrhoids. In fact, no medical evidence of hemorrhoids was shown until a September 2015 VA examination. The Board also finds that, as of June 3, 2019, DC 7336 is the more appropriate DC because the most prominent symptom was hemorrhoids with persistent bleeding and fissures, which is directly listed under DC 7336's criteria. Notably, the June 2019 VA examination provides the first indication of fissures. Although slight impairment of sphincter control was also present at that time, no fecal leakage was noted. Thus, the Veteran's symptoms from June 2019 are more appropriately rated under DC 7336. The Board concludes that, resolving all reasonable doubt in favor of the Veteran, his symptoms more nearly approximated the schedular criteria required for a 10 percent rating, but not higher, under Diagnostic Code 7332 prior to June 3, 2019. The Veteran reported moderate leakage three times per day in March 2010, and in March 2013 he reported leakage and the need to wear a pad several times per week. These lay reports are consistent with constant slight, or occasional moderate leakage. Although the September 2015 VA examiner indicated persistent bleeding with internal hemorrhoids, that is the only finding of hemorrhoids prior to June 3, 2019. VA treatment records in November 2018 also show that the Veteran reported occasional fecal soiling, and the attending clinician assessed irregular bowel with loose stools, some blood, and some incontinence. However, the Veteran did not mention fecal leakage during his October 2014 Board hearing or during the August 2011 VA examination, and none was noted during a June 2019 VA examination. As the November 2018 VA clinician did not indicate the severity of fecal leakage and whether it necessitated wearing of a pad, the Board will resolve reasonable doubt in favor of the Veteran and find that the medical and lay evidence during this time period is consistent with constant slight or occasional moderate leakage, as contemplated by a 10 percent rating under DC 7332. However, involuntary bowel movements necessitating a pad and loss of sphincter control, as required for a higher rating, have not been reported by the Veteran or noted by clinicians. Additionally, the preponderance of the evidence is against the assignment of a rating in excess of 20 percent from June 3, 2019. The June 2019 VA examiner noted that the Veteran's sphincter tone was decreased and opined it is a progression of his service-connected disability. Although it was noted that the Veteran's decreased sphincter tone is consistent with fecal leakage associated with bowel movements, no leakage was noted on examination. The June 3, 2019 VA examination is the earliest date that hemorrhoids and rectal bleeding were also shown to manifest with fissures. Although the interpretations of colonoscopies in January 2019 and March 2019 did not indicate the severity of the hemorrhoids shown, the June 2019 VA examiner indicated that the Veteran's e-folder was reviewed and noted that his hemorrhoids were moderate. Additionally, those colonoscopies showed no fissures as the reports of both stated that the color, texture, anatomy, and integrity of the mucosa was carefully examined and noted that only hemorrhoids and a polyp were shown. Although the June 2019 examiner did not check the box for persistent bleeding, recurrent bleeding was noted. Thus, the Board finds that his rectal bleeding was persistent during this time period, as contemplated by a 20 percent rating under DC 7336. Even with the slight impairment of sphincter control present, the increase in severity of the Veteran's disability based on fissures is consistent with a 20 percent rating under DC 7336 during this time period, which is the maximum rating under that DC. Accordingly, the Board resolves all reasonable doubt in favor of the Veteran to find that a 10 percent rating, but not higher, under DC 7332 for residuals of status post anal fissure is warranted prior to June 3, 2019. However, the preponderance of the evidence is against finding that from June 3, 2019, the Veteran's symptoms were more nearly approximated by the schedular criteria for a rating higher than 20 percent under DC 7336, or any other DC. Rebecca N. Poulson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Thaddaeus J. Cox, 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.