Citation Nr: 21071419 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 13-30 361 DATE: November 30, 2021 ORDER Entitlement to an initial rating in excess of 10 percent for hemorrhoids is denied. REMANDED Entitlement to an initial rating in excess of 10 percent for right knee patellofemoral syndrome is remanded. Entitlement to an initial rating in excess of 10 percent for left knee patellofemoral syndrome is remanded. Entitlement to a TDIU prior to October 9, 2019, is remanded. FINDING OF FACT Throughout the appeal period, the Veteran's hemorrhoids have resulted in persistent pain and itching with occasional bleeding; they have not shown persistent bleeding with secondary anemia or fissures. CONCLUSION OF LAW The criteria for entitlement to an initial rating in excess of 10 percent for hemorrhoids have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.7, 4.114, Diagnostic Code (DC) 7336. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from January 2009 to June 2011. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from an April 2012 rating decision issued by the Agency of Original Jurisdiction (AOJ). The Board remanded the claim to the AOJ in January 2021 for additional development to include obtaining an examination assessing the current severity of the Veteran's hemorrhoids and a supplemental statement of the case (SSOC) addressing new medical evidence. The matter has now been returned to the Board for further appellate action. Entitlement to an initial rating in excess of 10 percent for hemorrhoids The Veteran's entire history is reviewed when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). At the time of an initial rating, consideration of the appropriateness of a staged rating is also required. Fenderson v. West, 12 Vet. App. 119 (1999). Disability evaluations are determined by comparing a Veteran's symptoms with criteria set forth in VA's Schedule for Rating Disabilities, which are based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher of the two evaluations is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Veteran's hemorrhoids are currently evaluated under Diagnostic Code 7336. 38 C.F.R. § 4.114. Under Diagnostic Code 7336, hemorrhoids that are large or thrombotic, irreducible, with excessive redundant tissue, evidencing frequent recurrences are rated at 10 percent. Hemorrhoids that result in persistent bleeding and with secondary anemia or with fissures are rated at 20 percent, which is the maximum rating provided under Diagnostic Code 7336. Id. Turning to the medical evidence of record, the Veteran underwent a general VA examination in March 2012 which revealed she developed external hemorrhoids while in the military and continued to have pain and bleeding. A March 2016 VA treatment record notes ongoing hemorrhoidal symptoms. A physical examination of the anus revealed "rectal verge with 1 cm residual hemorrhoidal skin tag at 12 o'clock position with small anal fissure at 12 o'clock position." No internal hemorrhoids were noted. The Veteran was prescribed witch hazel pads and a hydrocortisone suppository. In February 2018, the Veteran noted she had external hemorrhoidal tags, and occasionally hemorrhoids would flare up again. A February 2019 adult physical examination including genital/pelvic exam contained no mention of active hemorrhoids on examination or hemorrhoidal symptoms. In August 2018, the Veteran underwent a VA examination for her hemorrhoids. The examination report indicates that the Veteran complained of external hemorrhoids which caused itching, bleeding, and burning daily. The report indicates that her treatment plan includes taking continuous medication. As to signs and symptoms, the report indicates mild or moderate internal or external hemorrhoids. Physical examination indicated small or moderate external hemorrhoids. The report indicates there were no other pertinent physical findings, complications, conditions, signs or symptoms related to the Veteran's hemorrhoids. The report indicates there were no associated scars. The report indicated the Veteran's hemorrhoids had no impact on her ability to work. In May 2021, the Veteran underwent a second VA examination for her hemorrhoids. The examination report indicates that the Veteran complained of intermittent rectal itching, small amount of red blood with wiping and a persistent anal bulge. The report indicates that her treatment plan includes taking continuous medication. As to signs and symptoms, the report indicated mild or moderate internal or external hemorrhoids. Physical examination indicated one subcentimeter nontender and nonbleeding external hemorrhoid. The examiner acknowledged the March 2016 fissure and noted that the current examination revealed no fissures thus the examiner found the March 2016 fissure had resolved. The report indicates there were no other pertinent physical findings, complications, conditions, signs or symptoms related to the Veteran's hemorrhoids. The report indicates there were no associated scars. The report again indicated the Veteran's hemorrhoids had no impact on her ability to work. As to lay statements, an October 2013 VA Form 9 states that at the time of the VA examination (April 12), the Veteran reported she had thrombotic hemorrhoids, but she was not afforded a proper examination. She also stated that he used a prescription medication on a regular basis. Having reviewed the evidence of record, medical and lay, the Board finds that a rating in excess of 10 percent for the Veteran's hemorrhoids is not warranted. A 20 percent rating requires persistent bleeding with secondary anemia or with fissures. The medical evidence consistently reflects that the Veteran's hemorrhoids result in occasional bleeding. The Veteran has not indicated that her hemorrhoids cause persistent bleeding. She notes persistent pain and itching but not persistent bleeding. Nor do her symptoms more nearly approximate a 20 percent rating, which in addition to persistent bleeding, also requires anemia or fissures. While the Veteran's hemorrhoids cause persistent pain and itching, these symptoms are reasonably indicative of mild to moderate symptoms, as the medical evidence consistently indicates. While the rating criteria does not define "mild" or "moderate," there is no evidence of record that the Veteran's hemorrhoids are commensurate with a 20 percent rating as she has none of the requirements for a 20 percent rating. As such, the Board finds that the Veteran's symptoms more nearly approximate a 10 percent rating, and an increase to a 20 percent rating is not warranted. Nor is a separate rating warranted. The probative evidence indicates that there are no associated scars that are painful or unstable or measure to a compensable length. Thus, a separate rating for scars under Diagnostic Code 7800-7805 is not applicable. 38 C.F.R. § 4.118. Consideration has also been given to assigning staged ratings. Fenderson v. West, 12 Vet. App. at 119. However, there is no indication that the Veteran's symptoms were commensurate with a 20 rating at any time during the appeal period. Although the record reflects a sole fissure in 2016, the record indicates that fissure resolved without recurrence. Notably, no fissures were observed on subsequent VA examinations in August 2018 and May 2021. Similarly, the Veteran's treatment records do not indicated any fissures were observed after March 2016. Importantly, in addition to fissures, a 20 percent rating under DC 7336 requires evidence persistent bleeding which is not shown or reported during the period on appeal. Accordingly, the Board finds that the disorder has not significantly changed, and a uniform rating is warranted. In light of the evidence, the Board finds that a 10 rating, but no higher, is warranted for the Veteran's hemorrhoids throughout the appeal period. REASONS FOR REMAND 1. Entitlement to an initial rating in excess of 10 percent for right knee patellofemoral syndrome is remanded. 2. Entitlement to an initial rating in excess of 10 percent for left knee patellofemoral syndrome is remanded. The Veteran has been afforded several VA examinations to assess the severity of her bilateral knee disabilities. At her January 2019 VA examination, the Veteran reported that during flare ups, she was unable to bend her knees to sit on the toilet and had to use her hands for support. She also reported that she had to wear knee braces to support her knees. 38 C.F.R. §§ 4.40 and 4.45 permit consideration of a higher evaluation to be awarded where there is additional functional loss and/or limitation of motion due to factors such as pain, weakened movement, excess fatigability, and incoordination during flare-ups and/or after repeated use over time.). See Mitchell v. Shinseki, 25 Vet. App. 32, 36-37 (2011); see also Deluca v. Brown, 8 Vet. App. 202, 205-06 (1995). During the course of this appeal the Court of Appeals for Veterans Claims (CAVC) held that this additional loss can be considered under the general Rating Formula of an evaluation based on ankylosis if a claimant's functional loss is consistent with the loss contemplated by ankylosis, or if the Veteran's range of motion is functionally equivalent to ankylosis. See Chavis v. McDonough, No. 18-2928, 2012 LEXIS 660 (Vet. App. April 16, 2021). The Board acknowledges that the Veteran denied flareups at her January 2021 VA examination. However, a retroactive opinion as to the severity of her disabilities at the time of the January 2019 examination is required. The Board finds that the January 2019 VA examination is incomplete and in light of the holding in Chavis an addendum opinion is warranted to inform the Board whether the Veteran's bilateral knee disabilities were functionally equivalent to ankylosis during flareups at the time of the January 2019 examination. Additionally, the rating criteria for the knee were revised, effective February 7, 2021. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021). The most recent VA examination, dated January 2021, does not address the regulatory changes for instability under DC 5257. 3. Entitlement to a TDIU prior to October 9, 2019 is remanded. Finally, as a decision on the Veteran's increased rating claim for her bilateral knee disabilities could impact the claim for a TDIU, the claims are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180 (1991). Final appellate review of this claim must be deferred until the appropriate actions concerning the Veteran's increased rating claim are completed and the matters are either resolved or prepared for appellate review. The matters are REMANDED for the following action: 1. Obtain any unassociated VA treatment records. 2. Obtain an addendum opinion from a qualified examiner regarding the nature of the Veteran's bilateral knee disabilities at the time of the January 2019 examination. The examiner is asked to offer an opinion whether the Veteran's bilateral knee range of motion and any functional loss thereof to include during flareups was functionally equivalent to ankylosis. 3. For the period from February 7, 2021, the examiner should also address whether the Veteran has: a) an unrepaired or failed repair of complete ligament tear causing persistent instability, b) a sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability; c) a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair; or d) a diagnosed condition involving the patellofemoral complex with recurrent instability without surgical repair. The examiner must reconcile the medical evidence of record with these findings. The examiner should also address whether the Veteran is prescribed a brace and/or an assistive device (e.g., cane(s), crutch(es), walker). 4. After ensuring completion of the above development, re-adjudicate the claims, including the TDIU claim. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Sherman 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.