Citation Nr: A21017752 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 200608-91468 DATE: November 3, 2021 ORDER Entitlement to a compensable rating for post-operative residuals of hemorrhoids is denied. Entitlement to a rating higher than 30 percent for left eyelid ptosis is denied. Entitlement to a rating of 70 percent, but no higher, for residuals of traumatic brain injury (TBI) is granted. FINDINGS OF FACT 1. The Veteran's post-operative residuals of hemorrhoids have been manifested with pain, discomfort, and blood in stools, but they have not resulted in internal or external hemorrhoids that are large, thrombotic, irreducible, with excessive redundant tissue, or with persistent bleeding and with secondary anemia. 2. The Veteran's left eyelid ptosis has not caused visible or palpable tissue loss, gross distortion or asymmetry of two or more features or paired sets of features, or any characteristics of disfigurement. 3. The Veteran's TBI residuals have manifested with headaches, memory loss, executive function impairment, isolation, spatial disorientation, difficulty concentrating, and irritability. 4. Objective evidence on testing shows moderate memory impairment and functional impairment in executive functions. 5. The Veteran has not been found to have worse than mildly impaired judgment, social interaction occasionally inappropriate, moderately impaired visual spatial orientation, more than one neurobehavioral effect that occasionally interferes with workplace and social interactions, and occasionally impaired comprehension or expression. 6. The Veteran has subjective symptoms of migraine headaches with dizziness and light sensitivity, and these symptoms have been separately assigned the maximum 50 percent rating. 7. The Veteran has no additional, uncompensated symptomatology associated with his TBI which causes impairment in orientation or motor activity, or that causes impairment of consciousness. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for post-operative residuals of hemorrhoids have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.114, Diagnostic Code 7336. 2. The criteria for a rating higher than 30 percent for left eyelid ptosis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.3, 4.7, 4.79, Diagnostic Code 6019, 4.118, Diagnostic Code 7800. 3. The criteria for a rating of 70 percent, but no higher, for residuals of TBI have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.124a, Diagnostic Code 8045. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1965 to April 1967. This case comes to the Board of Veterans' Appeals (Board) from a February 2020 rating decision of the Department of Veterans Affairs (VA) Regional Office. In June 2020, the Veteran submitted a VA Form 10182 Decision Review Request, requesting a hearing before a Veterans Law Judge. This case has therefore been validly appealed under the Appeals Modernization Act. In January 2021, the Veteran attended a virtual hearing with the undersigned Veterans Law Judge. Hemorrhoids The Veteran has requested a compensable rating for his service-connected post-operative residuals of hemorrhoids. The Veteran testified in January 2021 that he had blood in his stool and pain with sitting. Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating. 38 C.F.R. § 4.7. The Veteran's hemorrhoids are assigned a noncompensable (0 percent) rating under Diagnostic Code 7336, for external or internal hemorrhoids. A noncompensable rating is warranted for mild of moderate internal or external hemorrhoids. A 10 percent rating is warranted for internal or external hemorrhoids that are large or thrombotic, irreducible, with excessive redundant tissue and evidencing frequent recurrences. A 20 percent rating is warranted for internal or external hemorrhoids with persistent bleeding and with secondary anemia, or with fissures. 38 C.F.R. § 4.114, Diagnostic Code 7336. The Veteran attended a VA intestinal examination in November 2019. The Veteran did not have any signs or symptoms of bowel disturbance or intestinal conditions. At a January 2020 VA examination, the Veteran reported having blood-streaked stools and irritation in the rectal area. He used a rectal cream, had blood on tissues, and could not wear regular underwear due to bowel leakage. He also reported that the constant pain and irritation made it difficult to rest and to focus on work. The examiner found that the Veteran had mild or moderate internal or external hemorrhoids, characterized by bowel leakage with blood on tissue. The Veteran declined a physical examination. The examiner did not find that the Veteran had hemorrhoids that were large or thrombotic, irreducible, or with excessive redundant tissue and frequent recurrences, nor did he have persistent bleeding or anemia. There were no other pertinent findings, including scars. There is no evidence that either examiner was not compete or credible, and the Board finds the VA examination report is entitled to significant probative weight as to the severity of the Veteran's hemorrhoid residuals. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Based on this evidence, the Board finds that the preponderance of the evidence is against a finding that a compensable rating is warranted for the Veteran's post-operative residuals. While the Veteran has some pain, discomfort, and blood in his stools, there is no evidence that the bleeding is persistent or has caused anemia. There is no indication that he has ever had hemorrhoids that were large or thrombotic, irreducible, or with excessive redundant tissue and frequent recurrences. The VA examiner specifically found that the Veteran's hemorrhoid residuals were mild or moderate, and this only allows for a 0 percent rating under Diagnostic Code 7336. There is no other medical evidence which indicates that the Veteran's hemorrhoids have met any of the criteria which would allow for a higher rating. The Board acknowledges that the Veteran told the January 2020 VA examiner that he has had some bowel leakage. While it is possible to receive a rating under Diagnostic Code 7332 for rectum and anus impairment of sphincter control, when there is constant slight, or occasionally moderate, leakage, the Board does not find that the evidence indicates that a separate rating for bowel leakage is warranted. 38 C.F.R. § 4.114, Diagnostic Code 7332. The evidence of record indicates that the Veteran's hemorrhoids were completely repaired and have not recurred. There is no medical evidence indicating that the Veteran's post-operative hemorrhoids have caused him to have a fecal leakage disorder. The Veteran's medical records also do not indicate that the Veteran actually has a fecal leakage disorder. The records do show that the Veteran has been treated extensively for prostate cancer, and that this has resulted in urinary leakage and, eventually, the need for a urostomy bag to assist with urination. The Veteran has already been granted service connection for his prostate cancer with urinary ileal conduit and pouch, for which he has a 100 percent total rating. During the Veteran's extensive treatment for urinary incontinence, he at no time was ever found to also have fecal incontinence, and in fact in June 2019, he reported no bowel incontinence. At a March 2021 follow-up evaluation for treatment of his prostate cancer residuals, including urinary leakage, he also denied bowel leakage. The Board therefore finds that the preponderance of the evidence is against finding that the Veteran has a fecal leakage disorder caused by his post-operative hemorrhoids. The Board also does not find that any other additional or alternative rating criteria would be appropriate to apply. The Board has considered the Veteran's lay statements, including his January 2021 testimony that he has discomfort and pain while sitting, and occasional blood in hist stool. The Veteran is competent to report these symptoms, and the Board finds that they are consistent with mild or moderate hemorrhoid residuals, which is the rating criteria that has already been assigned. In sum, the preponderance of the evidence does not indicate that the Veteran's hemorrhoids have, at any point during the appeal period, been large, thrombotic, or irreduciblein fact, they have been surgically removed, and there is no indication of any current hemorrhoids being present. There has been no finding of any excessive redundant tissue, or any current hemorrhoids that cause persistent bleeding and anemia. The objective evidence of record therefore shows that the Veteran's post-operative residuals of hemorrhoids do not meet or more nearly approximate the level of severity contemplated by a compensable rating, and the claim is denied. In reaching this determination, the Board has considered the doctrine of reasonable doubt, but the preponderance of the evidence is against the appellant's claim. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Left Eyelid Ptosis The Veteran has requested a rating higher than 30 percent for his left eyelid ptosis. At the January 2021 Board hearing, the Veteran testified that he could not see out of his left eye, and that he had no control over the eyelid. He said that it closes when it wants to close, and he is unable to open it. The Veteran has already been assigned a 60 percent rating from October 29, 2019 for left eye blindness with retained foreign body in left orbit, under Diagnostic Codes 6080-6065. The Veteran's left eye blindness was addressed separately in a December 2019 rating decision, and the Veteran appealed this rating in a February 2020 VA Form 10182. In a June 2020 Board decision, entitlement to a rating higher than 60 percent for left eye blindness was denied. This issue has therefore already been addressed by the Board, and the current issue pertains only to the Veteran's left eyelid disorder, and not to his actual eye or vision impairment. The Veteran's left eyelid ptosis has been assigned a 30 percent rating under Diagnostic Codes 6019 and 7800. Diagnostic Code 6019 rates unilateral or bilateral ptosis. It is to be evaluated based on visual impairment or, in the absence of visual impairment, disfigurement under Diagnostic Code 7800. 38 C.F.R. § 4.79, Diagnostic Code 6019. Under Diagnostic Code 7800, governing scars of the head face or neck, a 30 percent rating is warranted when there is visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features; or with two or three characteristics of disfigurement. A 50 percent rating is warranted when there is visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features; or with four or five characteristics of disfigurement. 38 C.F.R. § 4.118, Diagnostic Code 7800. The eight characteristics of disfigurement are: 1) a scar of 13 or more cm. in length; 2) a scar at least 0.6 cm. wide at the widest part; 3) elevated or depressed scar surface contour on palpation; 4) scar adherent to underlying tissue; 5) hyper- or hypopigmentation in an area exceeding 39 square cm.; 6) abnormal skin texture (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches; 7) missing underlying soft tissue in an area exceeding 39 square cm.; and 8) indurated and inflexible skin in an area exceeding 39 square cm. 38 C.F.R. § 4.118, Diagnostic Code 7800, Note 1. Disabling effects other than disfigurement associated with the individual scar of the head, face or neck, such as pain, instability and residuals of associated muscle or nerve injury, are to be rated separately under the appropriate diagnostic code. Id. at Note 4. Because the Veteran has been assigned a 30 percent rating for left eyelid ptosis since April 14, 1967, this is a protected rating and will not be reduced. See 38 C.F.R. § 3.951 (A disability which has been continuously rated at or above any evaluation for 20 or more years cannot be reduced except upon a showing that such rating was based on fraud.). The Board finds that there is no evidence that a rating higher than 30 percent for left eyelid ptosis is warranted. At a November 2019 VA examination, the Veteran was not found to have any scarring or disfigurement. At a February 2020 VA examination, the Veteran was noted to have left eyelid ptosis, but there was also no scarring or disfigurement The preponderance of the medical evidence therefore shows that the Veteran does not have any scars or disfigurement which would constitute a characteristic of disfigurement under 38 C.F.R. § 4.118. There is no indication that he has a scar by his eye of any size, or any hyper- or hypopigmented skin, abnormally textured skin, missing underlying skin texture, or indurated and inflexible skin. For a rating of 50 percent, the Veteran must have visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features, or have four or five characteristics of disfigurement. 38 C.F.R. § 4.118, Diagnostic Code 7800. The evidence indicates that the Veteran has limited control over his left eyelid, and that it often sags or lowers, outside of his control. This constitutes asymmetry of one paired set of features, the eyes. There is no evidence, however, that the Veteran has had distortion or asymmetry of any other feature or paired set of features. As there is no evidence at any time of any further disfigurements, and no assertions from the Veteran that he has any further disfigurement that was not considered, the assignment of a rating higher than 30 percent under Diagnostic Code 7800 is not warranted. The Board has considered the Veteran's lay statements regarding his symptomatology, such as his statements regarding having difficulty opening and closing his eyelid. The Veteran's lack of control over his left eyelid is the reason why he has been found to have asymmetry of a pair of features, and why a 30 percent rating has been assigned. He has not indicated that his eyelid disorder affects any other facial feature or that it has caused any other type of disfigurement. The Veteran's other functional impairment, such as his loss of vision, has been compensated separately and is not part of the appeal. The Board concludes that the preponderance of the evidence is against entitlement to an evaluation in excess of 30 percent for left eye ptosis. The Board has again considered the applicability of the benefit of the doubt doctrine, but it is not applicable. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 55. TBI At the January 2021 Board hearing, the Veteran stated that he had headaches all the time, which were not helped with medicine, and even caused screaming at night. He said that he was depressed and did not go out. He said that his TBI residuals affected his memory, and that he could not always remember his grandchildren's names. He said that he did not have any other symptoms. The Veteran was initially granted service connection for a TBI, effective June 11, 2012, in an August 2013 rating decision. He was assigned a 70 percent rating for PTSD with major depressive disorder, a 30 percent rating for headaches, and a 0 percent evaluation for other TBI symptoms. The Veteran's evaluation for headaches was later increased to 50 percent, and this is the maximum possible evaluation for migraine headaches. The Veteran has not appealed the ratings assigned for his PTSD with major depressive disorder and for his headaches, and the ratings for these disorders are not part of the current appeal. The grenade explosion that caused the Veteran's TBI also damaged his left eye, and has left the Veteran blind in his left eye. This is also separately rated, with a 30 percent rating from April 14, 1967, and a 60 percent rating from October 29, 2019. The Veteran's TBI residuals other than those for which he is being compensated under their own separate diagnostic codes are rated under Diagnostic Code 8045. Diagnostic Code 8045 recognizes three main areas of dysfunction that may result from TBIs and have profound effects on functioning: cognitive, emotional/behavioral, and physical. Each of these areas of dysfunction may require evaluation under listed facets. 38 C.F.R. § 4.124a, Diagnostic Code 8045. Emotional/behavioral dysfunction is to be evaluated under § 4.130 (Schedule of ratings-mental disorders) when there is a diagnosis of a mental disorder. The Veteran has already been diagnosed with PTSD with major depressive disorder, and his psychiatric symptoms have been addressed separately in his evaluation under 38 C.F.R. § 4.130, Diagnostic Code 9411. Physical and neurological dysfunction is also to be evaluated under its appropriate diagnostic code. The Veteran has reported chronic recurring headaches and has been diagnosed with a headache disorder. This disorder has been separately compensated under 38 C.F.R. § 4.124a, Diagnostic Code 8100. In order to avoid pyramiding, these symptoms are not included when evaluating the facets under the Veteran's symptoms for TBI. See 38 C.F.R. § 4.14. The Veteran does have cognitive symptoms, which should be evaluated under Diagnostic Code 8045. Cognitive impairment may include subjective symptoms, but subjective symptoms with a distinct diagnosis may be evaluated under another diagnostic code. 38 C.F.R. § 4.124a, Diagnostic Code 8045. If there is an overlap of manifestations of conditions that can be separately evaluated under a diagnostic code, more than one evaluation cannot be assigned for that evaluation. A single evaluation under whichever set of diagnostic criteria allows the better assessment of overall impaired functioning should be used. Id. at Note (1). Under the table "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" there are 10 facets of TBI related to cognitive impairment and subjective symptoms. Each facet is to be rated as 0, 1, 2, or 3, and some facets allow for a 5th level called "Total." Subjective symptoms are rated only up to "2," and loss of consciousness is assigned only a "Total" rating. A 100-percent evaluation should be assigned if "Total" is the level of evaluation for one or more facets. If no facet is evaluated as "Total," the rating is based on the level of the highest facet. If a "1" is the highest facet present, a 10 percent evaluation is assigned. If "2" is the highest facet present, a 40 percent evaluation is assigned. If "3" is the highest facet present, a 70 percent rating is assigned. 38 C.F.R. § 4.124a, Diagnostic Code 8045. The 10 important facets for cognitive impairment are: (1) Memory, attention, concentration, executive functions; (2) Judgment; (3) Social interaction; (4) Orientation; (5) Motor activity; (6) Visual spatial orientation; (7) Subjective symptoms; (8) Neurobehavioral effects; (9) Communication; and (10) Consciousness. Id. At the November 2019 VA examination, the Veteran reported having trouble remembering names and faces, and that he has to ask his grandchildren what their names are. He was found to have a complaint of mild memory loss, attention, concentration, or executive functions, but without objective evidence on testing. The Veteran also reported that he did not make the best decisions, and that his wife made all the decisions. He was found to have mildly impaired judgment, for complex or unfamiliar decisions, occasionally unable to identify, understand, and weight the alternatives or alternative choices. He did not want to meet people or get out of the house, and the examiner found that social interaction was occasionally inappropriate. The Veteran was noted to be blind in one eye, and therefore his visual spatial orientation was mildly impaired. For subjective symptoms, the Veteran reported headaches, but it was found that the subjective symptoms did not interfere with work, activities of daily living, or other close relationships. The Veteran was found to have one neurobehavioral effect that did not interfere with workplace interaction or social interaction, which was that he got irritated easily. The Veteran had comprehension occasionally impaired, which he described as not processing well and needing to ask people to repeat themselves often. He was always oriented to person, time, place, and situation, and his motor activity was normal. His consciousness was normal. The Veteran's residuals of his TBI were visual impairment and headaches. The examiner noted that he was unable to differentiate the Veteran's symptoms from TBI, PTSD, and emotional trauma related to his medical conditions, as they were overlapping. The Veteran also attended a VA psychiatric examination in January 2020. The Veteran reported having spatial disorientation a few times a month, up to a few minutes, when out in public, and that he was highly anxious when not near his wife while out in public, due to fear of spatial disorientation occurring. The examiner found that the Veteran's TBI was associated with depressed mood and irritability. The Veteran's wife reported that the Veteran had increased depressed mood, irritability, and cognitive decline since 2016. She said that her daughter had expressed concerns about her father's memory, with the example of him repeating the same comments over and over again, every few minutes in a conversation, with no recollection of having said it. She stated that in the past 1-2 years, he had additional declines with word finding, forgetting the names of grandchildren, and repeating himself. The Veteran was fully oriented, but his thought content perseverated on his health problems, and he needed significant help from his wife to answer questions and be redirected. The Veteran's past neurocognitive testing was discussed, and it showed recent worsening in his cognitive functioning. Current testing showed missed items on orientation, short-term recall, spelling a word backwards, and repeating a sentence, and he received 1/3 for clock drawing, indicating impairment in executive functioning. The examiner wrote that this and the testing from November 2019 showed mild to moderate cognitive impairment. The psychiatric examiner wrote that symptoms specific to the TBI were loss of some childhood long-term memories, headaches, dizziness, nausea, and occasional sensitivity to light. It was not, however, entirely possible to differentiate symptoms related to the TBI and depression, from symptoms related to PTSD. The VA treatment records for the appeal period do not show any evaluations related to TBI residuals or any complaints from the Veteran that pertain to cognitive impairment or other related symptoms. The Veteran was also found to be fully oriented. The Board has reviewed all of the evidence of record, and finds that the criteria have been met for a higher, 70 percent rating. The Veteran has always been oriented to person, time, place, and situation; his motor activity is normal; and he has no persistently altered state of consciousness. The Veteran has not reported any of these symptoms, and there is no indication in the record that he has had impairment in these areas. The Board therefore finds that the level of impairment is "0" for the facets of orientation and motor activity, and there is no total impairment of consciousness. Regarding subjective symptoms, the VA examiner found that the Veteran had one subjective symptom, which was his recuring headaches. The Veteran was also noted to have dizziness and sensitivity to light as symptoms accompanying his headaches. As discussed above, the Veteran's impairment from headaches has already been separately compensated under its own diagnostic code, and there are no additional subjective symptoms that he has reported, and which have not been compensated. The Board therefore finds that a "0" should be assigned for subjective symptoms. The Regional Office assigned the Veteran a "1" for judgement, social interaction, neurobehavioral effects, and communication. The Board finds that these evaluations are appropriate. The November 2019 VA examiner found that the Veteran had mildly impaired judgment, based on the Veteran's self-report that his wife helped him to make decisions. He did not want to meet people or leave the house, and was therefore found to have social interaction that was occasionally inappropriate. The Veteran had only one neurobehavioral effect, which was getting irritated easily, and this was not found to interfere or work or social interactions. The Veteran is able to speak and communicate fluently, although he has been noted to perseverate or need redirection. While this shows comprehension and expression that is occasionally impaired, there is no evidence that he has ever had an inability to communicate either by spoken or written language. The Board therefore finds that none of these facets are of a severity that an evaluation higher than "1" is warranted. For visual spatial orientation, the November 2019 VA examiner found that the Veteran had only mild impaired spatial orientation, and attributed this to his loss of vision in the left eye. At the January 2020 psychiatric examination, however, the Veteran reported having spatial disorientation when out in public, and that this made him highly anxious about being outside without the aid of his wife. The Board accepts that this indicates that the Veteran is moderately impaired, and that he is at risk for getting lost in unfamiliar surroundings and following directions, and this indicates level "2" impairment. There is no evidence, however, that the Veteran has moderately severe impairment, such as getting lost in familiar surroundings, and a level "3" is not warranted for this facet. Regarding the facet of memory, attention, concentration, and executive functions, while the Veteran was previously assigned a "1," the Board finds that he has had objective evidence on testing of moderate impairment of memory and executive functioning. The November 2019 VA examiner found that the Veteran had mild memory loss without objective evidence on testing, but the January 2020 psychiatric examiner found that testing had showed missed items on orientation, short-term recall, spelling a word backwards, and repeating a sentence. She also found that a clock drawing test showed 1/3 impairment in executive functioning. The examiner wrote that the testing showed mild to moderate cognitive impairment. These test results are consistent with the reports of the Veteran's wife and daughter, who say that he cannot remember the names of his own grandchildren, that he repeats himself extensively, and that he cannot remember what he has just said. The Board therefore finds that there is objective evidence on testing of moderate impairment of memory and executive functions, resulting in moderate functional impairment. This warrants a higher evaluation of "3" for the facet of memory, attention, concentration, and executive functions. The Veteran has not, however, had "Total" impairment in this facet, as there is no objective evidence on testing of severe impairment of memory, attention, concentration, or executive function. The Board therefore finds that the Veteran's highest facet is "3," and a higher rating of 70 percent can be assigned. There is no indication that the Veteran has met the criteria for a rating of "Total" for any of the cognitive facets, and the evidence does not indicate any additional symptomatology that has not been taken into consideration in assigning this rating. The Veteran has had symptoms of irritability, memory loss, impaired executive functioning, difficulty concentrating, and spatial disorientation, and these symptoms have had, at most, a moderate impact on work, daily activities, and social interactions. The evidence does not indicate that any more severe symptoms have been present at any time during the appeal period. In sum, the Board finds that a 70 percent rating, but no higher, is warranted for the Veteran's residuals of TBI under the criteria of Diagnostic Code 8045 for his neurocognitive symptoms, and his remaining symptoms have been compensated under their respective rating criteria. The preponderance of the evidence is against the assignment of a rating higher than 70 percent. See 38 U.S.C. § 5107(b). DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mary E. Rude, 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.