Citation Nr: 21072872 Decision Date: 12/06/21 Archive Date: 12/06/21 DOCKET NO. 14-03 640 DATE: December 6, 2021 ORDER Entitlement to a compensable evaluation for hemorrhoids prior to April 18, 2016, an evaluation in excess of 10 percent from April 18, 2016 through August 10, 2021, and an evaluation in excess of 20 percent from August 11, 2021, is denied. REMANDED Entitlement to an evaluation for carpal tunnel syndrome, right wrist, in excess of 10 percent prior to April 25, 2016, and in excess of 30 percent from April 25, 2016, is remanded. Entitlement to an evaluation for carpal tunnel syndrome, left wrist, in excess of 10 percent prior to August 11, 2021, and in excess of 20 percent from August 11, 2021, is remanded. Entitlement to an evaluation in excess of 10 percent for residuals of right ankle fracture is remanded. Entitlement to a total rating based on individual unemployability due to service-connected disability (TDIU) prior to August 11, 2021, is remanded. FINDING OF FACT Prior to April 18, 2016, the Veteran's hemorrhoids were not large or thrombotic, irreducible, with excessive redundant tissue, evidencing frequent recurrences; from April 18, 2016 through August 10, 2021, the Veteran's hemorrhoids were not manifested by persistent bleeding and secondary anemia, or fissures; from August 11, 2021, the Veteran has been in receipt of the highest schedular evaluation assignable for hemorrhoids. CONCLUSION OF LAW The criteria for a compensable evaluation for hemorrhoids prior to April 18, 2016, an evaluation in excess of 10 percent from April 18, 2016 through August 10, 2021, and an evaluation in excess of 20 percent from August 11, 2021, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.114, Diagnostic Code 7336. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1990 to April 1993. The Board thanks her for her service to our country. In October 2015 and April 2020, the Board remanded the claims herein for additional development. Thereafter, an August 2021 rating decision assigned a 20 percent evaluation for the Veteran's left wrist carpal tunnel syndrome, effective August 11, 2021. A September 2021 rating decision assigned a 20 percent evaluation for the Veteran's hemorrhoids, effective August 11, 2021. The September 2021 rating decision also granted TDIU, effective August 11, 2021. The claims now return for appellate review. Entitlement to a compensable evaluation for hemorrhoids prior to April 18, 2016, an evaluation in excess of 10 percent from April 18, 2016 through August 10, 2021, and an evaluation in excess of 20 percent from August 11, 2021, is denied. As an initial matter, the Board notes that the claim for increase stems from a July 6, 2011 claim for increase, thus the rating period for consideration on appeal is from one year prior to the date of receipt of the claim for increase, if it is factually ascertainable that an increase occurred during that period. However, the Board has reviewed the record to determine whether it is factually ascertainable that an increase occurred within a year prior to the date of claim and finds that the evidence is against a finding that the Veteran's hemorrhoids worsened such that it was factually ascertainable that an increase had occurred within that year. The Veteran generally contends that she warrants a higher evaluation for hemorrhoids. In general, ratings for service-connected disabilities are determined by comparing the Veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When a question arises as to which of two ratings applies under a particular code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. An exception to this rule applies when the rating criteria are successive. In such a case, all the requirements of the lower levels must be met before a higher level is awarded, and 38 C.F.R. §§ 4.7 and 4.21 do not apply. Johnson v. Wilkie, 30 Vet. App. 245 (2018). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. In a claim for increase in a previously established rating, the present level of disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where the evidence contains factual findings that demonstrate distinct time periods when the service connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, staged ratings are to be considered. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's hemorrhoid disability is rated under 38 C.F.R. § 4.114, Diagnostic Code 7336, which provides a noncompensable rating for mild or moderate; a 10 percent rating for large or thrombotic, irreducible, with excessive redundant tissue, evidencing frequent recurrences; and a 20 percent rating for persistent bleeding and secondary anemia, or fissures. 38 C.F.R. § 4.114, Diagnostic Code 7336. The record contains records of VA treatment dated during the appeal period. However, these records do not describe the Veteran's hemorrhoids in terms of the criteria set forth in Diagnostic Code 7336. The Board first finds that the preponderance of the evidence is against a compensable evaluation prior to April 18, 2016. In this regard, a report of a September 2011 VA Rectum and Anus Conditions examination provides that the Veteran's hemorrhoids did not have persistent bleeding or fissures. They were not large or thrombotic, irreducible, with excessive redundant tissue, evidencing frequent recurrences. The Veteran did have secondary anemia, based on a March 1993 complete blood count (CBC). However, an April 2012 VA Medical Opinion found that the Veteran's latest CBC results, of February 2010, showed that her hemoglobin and hematocrit values were within normal limits. Based on this result, she was not currently suffering from secondary anemia due to her hemorrhoids. The Board finds that the April 2012 Medical Opinion that the Veteran does not have anemia is more probative than the September 2011 VA examination report that she did have anemia secondary to hemorrhoids. The April 2012 Medical Opinion was based on recent CBC results obtained during the appeal period. By contrast, the September 2011 VA examination report was based on distant CBC results obtained nearly 20 years before the appeal period. As the preponderance of the evidence shows that the Veteran's hemorrhoids were not large or thrombotic, irreducible, with excessive redundant tissue, evidencing frequent recurrences, prior to April 18, 2016, a compensable evaluation prior to that date is not warranted. The Board also finds that the preponderance of the evidence is against an evaluation in excess of 10 percent from April 18, 2016 through August 10, 2021. Specifically, a report of an April 18, 2016, VA Rectum and Anus Conditions examination provides that the results of examination were small or moderate external hemorrhoids. The report also noted mild or moderate internal or external hemorrhoids and episodes of blood-streaked stools. The report specifies that the Veteran did not have any other pertinent physical findings, complications, conditions, signs or symptoms. A Signs and Symptoms section of the report states that the Veteran had findings, signs or symptoms consisting of mild or moderate protruding (non-reducible) external hemorrhoids. This section does not identify persistent bleeding, secondary anemia or fissures. As the preponderance of the evidence shows that the Veteran's hemorrhoids did not have persistent bleeding and secondary anemia, or fissures, from April 18, 2016 through August 10, 2021, an evaluation in excess of 10 percent prior to that date is not warranted. Turning to the period beginning August 11, 2021, the Board observes that the Veteran's current 20 percent evaluation, from this date, is the highest schedular evaluation under Diagnostic Code 7336. As the maximum rating has already been assigned from August 11, 2021 under Diagnostic Code 7336, and there is no legal basis upon which to award a higher schedular evaluation, a rating in excess of 20 percent from August 11, 2021 is not warranted. Further, as hemorrhoids are specifically contemplated by the Rating Schedule under Diagnostic Code 7336, they may not be rated by analogy. Copeland v. McDonald, 27 Vet. App. 333, 337 (2015). Neither the Veteran nor her representative has raised any other issues, nor have any other issues been reasonably raised by the record as to this issue. See Doucette v. Shulkin, 28 Vet. App. 366, 370-71 (2017). The Board acknowledges that the Veteran believes that her hemorrhoids are more severe than the current staged ratings reflect. She is competent to report observable symptoms. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, she is not competent to identify a specific level of disability of hemorrhoids according to the appropriate Diagnostic Code. Competent evidence concerning the nature and extent of the Veteran's disability was provided by the VA examiners who examined her in September 2011 and April 2016, and reviewed her medical records in April 2012. The medical findings provided in the September 2011 and April 2016 VA examination reports and the April 2012 VA Medical Opinion directly address the criteria under which the Veteran's hemorrhoids are evaluated. In light of the above, the Board finds that a compensable evaluation for hemorrhoids prior to April 18, 2016, an evaluation in excess of 10 percent from April 18, 2016 through August 10, 2021, and an evaluation in excess of 20 percent from August 11, 2021, are not warranted and must be denied. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the claim. 38 U.S.C. § 5107. REASONS FOR REMAND 1. Entitlement to an evaluation for carpal tunnel syndrome, right wrist, in excess of 10 percent prior to April 25, 2016, and in excess of 30 percent from April 25, 2016, is remanded. 2. Entitlement to an evaluation for carpal tunnel syndrome, left wrist, in excess of 10 percent prior to August 11, 2021, and in excess of 20 percent from August 11, 2021, is remanded. 3. Entitlement to an evaluation in excess of 10 percent for residuals of right ankle fracture is remanded. The Board remands these claims to obtain outstanding records of VA-authorized medical treatment. VA CAPRI records reflect that the Veteran was authorized fee-basis treatment during the appeal period for carpal tunnel syndrome of the right and left wrists, and residuals of right ankle fracture. The Veteran's e-folder does not contain any corresponding records. The same VA CAPRI records also reflect that ortho, neurological and PT medical records were frequently scanned into VistA imaging during the appeal period. These scanned documents are not part of the Veteran's VA e-folder. A remand is required to allow the agency of original jurisdiction (AOJ) to obtain all relevant fee-basis and scanned/VistA imaging records. See 38 C.F.R. § 3.159 (c)(3) (in a claim for disability compensation, VA will make efforts to obtain records of examination or treatment at non-VA facilities authorized by VA). 4. Entitlement to a TDIU prior to August 11, 2021, is remanded. Finally, because a decision on the remanded claims for increased evaluations for carpal tunnel syndrome of the right and left wrists and residuals of a right ankle fracture could significantly impact a decision on the claim for a TDIU, prior to August 11, 2021, the issues are inextricably intertwined. A remand of the claim for entitlement to a TDIU, prior to August 11, 2021, is required. Since the Board is remanding these claims, the AOJ should update the Veteran's e-folder to include all outstanding VA treatment records. The matters are REMANDED for the following actions: (Continued on the next page) 1. Please obtain and associate with the Veteran's e-folder copies of all outstanding VA treatment records. 2. Please obtain and associate with the Veteran's e-folder copies of all records of VA-authorized fee-basis treatment relevant to any disabilities on appeal, and all scanned/VistA imaging records relevant to any disabilities on appeal. M. ESPINOZA Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Davitian, 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.