Citation Nr: 21005712 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 17-00 111 DATE: February 2, 2021 ORDER Entitlement to an increased rating for service-connected hypertension, currently evaluated at 10-percent disabling, is DENIED. Entitlement to an increased rating for a service-connected skin rash, currently evaluated at 10-percent disabling, is DENIED. Entitlement to an increased 10 percent rating, but no greater, for a service-connected hemorrhoid disability is GRANTED. FINDINGS OF FACT 1. Throughout the claim period, continuous medication has been prescribed for the Veteran’s service-connected hypertension. During the claim period, the evidence does not support diastolic pressure that was predominately 110 or more, or systolic pressure that was predominately 200 or more. 2. During the claim period, at worst, the Veteran’s service-connected skin rash disability, did not cover 20 percent or more of the body area. Additionally, the Veteran was not prescribed systemic treatment for the service-connected skin rash disability during the claim period. 3. During the claim period, the record reflects that the Veteran demonstrated frequently recurring internal and external hemorrhoids. The Veteran did not demonstrate hemorrhoids with persistent bleeding and with secondary anemia, or with fissures. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for the service-connected hypertension disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.104, Diagnostic Code (DC) 7101 (2020). 2. During the claim period, the criteria for a rating in excess 10 percent for the service-connected skin rash disability have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. § 4.118, DC 7806 (2020). 3. During the claim period, the criteria for a 10 percent rating, but no greater, for the service-connected hemorrhoid disability were met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.14, 4.114, DC 7336 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the United States Air Force from June 1970 to April 1978. The Board has thoroughly reviewed all the evidence in the Veteran’s claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Increased Rating Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. If there is a question as to which evaluation to apply to the Veteran’s disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the veteran’s medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). The Board must also assess the competence and credibility of lay statements and testimony. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). In increased rating claims, a Veteran’s lay statements alone, absent a negative credibility determination, may constitute competent evidence of worsening, at least with respect to observable symptoms. See Vazquez-Flores v. Shinseki, 24 Vet. App. 94, 102 (2010), rev’d on other grounds by Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (Fed. Cir. 2009). The Veteran is uniquely suited to describe the severity, frequency, and the duration of the symptoms that accompany his service-connected hypertension, skin rash, and hemorrhoid disabilities. See Falzone v. Brown, 8 Vet. App. 398 (1995); Heuer v. Brown, 7 Vet. App. 379 (1995). As noted above, the Veteran’s entire history is reviewed when assigning a disability evaluation. 38 C.F.R. § 4.1. However, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Board must consider whether there have been times when his disabilities on appeal have been more severe than at others, and rate them accordingly. “The relevant temporal focus for adjudicating an increased-rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim.” Hart, 21 Vet. App. at 509. 1. Entitlement to an increased rating for service-connected hypertension, currently evaluated at 10-percent disabling, is denied. In October 2013, the Veteran submitted a VA Form 21-526EZ. Thereby, the Veteran initiated a claim for an increased rating for the service-connected hypertension disability. The Veteran has been assigned a 10 rating for hypertension under 38 C.F.R. § 4.104, Diagnostic Code 7101. Under this regulation, a 10 percent evaluation is warranted when diastolic pressure is predominately 100 or more, or when systolic pressure is predominately 160 or more. A 10 percent disability rating is the minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. A 20 percent evaluation is warranted when diastolic pressure is predominately 110 or more, or when systolic pressure is predominately 200 or more. A 40 percent disability rating requires that diastolic pressure be predominantly 120 or more. A 60 percent evaluation is warranted when diastolic pressure is predominantly 130 or more. Id. In January 2014, the Veteran’s wife supplied the Veteran’s BP readings for six different days to the WACO VA Medical Clinic (VAMC). The readings were as follows: 142/78, 116/78, 132/67, 135/68, 120/74, 116/69, 132/74, 115/69, 132/74, 120/68, 116/69, and 111/66. In March 2014, the Veteran underwent a VA examination that considered the severity of the service-connected hypertension disability. The VA examiner noted a hypertension diagnosis. The VA examiner noted that the Veteran required continuous medication for hypertension treatment. The VA examiner reported that the Veteran did not have a history of diastolic blood pressure (BP) elevation to predominately 100 or more. The Veteran reported that, “when he takes his BP at home, the diastolic has been greater than 100 at least half of the time especially in the morning before he takes his medication.” The VA examiner observed and reported the following BP readings during the examination: 156/80, 141/73, 128/78. In April 2014, the Veteran’s treatment records from the Hillcrest Bosque Clinic were associated with the claims file. After deliberate review, the Board notes that a majority of these records were generated before the beginning of the claim period, October 2012. However, in November 2012, a provider reported the Veteran’s BP as 125/75. The Board notes that a provider also relayed that the Veteran’s BP log contained systolic values around 130 to 140 and diastolic values in the 80s and 90s. In April 2015, an Addendum was generated at the Waco VAMC. At that time, the Veteran demonstrated the following BP values: 150/95, 158/91, 148/83, 165/97, 159/90. In July 2016, a Nursing Initial Evaluation Note was generated at the Doris Miller VAMC. At that time, the Veteran demonstrated the following BP value: 146/80. In May 2017, a Physician’s Note was generated at the Doris Miller VAMC. At that time, the provider noted a BP reading of 131/68. In October 2019, the Veteran supplied sworn testimony to the undersigned Veterans’ Law Judge (VLJ). The Veteran testified that, “(the medication) worked good, but the side effects, they decided, you know --as a matter of fact, I think they dropped it. You know, they don’t give it out anymore. But I’m just now beginning to get my blood pressure stable with meds, because I had to try several different ones. Some of it worked. Some it don’t, so . . . it’s back and forth.” In January 2020, the Board addressed the claim for an increased rating for service-connected hypertension disability. At that time, the Board remanded the claim to the agency of original jurisdiction (AOJ) for additional development. The Board directed the AOJ to secure a VA examination report that addressed the current severity of the Veteran’s service-connected hypertension disability. In March 2020, the Veteran underwent a VA examination that considered the severity of the service-connected hypertension disability. The VA examiner noted a diagnosis for hypertension. The VA examiner noted that the Veteran required continuous medication for hypertension treatment. The VA examiner observed and reported the following BP readings during the examination: 153/87, 159/87, and 156/85. In June 2020, the Veteran’s treatment records from the Doris Miller VAMC were associated with the claims file. Therein, the Veteran’s BP values were reported as follows: 127/66, 138/69, and 112/60. The Board finds notes that continuous medication has been prescribed for the Veteran’s service-connected hypertension throughout the appellate period. Consequently, the criteria for the current 10 percent disability rating is warranted. See 38 C.F.R. § 4.104, DC 7101. The Board also notes that the Veteran reported repeated diastolic pressure greater than 100 in March 2014. However, in January 2014, the Veteran’s wife supplied the Veteran’s blood pressure readings for six different days; none of the supplied readings had diastolic pressure above 78. During the claim period, the Veteran’s private and government treatment records have been associated with the claims file on multiple occasions. After deliberate review of the Veteran’s treatment records and examination reports, the Board finds that they do not contain evidence to support diastolic pressure that was predominately 110 or more, or systolic pressure that was predominately 200 or more. Consequently, the Board finds that the criteria for a rating in excess of 10 percent for the service-connected hypertension disability have not been satisfied at any point during the claim period. See id. Ultimately, the Board finds that the preponderance of the evidence stands counter to the Veteran’s claim for a rating in excess of 10 percent for the service-connected hypertension disability. Since the preponderance of the evidence is against this increased rating claim, the provisions of 38 U.S.C. § 5107(b), regarding reasonable doubt, are not applicable. The Veteran’s claim for a rating in excess of 10 percent for the service-connected hypertension disability must be denied, because the preponderance of the evidence weighs against his claim. The Board notes that the Veteran and his representative have not raised any other issues, nor have any other issues been reasonably raised by the record. See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016); Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). 2. Entitlement to an increased rating for a service-connected skin rash, currently evaluated at 10-percent disabling, is denied. In October 2013, the Veteran submitted a VA Form 21-526EZ. Thereby, the Veteran initiated a claim for an increased rating for the service-connected skin rash disability. The Board notes that, during the appeal period, there have been changes in the regulations applicable to rating diseases of the skin. Therefore, the Board will consider both sets of regulations. See Karnas v. Derwinski, 1 Vet. App. 308, 313 (1991). At the time of the Veteran’s increased rating claim, 38 C.F.R. § 4.118, DC 7806 authorized the following: A 10 percent rating is authorized if at least 5 percent, but less than 20 percent, of the entire body or of exposed areas are affected, or where intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs are required for a total duration of less than six weeks during the past 12-month period. A 30 percent rating is warranted for a skin disability which covers 20 to 40 percent of the entire body or exposed areas affected, or if systemic therapy, such as corticosteroids or other immunosuppressive drugs, is required for a total duration of six weeks or more, but not constantly, during the past 12-month period. A 60 percent rating is assigned for dermatitis or eczema with more than 40 percent of the entire body or more than 40 percent of exposed areas affected, or; constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during the past 12-month period. The regulations also provide that skin disabilities under this code may be rated as disfigurement of the head, face, or neck, or scarring, depending on the predominant disability. 38 C.F.R. § 4.118, DC 7806. Under the new criteria, a 10 percent rating is warranted for characteristic lesions involving at least 5 percent, but less than 20 percent, of the entire body affected; at least 5 percent, but less than 20 percent, of exposed areas affected; or intermittent systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required for a total duration of less than 6 weeks over the past 12-month period. A 30 percent rating is warranted for characteristic lesions involving 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected; or Systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required for a total duration of 6 weeks or more, but not constantly, over the past 12-month period. A 60 percent rating is warranted for characteristic lesions involving more than 40 percent of the entire body or more than 40 percent of exposed areas affected; or constant or near-constant systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, psoralen with long-wave ultraviolet-A light (PUVA), or other immunosuppressive drugs required over the past 12-month period. 38 C.F.R. § 4.118 (2018). Under the August 13, 2018 amendments, systemic therapy is treatment that is administered through any route (orally, injection, suppository, intranasally) other than the skin, and topical therapy is treatment that is administered through the skin. 38 C.F.R. § 4.118 (a) (2018). The Board notes that, in Warren v. McDonald, 28 Vet. App. 194 (2016), the Court held that “systemic therapy” for Diagnostic Code 7806 purposes was not limited to corticosteroids or immunosuppressive drugs and that the Board must consider whether a given treatment is “like” a corticosteroid or other immunosuppressive drug to determine whether such treatment was a systemic therapy. Subsequently, in Johnson v. Shulkin, 862 F.3d 1351 (Fed. Cir. 2017), the Federal Circuit held that the “use of a topical corticosteroid could be considered either systemic therapy or topical therapy based on the factual circumstances of each case.” Further, the Federal Circuit added that a topical treatment administered on a large enough scale to affect the body as a whole could constitute systemic therapy. Id. at 1355. According to its most recent decision on this subject, the Court held that when determining whether topical treatment for a skin disorder constitutes systemic therapy such as corticosteroids or other immunosuppressive drugs, it must be determined (1) whether the topical treatment operates by affecting the body as a whole in its treatment of the condition at issue, and if so, (2) whether the given treatment is “like” a corticosteroid or other immunosuppressive drug. Burton v. Wilkie, 30 Vet. App. 286, 294-295 (2018). The Court in Burton further explained that “nothing in Warren requires a certain order in which the Board must determine if a treatment is a systemic therapy or like a corticosteroid or immunosuppressive drug. Both elements must be present to justify a higher rating under DC 7806, but the order in which they are addressed is of no import.” Id. at 294. But the second element only need be addressed if the first element is met that is, if the treatment is clearly systemic. In March 2014, the Veteran’s treatment records from the Waco VAMC were associated with the claims file. After review, the Board notes that the Veteran was prescribed a lotion to apply externally for skin irritation. In March 2014, the Veteran underwent a VA examination that considered the severity of the service-connected skin rash disability. The VA examiner noted a diagnosis for skin rash, non-specific dermatitis of unknown etiology. The Veteran reported that over the years he has endured rashes on his feet, head, and abdomen. The Veteran reported that the rash itches, and the skin will be dry and flaky with some blisters. The VA examiner noted that the Veteran’s service-connected skin rash disability did not cause scarring or disfigurement of the head, face or neck. The VA examiner noted that the Veteran’s skin rash disability required constant/near-constant treatment with topical corticosteroids. During the physical examination, the VA examiner reported that the Veteran’s skin rash disability affected less than 5 percent of the total body area and less than 5 percent of the exposed body area (hands, face, and neck). The VA examiner remarked that, “Veteran has a place on the back of his head that is 4 x 3 cm. The rash is slightly raised, pink, and scaly. It has the appearance of psoriasis. The soles of his feet have multiple places where the blisters have dried and popped leaving ‘holes’ in his skin.” In December 2015, a Dermatology Note was generated in the Central Texas Healthcare System (HCS). The VA provider noted a history of psoriasis on scalp and knees. The VA provider reported mildly thickened, red, and scaly plaques on the bilateral knees and posterior scalp. The VA examiner assessed psoriasis. The VA examiner prescribed topical cream and ointment for treatment of the service-connected skin rash disability. In October 2019, the Veteran supplied sworn testimony to the undersigned Veterans’ Law Judge (VLJ). The Veteran testified that, “it is spreading. I have it in my head, as you can see. It’s also on my hands, my knees, my legs, my feet. It’s beginning to spread all over.” In January 2020, the Board addressed the claim for an increased rating for service-connected skin rash disability. At that time, the Board remanded the claim to the AOJ for additional development. The Board directed the AOJ to secure a VA examination report that addressed the current severity of the Veteran’s service-connected skin rash disability. In March 2020, the Veteran underwent a VA examination that considered the severity of the service-connected skin rash disability. The VA examiner noted a diagnosis for dermatitis. The Veteran reported that current symptoms included itchiness and dry red skin. The VA examiner noted that treatment included more than six weeks, but not constant, application of topical corticosteroids or other immunosuppressive medications. After a physical examination, the VA examiner noted that the Veteran demonstrated skin rashes on less than 20 percent of the total body area, and less than 5 percent of the exposed body surfaces. The VA examiner described the Veteran’s disability as “red, itch, bumpy patches of skin on feet knees, and back of head with 10% total body area and less than 5% exposed.” The VA examiner noted that the Veteran’s service-connected skin rash disability did not cause scarring or disfigurement of the head, face or neck. During the claim period, the Veteran’s private and government treatment records have been associated with the claims file on multiple occasions. After deliberate review of the treatment records, the Board observes that the Veteran was prescribed topical treatment for his service-connected skin rash disability. The record reflects that, at worst, the skin rash disability did not cover 20 percent or more of the Veteran’s body during the claim period. Ultimately, the Board finds that the preponderance of the evidence stands counter to the Veteran’s claim for a rating in excess of 10 percent for the service-connected skin rash disability. Since the preponderance of the evidence is against this increased rating claim, the provisions of 38 U.S.C. § 5107(b), regarding reasonable doubt, are not applicable. The Veteran’s claim for a rating in excess of 10 percent for the service-connected skin rash disability must be denied, because the preponderance of the evidence weighs against his claim. The Board notes that the Veteran and his representative have not raised any other issues, nor have any other issues been reasonably raised by the record. See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016); Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). 3. Entitlement to an increased 10 percent rating, but no greater, for the service-connected hemorrhoids disability is granted. On December 27, 2012, correspondence from the Veteran’s representative was associated with the claim file. Therein, the representative relayed the Veteran’s desire to pursue an increased rating for the service-connected hemorrhoids disability. Currently, the Veteran maintains a 0 percent disability rating, which is assigned to mild or moderate hemorrhoids, pursuant to 38 C.F.R. § 4.114, DC 7336. A 10 percent rating is assigned for large or thrombotic, irreducible hemorrhoids with excessive redundant tissue, evidencing frequent recurrences. A maximum 20 percent rating is assigned for hemorrhoids with persistent bleeding and with secondary anemia, or with fissures. See 38 C.F.R. § 4.114, DC 7336. In December 2012, a Gastroenterology Procedure Notes was associated with the claims file. Therein, the provider noted that the Veteran endured large internal hemorrhoids. In March 2014, the Veteran’s treatment records from the Waco VAMC were associated with the claims file. After review, the Board notes that the Veteran was prescribed suppository for hemorrhoids, which was to be used twice a day as needed. In March 2014, the Veteran underwent a VA examination that considered the severity of the service-connected hemorrhoids disability. The VA examiner noted a diagnosis for internal or external hemorrhoids. At that time, the Veteran reported that he continued to have internal hemorrhoids, despite the surgery in 1970. The Veteran reported that he takes sitz baths frequently, and he uses phenylephrine suppositories. The VA examiner noted that no external hemorrhoids were present. The VA examiner also noted that no anal fissures or other abnormalities were demonstrated. The VA examiner reported mild or moderate symptoms. The VA examiner did not identify hemorrhoids accompanied by anemia or persistent bleeding. The VA examiner did not identify any symptoms of the rectum or anus, to include fecal leakage necessitating the Veteran to wear a pad. In October 2019, the Veteran supplied sworn testimony to the undersigned VLJ. When questioned by his representative, the Veteran confirmed that, “since 2013, you’ve actually stated that the particular issue has worsened by residual effects of bleeding . . . boils and things of that nature.” The Veteran testified that he does not wear Depends, but he does buy a lot of underwear. In November 2019, a Primary Care physician Note was generated at the Doris Miller VAMC. Therein, the provider noted that the Veteran endured occasional hemorrhoidal blood in the stools. In January 2020, the Board addressed the claim for an increased rating for service-connected hemorrhoids disability. At that time, the Board remanded the claim to the AOJ for additional development. The Board directed the AOJ to secure a VA examination report that addressed the current severity of the Veteran’s service-connected hemorrhoids disability. In March 2020, the Veteran underwent a VA examination that considered the severity of the service-connected hemorrhoids disability. The VA examiner noted a diagnosis for internal or external hemorrhoids. At that time, the Veteran reported discomfort with prolonged sitting due to rectal itch and pain. The VA examiner noted that the Veteran’s treatment plan did not include continuous medication for the service-connected hemorrhoids disability. The VA examiner reported mild external hemorrhoids during the examination. The VA examiner did not identify hemorrhoids accompanied by secondary anemia or persistent bleeding. The VA examiner did not identify anal fissures or other abnormalities. The VA examiner did not identify any symptoms of the rectum or anus, to include fecal leakage necessitating the Veteran to wear a pad. During the claim period, the Veteran’s private and government treatment records have been associated with the claims file on multiple occasions. The Veteran has also undergone two VA examinations that addressed the severity of the service-connected hemorrhoid disability. The Board notes that, at the beginning of the claim period, the Veteran was diagnosed with large internal hemorrhoids. The Board also notes that external hemorrhoids developed at some point between the March 2014 and March 2020 VA examinations. Consequently, the Board finds that the evidence warrants a 10 percent rating under 38 C.F.R. § 4.114, DC 7336. The Board notes that the Veteran has competently and credibly reported bleeding, which accompanied the service-connected hemorrhoids. However, after deliberate review of the Veteran’s treatment records and examination reports, the Board finds that they do not a contain evidence to support the presence of hemorrhoids with persistent bleeding and with secondary anemia, or with fissures. Consequently, the record before the Board does not support a 20 percent rating for the service-connected hemorrhoid disability. Ultimately, the preponderance of the evidence favors the Veteran’s claim for an increased 10 percent rating, but no greater, for the service-connected hemorrhoid disability. Accordingly, this increased rating claim must be granted. The Board notes that the Veteran and his representative have not raised any other issues, nor have any other issues been reasonably raised by the record. See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016); Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board RLBJ, 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.