Citation Nr: 21009060 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 16-29 029 DATE: February 18, 2021 ORDER An initial compensable rating prior to March 28, 2016, for hemorrhoids is denied. A rating in excess of 20 percent from March 28, 2016, for hemorrhoids is denied. Service connection for left knee disability is denied. REMANDED Entitlement to an initial compensable rating prior to March 28, 2016, for gastric ulcer with gastroesophageal reflux disease (GERD) is remanded. Entitlement to a rating in excess of 10 percent from March 28, 2016, for gastric ulcer with GERD is remanded. FINDINGS OF FACT 1. Prior to March 28, 2016, the Veteran’s hemorrhoid disability has not been more nearly manifested by large or thrombotic hemorrhoid, irreducible, with excessive redundant tissue, evidencing frequent recurrences. 2. Since March 28, 2016, the Veteran has been in receipt of the maximum schedular evaluation for hemorrhoids. 3. The preponderance of the evidence of record is against finding that the Veteran has had a left knee disability at any time during or approximate to the pendency of the claim. CONCLUSIONS OF LAW 1. Prior to March 28, 2016, the criteria for a compensable rating prior for not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.114, Diagnostic Code 7336. 2. Since March 28, 2016, there is no legal basis for the assignment a schedular rating in excess of 20 percent for hemorrhoids. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.114, Diagnostic Code 7336. 3. The criteria for service connection for left knee disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from April 1963 to October 1985. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a May 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge at a June 2019 hearing. A hearing transcript is associated with the record. In October 2019, the Board remanded the appeal for additional evidentiary development. As to those matters adjudicated herein, the Board finds that there has been substantial compliance with the remand directives. Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141 (1999). Although requested by the originating agency, pursuant to the October 2019 Board remand directives, the Veteran did not authorize release of any relevant private treatment records. See Subsequent Development Letter (November 2019). The duty to assist is a two-way street. If the Veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the relevant evidence. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Therefore, the Board finds that there has been substantial compliance with the Board’s prior remand in this regard. Lastly, during remand status, a December 2020 rating decision granted service connection for bilateral plantar fasciitis. As such, there is no remaining allegation of error of fact or law for appellate consideration as to this matter. 38 U.S.C. § 7105 (d)(5). See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (noting that a grant of service connection extinguishes appeals before the Board). 1. Entitlement to an initial compensable rating prior to March 28, 2016, for hemorrhoids. 2. Entitlement to a rating in excess of 20 percent from March 28, 2016, for hemorrhoids. Issues 1-2: A May 2012 rating decision granted service connection for hemorrhoids and assigned a noncompensable rating from July 30, 2010 (date of claim), under 38 C.F.R. § 4.114, Diagnostic Code 7336. See Rating Decision (May 2012). This appeal arises from the Veteran’s disagreement with the initial noncompensable rating assigned. See NOD (May 2012). Thereafter, an April 2016 rating decision granted a 20 percent rating for hemorrhoids from March 28, 2016. As the award does not represent a full grant of the benefit sought on appeal, the claim remains in appeal status. See AB v. Brown, 6 Vet. App. 35 (1993). The Veteran contends that his disability should be assigned a higher disability rating based on use of suppositories daily and because “he cannot have a bowel movement with them protruding.” See NOD (May 2012). He noted that he required a colonoscopy in 2016 due to worsening of symptoms. See Hearing Transcript (June 2019). 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. 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. A disability may require re-evaluation in accordance with changes in a veteran’s condition. It is thus essential, in determining the level of current impairment, that the disability be considered in the context of the entire recorded history. 38 C.F.R. § 4.1. The Board concludes that, prior to March 28, 2016, the preponderance is against finding that the Veteran’s hemorrhoid disability is more nearly manifested by large or thrombotic hemorrhoids, irreducible, with excessive redundant tissue, evidencing frequent recurrences or; persistent bleeding and with secondary anemia, or with fissures. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 3.159, 4.3, 4.7. 4.114, Diagnostic Code 7336. Further, the Board concludes that, from March 28, 2016, there is no legal basis for the assignment a schedular rating in excess of 20 percent for hemorrhoids. 38 U.S.C. § 1155; 38 C.F.R. § 4.114, Diagnostic Code 7336. Diagnostic Code 7336 provides as follows: A 0 percent evaluation for mild or moderate hemorrhoids; a 10 percent evaluation for large or thrombotic, irreducible, hemorrhoids with excessive redundant tissue, evidencing frequent recurrences; and a 20 percent evaluation for hemorrhoids with persistent bleeding and with secondary anemia, or with fissures. 38 C.F.R. § 4.114, Diagnostic Code 7336. In this case, neither the lay nor the medical evidence reflect that, prior to March 28, 2016, the Veteran’s disability was more nearly manifested by large or thrombotic hemorrhoid, irreducible, with excessive redundant tissue, evidencing frequent recurrences. An October 2011 VA examination report shows mall or moderate external hemorrhoids treated with metamucil twice per day. Although history of fissure diagnosis was noted, the examination report shows that the Veteran’s hemorrhoid disability was of a “mild or moderate” severity and did not check any of the boxes that would indicate the presence of (1) large or thrombotic, irreducible with excessive redundant tissue, evidencing frequent recurrences, or (2) hemorrhoids with persistent bleeding, or (3) hemorrhoids with secondary anemia, or (4) hemorrhoids with fissure. It was noted that the Veteran’s hemorrhoids did not adversely impact his ability to work. VA treatment records reveal a diagnosis of hemorrhoids with stable symptoms. See CAPRI (November 2019). It is not factually ascertainable that the Veteran met the criteria for a 20 percent rating for hemorrhoids prior to March 28, 2016, which is the date of his VA rectum/anus examination. The March 2016 VA examination reflects symptoms of hemorrhoids with persistent bleeding and examination findings for small or moderate external hemorrhoids. The examiner reported that the Veteran’s hemorrhoids did not impact his ability to work although the Veteran reported difficulty with prolonged sitting and bending due to rectal pain and discomfort. Whether a disability meets the schedular criteria for the assignment of a higher evaluation is a factual determination by the Board based on the Veteran’s complaints coupled with the medical evidence. Here, neither the lay nor the medical evidence shows large or thrombotic, irreducible, hemorrhoids with excessive redundant tissue, evidencing frequent recurrences; or hemorrhoids with persistent bleeding and with secondary anemia, or with fissures. 38 C.F.R. § 4.114, Diagnostic Code 7336. The Board accepts that the Veteran is competent to report his symptoms of hemorrhoids. He is competent and credible in this regard. However, neither the lay nor the medical evidence more nearly reflects the criteria for a compensable rating at any time prior to March 28, 2016. 38 C.F.R. § 4.7. Further, a rating in excess of 20 percent from March 28, 2016, is not warranted because the 20 percent rating is the maximum schedular rating available under Diagnostic Code 7336. The Board has considered whether a higher rating is warranted under another potentially applicable provision of the VA rating schedule. However, there is no basis for a higher rating under any other potentially applicable provision. It is noted that there is no competent evidence of hemorrhoids with impairment of sphincter control of stricture of rectum and anus or prolapse of rectum or fistula in ano. See 38 C.F.R. § 4.114, Diagnostic Codes 7332-7335. Accordingly, the claims for increase for hemorrhoids, rated at zero and 20 percent during the appeal period, are denied. There is no doubt to resolve. 38 U.S.C. § 5107(b). 3. Entitlement to service connection for left knee disability. The Veteran contends that he has a left knee disability due to or the result of a 1978 injury to the left knee sustained while ‘trying to hook an aircraft generator to a truck,” noting that his knee “somehow got stuck between the truck and the hitch” when he was maneuvering the hitch and another group was pushing the generator into place; he stated that was treated at the Okinawa base dispensary. See NOD (May 2012). The Veteran testified that, while hooking up a generator to a tow truck, the generator rolled forward and he hit his knee between the bumper of the truck and the generator; he worked on his knees as a mechanic in service; and that he was placed on a profile in service, in part, due to a left knee injury. He further testified that he is not being treated for a left knee disability although he recalls having been told he had “mild arthritis.” service left knee injury. See Hearing Transcript (June 2019) Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current left knee disability and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Veteran’s service treatment records (STRs) reflect no complaints or findings for abnormal left knee pathology. Indeed, a November 1979 report of medical examination (ROME) reflects normal clinical evaluation of the lower extremities and no finding for scar about the knee area. Likewise, a May 1983 ROME (retirement) reflects normal clinical evaluation of the lower extremities and no finding for scar about the knee area. The ROME is highly detailed as to numerous medical problems and history of treatment, but it reflects no history of or findings for abnormal pathology of the left knee. On the associated Report of Medical History (ROMH), dated in May 1983, the Veteran denied a history of swollen or painful joints, arthritis, and “trick” or locked knee. Further, he denied having ever had any injury other than those already noted. The Board notes that there was an isolated right knee complaint in 1977. VA received in November 1985 the Veteran’s original VA application for compensation. See VA Form 21-526 (November 1985). However, although numerous disorders were claimed at this time, the Veteran did not report a left knee disability or residuals of left knee injury. VA received the Veteran’s left knee claim in July 2010. See VA Form 21-526 (July 2010). VA treatment records, dated from October 2011 through August 2020, reflect an isolated March 2017 report of “knee” pain although the specific knee (right or left) was not identified. These records reflect neither lay nor medical evidence of left knee disability. Further, VA received non-VA medical records, “78th Medical Group,” dated between 2004 and 2009. However, these records show no complaints or findings for abnormal left knee pathology, to include any history of left knee injury. These records include a 2004 note, which indicates that the Veteran worked as an aircraft mechanic and that the medical questionnaire was “reviewed without any significant findings.” The assessment, occupational examination, was normal. The competent, credible evidence of record does not show that the Veteran has a current disability of his left knee or that he had one any time during or approximate to the filing of this claim. The Board accepts that the Veteran is competent to report injury and symptoms, such as, pain. See Layno v. Brown, 6 Vet. App. 465 (1994). However, neither the lay nor the medical evidence demonstrates the presence of “disability.” See Saunders v. Wilkie, 886 F.3d 1356, 1363 (Fed. Cir. 2018) (pain alone can constitute a "disability" under 38 U.S.C. § 1110 because pain can cause functional impairment). Here, Veteran has not presented evidence of any functional loss or impairment due to left knee symptoms and the medical evidence shows no indication of functional loss or impairment due to any left knee symptoms. In the absence of proof of a present disability due to disease or injury, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). See McClain v. Nicholson, 21 Vet. App. 318, 321 (2007) (The current disability requirement for a service connection claim is satisfied if the claimant has a disability at the time the claim is filed or during the pendency of that claim). The Board acknowledges that a VA examination has not been obtained in this matter. However, the Board finds that VA’s duty to obtain an examination and/or opinion is not triggered in this case because the Board finds that the Veteran’s report of in-service left knee injury is not credible. See Caluza v. Brown, 7 Vet. App. 498 (1995). It is not credible in view of the STRs to include his May 1983 ROME and ROMH at the time of his retirement from service. These show normal clinical evaluation of the lower extremities and no finding for scar about the knee area; a highly detailed history as to numerous medical problems and treatment, but without history of or findings for abnormal pathology of the left knee; and the Veteran denial of swollen or painful joints, arthritis, and “trick” or locked knee along with a denial that he had or ever had any injury other than those already noted. Further, the Veteran has not identified evidence demonstrating that he has a left knee disability. VA has a duty to assist the Veteran in substantiating his claim, the duty is not a one-way street and claimants are expected to cooperate in the development of their claims. See Woods v. Gober, 14 Vet. App. 214, 224 (2000); see also Hurd v. West, 13 Vet. App. 449, 452 (2000). A mere conclusory generalized lay statement that a service event or illness caused a claimant’s current condition is insufficient to trigger VA’s duty to provide a VA examination/opinion. McLendon v. Nicholson, 20 Vet. App. 79 (2006); Waters v. Shinseki, 601 F.3d 1274, 1276 (2010). Accordingly, the claim is denied. There is no doubt to resolve. 38 U.S.C. § 5107(b). REASONS FOR REMAND In remanding these matters, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran’s assertions. Neither the Veteran’s credibility nor any lack thereof should be presumed in this remand. 3. Entitlement to an initial compensable rating prior to March 28, 2016, for gastric ulcer with GERD is remanded. 4. Entitlement to a rating in excess of 10 percent from March 28, 2016, for gastric ulcer with GERD is remanded. A May 2012 rating decision granted service connection for gastric ulcer with GERD and assigned a noncompensable rating from July 30, 2010 (date of claim). See Rating Decision (May 2012). This appeal arises from the Veteran’s disagreement with the initial zero percent rating assigned. See NOD (May 2012). Thereafter, an April 2016 rating decision granted a 10 percent rating from March 28, 2016. As the award does not represent a full grant of the benefit sought on appeal, the claim remains in appeal status. See AB v. Brown, 6 Vet. App. 35 (1993). The Veteran contends that his disability should be assigned a higher disability rating based on use of daily medication, heartburn, and bloating. See NOD (May 2012). VA examinations dated in October 2011, March 2012, April 2016, and December 2020 indicate that the Veteran takes continuous medication for his gastric ulcer with GERD. A remand is necessary to determine the severity of the Veteran's gastric ulcer with GERD symptoms while discounting the ameliorative effects of medication. See Jones v. Shinseki, 26 Vet. App. 56 (2012) (holding that the ameliorative effects of medication may not be considered in assigning a disability rating where these effects are not explicitly contemplated by the rating criteria). Accordingly, the matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from August 2020 to the Present. 2. Obtain an addendum opinion regarding the severity of the Veteran’s gastric ulcer with GERD. After review of the lay and medical evidence of record, provide an addendum addressing whether at any time during his appeal, the Veteran’s symptoms, without consideration of the ameliorative effects of medication, more nearly reflect: (a.) mild gastric ulcer with recurring symptoms once or twice yearly; or (b.) moderate gastric ulcer with recurring episodes of severe symptoms two or three times a year averaging 10 days in duration or with continuous moderate manifestations; or (c.) moderately severe gastric ulcer, or less than severe but with impairment of health manifested by anemia and weight loss, or by recurrent incapacitating episodes averaging 10 days or more in duration at least four or more times a year; or (d.) severe gastric ulcer with pain only partially relieved by standard ulcer therapy, periodic vomiting, recurrent hematemesis, or melena, with manifestations of anemia and weight loss productive of definite impairment of health. In so doing, provide a supplemental opinion for the following identified past VA examinations. (e.) Provide an addendum retrospective opinion to supplement the March 2012 VA examination report, identifying those signs and symptoms of gastric ulcer with GERD, without consideration of the ameliorative effects of medication take for those symptoms. (f.) Provide an addendum retrospective opinion to supplement the March 2016 VA examination report, identifying those signs and symptoms of gastric ulcer with GERD, without consideration of the ameliorative effects of medication take for those symptoms. (g.) Provide an addendum retrospective opinion to supplement the December 2020 VA examination report, identifying those signs and symptoms of gastric ulcer with GERD, without consideration of the ameliorative effects of medication take for those symptoms. If deemed necessary, the Veteran may be recalled for examination, in person or via tele-health. C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. A. Macek, 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.