Citation Nr: 21009203 Decision Date: 02/19/21 Archive Date: 02/19/21 DOCKET NO. 14-25 992 DATE: February 19, 2021 THE ISSUES 1. Entitlement to service connection for a right shoulder disability, as secondary to service-connected status post Bristow procedure for recurrent dislocation of the left shoulder with degenerative joint disease. 2. Entitlement to service connection for a neck disability, to include as secondary to a low back disability. 3. Entitlement to service connection for a low back disability. 4. Entitlement to service connection for a left knee disability. 5. Entitlement to service connection for sleep apnea. 6. Entitlement to service connection for hyperthyroidism. 7. Entitlement to service connection for hypothyroidism. 8. Entitlement to an initial compensable rating for hemorrhoids prior to October 1, 2018 and in excess of 10 percent thereafter. ORDER Entitlement to an initial compensable rating for hemorrhoids prior to October 1, 2018 and in excess of 10 percent thereafter is denied. REMANDED Entitlement to service connection for a right shoulder disability, as secondary to service-connected status post Bristow procedure for recurrent dislocation of the left shoulder with degenerative joint disease is remanded. Entitlement to service connection for a neck disability, to include as secondary to a low back disability is remanded. Entitlement to service connection for a low back disability is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for hyperthyroidism is remanded. Entitlement to service connection for hypothyroidism is remanded. FINDINGS OF FACT For the period prior to October 1, 2018, the Veteran's service-connected hemorrhoids are manifested by symptoms of flare-ups accompanied by pain and bleeding; there is no evidence of large or thrombotic, irreducible hemorrhoids with excessive redundant tissue, evidencing frequent recurrences. For the period from October 1, 2018, Veteran’s service-connected hemorrhoids are manifested by symptoms of flare-ups accompanied by pain and bleeding; there is no evidence of anemia or fissures. CONCLUSION OF LAW The criteria for an initial compensable rating for hemorrhoids prior to October 1, 2018 and in excess of 10 percent thereafter have not been met. 38 U.S.C. §§ 1155, 5107 (2014); 38 C.F.R. §§ 3.159, 3.321, 4.40, 4.45, 4.59, 4.114, Diagnostic Code (DC) 7336 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from September 1978 to September 1982. This matter is before the Board of Veterans Appeals (Board) on appeal from July 2013, September 2013, and August 2015 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Veteran testified before the undersigned Veterans Law Judge (VLJ) in March 2018. A copy of the hearing transcript has been associated with the claims file. In June 2018, the Board remanded these claims in order to afford the Veteran new VA examinations for his claimed conditions, as well as to obtain outstanding VA treatment records from Miami, Brower Clinic in Florida, and East Orange for the period from 1986 to 1990. With regards to the issue of an increased rating for a hemorrhoid disability, the Board finds that there has been substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand confers on the claimant, as a matter of law, the right to compliance with the remand order); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that substantial, rather than strict, compliance with remand directives is required). The issues relating to service connection are addressed in the REMAND portion of this decision. 1. Entitlement to an initial compensable rating for hemorrhoids prior to October 1, 2018 and in excess of 10 percent thereafter is denied. Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155 (2014); 38 C.F.R. § 4.1 (2020). Separate DCs identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2020). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2020). The Veteran's entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1 (2016). But where service connection has already been established, and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, in such cases, when the factual findings show distinct time periods during which a claimant exhibits symptoms of the disability at issue and such symptoms warrant different evaluations, staged evaluations may also be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007). Here, the Veteran has already been assigned a staged rating for his hemorrhoid disability. The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14 (2016). The critical element in permitting the assignment of several ratings under various DCs is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). The Veteran is rated under DC 7336 for his hemorrhoids. The September 2013 rating decision assigned an initial noncompensable disability rating for hemorrhoids while a subsequent July 2020 rating decision increased the disability rating to 10 per from October 1, 2018. As such, the Veteran's service-connected hemorrhoids are rated as noncompensable prior to October 1, 2018 and 10 percent disabling thereafter. The Veteran contends that a higher rating is warranted. Under DC 7336, a noncompensable evaluation is assigned for mild to moderate hemorrhoids. A 10 percent evaluation is assigned for external or internal hemorrhoids, large or thrombotic, irreducible, with excessive redundant tissue, evidencing frequent recurrences. A 20 percent evaluation is assigned for external or internal hemorrhoids, with persistent bleeding and with secondary anemia, or with fissures. 38 C.F.R. § 4.114, DC 7336 (2020). The Period prior to October 1, 2018 The Veteran stated during his initial VA examination in June 2012 that he had hemorrhoids going back to active service, and that he would have bright red blood with bowel movements. The Veteran noted those symptoms remain and that he takes Psyllium currently. The examiner diagnosed hemorrhoids that are mild or moderate. The hemorrhoids were also noted to be small or moderate and external. No fissures or fistulas were noted, and no other findings were noted. Blood testing indicated normal readings of hemoglobin, hematocrit, white blood cell count, and platelets. Based on these findings, in a September 2013 rating decision, the RO granted the Veteran granted the Veteran service connection for hemorrhoids and assigned an initial noncompensable disability rating. In an October 2013 Notice of Disagreement (NOD), the Veteran stated that he “believe[d he] should get a higher rating for [his] disability.” In a July 2014 VA Form 9, the Veteran asserted that his hemorrhoids were painful and that he used suppositories and a sitting donut provided by the VA for his condition. In July 2014, the Veteran submitted a private hemorrhoid examination. The private examiner did not indicate any review of the medical records and noted that no physical examination of the rectal/anal area was performed. The Veteran reported irritation due to hemorrhoids and that he used stool softeners and fiber supplements. The examiner found mild to moderate hemorrhoids but indicated no other symptoms. The examiner also noted that the Veteran’s hemorrhoids impacted his ability to work “per patient report.” An August 2014 VA treatment record found the Veteran complained of bleeding with bowl movements, and that he was using suppositories. In a VA visit in November 2015, the Veteran was found to have a “large external hemorrhoid” with occasional blood on bowel movement, but no other symptoms were noted. A VA treatment note from March 2016 found no evidence of fissure. The Veteran testified at the at the March 2018 Board Hearing that he has experienced hemorrhoids severe enough that they're bleeding, and that he took medication for them. Based on the foregoing, the Board finds that a compensable rating for the Veteran's service-connected hemorrhoids is not warranted for the period prior to October 1, 2018. In that regard, the Board credits the Veteran's lay statements regarding the frequency and severity of his hemorrhoids. The Board likewise credits the VA examination reports regarding their severity. Neither the Veteran's lay statements nor the VA examination reports indicate evidence of large or thrombotic hemorrhoids irreducible, with excessive redundant tissue, evidencing frequent recurrences, which are the threshold requirement for a compensable 10 percent rating. While the Board acknowledges the single November 2015 VA treatment note recording a “large external hemorrhoid,” there is no evidence that it was irreducible with excessive redundant tissue. The Veteran's hemorrhoids flare-up intermittently throughout the year and exhibit no more than mild or moderate hemorrhoids, which are noncompensable. The Veteran is competent to state that his disability has worsened. However, the medical evidence in this case demonstrates that the Veteran's hemorrhoids are not of sufficient severity to warrant assignment of a compensable evaluation. Based on the foregoing, the Board finds that the preponderance of the evidence is against a grant of a compensable evaluation for hemorrhoids, and there is no doubt to be resolved. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Period from October 1, 2018 In its June 2018 decision, the Board remanded the matter in order to obtain a contemporaneous VA examination for the Veteran’s hemorrhoid disability, based in part on the Veteran’s March 2018 Board Hearing testimony that his condition had worsened and that he suffered from flare ups. The Veteran was afforded such a VA examination on October 1, 2018. The Veteran reported “recurring rectal bleeding, usually mild and occurring 3-4 times a week, associated with rectal discomfort/irritation.” The Veteran described flares resulting in increased bleeding and pain. There was no history of anemia or blood transfusions, and the Veteran reported that he was not currently taking medication. Upon examination, the physician described the Veteran’s external hemorrhoids as mild, small or moderate. The examiner did not indicate that the Veteran’s hemoglobin or hematocrit testing was abnormal. Finally, the examiner found that the Veteran’s hemorrhoids did not impact his ability to work. VA treatment records are consistent with the October 2018 VA examination findings. In a subsequent July 2020 rating decision, the RO granted an increased disability rating of 10 percent for the Veteran’s hemorrhoid disability effective October 1, 2018, the day of the VA examination, and when it became factually ascertainable that the Veteran’s disability had increased in severity. Based on a complete review of the evidence, the Board concludes that a rating greater than 10 percent under DC 7336 is not warranted for the period from October 1, 2018. The Veteran has consistently reported persistent bleeding, however, the October 2018 VA examiner specifically stated that he was not anemic. There also have not been findings of fissures during the appellate time period. The Board has reviewed the remaining DCs relating to disabilities of the digestive system but finds that they are inapplicable in this case. See 38 C.F.R. § 4.114 (2020). In summary, the Board concludes that a rating greater than 10 percent under DC 7336 is not warranted for the period from October 1, 2019. REASONS FOR REMAND 1. Entitlement to service connection for a right shoulder disability, as secondary to service-connected status post Bristow procedure for recurrent dislocation of the left shoulder with degenerative joint disease is remanded. In September 2020, the Veteran indicated that there were outstanding private treatment records at JFK Medical Center from January 1983 to December 1995, however, the Veteran did not properly sign the general release form, but instead had his representative sign said document. Therefore, the private treatment records were not obtained. Upon remand, the Board finds that the Veteran should receive an additional opportunity to submit a proper Authorization to Disclose Information to the Department of Veterans Affairs form. The Veteran, through his representative, has also identified potentially outstanding service treatment records during his time as an active reservist from 1985 to 1990. It is not clear if these treatment records are associated with the claims file, therefore, upon remand, VA should make an attempt to locate any relevant and potentially outstanding service records. See 38 C.F.R. § 3.159 (c) (2). Here, the RO should notify the Veteran that his STRs are unavailable and allow the Veteran an opportunity to provide missing STRs. In addition to obtaining the records above, the Board directed the RO to schedule the Veteran for a VA examination to determine the nature and etiology of any right shoulder disability in its June 2018 decision. The Veteran was afforded such a VA examination in October 2018, which recorded rotator cuff tendonitis and glenohumeral joint osteoarthritis of the right shoulder, with a diagnosis date of 2018. In an October 2019 addendum opinion, the examiner opined that the Veteran’s right shoulder disabilities were less likely than not related to his service. The examiner explained that “any injuries in the service to his right shoulder… were minor, soft tissue injuries which resolved and could not cause any chronic conditions.” The examiner cited no severe enough injuries in service which would cause his current conditions and noted that age and daily wear and tear were the most likely causes of the Veteran’s current disability. The examiner also found that the Veteran’s right shoulder disability was less likely than not proximately due to or the result of his service-connected left shoulder disability, and offered the following rationale: “no reason why dominant shoulder should be ‘overused’ by left shoulder pain, also he has good range and strength of the left shoulder.” No opinion as to the theory of aggravation was provided. The Board finds that the opinion as it pertains to the theory of secondary service connection and aggravation is inadequate for determining the etiology of the Veteran’s right shoulder disability as it is conclusory. Therefore, a new VA examination with opinion is necessary to determine the etiology of the Veteran’s left knee disability. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). 2. Entitlement to service connection for a neck disability, to include as secondary to a low back disability is remanded The Board incorporates its discussion from the section immediately above by reference. In addition to obtaining the records above, the Board directed the RO to schedule the Veteran for a VA examination to determine the nature and etiology of any right shoulder disability in its June 2018 decision. The Veteran was afforded such a VA examination in October 2018, which recorded degenerative arthritis of the cervical spine. In an October 2019 addendum opinion, the examiner opined that the Veteran’s neck disability was less likely than not related to his service. The examiner explained that “any injuries in the service to his… cervical spine were minor, soft tissue injuries which resolved and could not cause any chronic conditions.” The examiner cited no severe enough injuries in service which would cause his current conditions and noted that age and daily wear and tear were the most likely causes of the Veteran’s current disability. The examiner did not provide an opinion as to whether the Veteran’s neck disability was related to his low back disability. Therefore, a new VA examination with opinion is necessary to determine the etiology of the Veteran’s neck disability. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). 3. Entitlement to service connection for a low back disability is remanded. The Board incorporates its discussion from the first section above by reference. In addition to obtaining the records above, the Board directed the RO to schedule the Veteran for a VA examination to determine the nature and etiology of any low back disability in its June 2018 decision. The Veteran was afforded such a VA examination in November 2018, which at one point in the report recorded no low back diagnosis, and at another point indicated there was evidence of “a moderate amount of DJD in much of [the Veteran’s] lower bac k, possible DDD is also seen.” In an October 2019 addendum opinion, the examiner did not offer a clear, coherent response to the question of whether the Veteran’s low disability was at least as likely as not incurred in or otherwise related to service. After noting a review of only VBMS, the examiner wrote: “His low back pain came and went in the service. No doubt his DDD could have started in the service, but my eval did not find it to be significant as he took on a warehouse job which would have been hard on his back and he would not have stayed with it for over 20y had his back been bad from his time in the service to start with. When seen his back ROM was painless.” The Board finds that the opinion is inadequate for determining the etiology of the Veteran’s left knee disability as it is not based on a review of the Veteran’s complete claims file. Therefore, a new VA examination with opinion is necessary to determine the etiology of the Veteran’s left knee disability. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). 4. Entitlement to service connection for a left knee disability is remanded. The Board incorporates its discussion from the first section above by reference. In addition to obtaining the records above, the Board directed the RO to schedule the Veteran for a VA examination to determine the nature and etiology of any low back disability in its June 2018 decision. The Veteran was afforded such a VA examination in November 2018, which recorded degenerative arthritis of the left knee, with a diagnosis of 2011. In an October 2019 addendum opinion, the examiner did not offer a clear, coherent response to the question of whether the Veteran’s left knee disability was at least as likely as not incurred in or otherwise related to service. After noting a review of VBMS, the examiner wrote: “His L knee had his knee replaced due to DJD. His laceration to his knee would not have lead to severe knee DJD. After his laceration healed his knee still bothered him some of the time. Then he hurt his L knee prior to leaving the service and evidently this was significant enough to lead to his severe knee DJD leading to him having his total knee replacement. Thus his L knee injury did lead to his worsening knee DJD.” The Board finds that the opinion is inadequate for determining the etiology of the Veteran’s left knee disability as it is contradictory. Therefore, a new VA examination with opinion is necessary to determine the etiology of the Veteran’s left knee disability. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). 5. Entitlement to service connection for sleep apnea is remanded. The Board incorporates its discussion from the first section above by reference. In the prior June 2018 Board decision, the Board remanded the issue of entitlement to service connection for a sleep apnea disability to include as secondary to a service-connected deviated septum disability in order to obtain outstanding VA and private treatment records and to obtain a new VA examination to determine the nature and etiology of the Veteran’s sleep apnea disability. The Veteran was afforded a VA sleep apnea examination in November 2018. However, the VA examiner did not have access to the Veteran’s pertinent medical records and did not record whether or not the Veteran had a diagnosis of sleep apnea, and merely ordered a sleep study. Later in October 2019, the VA examiner indicated that the sleep study ordered had revealed moderate obstructive sleep apnea but noted that “as [t]here was no pertinent or significant sleep apnea symptoms in vbms str, it is less likely as not current sleep apnea diagnosis is related to military service.” An addendum medical opinion was obtained in August 2020 in which the examiner opined that the Veteran’s sleep apnea was less likely proximately due to, the result of, or aggravated beyond its natural progression by the Veteran’s service-connected deviated nasal septum. However, in the opinion the examiner notes that the Veteran was first diagnosed with sleep apnea in November 2018, despite a May 2011 sleep study from the Miami VA medical center noting sleep apnea. Additionally, the examiner’s rationale appears to be in part based on the finding that the Veteran’s deviated septum is not related to service. The Board notes that the Veteran has been service connected for such a disability. Therefore, the Veteran should be afforded a new VA examination with opinion based on a complete review of the evidence of record. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). 6. Entitlement to service connection for hyperthyroidism is remanded. The Board incorporates its discussion from the first section above by reference. In addition to obtaining the records above, the Board directed the RO to schedule the Veteran for a VA examination to determine the nature and etiology of any thyroid disability in its June 2018 decision. While the Veteran was afforded such a VA examination in October 2018, as noted above there are potentially outstanding and pertinent treatment records. Upon remand, if such records are obtained, the Veteran should be afforded an addendum opinion to determine the etiology of any thyroid disability. 7. Entitlement to service connection for hypothyroidism is remanded. The Board incorporates its discussion from the section immediately above by reference. The matters are REMANDED for the following action: 1. Conduct a search by all appropriate means to identify and obtain complete service and VA treatment records, to specifically include any outstanding treatment records from the Veteran’s reserve service and the treatment records from East Orange and Lyons VA Medical Centers for the periods from January 1, 1984, to July 22, 1987, and September 27, 1995, to December 31, 1995. All attempts to secure this evidence, to include any negative response, must be documented in the claims file. In compliance with 38 C.F.R. § 3.159 (c) (2), the AOJ must make as many requests as are necessary to obtain records in the custody of a Federal department or agency and shall not end its efforts to obtain those records unless it concludes that the records sought do not exist or that further efforts to obtain those records would be futile. If after all procedurally appropriate actions to locate and secure the records have been made and the AOJ concludes that such records do not exist, that further efforts to obtain the records would be futile, the AOJ must make a formal finding to that effect. The AOJ must notify the Veteran of (a) the identity of the specific records that cannot be obtained, (b) an explanation as to the efforts that were made to obtain those records, (c) a description of any further action to be taken by VA with respect to the claims, and (d) notice that the Veteran is ultimately responsible for providing the evidence. 38 C.F.R. § 3.159 (e). The Veteran must then be given an opportunity to respond. Attempts should be made to obtain identified records. All attempts to fulfill this development should be documented in the claims file 2. Additionally, contact the Veteran in order to attempt to obtain treatment records from JFK Medical Center from January 1983 to December 1995. 3. After completion of the first two directives, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any right shoulder disability. The examiner must opine whether it is at least as likely as not that the disability was incurred in or is otherwise related to the Veteran's active military service. The VA examiner should also opine whether the Veteran's right shoulder disability is proximately due to, the result of, or aggravated by the Veteran's service-connected status post Bristow procedure for recurrent dislocation of the left shoulder with degenerative joint disease. A complete rationale should be provided for all opinions expressed. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any neck disability. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including whether it at least as likely as not (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service. The VA examiner should also opine whether the Veteran's neck disability is proximately due to, the result of, or aggravated by the Veteran's low back disability. 5. After completion of the first two directives, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his sleep apnea. The examiner must opine whether it is at least as likely as not that the disability was incurred in or is otherwise related to the Veteran's active military service. The VA examiner should also opine whether sleep apnea is at least as likely as not proximately due to, the result of, or aggravated beyond its natural progression by service-connected disability, specifically a deviated septum. A complete rationale should be provided for all opinions expressed. 6. After completion of the first two directives, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any left knee disability. The examiner must opine whether it is at least as likely as not that the disability was incurred in or is otherwise related to the Veteran's active military service. Attention is directed to the Veteran's March 2018 testimony, including his lay reports of pain following in service injury shortly before discharge. A complete rationale should be provided for all opinions expressed. 7. After completion of the first two directives, if, but only if, pertinent records are found, return the claims file to the October 2018 examiner or another appropriate clinician to determine the etiology of any thyroid disability (hyperthyroidism and/or hypothyroidism). The examiner must opine whether it is at least as likely as not that the disability was incurred in or is otherwise related to the Veteran's active military service. Attention is directed to any treatment records obtained from the Veteran's reserve period of service starting in 1986. Attention is also directed to the Veteran's testimony regarding a thyroid disability identified in 1986, and any evidence of prior manifestations. Attention is also directed to the Veteran's testimony that he has a present disability, but that his THS levels are presently controlled by medication. 8. After completing the above, and any other necessary development, the claims remaining on appeal must be readjudicated in light of all pertinent evidence and legal authority. If any benefits sought are not granted, issue the Veteran and his representative an appropriate supplemental statement of the case (SSOC). Michael A. Pappas Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. E. Geary, 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.