Citation Nr: 21010177 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 15-27 074 DATE: February 24, 2021 ORDER Entitlement to a compensable disability rating for hemorrhoids is denied. REMANDED Entitlement to service connection for gastroesophageal reflux disease (GERD) is remanded. Entitlement to a disability rating exceeding 10 percent for a left knee disability is remanded. Entitlement to a compensable disability rating for onychomycosis of the toenails is remanded. Entitlement to a compensable disability rating for a disability of the mallet finger, right fifth digit is remanded. Entitlement to a disability rating exceeding 20 percent for a lumbar spine disability prior to October 27, 2020 is remanded. Entitlement to a disability rating exceeding 40 percent for a lumbar spine disability beginning October 27, 2020 is remanded. FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran’s disability picture for hemorrhoids more nearly approximated (1) hemorrhoids with persistent bleeding and with secondary anemia, or with fissures or (2) hemorrhoids that are large or thrombotic, irreducible, with excessive redundant tissue, evidencing frequent recurrences. CONCLUSION OF LAW The criteria for a compensable disability rating for hemorrhoids have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1-4.7, 4.21, 4.31, 4.114, Diagnostic Code (DC) 7336 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1984 to September 1994. This appeal comes to the Board of Veterans’ Appeals (Board) from a July 2011 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge at a February 2019 hearing. The Board remanded these matters to the Agency of Original Jurisdiction (AOJ) in April 2020 in order to provide the Veteran with current examinations of the severity of his disabilities and to address all theories of service connection for his GERD claim raised by the record. After the AOJ conducted additional development, the Veteran and his representative have not raised any remaining issues with the duty to notify or duty to assist regarding the Veteran’s claim for a higher disability rating for hemorrhoids. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. Disabilities must be reviewed in relation to their history. Where there is a question as to which of two evaluations apply, the Board assigns the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating. See 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.7, 4.10 (2017); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). It is the defined and consistently applied policy of the Department of Veterans Affairs to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3 (2019). VA has assigned the Veteran a noncompensable disability rating for his hemorrhoids under 38 C.F.R. § 4.114, DC 7336 (2019). A noncompensable rating contemplates hemorrhoids that are mild or moderate. A 10 percent rating contemplates hemorrhoids that are large or thrombotic, irreducible, with excessive redundant tissue, evidencing frequent recurrences. The maximum schedular rating of 20 percent contemplates hemorrhoids with persistent bleeding and with secondary anemia, or with fissures. VA afforded the Veteran VA examinations of his hemorrhoids in September 2010 and October 2020. While the September 2010 VA examiner noted that the Veteran underwent surgery in 2007 for his hemorrhoids, the September 2010 examiner also noted the Veteran did not report any overall functional impairment at the time of the examination. The examiners indicated the Veteran’s recurring hemorrhoids were at most mild to moderate in severity during the period at issue considering anal itching, diarrhea, pain, a nagging feeling to empty bowel, bleeding, swelling, leakage, and perianal discharge reported by the Veteran. The Veteran testified at the hearing that since 2007 he has treated the hemorrhoids with baths and proctofoam including after flare-ups when he uses the bathroom. The October 2020 examiner noted there was some hemorrhoidal tissue at “12 and 6 oclock” but did not find evidence of symptoms consistent with the criteria for a compensable rating. In regard to the period at issue, the Board finds that the VA examinations and pertinent treatment records do not reveal compelling evidence that the Veteran has been affected by (1) hemorrhoids with persistent bleeding and with secondary anemia, or with fissures or (2) hemorrhoids that are large or thrombotic, irreducible, with excessive redundant tissue, evidencing frequent recurrences. The VA examinations indicate the Veteran’s hemorrhoids were small to moderate in size with intermittent bleeding during the period on appeal. However, even assuming the Veteran’s bleeding became persistent during the period at issue or that his hemorrhoids were at times large, the Board finds no compelling evidence of anemia, fissures, thrombotic hemorrhoids, or irreducible hemorrhoids with excessive redundant tissue, evidencing frequent recurrences. Moreover, neither the Veteran nor his representative have asserted the Veteran suffers from hemorrhoids of a severity contemplated by a disability rating of 10 percent or higher under the applicable rating criteria with reference to supporting evidence. They have not indicated additional evidentiary development will support the Veteran’s claim. After reviewing the totality of the evidence of record, the Board ultimately finds that the preponderance of the evidence shows that the Veteran’s disability picture for hemorrhoids more nearly approximates mild to moderate hemorrhoids. Accordingly, as the preponderance of the evidence is against the Veteran’s claim for increased schedular disability ratings for hemorrhoids, the claim is denied. REASONS FOR REMAND After reviewing the claims file, the Board finds it necessary to remand the Veteran’s GERD, left knee, toenail, finger, and lumbar spine disability claims to the AOJ in order to ensure it substantially complies with the Board’s prior remand directives and obtains adequate VA examinations. While the AOJ obtained additional examinations of the Veteran’s disabilities, the Board finds the left knee, lumbar spine, toenail, and GERD examinations are inadequate as they did not address pertinent evidence in the record with adequate rational that is responsive to the pertinent rating criteria. Additionally, in regard to the finger and lumbar spine claims, the AOJ obtained current VA examinations but did not include these issues on its November 2020 Supplemental Statement of the Case. Regarding the examinations of the Veteran’s left knee and lumbar spine, the Board finds that the October 2020 VA knee examiner’s opinion and the October 2020 VA lumbar spine examiner’s opinion lack adequate evaluations of the Veteran’s flare-ups. While the opinions indicate the Veteran does not experience flare-ups or spasms, the record contains evidence to the contrary, which the examinations did not address. For example, the Veteran testified at his hearing that he did experience flare-ups of his left knee disability in the form of swelling and flare-ups in his back in the form of spasms. Similarly, the examiner indicated the Veteran did not use a cane or a brace without addressing the Veteran’s statements at the hearing that he did use a cane and brace, which is also documented in his VA treatment records. In the remand order, the Board instructed the AOJ to obtain an opinion that evaluated the Veteran’s flare-ups based on a review of the record in addition to the condition of the Veteran on the day of the examination with consideration of the Veteran’s lay statements. Therefore, the AOJ must obtain additional opinions that address the conflicting evidence regarding flare-ups including the Veteran’s lay statements. Regarding the VA examinations of the Veteran’s conditions affecting his toenails, the Board finds that because the Veteran’s increased rating claim was pending prior to a change in the pertinent rating criteria for rating the skin in August 2018, the Board must ensure that the examinations are adequate to rate the Veteran’s disability under older criteria to the extent that it is more favorable. In pertinent part, the examiner must clarify the nature and extent of the Veteran’s use of medications including topically applied medications to treat his skin condition in accordance with Johnson v. Shulkin, F.3d 1351, 1356 (Fed. Cir. 2017). In Johnson, the Federal Circuit noted that a topical treatment administered on a large enough scale to affect the body as a whole could constitute systemic therapy. See id. at 1355. Additionally, the Court of Appeals for Veterans Claims (CAVC) has held that “systemic therapy” for rating purposes under the older rating criteria 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. See Warren v. McDonald, 28 Vet. App. 194 (2016). The VA examinations in the record lack adequate discussion of (1) whether each topical treatment operates by affecting the body as a whole in treating a veteran’s skin condition and (2) whether each given treatment is “like” a corticosteroid or other immunosuppressive drug. Regarding the October 2020 GERD VA examination, the Board finds that the rationale for the examiner’s opinion on direct service connection is inadequate. The examiner acknowledged the Veteran reported symptoms of stomach pain, heart burn, and regurgitation during his military service, which are symptoms contemplated by the rating criteria for GERD. However, the examiner indicated the symptoms were less likely than not related to the Veteran’s GERD because the service treatment records did not contain objective evidence confirming a diagnosis of GERD. The examiner noted the service treatment records did indicate the Veteran had a viral infection of the stomach. The Board finds this rationale to be deficient because the examiner did not explainer why objective evidence confirming GERD at the time of the Veteran’s service is necessary to conclude that the cause of the Veteran’s symptoms were at least as likely as not related to his GERD. Even if the Board finds that the most likely cause of the Veteran’s stomach pain during service was a viral infection, the examiner did not provide enough rationale with supporting evidence to conclude that the viral infection caused the Veteran’s symptoms of heartburn and that the chest pain the Veteran experienced during service is unrelated to the heartburn currently associated with his GERD. The Board also finds the VA GERD examiner’s opinion regarding secondary service connection to be inadequate. The VA examiner indicated that medical literature does not support a finding that GERD can be aggravated by the Veteran’s service-connected mental disabilities. The Board finds this opinion to be conclusory and unsupported by specific citation to supporting medical literature, the examiner’s training and experience, or citation to facts specific to this Veteran’s case. Moreover, the examiner’s opinion must address the possibility of even temporary aggravation under Ward v. Wilkie, 31 Vet. App. 233 (2019). In pertinent part, the Ward decision found that any incremental increase in disability (any additional impairment of earning capacity) in non-service-connected disabilities resulting from a service-connected condition regardless of its permanence may be a basis for secondary service connection under 38 C.F.R. § 3.310. For example, the examiner did not cite specific literature in support of a conclusion that the Veteran’s mental disabilities would not result in increased stomach acid production at times (e.g. during a flight or fight response caused by his mental disabilities). In the remand order, the Board also instructed the AOJ to address a theory of service connection under 38 C.F.R. § 3.317, but the GERD examiner’s opinion did not address this point. As the record indicates the Veteran served in Southwest Asia during the Gulf War, the AOJ should also obtain addendum opinions on whether the Veteran’s claimed disabilities may be considered as a medically unexplained chronic multi symptom illness (MUCMI) under Stewart v. Wilkie, 30 Vet. App. 383, 389 (2018) (clarifying that under 38 C.F.R. § 3.317, an illness is a MUCMI where either etiology or pathophysiology of the illness is inconclusive). The examiner’s opinion must address both the etiology and pathophysiology of all relevant symptoms associated with the Veteran’s GERD claim. On remand, the AOJ should obtain additional opinions from appropriate medical professionals addressing the deficiencies noted above before readjudicating the claims. The AOJ must issue a Supplemental Statement of the Case for any claim it does not grant in full. The matters are REMANDED for the following action: 1. The AOJ should contact the Veteran and all current representatives and request their assistance in identifying any outstanding relevant records to include any outstanding relevant records with VA treatment providers and private treatment providers to include Kaiser Permanente. The AOJ should make reasonable attempts to obtain all identified outstanding records and associate them with the Veteran’s claims file. 2. After associating all identified outstanding records with the Veteran’s claims file, the AOJ should schedule the Veteran for examinations by appropriate clinicians to determine the current severity of his service-connected left knee and lumbar spine disabilities. Each examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. In so doing, the examiners must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. In so doing, the examiners must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, each examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement without speculation, each examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 3. The AOJ should review the VA knee and lumbar spine examiners’ opinions to ensure that they address the Veteran’s statements about his flare-ups including his statements at the hearing that he experiences flare-ups in the form of knee swelling and back spasms. The AOJ should also ensure the examiners’ opinions address the Veteran’s use of a cane and brace at times as documented in his VA treatment records and reported by the Veteran at the hearing. The AOJ should ensure that the examiners’ opinions provide an estimate of functional loss due to flare-ups throughout the period at issue even if the Veteran does not experience flare-ups on the day of the examination to the extent possible. If an examiner’s opinion does not address the pertinent evidence including statements from the Veteran about flare-ups, the AOJ should obtain an addendum opinion on this point to correct the deficiencies in the opinion. 4. After associating all identified outstanding records with the Veteran’s claims file the AOJ should obtain an addendum opinion clarifying the nature of the Veteran’s medication use to treat his toenail conditions. In pertinent part, the medical professional should note all medications in the record that the Veteran has used to treat his toenail conditions including (but not limited to) Lotrimin and urea cream. The medical professional should opine (1) whether each topical treatment operates by affecting the body as a whole in treating a veteran’s skin condition and (2) Whether the given treatment is “like” a corticosteroid or other immunosuppressive drug. See Johnson v. Shulkin, 862 F.3d 1351, 1356 (Fed. Cir. 2017); Warren v. McDonald, 28 Vet. App. 194 (2016). 5. After associating all outstanding records with the Veteran’s claims file, the AOJ should obtain an additional opinion from an appropriate medical professional on Veteran’s GERD to address deficiencies in the rationale in the prior examination. The AOJ should provide the medical professional with a complete copy of the claims file to include this remand order. The AOJ should ensure that the medical professional follows these directives: (a.) The medical professional should identify all current disabilities associated with the Veteran’s stomach and esophagus to include any symptoms or functional impairments that are not attributable to a specific diagnosis. (b.) For each current disability identified, the medical professional should opine whether the disability was at least as likely as not (50 percent or greater probability) caused by the Veteran’s military service to include documented reports of heartburn, chest pain, an upset stomach, and other complaints associated with the stomach or esophagus in the Veteran’s service records. The medical professional should explain why or why not. The medical professional should consider the Veteran’s statements about the onset of his relevant symptoms and continuity of symptomatology through the present. (c.) For each current disability identified, the medical professional should opine whether the disability was at least as likely as not worsened beyond normal progression (aggravated temporarily or permanently) by the Veteran’s service-connected disabilities to include his service-connected mental disabilities. For example, the examiner should address any evidence in the record that the Veteran’s mental health symptoms trigger flare-ups of GERD due to increased stomach acid production during times of increased mental stress. (d.) Regarding all symptoms associated with the Veteran’s GERD or heartburn, the medical professional should opine as to whether the etiology and the pathophysiology of the symptoms is partially understood. If either the etiology or pathophysiology is inconclusive, the medical professional should state so. These opinions must be based on the individual Veteran’s circumstances rather than the illnesses as they are understood in the general public. (e.) If the medical professional is unable to provide an opinion on these matters, the medical professional must state whether the inability to render an opinion is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the medical professional (does not have the knowledge or training). 6. After completing the above action and any other necessary development, the claims must be readjudicated. If a claim remains denied, a Supplemental Statement of the Case must be provided to the Veteran and current representatives. After the Veteran has had adequate opportunity to respond, the appeal must be returned to the Board for appellate review. C. TRUEBA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael Duffy, 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.