Citation Nr: 21012050 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 16-42 992 DATE: March 3, 2021 ORDER Entitlement to an increased evaluation for impairment of sphincter control associated with hemorrhoidectomy, with a 10 percent evaluation prior to March 12, 2018, and a 60 percent thereafter, is granted. Entitlement to service connection for a cervical spine disability is granted. REMANDED Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. Entitlement to service connection for keratosis, to include as secondary to exposure to herbicides is remanded. Entitlement to an increased evaluation for chipped bone of the left ankle, higher than 10 percent prior to November 28, 2018 is remanded. Entitlement to an increased evaluation for lumbar spine stenosis, higher than 10 percent prior to March 12, 2018 is remanded. FINDINGS OF FACT 1. Prior to March 12, 2018, the Veteran’s impairment of sphincter control associated with hemorrhoidectomy, was manifested by constant, slight impairment of sphincter control or occasional moderate leakage. 2. From March 12, 2018, the Veteran’s impairment of sphincter control associated with hemorrhoidectomy was manifested by extensive leakage and fairly frequent involuntary bowel movements. 3. The Veteran’s cervical spine disability is etiologically related to service. CONCLUSIONS OF LAW 1. The criteria for entitlement to a 10 percent evaluation, but no higher, for impairment of sphincter control associated with hemorrhoidectomy prior to March 12, 2018, have been met. 38 U.S.C. § 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.7, 4.114, Diagnostic Code 7332. 2. The criteria for entitlement to a 60 percent evaluation, but no higher, for impairment of sphincter control associated with hemorrhoidectomy from March 12, 2018, have been met. 38 U.S.C. § 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.7, 4.114, Diagnostic Code 7332. 3. The criteria for entitlement to service connection for a cervical spine disability have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from August 1964 to July 1967 and from June 1968 to July 1985. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In June 2019, a Board hearing was held before the undersigned. A transcript of the hearing is associated with the Veteran’s claims file. In an November 2019 decision, the Board denied, amongst other issues, the Veteran’s claims for entitlement to a compensable evaluation for impairment of sphincter control associated with hemorrhoidectomy, prior to March 12, 2018, and higher than 30 percent thereafter, entitlement to an increased evaluation for chipped bone of the left ankle, higher than 10 percent prior to November 28, 2018, and entitlement to an increased evaluation for lumbar spine stenosis, higher than 10 percent prior to March 12, 2018. In July 2020, the United States Court of Appeals for Veterans Claims (Court) vacated the Board’s denial and remanded the issues of entitlement to an increased evaluation for impairment of sphincter control associated with hemorrhoidectomy, higher than 10 percent prior to March 12, 2018, entitlement to an increased evaluation for chipped bone of the left ankle, higher than 10 percent prior to November 28, 2018, and entitlement to an increased evaluation for lumbar spine stenosis, higher than 10 percent prior to March 12, 2018, to the Board pursuant to a joint motion for partial remand (JMPR). In November 2019, the Board remanded the issues of entitlement to service connection for OSA, a cervical spine disability, and keratosis, for which development has been completed and the issues are now before the Board. 1. Entitlement to an increased evaluation for impairment of sphincter control associated with hemorrhoidectomy The Veteran’s impairment of rectal sphincter control associated with hemorrhoidectomy is rated under DC 7336 prior to March 12, 2018, and under 7332 as of March 12, 2018. Under DC 7336, hemorrhoids are assigned a zero percent rating where there is evidence of mild to moderate symptomatology. A 10 percent rating is warranted where there is evidence of large or thrombotic hemorrhoids, which are irreducible, with excessive redundant tissue, evidencing frequent recurrences. A 20 percent rating, the maximum schedular rating, is warranted where hemorrhoids are present, with persistent bleeding and secondary anemia, or with fissures. 38 C.F.R. § 4.114, Diagnostic Code 7336. Under DC 7332, the following ratings apply: a noncompensable rating is warranted for healed or slight impairment of sphincter control without leakage; a 10 percent rating is warranted for constant slight impairment of sphincter control, or occasional moderate leakage; a 30 percent rating is warranted for occasional involuntary bowel movements, necessitating wearing of a pad; a 60 percent rating is warranted for extensive leakage and fairly frequent involuntary bowel movements; and a 100 percent rating is warranted for complete loss of sphincter control. 38 C.F.R. § 4.114, DC 7332. Other potentially applicable rating codes require fistula of the intestine, peritonitis, stricture of the anus, prolapse of the rectum, pruritus ani, or hernia, which are not present in the Veteran’s case. 38 C.F.R. § 4.114, DC 7330, 7331, 7333, 7334, 7336-7340. The Veteran underwent an examination in November 2014. He reported a history of stool incontinence and internal hemorrhoids. He did not take medication for his hemorrhoids. On examination he had mild to moderate external hemorrhoids. There was no noted functional impact of the hemorrhoids. The Veteran underwent an examination in March 2018. He reported an inability to control bowels. He had occasional moderate leakage. He had a normal physical examination, with no noted external hemorrhoids, anal fissures, or other abnormalities. The examiner indicated the Veterans impairment of rectal sphincter control was diagnosed in 2014. The Veteran reported inability to control his bowels. An October 2018 private treatment record from the Veteran’s gastroenterologist, Dr. W. M., diagnosed fecal incontinence and stated the Veteran had near total fecal incontinence secondary to hemorrhoid surgery done in the past. The Veteran noted he had to change his underwear twice the day prior due to leakage. In 1983, the Veteran had a hemorrhoidectomy and sphincterectomy, and that since 1984, he had struggled with fecal incontinence and inability to control gas. The record indicates the Veteran had to change his underwear two times the prior day. The Veteran was noted as having a bowel movement every morning. He did not experience diarrhea. It was recommended the Veteran take a fiber supplement daily. The Veteran underwent an examination in November 2018. He had impairment of rectal sphincter control that resulted in leakage necessitating the wearing of a pad. He had frequent restroom visits to change pads due to bowel leakage. At the Board hearing, the Veteran testified to needing to wear diapers, but did not do so because of discomfort. A December 2019 VA nurse practitioner noted the Veteran report that Dr. M. had stated he had total fecal incontinence. For the period prior to March 12, 2018, taking consideration of the medical evidence and the lay descriptions of his symptomatology, the Board finds the Veteran is entitled to a 10 percent rating under Diagnostic Code 7332. Prior to March 12, 2018, there is evidence of leakage, per description of Dr. M. Also, since 1983, the Veteran had suffered from fecal incontinence and inability to control gas. Therefore, the record warrants a 10 percent for the Veteran’s impairment of rectal sphincter control associated with hemorrhoidectomy prior to March 12, 2018. Prior to March 12, 2018, there is no indication the Veteran had involuntary bowel movements necessitating the wearing of a pad. There are no records indicating the Veteran wore a pad, or that he would change his underwear on a daily basis due to involuntary bowel movements, which would be indicative of a more severe disability picture. Therefore, entitlement to an evaluation higher than 10 percent is not warranted. As for the period from March 12, 2018, the Board finds the criteria for an evaluation of 60 percent have been met. At the March 2018 examination the Veteran reported inability to control his bowels. At the October 2018 visit with Dr. M. he was found to have near total fecal incontinence secondary to hemorrhoid surgery, and the Veteran reported having to change his underwear twice the day prior due to fecal leakage. Additionally, the December 2019 VA treatment record noted the Veteran to have fecal incontinence. Accordingly, the evidence indicates the Veteran has had extensive leakage and fairly frequent involuntary bowel movements, the criteria for a 60 percent evaluation under DC 7332 have been met. The Veteran has continued to indicate he does not use pads on a regular basis, as he reported at the Board hearing. There is no evidence the Veteran has complete loss of sphincter control, to warrant a 100 percent evaluation. 2. Entitlement to service connection for a cervical spine disability, to include as secondary to the service-connected lumbar spine stenosis The Veteran has asserted he injured his cervical spine in service, or it is secondary to his lumbar spine disability. He has reported slipping and falling downstairs during service, and having had neck pain ever since. The question for the Board is whether the Veteran has a current disability began during service or is at least as likely as not related to an in-service injury, event, or disease. Service treatment records (STRs) reveal that in February 1983 he was seen with complaints of right hip pain. The Veteran reported falling the day prior. In a January 2019 statement from Dr. J. W., Dr. W. indicated the Veteran had been his patient for nearly thirty years. Dr. W. opined the Veteran suffers from cervical spine pain, which is related to service. In January 2020, he had an exam and was diagnosed with degenerative arthritis of the spine, spinal stenosis, osteopenia, and status post spinal fusion of C-5-6 and C6-7. The Veteran reported falling downstairs while serving at Fort Rucker, and suffering multiple contusions. He also served as a pilot a that contributed to the aggravation of his neck pain. The examiner found the Veteran’s cervical spine disability at least as likely as not incurred in or caused by an in-service injury, event, or illness. The rationale was the Veteran had no issues related to degenerative arthritis of the spine, spinal stenosis and osteopenia prior to service. The examiner explained the onset of the condition was during service, which was documented in the service medical records. The examiner opined it is less likely than not that his cervical spine disability is due to or the results of the Veteran’s lumbar spine disability. The Veteran has been diagnosed with degenerative arthritis of the spine, spinal stenosis, osteopenia, and status post spinal fusion of C-5-6 and C6-7, and has consistently asserted that his cervical spine disability is a result of his time in service, specifically due to a fall. The Veteran is also competent to testify regarding facts or circumstances that can be observed and described by a layperson. There is a competent and credible medical opinion linking his cervical spine disability to service. Therefore, service connection is warranted. REASONS FOR REMAND 1. Entitlement to service connection for obstructive sleep apnea (OSA) 2. Entitlement to service connection for keratosis, to include as secondary to exposure to herbicides Service treatment records are negative for any complaints or reports of keratosis or OSA. Post-service treatment records confirm the Veteran suffers from OSA, and has a history of keratosis. The Veteran asserts he suffers from a skin disability, diagnosed as keratosis, related to his time in service, particularly as a result of exposure to herbicides. The record confirms the Veteran had service in Vietnam, however keratosis is a not a presumed illness related to Agent Orange exposure. Nevertheless, the Veteran can still receive service connection for a disability on a direct basis if the service connection elements are otherwise met. The Veteran was afforded examinations in January 2020, assessing his keratosis and OSA. In January 2020, the Veteran underwent an examination. He was found to have keratosis, with the onset being in 2001. The Veteran reported noticing small bumps, round patches on his skin with a raised border following exposure to herbicides in service, when he was flying a mission during service. The examiner found it less likely than not that keratosis is due to service, as the Veteran had “no issues related to the claimed keratosis prior to military service.” The examiner stated keratosis is not a skin disease due to herbicide exposure. As for OSA, the examiner found it less likely than not that the Veteran has OSA due to service, with the rationale being “he had no issues related to the claimed OSA prior to military service.” As the rationale for each of these opinions reference a lack of evidence prior to service, a remand is needed to obtain addendum opinions. Further, with regard to the keratosis claim, an opinion is needed clarifying whether exposure to herbicides could have led to the development of keratosis. 3. Entitlement to an increased evaluation for chipped bone of the left ankle, higher than 10 percent prior to November 28, 2018 is remanded. 4. Entitlement to an increased evaluation for lumbar spine stenosis, higher than 10 percent prior to March 12, 2018 is remanded. In the JMPR, the Court found the Board did not adequately address whether the March 12, 2018 Ankle DB, and VA Back DBQ were adequate and complied with the holdings in Sharp v. Shulkin, 29 Vet. App. 26 (2017), and Jones v. Shinseki,23 Vet. App. 382,390 (2010). The Court explained that “caselaw and VA guidelines anticipate that examiners will offer flare opinions based on estimates derived from information procured from relevant sources, including the lay statements of veterans” and that “direct observation of functional impairment during a flare-up is not a prerequisite to offering an opinion.” Sharp, 29 Vet. App at 35; see Jones 23 Vet.App. at 390. The March 2018 VA ankle examination and the March 2018 back examination shows the examiner found the examination to be neither medically consistent or inconsistent with the Veteran’s statements describing functional loss over time, but that she was unable to say without resort to speculation whether pain, weakness, fatigability, or incoordination could significantly limit the Veteran’s functional ability with repeated use over time because there was “no conceptual or empirical basis for making such a determination without directly observing function under these conditions.” In accordance with the JMPR, the Board remands these issues for an opinion taking into consideration the holdings in Sharp and Jones. The matters are REMANDED for the following action: 1. Obtain an addendum opinion as to the Veteran’s OSA claim. Following a review of the claims file, the examiner should prove an opinion for the following: Is it at least as likely as not (50 percent probability or greater) that the Veteran’s OSA is related to his service? 2. Obtain an addendum opinion to the January 2020 keratosis examination. The examiner is asked to answer the following: (a) Is it at least as likely as not that the Veteran’s keratosis is related to his service? (b) Is it at least as likely as not that the Veteran’s keratosis is related to exposure to herbicide agents, such as Agent Orange? The Veteran is presumed to have been exposed to herbicide agents, to include Agent Orange. In providing the requested opinion, the examiner is reminded that VA laws and regulations do not preclude service connection for a disorder due to herbicide exposure that is not on the list of diseases presumptively associated with exposure to herbicide agents. A complete rationale for all opinions must be provided. 4. Obtain addendum opinions to the March 2018 Ankle and Back examinations, reviewing the evidence prior to and including the date of the March 2018 examination. The examiner is asked to specifically offer an opinion as to flare-ups of each condition, based on estimates derived from information procured from sources, including the Veteran’s statements, noting that “direct observation of functional impairment during a flare-up is not a prerequisite to offering an opinion.” Sharp, 29 Vet. App at 35; see Jones 23 Vet.App. at 390. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Skiouris, 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.