Citation Nr: 21012937 Decision Date: 03/08/21 Archive Date: 03/08/21 DOCKET NO. 17-02 997 DATE: March 8, 2021 ORDER The rating reduction from 20 percent to 0 percent for hemorrhoids with pruritus ani and rectal fissure was improper and a 20 percent rating is restored, effective May 11, 2016. REMANDED Entitlement to a rating in excess of 30 percent for adjustment disorder is remanded. Entitlement to a compensable rating for residuals of nondisplaced fracture of proximal with tendon injury to the right little finger with degenerative arthritis is remanded. Entitlement to a compensable rating for scar, residuals of nondisplaced fracture of the right little finger, is remanded. FINDING OF FACT At the time of the May 2016 rating reduction, the preponderance of the evidence did not reflect an actual change in the Veteran’s hemorrhoids with pruritus ani and rectal fissure. CONCLUSION OF LAW The criteria for restoration of a 20 percent rating for hemorrhoids with pruritus ani and rectal fissure, effective May 11, 2016, have been met. 38 U.S.C. §§ 1155, 5107, 5117; 38 C.F.R. §§ 3.105(e), 3.344, 4.130. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran serves in the Army National Guard with numerous periods of active duty, to include June 1994 to November 1994, March 2003 to February 2004, August 2007 to June 2012, July 2012 to December 2013, June 3, 2017 to June 7, 2017, and July 2018 to June 2019. The Veteran was most recently ordered to active duty in February 2021. The Veteran appeared for a hearing before the undersigned Veterans Law Judge in January 2021. The hearing transcript is associated with the claims file. Whether the reduction from 20 percent to 0 percent for hemorrhoids with pruritus ani and rectal fissure was proper A May 2016 rating decision reduced the Veteran’s rating for hemorrhoids with pruritus ani and rectal fissure from 20 percent to 0 percent, effective May 11, 2016. The Veteran contends the reduction was improper and requests restoration of his 20 percent rating. See October 2016 NOD. Regarding notice, VA is not obligated to provide a veteran with notice required by 38 C.F.R. § 3.105(e) before issuing a rating decision reducing a disability rating if the decision does not reduce the overall compensation paid to the veteran. See Stelzel v. Mansfield, 508 F.3d 1345 (Fed. Cir. 2007). As the May 2016 rating decision did not reduce the overall compensation paid to the Veteran, compliance with the procedures outlined under 38 C.F.R. § 3.105(e) was not required. Looking to the merits, as the 20 percent rating for service-connected hemorrhoids with pruritus ani and rectal fissure was in effect for less than 5 years, the provisions of 38 C.F.R. § 3.344(c) are applicable. Under 38 C.F.R. § 3.344(c), an adequate re-examination that discloses improvement in the condition will warrant reduction in rating. In any rating reduction case, VA must determine (1) whether the evidence reflects an actual change in the disability based upon review of the entire recorded history of the condition; (2) whether the examination reports reflecting such change are based upon thorough and adequate examinations; and (3) whether any improvement actually reflects an improvement in the veteran’s ability to function under the ordinary conditions of life and work. Murphy v. Shinseki, 26 Vet. App. 510, 516-17 (2014) (citing Brown v. Brown, 5 Vet. App. 413, 421 (1993); 38 C.F.R. §§ 4.1, 4.2, 4.10). The reduction of a rating generally must have been supported by the evidence on file at the time of the reduction, but pertinent post-reduction evidence favorable to restoring the rating must also be considered. Dofflemeyer v. Derwinski, 2 Vet. App. 277, 280-81 (1992). If there is an approximate balance of positive and negative evidence regarding any material issue, reasonable doubt shall be resolved in favor of the Veteran. In other words, a rating reduction must be supported by a preponderance of the evidence. 38 U.S.C. § 5107(a); see also Brown, 5 Vet. App. at 421. A review of the claims file shows the February 2014 rating decision that initially granted a 20 percent rating for hemorrhoids with pruritus ani and rectal fissure was based on service treatment records (STR) and a December 2013 VA examination. The May 2016 decision that reduced the rating to 0 percent was based on a May 2016 VA examination. The December 2013 VA examination diagnosed internal or external hemorrhoids, pruritus ani, and rectal fissure. The clinician noted a history of internal hemorrhoid removal in May 2013. The clinician noted the Veteran’s treatment plan included taking continuous medication of Hydrocortisone. The clinician noted the signs or symptoms of internal or external hemorrhoids, mild to moderate; fissures; and pruritus ani. Physical examination was normal, no external hemorrhoids, anal fissures, or other abnormalities were observed. A May 2016 VA examination diagnosed internal or external hemorrhoids. The clinician noted the Veteran’s treatment plan included taking continuous medication of Preparation H. The clinician noted internal or external hemorrhoids, mild to moderate. The clinician noted the Veteran reported a history of a hemorrhoidectomy performed in 2012 or 2013. The clinician noted the Veteran reported large hemorrhoids that were excised. The Veteran reported anal bleeding. Physical examination showed no evidence of external hemorrhoids. In his October 2016 NOD, the Veteran stated he developed hemorrhoids and rectal fissures during active duty service and has since had rectal problems and daily symptoms. In his December 2016 VA Form 9, the Veteran stated the examiner only performed an external examination and did not examine for internal symptoms. An April 2017 VA treatment visit noted a hemorrhoid flare for 5 days with rectal bleeding. Physical examination showed a bulging external hemorrhoid. Medication was prescribed for treatment. At the January 2021 Board hearing, the Veteran reported his hemorrhoid symptoms had not improved. He stated it is an ongoing issue with periods of flare-ups. The Veteran was dissatisfied with the VA examination because the examiner only examined for external hemorrhoids. He reported difficulty communicating with the examiner. He reported still having rectal bleeding when using the restroom and rectal pain at least once or twice a week. The Veteran reported mostly taking over the counter (OTC) topical medications. The Board does not find the preponderance of the evidence reflects an actual change in the Veteran’s hemorrhoid disability at the time of the May 2016 rating reduction. See Brown, 5 Vet. App. at 421. Specifically, it appears the RO reduced the rating based on the December 2013 VA examiner diagnosing hemorrhoids and rectal fissures and the May 2016 VA examiner diagnosing hemorrhoids without mention of rectal fissures. The December 2013 VA examination did not observe fissures on examination, but based the diagnosis on review of the Veteran’s medical history and lay statements. The October 2016 VA examiner did not diagnose or mention fissures. It appears the examiner did not review the Veteran’s medical history and relied solely on external examination. Of note, it is not required that an examiner review the claims file prior to providing an opinion, as long as it is clear that the examiner is aware of all pertinent facts from the Veteran’s history. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (Vet. App. 2008). Here, the examination report only referred to “the Veteran mentioned a hemorrhoidectomy done back in 2012 or 2013” and “the Veteran reported he had large hemorrhoids that were excised.” The examiner did not perform internal examination or testing. Therefore, the Board does not find the May 2016 VA examination’s lack of mention or diagnosis of rectal fissures evidence of improvement in the Veteran’s hemorrhoid disability. Additionally, the Board does not find the preponderance of the evidence reflects improvement in the Veteran’s ability to function under the ordinary conditions of life based on his hemorrhoid disability. See Brown, 5 Vet. App. at 421. Both examinations noted mild to moderate hemorrhoid symptoms requiring continuous medication. The May 2016 VA examination additionally noted rectal bleeding. The Veteran reported continued daily rectal bleeding and occasional rectal pain. See October 2016 NOD and January 2021 hearing testimony. While these statements were provided following the reduction decision, pertinent post-reduction evidence favorable to restoring the rating should be considered. Dofflemyer, 2 Vet. App. 277. Accordingly, the Board does not find the preponderance of the evidence reflects an actual change in the Veteran’s hemorrhoid disability or improvement in the Veteran’s ability to function under the ordinary conditions of life based on his hemorrhoid disability. Therefore, restoration of a 20 percent rating for hemorrhoids with pruritus ani and rectal fissure, effective May 11, 2016, is warranted. 38 U.S.C. § 1155; 38 C.F.R. § 3.105. REASONS FOR REMAND 1. Entitlement to a rating in excess of 30 percent for adjustment disorder is remanded. 2. Entitlement to a compensable rating for residuals of nondisplaced fracture of proximal with tendon injury to the right little finger with degenerative arthritis is remanded. 3. Entitlement to a compensable rating for scar, residuals of nondisplaced fracture of the right little finger, is remanded. The Veteran contends the above service-connected disabilities have worsened since his last VA examinations. See January 2021 hearing testimony. The Veteran last had a VA examination for mental disability in May 2016 and last had a VA examination for right little finger disability in December 2017. The Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of these disabilities. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). The Veteran was ordered to active duty for deployment to the Middle East in February 2021 for 400 days. See January 2021 hearing testimony and January 2021 Order. Subsequent to the Veteran’s return from deployment, he should be provided the opportunity to appear for VA examinations to determine the current severity of these disabilities. The matters are REMANDED for the following action: 1. Once the Veteran returns from deployment, obtain updated service treatment records, to include records pertaining to his active duty service and Army National Guard service. It appears his service records were last updated in January 2018. 2. Once the Veteran returns from deployment, schedule an examination with an appropriate clinician to determine the current severity of his service-connected adjustment disorder. The 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. 3. Once the Veteran returns from deployment, schedule an examination with an appropriate clinician to determine the current severity of his (1) of his residuals of nondisplaced fracture of proximal with tendon injury to the right little finger with degenerative arthritis and (2) associated scar. The 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 examiner must attempt to elicit information regarding the degree of additional functional loss during flare-ups or repeated use over time. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if possible, of the additional impairment due to flare-ups or repeated use over time based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement without speculation, the 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). KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Winkler, 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.