Citation Nr: 21013768 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 19-10 372 DATE: March 10, 2021 ORDER Entitlement to an effective date of April 12, 2011, but no earlier, for the grant of an increased rating of 20 percent for hemorrhoids is granted, subject to the rules governing the payment of monetary benefits. FINDINGS OF FACT 1. The Veteran submitted a claim for entitlement to an increased rating for hemorrhoids on April 12, 2011. In a December 2012 rating decision, the RO denied an increased rating for hemorrhoids. 2. The Veteran submitted a statement in February 2013 indicating disagreement with the RO’s denial of an increased rating for hemorrhoids. VA failed to act on this disagreement and the Veteran’s claim remained pending due to VA’s inaction. 3. The Veteran filed a claim for an increased rating for hemorrhoids in May 2016, while her February 2013 disagreement with the RO’s December 2012 decision was still pending. 4. The Veteran’s hemorrhoids have involved persistent bleeding and secondary anemia since April 12, 2011. CONCLUSION OF LAW The criteria for an effective date of April 11, 2012, but no earlier, for the 20 percent rating for hemorrhoids have been met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 3.102, 3.340, 3.341, 3.400, 4.114, Diagnostic Code 7336. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from May 2005 to October 2005 and from May 2006 to May 2009. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2016 rating decision by the Atlanta, Georgia Regional Office (RO) of the United States Department of Veterans Affairs (VA). This matter was previously before the Board in September 2019, at which time it was remanded for additional development. In February 2020, the Board granted an earlier effective date of September 16, 2015, for the grant of an increased rating of 20 percent for hemorrhoids. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court), insofar as an effective date earlier than this was not granted. Pursuant to a September 2020 joint motion for remand (JMR), the Court vacated the Board’s February 2020 decision. The JMR noted that the Board should have considered the Veteran’s pending April 2011 increased rating claim. See September 2020 JMR. 1. Entitlement to an effective date earlier than September 16, 2015, for the grant of an increased rating of 20 percent for hemorrhoids The effective date of an increase in disability compensation is the earliest date as of which it is factually ascertainable that an increase in disability had occurred if the claim is received within one year from such date. Otherwise, the effective date is the date of receipt of the claim. 38 C.F.R. § 3.400(o)(2). If an increase in disability occurred within one year prior to the claim, the increase is effective as of the date the increase was “factually ascertainable.” If the increase occurred more than one year prior to the claim, the increase is effective the date of claim. If the increase occurred after the date of claim, the effective date is the date of increase. 38 U.S.C. § 5110(b)(2); Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. § 3.400(o)(2). A pending claim is an application, formal or informal, which has not been finally adjudicated. 38 C.F.R. § 3.160(c); Adams v. Shinseki, 568 F.3d. 956, 960 (Fed. Cir. 2009). A finally adjudicated claim is defined as “an application, formal or informal, which has been allowed or disallowed by an agency of original jurisdiction.” 38 C.F.R. § 3.160 (d). Such an action becomes “final” by the expiration of one year after the date of notice of an award or disallowance, or by denial on appellate review, whichever is the earliest. The pending claims doctrine provides that a claim remains pending in the adjudication process, even for years, if VA fails to act on it. Norris v. West, 12 Vet. App. 413, 422 (1999). The Court has confirmed that raising a pending claim theory in connection with a challenge to the effective-date decision is procedurally proper. Ingram v. Nicholson, 21 Vet. App. 232, 249, 255 (2007) (recent Federal Circuit cases have not overruled the pending claim doctrine articulated in Norris); Myers v. Principi, 16 Vet. App. 228, 236 (2002) (since VA failed to issue statement of case (SOC) after valid notice of disagreement (NOD) was filed, the original claim was still pending and is relevant to determining the effective date of a service connection award); McGrath v. Gober, 14 Vet. App. 28, 35 (2000) (a claim that has not been finally adjudicated remains pending for purposes of determining the effective date for that disability). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 38 U.S.C. § 5107(b). The Veteran seeks an effective date earlier than September 16, 2015, for the 20 percent rating assigned for hemorrhoids. Specifically, she argues that her symptoms warranted a 20 percent rating as far back as the date of her original claim in April 2011. As noted above, the effective date of an award of an increased rating is the earliest date as of which it is factually ascertainable that an increase in disability had occurred if the claim is received within one year from such date. However, where a claim has not been finally adjudicated, that claim remains pending. Myers, 16 Vet. App. at 236. The Veteran submitted a statement in February 2013 disagreeing with the decision to deny her an increased rating for hemorrhoids. She noted that she experienced painful, itchy, and burning hemorrhoids, which often caused bleeding. Claims submitted prior to March 24, 2015, such as the Veteran’s claim, do not have to be on a form prescribed by the Secretary or include specific language. See 79 Fed. Reg. 57694 -57697 (Sept. 25, 2014). Instead, VA has been liberal in determining what constitutes a notice of disagreement and the Veteran’s statement expresses dissatisfaction with the noncompensable rating assigned. See 38 C.F.R. § 20.201 (prior to March 24, 2015) (notice of disagreement does not require special wording); Palmer v. Nicholson, 21 Vet. App. 434, 437 (2007) (“VA has always been, and will continue to be, liberal in determining what constitutes a Notice of Disagreement”) (quoting 57 Fed. Reg. 4088, 4093 (Feb. 3, 1992)). Based on this record, VA’s failure to finally adjudicate the Veteran’s claim means that her claim for an increased rating for her service-connected hemorrhoids remained pending until the time of her May 2016 claim. Because the December 2012 rating decision remained pending due to the filing of the timely February 2013 Notice of Disagreement, consideration of the appropriate effective date for the Veteran’s increased rating for hemorrhoids dates back until the day of her original claim, April 12, 2011. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. However, the Board must decide whether the medical evidence supports a rating of 20 percent for hemorrhoids prior to September 16, 2015. Under the rating criteria for Code 7336, a 20 percent evaluation is assigned for hemorrhoids, external or internal with persistent bleeding and with secondary anemia, or with fissures. 38 C.F.R. § 4.114, Diagnostic Code 7336. The Veteran is service connected for anemia. According to the Mayo Clinic, lower than normal hemoglobin levels indicate anemia, with the normal range for women being between 11.6 to 15 grams (g) of hemoglobin per deciliter (dL) of blood. See https://www.mayoclinic.org/diseases-conditions/iron-deficiency-anemia/diagnosis-treatment/drc-20355040. VA treatment records show that on April 26, 2011, the Veteran had a hemoglobin reading of 11.3 g/dL. A June 2012 VA examination report shows the Veteran had a large external hemorrhoid. It was noted that the Veteran had a hemoglobin reading of 11.8 g/dL. A July 2014 treatment record noted a hemoglobin of 10.9 g/dL. These treatment records show that according to the Mayo Clinic and based on hemoglobin readings ranging from 10.9 to 11.3 g/dL, the Veteran has had anemia during the appeal period since at least April 2011. Moreover, hemoglobin as noted at the Veteran’s June 2016 VA examination was noted to be low at 10.9 g/dL, and secondary to the Veteran’s hemorrhoids. VA treatment records in September 2014 also show the Veteran complained of bleeding, constipation and pain. The Veteran underwent a VA rectum and anus examination in June 2016. Subjective complaints included itching, burning, bleeding from rectum and protrusion of hemorrhoids out of the rectum. The VA examiner noted the Veteran’s established diagnosis of external hemorrhoids, and currently diagnosed internal hemorrhoids. Additionally, a June 2016 VA anemia examination noted that the Veteran had had anemia since 2007 and frequent rectal bleeding due to hemorrhoids. The medical evidence has been relatively consistent since April 2011 that the Veteran has had persistent bleeding with secondary anemia due to her hemorrhoids. The Board also has no reason to doubt the credibility of the Veteran’s assertions and she is competent to report easily observable symptoms such as persistent rectal bleeding. Resolving doubt in the Veteran’s favor, the evidence shows that she experienced symptoms consistent with persistent bleeding and with secondary anemia since her original claim on April 12, 2011. Thus, the Veteran’s symptoms of persistent bleeding and with secondary anemia are consistent with a 20 percent rating for hemorrhoids from April 12, 2011. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. There is no record of any statements or medical evidence demonstrating that an increased rating of 20 percent for hemorrhoids was factually ascertainable within one year prior to the April 12, 2011 claim. Thus, an effective date earlier than April 12, 2011 is not warranted. Accordingly, entitlement to an effective date of April 12, 2011, but no earlier, for the grant of an increased rating of 20 percent for hemorrhoids is granted, subject to the rules governing the payment of monetary benefits. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 3.102, 3.340, 3.341, 3.400, 4.114, Diagnostic Code 7336. MARCELLA COYNE Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Sarah B. Richmond, 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.