Citation Nr: 21014168 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 14-14 062 DATE: March 11, 2021 ORDER An increased rating in excess of 10 percent for service-connected hemorrhoids is denied. REMANDED Entitlement to a disability rating in excess of 30 percent for the service-connected ruptured right achilles tendon rupture with flexion contracture and degenerative changes, is remanded. FINDING OF FACT The Veteran’s hemorrhoid symptomatology does not more nearly approximate persistent bleeding with secondary anemia or fissures. CONCLUSION OF LAW The criteria for entitlement to an increased rating in excess of 10 percent for service-connected hemorrhoids have not been met. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.21, 4.114, Diagnostic Code (DC) 7336. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Army from June 1977 to June 1997. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a September 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas which, inter alia, continued the assigned evaluations for the Veteran’s right Achilles tendon rupture and hemorrhoid disability. The Veteran timely filed a notice of disagreement and substantive appeal. In October 2018, the Veteran testified before the undersigned Veterans Law Judge; a transcript of the hearing is of record. In May 2019, the claims were remanded by the Board for further development. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § § 4.10. 1. Entitlement to an increased rating in excess of 10 percent for service-connected hemorrhoids The Veteran contends that the symptoms of his hemorrhoids warrant an increased disability rating. The Veteran’s service-connected hemorrhoids are currently evaluated as 10 percent disabling under 38 C.F.R. § 4.114, DC 7336, governing external or internal hemorrhoids. A 10 percent rating is warranted for internal or external hemorrhoids that are large or thrombotic, irreducible, with excessive redundant tissue and evidencing frequent recurrences. Id. The maximum 20 percent schedular rating is warranted for internal or external hemorrhoids with persistent bleeding and with secondary anemia, or with fissures. Id. An August 2010 VA examination report reflects that the Veteran’s hemorrhoid symptoms included anal itching, pain, painful bowel movements, and swelling. He did not have fecal incontinence. He reported “occasional” rectal bleeding described as mild. He reported that he did not suffer from thrombosis. He reported using ointment as treatment, twice a day, with a good response. He did not suffer from rectal prolapse. There were no signs of anemia and no evidence of fissures. The hemorrhoids were small externally and moderate internally. All were reducible except for an external one. There was presence of redundant tissue. The hemorrhoids were not thrombosed. There was no evidence of bleeding and rectal prolapse. During the October 2018 Board hearing, the Veteran testified that he had severe pain, blood at times after using the restroom, and a possible fissure. A November 2020 VA examination report reflects that the Veteran reported that over time, his hemorrhoids have been persistent—it comes and goes. He reported that there have been times, when he uses the restroom, that he sees blood. He reported pain anywhere from two to three times a month, and sometimes four times a month. He reported he uses Preparation H, generic, and does more self-medicating. The Veteran had internal or external hemorrhoids that he reported has worsened. His treatment plan includes taking continuous medication. The hemorrhoids were described as mild or moderate. The examiner reported moderate sized non-thrombosed external hemorrhoids that were not tender to palpation. However, his rectal sphincter was tender to palpation. An examination of the rectal/anal area revealed small or moderate external hemorrhoids, irreducible external hemorrhoids, and two small palpable internal hemorrhoids at the 6:00 position just inside the rectal sphincter that appeared to be non-tender. He reported that he was not able to perform a prostate examination secondary to the discomfort that the Veteran was having during the examination. His blood work did not show that he was anemic. VA and private treatment records were reviewed in connection with the claim which reflect symptoms as reflected in the most recent VA examination report. Upon review of the evidence of record, the Board finds that a rating in excess of 10 percent is not warranted for hemorrhoids. Based on the preponderance of the evidence, the Veteran’s hemorrhoid symptomatology does not more nearly approximate persistent bleeding with secondary anemia or fissures as contemplated by a 20 percent disability rating under DC 7336. The August 2010 and November 2020 examinations reflect that the Veteran did not have persistent bleeding with anemia and no fissures. The November 2020 VA examination reflects normal bloodwork inconsistent with findings of anemia. While the Veteran reported possible fissures and anemia, his contention is outweighed by the evidence of record which indicates that his hemorrhoid symptomatology is stable, and his symptoms are appropriately considered under his current disability rating. For the foregoing reasons, an increased rating in excess of 10 percent for the Veteran’s service-connected hemorrhoids is not warranted. As the preponderance of the evidence is against a compensable rating, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. REASONS FOR REMAND 2. Entitlement to an increased rating in excess of 30 percent for service-connected right Achilles tendon. The Veteran contends that his right Achilles’ tendon rupture residuals warrants a disability rating in excess of 30 percent. The Veteran’s disability is rated under DC 5271-5284 as 30 percent disabling. 38 C.F.R. § 4.71a, DC 5271-5284. Hyphenated DCs are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27. Notably, during the pendency of the Veteran’s increased rating claim on appeal, the rating criteria for evaluating arthritis and certain musculoskeletal disabilities were amended effective February 7, 2021. 38 C.F.R. § 4.71a. In this case, the Veteran is already in receipt of a 30 percent rating for his service-connected right achilles tendon rupture. The ankle rating criteria for the assignment of a rating in excess of 30 percent did not change, and therefore the regulatory changes are not relevant to this appeal. During an August 2010 VA examination, the Veteran complained of pain, weakness, and stiffness. He reported use of an ankle brace daily with a good response to treatment. He did not suffer from any episodes of dislocation, abnormal movement (popping, locking, etc.), inflammatory arthritis, prosthesis, and any history of benign or malignant cancer related to his ankle condition. The ankle disability was described as moderate in severity. Although the examiner indicated that there was no ankylosis, the examiner nevertheless indicated that the Veteran had 0 degrees of dorsiflexion. In other words, the Veteran could not dorsiflex from the neutral position at all. The examiner also pointed out that x-rays revealed 5 cm calcifications above the ankle involving the Achilles tendon. A June 2017 DBQ report reflects that the Veteran rated the right ankle as 9 in pain on a scale of 0 to 10. He complained of persistent pain with prolonged standing and walking. He also complained of cramps and swelling at the surgical site. He reported difficulty with prolonged standing and walking. He reported that he had occasional swelling of the right ankle. On examination, the examiner noted the range of motion of the right ankle as flexion 50 degrees, extension -10 degrees. The report also indicates that the Veteran had marked deformity of both feet, and marked inward displacement and severe spasm of the Achilles tendon on the right side. Finally, the report indicates that the Veteran had right ankle ankylosis in dorsiflexion at -10 degrees. Subsequently, the claim was remanded for the examiner to clarify what the Veteran’s ankylosis of the dorsiflexion of the right ankle is between 0 degrees to 20 degrees based on the rating criteria for listed under 38 C.F.R. § 4.71a. Under 38 C.F.R. § 4.71a, Diagnostic Code 5270, ankylosis of the ankle is rated as follows: A maximum 40 percent rating is assigned for ankylosis in plantar flexion at more than 40 degrees, or in dorsiflexion at more than 10 degrees; or, with abduction, adduction, inversion or eversion deformity. A 30 percent rating is assigned for ankylosis in plantar flexion, between 30 and 40 degrees, or in dorsiflexion, between 0 and 10 degrees. A 20 percent rating is assigned for ankylosis of the ankle in plantar flexion at less than 30 degrees. It is not clear from the findings of the June 2017 DBQ whether the criteria for a rating in excess of 30 percent is warranted based on ankle ankylosis under Diagnostic Code 5270. In a November 2020 opinion, the clinician noted that on a more recent evaluation by Dr. Stetzner on August 10, 2010, he was able to clearly specify the degrees of range of motion (ROM) of the right ankle. He stated that based on his examination, the right ankle ankylosis is evident on dorsiflexion with “zero degree” movement or motion. According to the examiner, those findings represented unfavorable dorsiflexion ankylosis. He stated that in his opinion, this physical examination is at least as likely as not reflective of the right ankle condition with ruptured right achilles tendon with flexion contracture. First, the November 2020 opinion essentially states that the August 2010 examination findings show a basis for the assignment of the 30 percent rating currently assigned, but on the basis of ankylosis, not under Diagnostic Code 5284 for “other foot injuries.” Specifically, the November 2020 opinion reflects ankylosis in dorsiflexion at 0 degrees, and that corresponds to a 30 percent rating under Diagnostic Code 5270. However, while the November 2020 opinion essentially found that the August 2010 examination findings were a more accurate reflection of the Veteran’s ankylosis, the opinion did not consider the Veteran’s reports that his right ankle disability has worsened since the August 2010 examination, and such worsening appears to be reflected in the June 2017 DBQ. Thus, if the November 2020 opinion was provided without an actual examination of the Veteran’s right ankle, it is unclear how the opinion concludes that the earlier, 2010 examination findings were more accurate than the findings from the June 2017 private DBQ. Notably, the assignment of a rating in excess of 30 percent for ankle ankylosis under Diagnostic Code 5270 requires ankylosis in plantar flexion at more than 40 degrees, or in dorsiflexion at more than 10 degrees; or, with abduction, adduction, inversion or eversion deformity. The criteria does not provide for dorsiflexion ankylosis at -10 degrees and it does not distinguish between favorable and unfavorable ankylosis with respect to the ankle; thus it remains unclear as to whether ankylosis in dorsiflexion at -10 degrees can be considered the equivalent of dorsiflexion ankylosis at more than 10 degrees. Moreover, no examination reports of record identify whether there is an abduction, adduction, inversion or eversion deformity. Accordingly, it remains unclear whether the Veteran’s service-connected right Achilles tendon rupture warrants a rating in excess of 30 percent on the basis of ankylosis. Under Diagnostic Code 5284, a 40 percent rating can only be assigned if there is actual loss of use of the foot, and that is not shown in this case. An examination is needed to determine the current severity of the Veteran’s right ankle disability, specifically addressing his ankylosis. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA orthopedic examination to evaluate the current severity of the service-connected right Achilles’ tendon rupture with flexion contracture. 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. The claims folder must be made available to the examiner for review prior to examination. The examiner should take into consideration the Veteran’s statements and specifically note whether or not he has ankylosis of the ankle in plantar flexion at more than 40 degrees, or in dorsiflexion at more than 10 degrees; or, with abduction, adduction, inversion, or eversion deformity. In this regard, the examiner should clarify the significance of the June 2017 DBQ finding of ankylosis in dorsiflexion at -10 degrees, and whether that could be considered similarly disabling, in terms of functional impairment, to dorsiflexion ankylosis at more than 10 degrees or plantar flexion ankylosis at more than 40 degrees, or ankylosis with abduction, adduction, inversion, or eversion deformity. L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Laroche, N. 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.