Citation Nr: 21014940 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 14-35 317 DATE: March 16, 2021 ORDER Entitlement to a rating in excess of 10 percent for internal hemorrhoids as a residual of fistulectomy is denied. Entitlement to a separate 10 percent rating, but no higher, for chronic diarrhea as a residual of fistulectomy is granted from January 10, 2012 is granted. Entitlement to a separate 30 percent rating, but no higher, for impairment of sphincter control as a residual of fistulectomy is granted from January 10, 2012 is granted. FINDINGS OF FACT 1. At no point during the appeal period have the Veteran’s hemorrhoids caused persistent bleeding with secondary anemia or fissures. 2. Throughout the appeal period, or from January 10, 2012, the Veteran’s chronic diarrhea as a residual of a fistulectomy has been manifested by no more than moderate symptoms with frequent episodes of bowel disturbance with abdominal distress, but not more or less constant abdominal distress. 3. Throughout the appeal period, or from January 10, 2012, the Veteran’s impairment of sphincter control as a residual of fistulectomy has been manifested by occasional involuntary bowel movements, but not fairly frequent episodes or a complete loss of sphincter control. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for hemorrhoids are not met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.7, 4.10, 4.114, Diagnostic Code (DC) 7335-7336. 2. Throughout the appeal period, or from January 10, 2012, the criteria for a separate rating of 10 percent, but no higher, for chronic diarrhea as a residual of fistulectomy are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.114, DC 7335-7319. 3. Throughout the appeal period, or from January 10, 2012, the criteria for a separate 30 percent rating, but no higher, for loss of sphincter control as a residual of fistulectomy are met. 38 U.S.C. §§ 1131, 1155, 5107; 38 C.F.R. § 4.114, DC 7335-7332. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from January 1977 to January 1980 and from July 1980 to August 1989. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) that continued the noncompensable rating for the residuals of fistulectomy with internal hemorrhoids. In December 2014, the Veteran testified before the undersigned. In April 2018, the Board remanded the appeal for further development. In a March 2019 rating decision, the RO increased the rating to 10 percent for residuals of fistulectomy with internal hemorrhoids, effective January 10, 2012 which is the date of the receipt of his claim. In September 2019, February 2020, and September 2020, the Board remanded the appeal again for further development. Initially, the Board notes that awarding separate ratings for hemorrhoids (DC 7335-7336), chronic diarrhea (DC 7335-7319), and impairment of sphincter control (DC 7335-7332) is not prohibited by VA regulations. See 38 C.F.R. §§ 4.14, 4.113, 4.114. The December 2020 SSOC improperly rated the Veteran’s hemorrhoids, chronic diarrhea, and impairment of sphincter control as one disorder pursuant to DC 7332. The Board notes that the Veteran’s underlying service-connected disability, or in-service injury, are residuals (diarrhea, hemorrhoids, incontinence) arising from a fistulectomy. The Schedule of Ratings for the digestive system specifically instructs that a fistulectomy should be rated as impairment of sphincter control. 38 C.F.R. § 4.114, DC 7332, 7335. Increase Ratings 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. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person’s ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 1. Entitlement to a rating in excess of 10 percent for internal hemorrhoids resulting from fistulectomy is denied. The Veteran asserts that his internal hemorrhoids warrant a rating in excess of 10 percent. See January 2012 VA Form 21-526b, April 2013 Notice of Disagreement (NOD), January 2015 Board Hearing Transcript at 12-17. The period on appeal is from January 10, 2012, the date the VA received the Veteran’s claim, plus the one-year lookback period. 38 C.F.R. § 3.400(o)(2). The Veteran is currently rated at 10 percent for his hemorrhoids under DC 7336, which provides that a 10 percent rating is assigned for large or thrombotic, irreducible hemorrhoids with excessive redundant tissue, evidencing frequent recurrences; a maximum 20 percent rating is assigned for hemorrhoid with persistent bleeding and with secondary anemia, or with fissures. 38 C.F.R. § 4.114, DC 7336. The Veteran was afforded VA examinations in January 2013, November 2018, October 2019, and December 2020. The January 2013 VA examiner diagnosed mild internal hemorrhoids attributed to a fistulectomy that caused frequent anal/perianal pain, but without bleeding, fissures, or secondary anemia. The November 2018 examiner confirmed the diagnosis of internal hemorrhoids and noted they required preparation and digital reduction. The Veteran reported pain with any bowel movement, abnormal stools and color, and having to digitally reduce his hemorrhoids. The rectal examination revealed large, thrombotic, and irreducible hemorrhoids with excessive redundant tissue evidencing frequent recurrences. The examiner found anal skin tags but also noted the Veteran did not have the symptoms of persistent bleeding or secondary anemia. The examiner noted the Veteran’s hemorrhoid condition would create difficulty for the Veteran in sitting for long periods of time. The October 2019 VA examiner noted the Veteran’s internal hemorrhoids were mild or moderate, required continuous medication (Preparation H and medicated pads), and bled at times. The examiner noted no other abnormalities, to include any fissures, and the Veteran’s Complete Blood Count (CBC) did not indicate anemia. The December 2020 VA examiner noted the Veteran’s internal hemorrhoids were moderate and reducible and that the Veteran had diminished rectal sphincter tone. The Veteran and his wife testified in December 2014 that the Veteran’s hemorrhoids must be digitally reduced after every bowel movement and at times causing trouble sleeping. See December 2014 Board Hearing Transcript at 14-17. VA treatment records do not show any symptoms worse than those reflected in the VA examinations and likewise do not reflect a worsening of the Veteran’s symptoms just prior to the appeal period. There is no record of treatment of anemia or fissures. See, generally, VA treatment records. As such, the evidence of records show that the Veteran has mild or moderate hemorrhoids which does not result in persistent bleeding, secondary anemia, or fissures, which is required by the 20 percent rating criteria. Accordingly, a rating in excess of 10 percent for hemorrhoids is denied Additionally, the Board notes that a separate rating for the Veteran’s anal scar is not warranted, as it is measures 2.5 x.5 centimeters, is not painful or unstable, and does not cause other functional impairment. See November 2018 and December 2020 VA examination reports; 38 C.F.R. § 4.118, DCs 7801-5. 2. Entitlement to a separate 10 percent rating, but no higher, for chronic diarrhea as a residual of fistulectomy, is granted from January 10, 2012. The Veteran has consistently asserted that his residuals of a fistulectomy are presenting as chronic diarrhea and that he experiences frequent abdominal distress and diarrhea. See January 2012 VA Form 21-526b, June 2012 VA Form 21-526b, December 2014 Board Hearing Transcript at 14-17. The Board agrees. In this regard, pursuant to the September 2019 and February 2020 Board remands, a VA examiner opined that as the Veteran’s medical treatment records do not contain treatment for diarrhea that it could not be related to his residuals of a fistulectomy and internal hemorrhoids. See March 2020 VA examination report. The Board notes that the March 2020 VA examiner failed to consider the Veteran’s lay statements and relied on the absence of treatment to deny a relationship and is inadequate in this regard. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (addressing lay evidence as potentially competent to support presence of disability even when not corroborated by contemporaneous medical evidence); Dalton v. Nicholson, 21 Vet. App. 23 (2007). Pursuant to the September 2020 Board remand, the Veteran was provided a VA examination and diagnosed with chronic diarrhea which the VA examiner opined was a known complication of fistulectomies and was at least as likely as not proximately due to the Veteran’s in-service fistulectomy. See December 2020 VA examination report. Although chronic diarrhea is not specifically listed in the schedule for rating disabilities, VA is instructed to rate by analogy. 38 C.F.R. § 4.20. Here, the Veteran’s symptoms, delineated in the December 2020 VA examination report, most closely approximate the rating criteria for irritable colon syndrome. 38 C.F.R. § 4.114, DC 7319. When an unlisted disease, injury, or residual condition is encountered, requiring rating by analogy, the diagnostic code number will be “built-up” as follows: The first 2 digits will be selected from that part of the schedule most closely identifying the part, or system, of the body involved; the last 2 digits will be “99” for all unlisted conditions. 38 C.F.R. § 4.27. With diseases, preference is to be given to the number assigned to the disease itself; if the rating is determined on the basis of residual conditions, the number appropriate to the residual condition will be added, preceded by a hyphen. Id. Thus, the Veteran’s chronic diarrhea should be coded DC 7335-7319. Pursuant to DC 7319, a noncompensable rating is warranted for mild symptoms manifested by disturbances of bowel function with occasional episodes of abdominal distress. A 10 percent rating is assigned for moderate symptoms described as frequent episodes of bowel disturbance with abdominal distress. And the highest schedular evaluation of 30 percent is warranted under DC 7319 for severe symptoms manifested by diarrhea, or alternating diarrhea and constipation, with more or less constant abdominal distress. 38 C.F.R. § 4.114, DC 7319. At the December 2014 Board hearing, the Veteran testified that he experiences immediacy of bowel after eating and daily diarrhea that has persisted for over a decade. See December 2014 Board Hearing Transcript at 13, 17. A review of VA treatment records does not reveal any recent treatment for diarrhea. See, generally, VA treatment records. At the December 2020 VA examination, the Veteran reported that he experiences loose, watery bowel movements 2-4 times daily. The examiner noted the Veteran experiences frequent episodes, 7 or more within the last 12 months, of bowel disturbances with abdominal distress. Accordingly, the Board finds that the Veteran’s chronic diarrhea, as a residual of his fistulectomy, has more closely approximated a separate 10 percent rating, or moderate symptoms with frequent episodes of bowel disturbance with abdominal distress, from January 10, 2012. 38 C.F.R. § 4.6, 4.7. 3. Entitlement to a separate 30 percent rating, but no higher, for loss of sphincter control as a residual of fistulectomy is granted from January 10, 2012. The Veteran asserts that he experiences a lack of bowel control as a symptom of his service-connected residuals of a fistulectomy. See January 2012, June 2012 VA Forms 21-526b. The Board remanded this matter for an examination and addendum opinion from a VA examiner in April 2018, September 2019, February 2020, and in September 2020. In this regard, the Veteran was only afforded one examination throughout the appeal period in December 2020. As noted above, a fistulectomy (DC 7335) is rated as impairment of rectal sphincter control pursuant to 38 C.F.R. § 4.114, DC 7332. Under DC 7332, a noncompensable rating is assigned for impairment of sphincter control that is healed or slight, without leakage. A 10 percent rating is assigned for constant slight, or occasional moderate leakage. A 30 percent rating is assigned for occasional involuntary bowel movements, necessitating wearing of pad. A 60 percent rating is assigned for extensive leakage and fairly frequent involuntary bowel movements. A 100 percent rating is assigned for complete loss of sphincter control. 38 C.F.R. § 4.114, DC 7332. At the December 2020 VA examination, the Veteran reported experiencing leakage and involuntary bowel movements. The December 2020 VA examiner categorized the Veteran’s reports of leakage as moderate and his reports of incontinence as occasional. There is no other medical treatment or lay statements available for review regarding the Veteran’s impairment of sphincter control, thus the December 2020 examination report is the most probative evidence. The Veteran has not asserted, and the evidence does not otherwise demonstrate, that the Veteran’s impairment of sphincter control requires the use absorbent material or pads, is fairly frequent, or a complete loss. 38 C.F.R. § 4.114, DC 7332. Based on the totality of the evidence, the Board finds that a separate 30 percent rating, but no higher, is warranted for the entire period on appeal, or from January 10, 2012. S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Rouse, 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.