Citation Nr: 21023902 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 17-24 592 DATE: April 21, 2021 ORDER New and material evidence having been received; the claim for entitlement to service connection for cardiac disease (claimed as heart murmur) is reopened. New and material evidence having been received; the claim for entitlement to service connection for hypertension is reopened. Entitlement to a compensable rating for hemorrhoids prior to September 14, 2016 is denied. Entitlement to a 20 percent rating, and no higher, for hemorrhoids from September 14, 2016 is granted. REMANDED Entitlement to service connection for cardiac disease (claimed as heart murmur) is remanded. Entitlement to service connection for hypertension is remanded. FINDINGS OF FACT 1. The claim for service connection of cardiac disease (claimed as heart murmur) was denied in September 2009 rating decision and was not appealed. 2. The claim for service connection of hypertension was denied in September 2009 rating decision and was not appealed. 3. Evidence received since the September 2009 rating decision includes evidence that is not cumulative or redundant of the evidence previously of record and is sufficient, when considered by itself or with previous evidence of record, to raise a reasonable possibility of substantiating the claims for service connection for cardiac disease (claimed as heart murmur). 4. Evidence received since the September 2009 rating decision includes evidence that is not cumulative or redundant of the evidence previously of record and is sufficient, when considered by itself or with previous evidence of record, to raise a reasonable possibility of substantiating the claims for service connection for hypertension. 5. Prior to September 14, 2016, the Veteran’s service-connected hemorrhoid symptoms were mild to moderate. 6. As of September 14, 2016, the Veteran experienced constant pain and persistent almost daily bleeding associated with his service-connected hemorrhoids. CONCLUSIONS OF LAW 1. The September 2009 rating decision denying service connection for cardiac disease (claimed as heart murmur) and hypertension is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2019). 2. New and material evidence has been received since the last denial of service connection for cardiac disease (claimed as heart murmur) and the claim is reopened. U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2019). 3. New and material evidence has been received since the last denial of service connection for hypertension and the claim is reopened. U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2019). 4. The criteria for a compensable rating for hemorrhoids prior to September 14, 2016 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.114, DC 7336 (2019). 5. The criteria for a 20 percent rating, and no higher, from September 14, 2016 for hemorrhoids have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.114, DC 7336 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service in the United States Air Force from June 1980 to March 1986. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a December 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge at a videoconference hearing in February 2021. A transcript of the hearing has been associated with the electronic record. New and Material Evidence A claim will be reopened in the event that new and material evidence is presented. 38 U.S.C. § 5108. If new and material evidence is presented or secured with respect to a claim which has been disallowed, the Board shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108. With regard to previously and finally disallowed claims, the Board must conduct a two-part analysis. First, the Board must determine whether the evidence presented or secured since the prior final disallowance of the claim is "new.” New evidence means existing evidence not previously submitted to agency decisionmakers. Second, the Board must determine whether the evidence is material to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. If the Board determines that the evidence is "new and material," it must reopen the claim and evaluate the merits of the claim in view of all the evidence, both new and old. Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In determining whether evidence is new and material, the "credibility of the evidence is to be presumed." Justus v. Principi, 3 Vet. App. 510, 513 (1992). Reopening the claim of entitlement to service connection for cardiac disease (claimed as heart murmur) Reopening the claim of entitlement to service connection for hypertension The Veteran was initially denied service connection for cardiac disease and hypertensive vascular disease in a September 1986 rating decision because there was no evidence of an inservice onset or causation. The Veteran was notified of the rating decision but did not appeal the decision. The Veteran attempted to reopen the claim and the RO denied reopening in a September 2009 rating decision. The Veteran did not appeal, and that decision became final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. Because the December 2016 rating decision was the last final disallowance, the Board must review all of the evidence submitted since that rating decision to determine whether the Veteran's claims for service connection should be reopened and re-adjudicated on a de novo basis. Evans v. Brown, 9 Vet. App. 273 (1996). Evidence received subsequent to the December 2016 rating decision includes, in pertinent part, a hearing transcript of the Veteran’s testimony which includes testimony pointing out headaches, blood pressure elevations in service and a heart murmur documented during service. The Board finds that this evidence is new and material within the meaning of applicable law and regulations because this testimony was not of record prior to the issuance of the December 2016 rating decision and it relates to an unestablished element of a relationship between the claimed disorder and service. As such, the claims are reopened. Increased Disability Ratings Disability ratings are determined by the application of rating criteria set forth in the VA Schedule for Rating Disabilities (38 C.F.R. Part 4) based on the average impairment of earning capacity. Separate diagnostic codes identify the various Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected. 38 C.F.R. § 4.21. The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. Entitlement to a compensable rating for hemorrhoids The Veteran contends that a compensable rating is warranted for her service-connected hemorrhoids. Considering the pertinent evidence and the applicable rating criteria and considerations, the Board agrees that the criteria for a compensable rating have been met from September 14, 2016. The Veteran has been service-connected for hemorrhoids since September 1986. The rating for the Veteran's hemorrhoids has been assigned under 38 C.F.R. § 4.114, DC 7336, as internal or external hemorrhoids. Under DC 7336, the following ratings apply: a noncompensable rating is assigned for mild or moderate hemorrhoid symptoms; a 10 percent rating is assigned for large or thrombotic, irreducible hemorrhoids with excessive redundant tissue, evidencing frequent recurrences; and a maximum 20 percent rating is assigned for hemorrhoids with persistent bleeding and with secondary anemia, or with fissures. 38 C.F.R. § 4.114, DC 7336. Prior to September 14, 2016 In a private hospital admission record in April 2004, the Veteran noted that she had occasional rectal bleeding thought to be due to hemorrhoids. In a September 2008 examination, the Veteran described hemorrhoids. The physician found an external hemorrhoid and no internal hemorrhoids on digital rectal examination. In March and in April 2009, the Veteran was seen at VA for pain and discomfort associated with her external hemorrhoids that occasionally bled. There was no active bleeding at the time and her Hgb was 13.9. Examination revealed skin tags at the 5,7 and 11 o’clock positions with no blood noted on examination. The Board finds that prior to September 14, 2016 the record indicates that the Veteran experienced mild to moderate symptoms of her hemorrhoids. Accordingly, a compensable rating is not warranted prior to September 14, 2016. From September 14, 2016 In September 2016 the Veteran underwent a VA disability examination for conditions of the rectum and anus. The examiner took a history from the Veteran which included onset of hemorrhoids in 1984 with bleeding, pain and itching. She was taking continuous medication for relief and her condition had worsened since its onset. Her hemorrhoid condition impacted her ability to work as she was unable to stand, sit, or walk for extended periods of time without aggravating her pain and bleeding. The examiner did not perform an examination noting that it would have aggravated the Veteran’s condition as she had active hemorrhoidal bleeding on the day of the examination. Her hematocrit on that date was 12.2. In the Veteran’s February 2021 Board hearing, she testified regarding flare-ups of her hemorrhoid condition that have had an economic impact. In 2013, she had been on her feet all day as a restaurant server and she felt pain from the hemorrhoid condition but was unaware that she was bleeding until she heard people laughing at her. She had to leave work as she did not have a change of clothes and was unable to return to that job. When she was next working in a retail store in 2014, she felt pain and bled onto her dress unexpectedly and had to leave before her shift was completed. She currently experiences bleeding from her hemorrhoids at home five to six days a week. The Veteran wears a pad at home and has constant pain from the hemorrhoids. It is difficult for her to insert the rectal suppositories prescribed for her hemorrhoids because of her rectal pain. The Veteran’s son provided a statement regarding the incidents that occurred when the Veteran was working as a cashier in a restaurant and as a clerk in a retail store as he was called upon to pick her up during these emergencies. The above evidence reflects that the Veteran has reported persistent bleeding of her hemorrhoids associated with pain since at least September 14, 2016 and that her hematocrit decreased significantly from the level documented in 2009 consistent with excessive bleeding. The Veteran and her son are competent to report the symptoms of her hemorrhoids and the Board has no legitimate basis to challenge the credibility of their contentions. See Jandreau, 492 F.3d at 1377; Buchanan, 451 F.3d at 1337. In addition, in 2016, the VA examiner was unable to conduct a physical examination due to active hemorrhoidal bleeding. The symptomatology described by the Veteran most closely approximates the criteria for a 20 percent rating under DC 7336, which contemplates persistent bleeding with secondary anemia. In addition, the Veteran’s hemorrhoid condition has severely affected her opportunities for employment and requires adjustments in her daily activities in the home setting. Therefore, the evidence of persistent bleeding with secondary anemia is at least evenly balanced since at least September 14, 2016. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to a compensable rating of 20 percent is warranted from September 14, 2016. REASONS FOR REMAND Entitlement to service connection for cardiac disease claimed as heart murmur) is remanded. Entitlement to service connection for hypertension is remanded. The Veteran discussed in her hearing testimony that after experiencing an incident an elevated blood pressure documented in her service treatment records (STRs) she regularly experienced fast heartbeats and severe headaches. Instances of blood pressures of 140/90 and 140/104 were documented in her STRs with a notation attached to her separation examination reflecting that elevated blood pressures had been recorded twice that year. In another instance, during a February 1986 clinic visit for follow-up of her heart murmur, her blood pressure was 146/98. On her May 1984 report of medical history, the Veteran endorsed frequent or severe headaches and dizziness. In her February 1986 Report of Medical History, the 24-year old Veteran noted her health was “fair” and she specifically endorsed high blood pressure. On her separation clinical examination, an abnormality of the heart, a grade II/VI systolic heart murmur, was detected. An EKG was performed which was considered within normal limits with an incomplete right bundle branch block noted. Therefore, in order to afford the Veteran every consideration for her claims, further investigation of her current symptoms and those documented during service is warranted. The matters are REMANDED for the following action: 1. Request that the Veteran and her attorney identify any medical treatment obtained through private entities since service that are not in possession of the VA and take steps to obtain any records identified. Obtain all updated VA outpatient treatment records. 2. After completion of step 1, schedule the Veteran for VA cardiac disease and hypertension examinations with a contract examiner(s), if possible. The claims file and a copy of this Remand must be made available to and be reviewed by the examiner. The examiner(s) should then address the following: (a.) Clarify the nature and extent of any cardiac disorder or hypertensive disorder diagnosed or diagnosable for the Veteran. Any tests necessary to confirm or rule-out a diagnosis should be performed, including but not limited to a stress test, Holter monitoring or echocardiogram. (b.) State whether it is at least as likely as not (50 percent or greater probability) that any cardiac and/or hypertensive disorder was either incurred in service or is otherwise related to service. The examiner’s attention is directed to the Veteran’s STRs in general and the specific entries referenced in this Remand. (c.) A complete rationale should be given for any opinion rendered. (d.) The examiner should be mindful that the Veteran is competent to relay symptoms and observations that are within the purview of a layperson. If any statement of the Veteran is discounted, the examiner should provide an explanation. 3. After completion of the above development, readjudicate the claims on appeal. If any decision remains unfavorable to the Veteran, provide the Veteran and her attorney with a Supplemental Statement of the Case, and allow a period before returning the claim(s) to the Board. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Adams Hill, 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.