Citation Nr: 21024580 Decision Date: 04/23/21 Archive Date: 04/23/21 DOCKET NO. 17-01 942 DATE: April 23, 2021 ORDER Entitlement to a compensable rating for hemorrhoids is denied. FINDING OF FACT Throughout the period on appeal, the Veteran’s hemorrhoids have resulted in no more than mild or moderate symptomatology, without evidence that such were large or thrombotic, irreducible, with excessive redundant tissue, evidencing frequent recurrences, or resulted in persistent bleeding, secondary anemia, or fissures. CONCLUSION OF LAW The criteria for a compensable rating for hemorrhoids have not been met at any point during the pendency of this appeal. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.114, Diagnostic Code (Code) 7336. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1995 to February 2015. This matter is before the Board of Veterans’ Appeals (Board) on appeal of a July 2015 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA) which, in pertinent part, granted service connection and assigned a zero percent rating for hemorrhoids. In January 2020, the Veteran testified at a Board before the undersigned Veterans Law Judge. He waived RO consideration of any additional evidence added to his file. This appeal was previously before the Board in January 2020, when the claims of service connection for an acquired psychiatric disorder and initial compensable rating for hemorrhoids were remanded for additional development. Upon consideration of additional evidence obtained pursuant to the Board remand, an interim October 2020 rating decision granted service connection for unspecified trauma and stressor-related disorder with major depressive disorder and assigned a 50 percent rating from March 1, 2015, the day following the Veteran’s separation from service. As this represents a complete grant of his claim for service connection for an acquired psychiatric disorder, this issue is no longer on appeal before the Board. See generally Grantham v. Brown, 114 F.3d 116 (Fed. Cir. 1997); Barrera v. Gober, 122 F.3d 1030 (Fed. Cir. 1997). As to the matter of an initial compensable rating for hemorrhoids, after review of the development accomplished by the AOJ pursuant to the January 2020 remand, the Board concludes there has been substantial compliance with the remand instructions and no further action is necessary. See Donnellan v. Shinseki, 24 Vet. App. 167, 176 (2010) (“It is substantial compliance, not absolute compliance, that is required” under Stegall v. West) (citing Dyment v. West, 13 Vet. App. 141, 146-47 (1999)). 1. Increased rating for hemorrhoids Disability ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran’s condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). In McGrath v. Gober, 14 Vet. App. 28 (2000), the United States Court of Appeals for Veterans Claims (Court) held that when evidence is created is irrelevant compared to when the Veteran was actually experiencing the symptoms. Thus, the Board will consider whether the evidence of record suggests that the severity of the Veteran’s symptoms increased sometime prior to the date of the examination reports. The Veteran’s hemorrhoids are rated under 38 C.F.R. § 4.114, Code 7336, under which mild or moderate external or internal hemorrhoids warrant a noncompensable rating. Large or thrombotic, irreducible hemorrhoids with excessive redundant tissue, evidencing frequent recurrences warrant a 10 percent rating, and hemorrhoids with persistent bleeding and with secondary anemia, or with fissures warrant a rating of 20 percent. A September 2014 VA examination report includes a diagnosis of hemorrhoids; nontender, nonthrombotic external hemorrhoid noted at 5 o’clock position, status post hemorrhoidectomy. The Veteran reported he had not had any problems since undergoing a hemorrhoidectomy in May 2014. The examiner noted that the condition did not require continuous medication. On examination, the Veteran had small or moderate external hemorrhoids. There were no other pertinent physical findings, complications, conditions, signs or symptoms and no functional impact on the Veteran’s ability to work. During his January 2020 Board hearing, the Veteran testified his hemorrhoids were “consistently occurring” and were “more frequent” (monthly or more often.) He reported he had not sought treatment for hemorrhoids. He reported they were recurring and he was self-treating. On October 2020 VA examination, the Veteran reported “he still has hemorrhoids periodically which are painful especially with constipation. NO longer has blood in stool. Hemorrhoids are about the same, no significant worsening.” He was treated with Preparation H suppositories 2-3 time a week, as needed. The examiner noted mild to moderate hemorrhoids (few external hemorrhoids on examination, history of internal hemorrhoids as well). There were no other pertinent physical findings, complications, conditions, signs or symptoms. Regarding functional impact on the Veteran’s ability to work, the examiner noted the Veteran was an unemployed former truck driver and lost 0-1 week work time in the last 12 months because hemorrhoids are more painful with prolonged sitting. VA treatment records show the Veteran requested suppositories for treatment of hemorrhoids in December 2017. He reported he had been lifting weights and his hemorrhoids were “acting up.” These records show he has been prescribed suppositories for treatment of hemorrhoids. These records also show the Veteran underwent a colonoscopy in March 2018 which showed internal hemorrhoids. A March 2020 surgery consultation report notes the Veteran was referred to general surgery for hemorrhoids. He reported “occasionally he would have some discomfort in the perianal area mostly during bowel movements with occasional bleeding. This happens mostly with hard stool.” On examination, there were no external hemorrhoids, no masses or blood on digital rectal examination and no fissures or fistula. Anoscopy showed grade 2 internal hemorrhoids with no stigmata of bleeding. The plan was to proceed with conservative treatment. The evidence outlined above shows that symptoms of the Veteran’s hemorrhoids are no more than mild or moderate and more closely approximate the criteria for a noncompensable rating under Code 7336. Although he has reported experiencing recurrent hemorrhoids; the evidence does not show (and it is not claimed) that he has irreducible large or thrombotic hemorrhoids with excessive redundant tissue, evidencing frequent recurrences; or persistent bleeding and with secondary anemia, or with fissures, at any time during the appeal period. As the preponderance of the evidence (including the Veteran’s self-reports describing symptoms and impairment) is against a finding of more than mild or moderate hemorrhoids, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). A compensable rating is not warranted. As a final matter, the Board has considered the argument advanced in the March 2021 Appellant’s Post-Remand Brief, that the Veteran is entitled to an extraschedular evaluation because the October 2020 VA examiner noted the Veteran’s hemorrhoids were more painful with prolonged sitting and interfered with his employment as a truck driver. In this regard, it is noted that ratings shall be based as far as practicable upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience. To accord justice, therefore, to the exceptional case where the schedular ratings are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve, on the basis of the criteria set forth in this paragraph, an extraschedular rating commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The governing norm in these exceptional cases is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). The Court has clarified that there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. Thun v. Peake, 22 Vet. App. 111, 115 (2008). Initially, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability are inadequate. See Yancy v. McDonald, 27 Vet. App. 484 (2016); Doucette v. Shulkin, 28 Vet. App. 366 (2017) (holding that either the veteran must assert that a schedular rating is inadequate or the evidence must present exceptional or unusual circumstances); Sowers v. McDonald, 27 Vet. App. 472, 478 (2016) (“[t]he rating schedule must be deemed inadequate before extraschedular consideration is warranted”). Second, if the schedular rating does not contemplate the veteran’s level of disability and symptomatology and is found inadequate, the Board must determine whether the veteran’s disability picture exhibits other related factors such as marked interference with employment and frequent periods of hospitalization. Thun, 22 Vet. App. at 116. Third, if the first two Thun elements have been satisfied, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the veteran’s disability picture requires the assignment of an extraschedular rating. Thun, 22 Vet. App. at 116. Thun step one is not a “mechanical test;” thus, it is not automatically satisfied just because a certain symptom or functional effect is not expressly listed in a diagnostic code. See Doucette v. Shulkin, 28 Vet. App. 366, 369 (2016) (holding that the rating criteria for hearing loss contemplated the full range of symptoms related to decreased hearing, even though the diagnostic code failed to list any symptoms but relied solely on audiometric tests). If the Board determines that a Veteran’s disability is exceptional, the second element requires the Board to “determine whether the claimant’s exceptional disability picture exhibits other related factors,” such as marked interference with employment or frequent periods of hospitalization. Long v. Wilkie, No. 16-1537, U.S. App. Vet. (Dec. 30, 2020). With respect to the Veteran’s claim for hemorrhoids, the evidence does not show that the Veteran’s hemorrhoids are exceptional; accordingly, the first prong in Thun is not met and referral for extraschedular is not warranted. The rating criteria for hemorrhoids specifically contemplate the Veteran’s levels of disability and symptomatology. The Veteran has reported symptoms of hemorrhoids that are painful (with occasional bleeding reported during March 2020 surgical consultation). While pain is not explicitly addressed in the rating criteria for hemorrhoids, pain is an inherent symptom of the condition being described in the rating criteria. Hemorrhoids are defined as “an abnormal mass of dilated and engorged blood vessels in swollen tissue that occurs internally in the anal canal or externally around the anus, that may be marked by bleeding, pain, or itching, and that when occurring internally often protrude through the external anal sphincter and when occurring externally may lead to thrombosis - usually used in plural - called also piles.” See Merriam-Webster, Medical Dictionary, hemorrhoid, available at https://www.merriam-webster.com/dictionary/hemorrhoid#medicalDictionary (last accessed, April 19, 2021). As the very definition of “hemorrhoids” encompasses symptoms such as pain, irritation and bleeding, the Board finds that these symptoms would be inherently expected and simply experiencing such symptoms itself does not require referral for an extraschedular evaluation. Moreover, even if pain and occasional bleeding were not considered contemplated by the rating schedule, the Board finds that the symptoms have not been shown to cause either marked interference with employment or required frequent periods of hospitalization for the treatment of hemorrhoids. The 2020 VA examiner found that the Veteran lost 0-1 week work time in the last 12 months because hemorrhoids are more painful with prolonged sitting. The Board does not find that the loss of 0-1 week work time over a year equates to marked interference with employment. Accordingly, as neither the first nor second criteria of Thun have been met, the Board finds that referral for extra-schedular consideration is not warranted. The Board has considered whether there is any other basis for granting increased and/or additional ratings but has found none. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record in connection with this appeal. See Doucette v.   Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Kshama Hughes 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.