Citation Nr: 21025716 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 14-04 156 DATE: April 28, 2021 ORDER Entitlement to service connection for a right knee disability is denied. Entitlement to service connection for a left ear disability is denied. Entitlement to a rating in excess of 10 percent for lumbar strain with mild degenerative joint disease (low back disability) is denied. Entitlement to a rating in excess of 10 percent for residuals of hemorrhoidectomy is denied. Entitlement to a separate 10 percent rating, but no higher, for sphincter impairment beginning November 18, 2011, is granted. REMANDED Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a bilateral hand disability is remanded. Entitlement to service connection for residuals of shingles is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran’s right knee disability did not manifest during active service, arthritis did not manifest within one year of discharge from active service, and there is no indication that his right knee disability is otherwise related to his active service. 2. The Veteran does not have a chronic left ear disability. 3. The Veteran’s low back disability has not been productive of forward flexion to 60 degrees or less; combined range of motion to 120 degrees or less; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour. 4. The Veteran’s residuals of hemorrhoidectomy have not been productive of persistent bleeding and with secondary anemia, or with fissures. 5. The Veteran has sphincter impairment resulting from a November 18, 2011 hemorrhoidectomy resulting in no more than mild with constant slight or occasional moderate leakage. CONCLUSIONS OF LAW 1. The criteria for service connection for a right knee disability are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 1137, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2020). 2. The criteria for service connection for a left ear disability are not met. 38 U.S.C. §§ 1110, 1131, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303 (2020). 3. The criteria for a rating in excess of 10 percent for a low back disability are not met. 38 U.S.C. § 1155 (2018); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5242 (2020). 4. The criteria for a rating in excess of 10 percent for residuals of hemorrhoidectomy are not met. 38 U.S.C. § 1155 (2018); 38 C.F.R. §§ 4.7, 4.114, Diagnostic Code 7336 (2020). 5. Beginning November 18, 2011, the criteria for a separate 10 percent rating, but no higher, for sphincter impairment are met. 38 U.S.C. § 1155 (2018); 38 C.F.R. §§ 4.7, 4.114, Diagnostic Code 7332 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from May 1980 to May 1990. He also served in the North Carolina Army National Guard from June 1990 to October 2000 and had active duty for special work from February 1992 to August 1992. This case initially came before the Board of Veterans’ Appeals (Board) on appeal from an April 2011 rating decision issued by a Regional Office (RO) of the Department of Veterans Affairs (VA). In April 2017, the Veteran testified before a Veterans Law Judge (VLJ) who is no longer employed at the Board. A transcript of the hearing is of record. In November 2020, he was offered an additional Board hearing by another VLJ; however, he indicated that he did not want an additional hearing. In November 2017 and August 2019, the claims were remanded to the Agency of Original Jurisdiction (AOJ) for additional development. The case has since been returned to the Board. Service Connection – Right Knee Disability The Veteran maintains that his right knee disability was incurred in or is related to active service. During the Board hearing, he stated that his job required him to constantly pick up boxes of ammunition, get it to a truck, get down on his knees, and unload it. He also reported that he had to run with 70-pound rucksacks with boots on. He stated that he began having problems with his knees during service and that his symptoms worsened over time. An April 1981 service treatment record indicated the Veteran complained of right leg pain after prolonged walking. On examination, he had pain and tenderness on the dorsal side of the right knee with no other abnormalities noted. The assessment was strain. He was instructed to apply heat and an Ace bandage. He was given light duty for 24 hours. In May 1981, he complained of abdominal and back pain. He also complained of weakness and pain in his elbows and knees. On examination, he had tenderness of the left upper quadrant. The assessment was gastroenteritis. His April 1990 separation examination report indicated that his lower extremities were normal. A March 1994 periodic examination for the Army National Guard indicated that the Veterans’ lower extremities were normal. On his Report of Medical History, he denied having or having had trick or locked knee; lameness; bone, joint, or other deformity; and arthritis. A June 1996 service treatment record indicated that the Veteran complained of a right knee injury. He stated that he scraped his right knee playing basketball the previous night. The assessment was excoriation. An April 1999 periodic examination for the Army National Guard indicated that the Veteran’s lower extremities were normal. On his Report of Medical history, he denied having or having had trick or locked knee; bone, joint, or other deformity; lameness; and arthritis. The report of an August 2002 VA general medical examination indicated that the Veteran complained of bilateral knee pain since 1997-1998, but especially on the left side in 1999. An August 2004 VA treatment record indicated that the Veteran complained of pain in his scapula, shoulders, paraspinal muscles, thighs, knees, and feet with no joint swelling or deformity. The assessment was polyarthralgia, possible fibromyalgia, and chronic pain syndrome. In September 2015, he complained that his low back and knees hurt when he got up from a sitting position or walked some distance. On examination, there was no swelling or tenderness of the knees and he had good range of motion. X-rays of the knees were normal except for patellar spurring. Joint space was well maintained, and the compartments were unremarkable. During a September 2019 VA examination, the Veteran reported experiencing pain and cracking in his knees during service with bending and lifting heavy objects. He stated that he had increased pain with exercise and running with a 70-pound rucksack with combat boots. X-rays of the right knee showed a spur of the superior anterior patella. The diagnosis was degenerative arthritis. The VA examiner opined that the Veteran’s right knee disability was less likely than not incurred in or caused by service. The examiner noted that the Veteran had a right knee strain during service, but that the condition was acute. He further noted that there was no chronicity of care. In this case, the Board finds the most probative evidence weighs against the claim. Although the Veteran sustained a right knee strain during service in May 1981, the evidence indicates that the strain was acute and transitory. There was no follow-up treatment for the strain. An April 1990 separation examination and a March 1994 periodic examination indicated that his lower extremities were normal, and he denied having any knee problems in March 1994. In addition, the September 2019 VA examiner opined that the 1981 injury was an acute. The evidence also indicates that he scraped his right knee playing basketball in June 1996. It is unclear if the injury occurred during active service; however, the Board notes that there is no evidence that a chronic knee disability resulted from that injury. The April 1999 periodic examination indicated that his lower extremities were normal, and he denied any knee problems. There is otherwise no evidence of a right knee injury during a period of active duty for training (ACDUTRA) or inactive duty for training (INACDUTRA) during his National Guard service. Furthermore, the September 2019 VA examiner opined that the Veteran’s right knee disability was less likely than not related to service. The examiner considered and addressed the relevant evidence of record, the Veteran’s contentions, and provided rationale for his opinion. For this reason, the Board finds the VA examiner’s opinion significantly probative. Barr v. Nicholson, 21 Vet. App. 303 (2007); Stefl v. Nicholson, 21 Vet. App. 120 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Moreover, there are no medical opinions to the contrary. The Board has also considered the lay evidence of record. The Veteran is competent to describe what he has personally observed or experienced. However, to the extent his statements conflict with the contemporaneous medical evidence, the Board does not find them credible. Furthermore, the ultimate questions of diagnoses and etiology in this case extend beyond an immediately observable cause-and-effect relationship and are beyond the competence of lay witnesses. Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to service connection for a right knee disability is not warranted. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Service Connection – Left Ear Disability The Veteran maintains that he has a left ear disability that was incurred in or is related to active service. During the Board hearing, he stated that he had constant pain in his left ear during active service and had an infection. He indicated that every time he went to the doctor, they told him he had redness in his ear and was given pain medication. A February 1981 service treatment record indicated that the Veteran complained of chills, ear pressure, nausea, fatigue, coughing, and sore throat. On examination there was some redness in his ears along with swelling and redness of throat. The assessment was upper respiratory infection and possible viral syndrome. He was given throat lozenges, Tylenol, and Terpin Hydrate (a cough medicine/expectorant) and instructed to have no solid food for 14 hours. In May 1981, he complained of nausea, diarrhea, headache, chills, sore throat, weakness, and aches in his joints. On examination, his throat and his right ear canal were red. Tympanic membranes were within normal limits. The assessment was possible viral syndrome. He was later diagnosed with gastroenteritis. He was given Riopan (antacid), CL (antibiotic), and Cepacol (throat lozenges). There was no follow-up treatment. In February 1988, he complained of right ear pain and irritation for two days. On examination, it was noted that he had cerumen impaction and his ear was irrigated. His April 1990 separation examination report indicated that his ears were normal. In February 1992, during active duty for special work, the Veteran reported having a fever and swelling behind his ear following a Typhoid vaccination. He also complained nasal/sinus drainage. On examination, it was noted that he had rhinorrhea, left maxillary sinus soreness, and that both tympanic membranes were dull and red. The assessment was upper respiratory infection post immunization and probably temporarily related to or worsened by his flight to Honduras. He was also assessed as having left maxillary sinusitis and otitis media. He was given phenyl propanol (decongestant), Ampicillin (antibiotic), and Motrin. He was instructed not to fly and to return in four days if not better. Three days later, he complained that his right ear had not popped yet. It was noted that his tympanic membranes were dull but not red. The assessment was otitis media that was resolving well. It was noted he had eustachian tube congestion in the left ear and needed more time. A March 1994 periodic examination report for the National Guard indicated that the Veteran’s ears were normal. On his Report of Medical History, he denied ear trouble. An April 1999 periodic examination report of the National Guard indicated that the Veteran’s ears were normal. On his Report of Medical History, he complained of hayfever-type allergies in the spring and fall but had no specific complaints regarding his ears. A March 2000 private treatment record indicated that the Veteran complained of earache in both ears with sinus congestion at times. He also reported having an ear problem in February 1999 for three weeks that got better and then returned. It was noted that his ears were drained and both tympanic membranes were red. An August 2002 VA general medical examination indicated that the Veteran’s ears were normal. An August 2009 VA treatment record indicated that the Veteran’s ears were normal. In September 2010, the Veteran filed a claim for service connection for left ear pain. A November 2011 VA treatment record indicated that the Veteran denied having an earache. In February 2012 he reported having chronic left ear pain; however, there was no treatment or examination of the left ear at that time. In November 2015 and November 2017, he denied having an earache. In December 2018, he complained of itching in his right ear canal. On examination, it was noted that he had slight erythema of the right ear canal. His left ear was normal. A July 2019 otolaryngology consultation report indicated that the Veteran’s left ear was examined with a binocular microscope. The external auditory canal was normal; the tympanic membrane was intact; and the middle ear was dry. Similar findings were found in August 2019 and September 2019. During a September 2019 VA examination, the Veteran reported that he was exposed to tank fire and artillery, which caused ear pain and trouble sleeping. He complained of numbing pain down inside his left ear with constant ringing in both ears, and occasional ear drainage. On examination, the left ear canal was obstructed with wax and the examiner was unable to remove it due to the Veteran complaining of pain. The examiner was unable to determine a left ear diagnosis other than impacted cerumen of the left ear because he was unable to visualize the tympanic membrane. The examiner opined that the claimed condition was less likely than not incurred in or caused by service. The examiner indicated that cerumen impaction was an acute condition and that he was unable to provide a further diagnosis. Three days after the September 2019 VA examination, a VA treatment record indicated that the Veteran was seen for left otorrhagia and otalgia after cerumen removal the previous day at another clinic. He stated he had pain and bleeding during the procedure, and it was aborted. He continued to have some pain, but no further otorrhagia. He denied previous otologic surgery, otorrhea, or ear infection. On examination, it was noted that cerumen obscured full visualization of the tympanic membrane. Following removal of the impacted cerumen with a microscope, the bilateral external auditory canals were patent without masses/lesions. Excoriation with old blood was noted along the anterior/superior mid external auditory canal on the left, and excoriation of the posterior tympanic membrane on the left. There were no middle ear effusions or masses. The diagnoses were left ear cerumen impaction and excoriation of the external ear canal and tympanic membrane. An October 2019 VA treatment record indicated that the Veteran reported having a left ear canal laceration as a result of an attempted cerumenectomy. It was noted that he was seen by Dr. S. the following day, who performed the cerumenectomy. He stated that he was doing well since then and that his ear was not bleeding anymore. His ears were examined with a binocular microscope. The external auditory canal was normal; the tympanic membrane was intact; and the middle ear was dry. In this case, the Board finds the most probative evidence weighs against the claim. Although the Veteran was treated for upper respiratory infections with ear symptoms during active service in February 1981, May 1981, and February 1992, the evidence does not indicate that those conditions were chronic. There was no follow-up treatment pertaining to the ears. Periodic examinations in March 1994 and April 1999 indicated that his ears were normal, and he had no ear complaints. Likewise, in March 2000, he complained of earaches in both ears and his tympanic membranes were red; however, there has been no treatment for a chronic ear condition. An August 2002 VA examination indicated that his ears were normal, and VA treatment records dated in August 2009, December 2018, July 2019, and August 2019 also indicated that his left ear was normal. Although the Veteran had left ear cerumen, i.e., wax, impaction in September 2019, which caused pain, there is no evidence that the condition was chronic. The cerumen was removed later that month and in October 2019, it was noted that his left ear was normal. Furthermore, the September 2019 VA examiner indicated that the cerumen impaction was an acute condition and not chronic. Although the VA examiner was unable to visualize the tympanic membrane because of the cerumen, it was removed later that month and the physician indicated that his tympanic membrane was intact, and the middle ear was dry. In the absence of proof of a present disability there can be no valid claim for service connection. Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In this case, there is no evidence of a chronic left ear disability, to include any chronic functional impairment. See Saunders v. Wilkie, 886 F.3d 1356, 1368 (Fed. Cir. 2018). The Board has also considered the lay evidence of record. The Veteran is competent to describe what he has personally observed or experienced; however, to the extent his statements conflict with the contemporaneous medical evidence, the Board does not find them credible. Accordingly, the Board finds that the preponderance of the evidence is against the claim and that entitlement to service connection a left ear disability is not warranted. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 53. Increased Rating – Lumbar Spine Disability In September 2010, the Veteran filed a claim for an increased rating for his service-connected low back disability. In an April 2011 rating decision, the RO continued a 10 percent rating for the disability. The Veteran appealed, seeking a rating in excess of 10 percent. An August 2009 VA treatment record indicated that the Veteran complained of chronic low back pain. On examination, there were no muscle spasms. It was noted that there was mild paravertebral tenderness and that straight leg raise testing was limited on both sides. Muscle strength was 5/5 and reflexes were symmetrical in the lower extremities. X-rays of the lumbosacral spine were normal. In February 2010, he complained of severe back pain two weeks ago when trying to clean the snow from his yard. He stated he could not walk and used Tramadol and a heating pad, which slowly improved the pain. In August 2010, he reported that he was working in the Red Cross mobile units, which involved heavy lifting that made his back pain worse. He stated he quit working due to increasing back pain. In October 2010, he complained of low back pain radiating into his right lower extremity. An MRI showed mild mid and lower lumbar spondylosis, and central posterior annular tears at the L4-5 and L5-S1 levels. He was issued a lumbosacral corset, i.e., a back brace. During a November 2010 VA examination, the Veteran reported experiencing progressive low back pain following a lifting injury during service. He denied experiencing flare-ups, stating that his back pain was constant. He also denied experiencing incapacitating episodes in the past 12-month period. On examination, spinal contour was normal, gait was normal, and there were no muscle spasms, guarding, or ankylosis of the spine. Forward flexion of the thoracolumbar spine was limited to 75 degrees; extension to 20 degrees; right and left lateral flexion to 25 degrees; and right and left lateral rotation to 30 degrees. The examiner noted that there was objective evidence of pain with motion and tenderness of at the L5 level. Following repetitive motion testing, there was objective evidence of pain but no additional limitations. The Veteran reported experiencing mildly achy pain radiating into his buttocks bilaterally. Motor examination was 5/5 in both lower extremities with normal muscle tone and no muscle atrophy. Sensory and reflex examinations of the lower extremities were also normal. The examiner indicated that the neurological examination showed no lumbar radiculopathy. It was noted that an October 2010 MRI showed mild mid and lower lumbar spondylosis, and central posterior annular tears at the L4-L5 and L5-S1 levels. The diagnosis was mild degenerative disc disease with residual pain and limitation of motion. A February 2011 VA treatment record indicated that the Veteran was seen for a neurosurgery consultation. He reported progressively worsening back pain and stated that when he had occasional episodes when standing or walking for prolonged periods of time where he experienced sharp shooting pain that radiated down the right posterior aspect of the thigh into his calf. On examination, motor strength was 5/5 throughout. Sensation to light touch was intact throughout except for hypoanalgesias in the bottoms of both feet. Deep tendon reflexes were 2+ throughout. Gait was normal. The assessment was primarily axial low back pain and occasional right leg pain due to lumbar degenerative disc disease without clinical correlation of nerve root compression. Conservative measures were recommended with nonsteroid anti-inflammatory medications, muscle relaxants, and pain medications. During the April 2017 Board hearing, the Veteran stated that his back went out and that he had back spasms. He stated that he had to be careful with whatever he did. He stated that when his back went out, his back locked up and he could not bend forward and felt like he was stuck in one position. He stated that his back went out every week and was relieved by laying down and resting. In November 2017, the Board remanded the claim to obtain an additional VA examination to assess his current symptoms. During a March 2018 VA examination, the Veteran complained of achy pain aggravated by prolonged sitting, standing, walking, bending, and lifting. He reported having flare-ups once a week, which lasted one to eight hours. On examination, there was no guarding, muscle spasms, or ankylosis. Forward flexion of the thoracolumbar spine was limited to 70 degrees; extension to 15 degrees; right lateral flexion to 20 degrees; left lateral flexion to 15 degrees; right lateral rotation to 20 degrees; and left lateral rotation to 15 degrees. The examiner noted that there was no evidence of pain on passive range of motion testing or with non-weight bearing. It was also noted that the Veteran was unable to perform repetitive use testing and was not being examined immediately after repetitive use over time or during a flare-up. The examiner stated that she was unable to state, without resorting to speculation, whether pain, weakness, fatigability, or incoordination significantly limited functional ability with repetitive use over time or during flare-up. Muscle strength, reflex, and sensory examinations were normal. Straight leg raising test results were normal. The examiner indicated that the Veteran did not have radicular pain or any other signs or symptoms due to radiculopathy and no other neurologic abnormalities. In a March 2018 addendum, the examiner clarified that the Veteran was able to perform repetitive use testing but did not state whether there was any additional functional impairment. An August 2019 VA treatment record indicated that the Veteran reported low back pain, which was 6/10 in severity. He stated that the pain was not new and that it was at a tolerable level for him. In August 2019, the Board remanded the claim to obtain an additional VA examination to assess functional impairment with repeated use over time and during flare-ups. During a September 2019 VA examination, the Veteran reported experiencing increased back pain over time. He stated that he had a lot of muscle spasms and sharp pain in the lower back. He denied experiencing any radiating pain. He stated that he had flare-ups that occurred daily, were moderate in severity, and lasted 15 to 20 minutes. He reported experiencing increased pain, weakness, and fatigue during flare-ups with prolonged walking and standing. On examination, it was noted that he had muscle spasms of the thoracolumbar spine that did not result in abnormal gait or abnormal spinal contour. There was no guarding or ankylosis. Muscle strength, sensory and reflex examinations were normal. Straight leg raising test results were negative. There was no radicular pain or any signs or symptoms due to radiculopathy and no other neurology abnormalities. There was no IVDS of the spine. It was noted that he regularly utilized a brace. Forward flexion of thoracolumbar spine was limited to 40 degrees; extension to 15 degrees; right and left lateral flexion to 20 degrees; and right and left lateral rotation to 20 degrees. The examiner indicated that range of motion was with suboptimal effort and did not itself contribute to functional loss. With repetitive-use testing, there was no additional loss of function or range of motion. Pain was noted on examination, which caused functional loss in each plane of motion. There was no evidence of pain with weight bearing and no objective evidence of localized tenderness on palpation of the back. The examiner indicated that the Veteran was not being examined immediately after repetitive use over time or during a flare-up. The examiner stated that the examination was medically inconsistent with the Veteran’s statements describing functional loss with repetitive use over time and during flare-ups. The examiner noted that he verbalized pain and difficulty with range of motion with poor/suboptimal effort throughout the examination yet was able to sit in a chair at a 90-degree angle at the hips without complaint of complication. He was also witnessed bending over at least to 90 degrees to pull his shorts back up after examination. The examiner indicated that pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over a period of time or during flare-up. In addition, the examiner stated that there remained no rational basis to describe any additional function loss in terms of range of motion. It was further noted that passive range of motion testing was not performed as it was not feasible or safe. In addition, the examiner stated that non-weight bearing assessment was not applicable for the spine and that there was no objective evidence of pain when the spine was in a non-weight bearing position at rest. Testing of an opposing joint was not applicable for the spine. Although the September 2019 VA examiner indicated that he was unable to provide an opinion regarding functional impairment with repeated use over time or during flare-ups, the Board notes that this was due to suboptimal effort on the part of Veteran and inconsistencies between his reported symptoms and what was witnessed during the examination. The Veteran has a duty to cooperate in the efforts to adjudicate his claim, including a duty cooperate during a VA examination. Because of his failure to fully do so in this case, the Board finds that a remand for an additional examination is not necessary and that the AOJ substantially complied with the Board’s August 2019 remand directives to the extent possible. Accordingly, the claim will be decided based on the available evidence. In this case, the November 2010 and March 2018 VA examinations indicated that, at worst, forward flexion of the Veteran’s thoracolumbar spine was limited to 70 degrees and that the combined range of motion was limited to 155 degrees, which is consistent with a 10 percent rating under Diagnostic Code 5242. The evidence does not indicate that forward flexion was limited to 60 degrees or less, or that combined range of motion was limited to 120 degrees or less even after three repetitions. The Board notes that during September 2019 VA examination range of motion testing, forward flexion was limited to 40 degrees; however, the examiner indicated that this was with suboptimal effort and that the Veteran was observed bending to 90 degrees and sitting at a 90-degree angle without complications. Thus, from a functional standpoint, the Veteran had normal forward flexion to 90 degrees during that examination. Although there is evidence of painful motion, in terms of functional impairment, the Board does not find that forward flexion has been limited to 60 degrees or less. Furthermore, the evidence does not indicate that the low back disability results in muscle spasm or guarding severe enough to result in abnormal gait or abnormal spinal contour. Therefore, a rating in excess of 10 percent is not warranted under Diagnostic Code 5242. The Board notes that the Veteran had degenerative disc disease of the spine; however, it is unclear whether he has IVDS. Regardless, the evidence does not indicate that he has had incapacitating episodes having a total duration of at least two weeks during a 12-month period. Therefore, a rating in excess of 10 percent under the Formula for Rating IVDS Based on Incapacitating Episodes is not warranted. Regarding radiculopathy, the Board notes that the Veteran complained of pain radiating into his right lower extremity and a February 2011 VA treatment record noted hypoanalgesias on the bottom of his feet; however, the November 2010, March 2018, and March 2019 VA examiners indicated that he did not exhibit signs or symptoms of lumbar radiculopathy. The Board notes that the 10 percent rating under the General Rating Formula for Diseases and Injuries of the Spine includes symptoms such as pain whether or not it radiates. See 38 C.F.R. § 4.71a. Therefore, to the extent the Veteran has had radiating pain, a separate rating for those symptoms is not warranted. No other neurologic abnormalities were identified as associated with his low back disability. Finally, the Board has considered the effects of repeated use over time and flare-ups in light of the Court’s holdings in Correia and Sharp. See Correia v. McDonald, 28 Vet. App. 158, 168 (2016), and Sharp v. Shulkin, 29 Vet. App. 26 (2017). In this case, as noted above, the claim was remanded for an additional VA examination to address functional impairment with repeated use over time and during flare-ups; however, the September 2019 VA examiner indicated that the Veteran had suboptimal effort and that his reported symptoms were inconsistent with the medical examination. Therefore, an assessment as to functional impairment with repeated use over time and during flare-ups could not made. The evidence indicates that the Veteran had pain or localized tenderness on palpation and pain with weight bearing (active movement). There was no additional functional impairment or limitation of motion on repetitive use testing. Therefore, the Board finds that any functional loss resulting from repeated use over time and during flare-ups is consistent with the 10 percent rating. The Board notes that effective February 7, 2021, the rating criteria pertaining to musculoskeletal disabilities were revised. See 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020). However, the rating criteria pertaining to the Veteran’s service-connected spine disability were not substantively changed. In sum, the Board finds that the Veteran’s symptomatology is consistent with a 10 percent rating throughout the appeal period. A higher rating is not warranted for the low back disability. 38 C.F.R. § 4.71, Diagnostic Code 5242. Increased Rating - Hemorrhoidectomy In September 2010, the Veteran filed a claim for an increased rating for his service-connected residuals of a hemorrhoidectomy. In an April 2011 rating decision, the RO continued a noncompensable rating for the disability. The Veteran appealed, seeking a compensable rating. In a May 2019 rating decision, the AOJ increased the rating to 10 percent effective September 1, 2010. Because the Veteran is presumed to seek the maximum available benefits, this issue remains on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). An August 2010 VA treatment record indicated that the Veteran complained of rectal bleeding that was not active at that time. He was instructed to go to the emergency room if he started to have active bleeding. In November 2010, he reported that he had increased bleed while working and lifting boxes for the Red Cross. He stated that he had to quit the job because of ongoing back pain and due to rectal bleeding. Since then, he stated that rectal bleeding was minimal. During the report of a November 2010 VA examination, the Veteran reported having rectal bleeding when doing lifting once or twice a month. He denied any anal itching, burning, and pain. He denied having fecal incontinence or any perianal discharge. On examination, there was a small hemorrhoid tag, which measured .5 x 1.0 centimeters. The hemorrhoid was reducible. There was no evidence of prolapse, thrombosis, or bleeding. There was no evidence of fissures or anorectal fistula. His sphincter was intact with normal tone. There was no impairment of the sphincter or evidence of leakage. A February 2011 private treatment record indicated that the Veteran had a colonoscopy, which revealed internal, non-bleeding small hemorrhoids. A September 2011 VA treatment record indicated that the Veteran was concerned about his hemorrhoids causing discomfort and bleeding daily. He stated that suppositories helped with the pain somewhat. He declined a rectal examination. In October 2011, a posterior tag with pain was noted on digital examination. There was no blood. The impression was recurrent fissure. A November 18, 2011 VA treatment record indicated that the Veteran underwent a rectal examination under anesthesia and hemorrhoidectomy. It was noted that he had external hemorrhoid posteriorly. A December 2011 follow-up record noted that he had tenderness posteriorly and no bleeding. There was minimal swelling at the suture line. In January 2012, he reported that he was feeling okay and had no pain or bleeding. He stated that he was content with the results. In February 2012, during an orthopedic consultation, he reported having occasional stool incontinence. An April 2016 VA treatment record noted that the Veteran reported having a history of hemorrhoids and rectal bleeding. He denied any recent rectal bleeding. He reported having intermittent loose stools since having a cholecystectomy and that his symptoms were worse with certain foods. Dietary changes and fiber supplements were suggested along with cholestyramine to help with loose stools. A September 2016 colonoscopy revealed large internal hemorrhoids. A January 2017 VA treatment record noted that the Veteran used suppositories as needed. In March 2017, he reported having no bowel or bladder incontinence. During an April 2017 Board hearing, the Veteran stated that he had rectal bleeding but that it was not as bad as before his hemorrhoidectomies. He stated that he sometimes wore a feminine napkin about once a week to prevent an accident when he went out. He reported experiencing pain, anal leakage, and bowel incontinence. In November 2017, the Board remanded the claim to obtain an additional examination to assess the current severity of the residuals of hemorrhoidectomy. A June 2018 VA treatment record indicated that the Veteran denied bowel or bladder incontinence. During a February 2019 VA examination, the Veteran reported that prior to surgery, he had frequent rectal bleeding, which resolved following surgery. He stated that he still had pruritis and burning pain. He also stated that since surgery, he had less sphincter control. He reported that after meals he had to preemptively go to the bathroom to prevent leakage and that he wore pads if he was going to away from home for a while. On examination, large external hemorrhoids were observed, and sphincter tone was mildly decreased. The examiner opined that impairment of sphincter control was likely due to surgical treatment of hemorrhoids in 2011. A June 2019 VA treatment record indicated that the Veteran denied hemorrhoidal flare-ups or changes in his bowel movements. It was noted that he used suppositories during hemorrhoid flare-ups. A colonoscopy revealed large internal hemorrhoids and eight polyps, which were removed. In August 2019, the Board remanded the claim for an additional VA examination to assess whether a separate compensable rating might be warranted for impairment of sphincter control. During a September 2019 VA examination, the Veteran reported having hemorrhoids on his rectum and experienced painful burning. He stated that he had incontinence of stool and had to wear disposable underwear. On examination, there was a small, non-bleeding/erythematous hemorrhoid tag and no palpable internal hemorrhoids, which was described as mild or moderate. The examiner indicated that he had good rectal tone with no stool/anal leakage around the anus. The examiner noted that the Veteran was not wearing a disposable brief but reported that he wore them when he needed. In this case, the evidence does not indicate that the Veteran’s hemorrhoids have resulted in persistent bleeding with secondary anemia or with fissures. Although an October 2010 VA treatment noted an impression of a recurrent fissure, during a November 2010 rectal examination under anesthesia, no fissure was noted. Furthermore, there has been no evidence of persistent bleeding with anemia. Therefore, a rating in excess of 10 percent is not warranted for his service-connected residuals of hemorrhoidectomy under Diagnostic Code 7336. 38 C.F.R. § 4.114, Diagnostic Code 7336. The Board also has considered whether a separate rating is warranted for impairment of sphincter control under Diagnostic Code 7332. In February 2012, the Veteran described having bowel incontinence since his hemorrhoidectomy on November 18, 2011. Furthermore, the February 2019 VA examiner noted that he had sphincter impairment with decreased sphincter tone. The examiner opined that the impairment was likely due to the hemorrhoidectomy in 2011. On the other hand, the September 2019 VA examiner found that there was no sphincter impairment or loss of tone. Although there is evidence for and against finding that the Veteran has sphincter impairment due to the hemorrhoidectomy, resolving reasonable doubt in his favor, the Board finds that a separate 10 percent is warranted under Diagnostic Code 7332. In this regard, the Veteran has described having constant slight, or occasional moderate leakage. 38 C.F.R. § 4.114, Diagnostic Code 7332. A higher rating is not warranted, however, because the evidence does not indicate occasional involuntary bowel movements, necessitating wearing of pad. Although he has reported that he occasionally wears a pad when he goes out, his treatment records do not indicate that he has leakage that necessitates the wearing of a pad. He was not wearing a pad during the February 2019 and September 2019 VA examinations. For these reasons, the Board finds that a separate 10 percent rating, but no higher, is warranted for sphincter impairment effective November 18, 2011. 38 C.F.R. § 4.114, Diagnostic Code 7332. REASONS FOR REMAND Service Connection – Left Knee An August 28, 2000 private treatment record indicated that the Veteran reported that he was about to retire from the National Guard. He stated that he was lifting a lot of heavy equipment the previous Thursday, August 24, 2000, and developed severe left knee pain on Friday. He complained of severe pain with flexion. An X-ray revealed loss of joint space. MRI of the left knee was negative with no evidence of meniscal or ligamental tear. It was noted that he had mild degenerative changes in the posterior horn of the medial meniscus. The Board notes that the Veteran was serving in the North Carolina Army National Guard at the time of his reported left knee injury. National Guard duty is distinguishable from other Reserve service in that a member of the National Guard may be called to duty by the governor of their state. “[M]embers of the National Guard only serve the federal military when they are formally called into the military service of the United States [and a]t all other times, National Guard members serve solely as members of the State militia under the command of a state governor.” Allen v. Nicholson, 21 Vet. App. 54, 57 (2007). In this case, the Veteran’s duty status, e.g, ACDUTRA or INACDUTRA, at the time of the reported August 2000 left knee injury is unclear. It is also unclear whether the injury occurred during state-controlled or Federal service. Therefore, the Board finds that a remand is required to verify the Veteran’s service.   Service Connection – Bilateral Hand Disability The Veteran maintains that he has a bilateral hand disability that was incurred in or is related to active service. During the Board hearing, he stated that as an artillery chief, he had to load and unload artillery shells, which ranged from 60 to 80 pounds, and that he had to pick them up with his fingers. He stated that he believed the constant pulling stretched his ligaments and that his bones were separated, and his fingers crooked as a result. He stated that during active duty a doctor told him that his hands were broken and then healed. He further reported that he has had bilateral hand pain since service. In September 2010, the Veteran filed a claim for service connection for bilateral hand pain. A May 2019 VA treatment record indicated that he complained of pain in the thumb joint of both hands. Tenderness was noted at the first carpometacarpal. The assessment was possible degenerative joint disease. X-rays showed a bone spur of the right thumb joint and mild arthritis in the left thumb joint. He was referred to an occupational therapist. During a September 2019 VA examination, the Veteran reported that he was in the infantry unit and was required to pick up heavy objects repetitively causing pain in the third carpometacarpal at the capitate bone of both wrists and the carpometacarpal joint of the thumb of both hands. He stated that he was seen while on active duty for pain in both hands and that he had had continued pain and locking of both wrists that had increased over the years. He complained of sharp muscle spasm type pain and locking of both wrists. On examination, he had full range of motion of both hands. Finger flexion resulted in pain but did not result in functional loss. There was pain on palpation of the carpometacarpal joint of the thumb in both hands. There was no swelling or erythema. Hand grip was 5/5 bilaterally. X-rays of the hands were noted to be within normal limits. The examiner indicated that the complaints of pain were subjective only and that there were no objective findings on physical examination to warrant a diagnosis and that symptoms were of no clinical significance. The examiner opined that the claimed condition was less likely than not incurred in or related to service. He noted that the service treatment records were inconclusive for complaints of hand pain or tenosynovitis while on active duty and that there were no objective findings to warrant a diagnosis. The VA examiner, however, did not address the May 2019 findings and X-rays. Therefore, the Board finds that a remand for an additional VA examination is necessary. Service Connection – Residuals of Shingles The Veteran maintains that he has right-sided flank pain resulting from shingles during active service. During the Board hearing, he stated that he developed a rash and a feeling of pain on his right side. He stated that his right side went numb and he went to the emergency room and was told he had shingles. He indicated that he was given pills and shots and was told that it would go away but that it would always going to be in his body. He stated that he had not had shingles since that time but did continue to have pain in his right side. An October 1989 service treatment record indicated that the Veteran had a rash of the right flank area spreading from the chest to the back for one week. The initial impression was poison ivy and he was given hydrocortisone. Four days later, in October 1989, he was seen at the dermatology clinic for a follow up of herpes zoster, i.e., shingles. It was noted that he had decreased pain. He was given light duty for three weeks. In November 1989, it was noted that the lesions had healed. A VA examination was conducted in September 2019. The Veteran reported that he was diagnosed with shingles while on active duty and denied any further outbreaks. He stated that he had severe pain of the right rib cage. On examination, there was no evidence of outbreak. It was noted that he had post herpetic pain of the right flank of dermatomes T9 and T11 anterior to posterior trunk. The diagnosis was post-herpetic neuralgia. Although the examiner diagnosed the Veteran with post-herpetic neuralgia, he opined that the claimed condition was less likely than not incurred in or caused by the in-service illness. The rationale is unclear. Therefore, a remand for an additional VA examination is necessary. TDIU The Board finds the issue of entitlement to TDIU inextricably intertwined with the service connection claims remanded herein. See Henderson v. West, 12 Vet. App. 11, 20 (1998). Action on that issue is therefore deferred. The matters are REMANDED for the following action: 1. Conduct the appropriate development to verify all periods of the Veteran’s active duty, ACDUTRA, and INACDUTRA in the North Carolina Army National Guard during August 2000, specifically August 24, 2000, including whether any of those periods of service were “full-time duty” ordered under the provisions of 32 U.S.C. §§ 316, 502, 503, 504, or 505, or whether he was ordered into Federal service by the President of the United States, see 10 U.S.C. § 12401. In other words, determine whether such service was state-controlled or Federal service. 2. Identify and obtain any pertinent, outstanding VA and private treatment records and associate them with the claims file. 3. Then, schedule the Veteran for a VA examination with an examiner with sufficient expertise to determine the nature and etiology of his claimed hand disability. The claims file must be made available to, and reviewed by the examiner. Any indicated test or studies should be provided. Based on the examination results and a review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or better) that any currently present hand disability had its onset during active service, or is otherwise etiologically related to such service, to include repetitive heavy lifting of ammunition. The examiner should address the May 2019 VA treatment record and X-rays that noted a bone spur of the right thumb joint and mild arthritis in the left thumb joint. A rationale for all opinions expressed must be provided. 4. Then, schedule the Veteran for a VA examination with an examiner with sufficient expertise to determine the nature and etiology of his claimed residuals of shingles. The claims file must be made available to, and reviewed by the examiner. Any indicated test or studies should be provided. Based on the examination results and a review of the record, the examiner should identify any current residuals of shingles. The examiner should also provide an opinion as to whether it is at least as likely as not (50 percent probability or better) that any currently present residuals of shingles had its onset during active service, or is otherwise etiologically related to such service. The examiner should address the September 2019 VA examination, which diagnosed post-hepatitic neuralgia of the right flank. A rationale for all opinions expressed must be provided. 5. Confirm that the VA examination reports and all opinions provided comport with this remand and undertake any other development found to be warranted. (Continued on the next page)   6. Then, readjudicate the issues remaining on appeal. If a decision is adverse to the Veteran, issue a supplemental statement of the case and allow appropriate time for response. Then, return the case to the Board. Kristin Haddock Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Mishalanie, 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.