Citation Nr: 21027905 Decision Date: 05/07/21 Archive Date: 05/07/21 DOCKET NO. 16-17 084 DATE: May 7, 2021 ORDER 1. Entitlement to an initial compensable rating for hemorrhoids is denied. REMANDED 2. Entitlement to service connection for a low back disability is remanded. 3. Entitlement to service connection for a psychiatric disorder, to include as secondary to a service-connected disability, is remanded. FINDING OF FACT The Veteran's hemorrhoids are not shown to have been more than mild or moderate; large or thrombotic and irreducible hemorrhoids, with excessive redundant tissue evidencing frequent recurrences, or hemorrhoids that result in persistent bleeding with secondary anemia or fissures are not shown. CONCLUSION OF LAW A compensable rating for hemorrhoids is not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.114, Diagnostic Code (Code) 7336. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty from May 1965 to November 1968. These matters are before the Board of Veterans' Appeals (Board) on appeal from January 2011 and May 2015 Department of Veterans Affairs (VA) rating decisions that continued to deny service connection for a low back disability (January 2011 rating decision), denied service connection for depression (May 2015 rating decision), and granted service connection for hemorrhoids, rated 0 percent, effective March 14, 2014 (May 2015 rating decision). A July 2017 Board decision reopened the claim of service-connection for a low back disability and remanded the claims of service connection for a low back disability and a psychiatric disorder for further development. In February 2018, a videoconference hearing was held before the undersigned; a transcript is in the record. In April 2018, all the claims were remanded for further development. Increased Rating Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity caused by the given disability. Separate Codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Where, as here, the appeal is from the initial rating assigned with an award of service connection, the severity of the disability during the entire period from the award of service connection to the present, and the possibility of "staged" ratings for distinct periods of time when varying degrees of disability were shown, must be considered. See Fenderson v. West, 12 Vet. App. 119 (1999). When a question arises as to which of two ratings applies under a particular Code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining, including regarding degree of disability, is resolved in favor of the veteran. 38 U.S.C. § 5107; 38 C.F.R. § § 3.102, 4.3. The Veteran's hemorrhoids are rated under Code 7336 for internal or external hemorrhoids. A 0 percent rating is assigned for mild or moderate hemorrhoids. A 10 percent rating is assigned for large or thrombotic hemorrhoids, irreducible, with excessive redundant tissue, evidencing frequent recurrences. A 20 percent rating is assigned for hemorrhoids with persistent bleeding and with secondary anemia, or with fissures. 38 C.F.R. § 4.114. In September 2014, the Veteran reported using over-the-counter medications for his hemorrhoids. At an October 2014 VA examination, the Veteran reported not having any [hemorrhoid] symptoms and that he used an ointment for hemorrhoids. It was noted that a physical examination was not conducted. At the February 2018 Board hearing, the Veteran testified that he used a prescribed ointment for his hemorrhoids and took sitz baths. He testified that his hemorrhoids were not severe enough to see a doctor. He testified that his hemorrhoids had worsened, were larger, and impacted on sitting. Based on the Veteran's testimony, the Board remanded the claim in April 2018 for a contemporaneous examination. On November 2018 VA examination, the Veteran reported that his hemorrhoids come and go. He related that they are manifested by pain and itchiness; denied having bleeding; and reported he used a hemorrhoid cream. On examination, the examiner noted that the Veteran had mild or moderate hemorrhoids, and explained that no external hemorrhoids were readily see, but there was one tiny skin tag that was nontender without bleeding. The examiner noted that the Veteran did not have any fissures, and did not have any significant diagnostic test findings or results, and opined that the Veteran's hemorrhoids did not impact on his ability to work. The Veteran's medical records show that an ointment for hemorrhoids was prescribed in March 2019. January 2020 colonoscopy revealed external hemorrhoids. The evidence, outlined above, shows that the symptoms of and impairment due to, the Veteran's hemorrhoids have not exceeded the criteria for a 0 percent rating under Code 7336. Although he reported having issues related to his hemorrhoids, such as problems sitting down, and use of ointments and sitz baths for relief, there is no evidence that his hemorrhoids have been large or thrombotic and irreducible or are manifested by excessive redundant tissue evidencing frequent reoccurrence., so as to warrant a 10 percent rating, or have been manifested by persistent bleeding with secondary anemia or fissures, so as to warrant a higher, 20 percent, rating. While the Veteran asserts that the November 2018 VA examination was inadequate as the examiner was "not fair," did not consider that the Veteran had received Social Security Administration (SSA) disability benefits, and did not consider the Veteran's VA and private treatment records, the examination was in accordance with a Disability Benefits Questionnaire, which was created by VA to document accurate, complete, competent, and probative medical findings. In July 2014, SSA notified VA that the Veteran's SSA records had been destroyed (are unavailable for review). Finally, the examiner indicated that the claims file was reviewed. The claims file contains no evidence that contradicts the findings of the November 2018 VA examiner; the Veteran's treatment records do not show hemorrhoid symptoms or impairment that meet the criteria for a compensable rating. The Board must base its decision on what is shown by competent evidence in the factual record. See Colvin v. Derwinski, 1 Vet. App. 171 (1991). The preponderance of the evidence (including the Veteran's self-reports of symptoms) is against a finding that his hemorrhoids have been more than mild or moderate in severity. Accordingly, the preponderance of the evidence is against this claim, and the appeal in this matter must be denied. REASONS FOR REMAND Regarding the Veteran's claim of service connection for a low back disability, he asserts that his current low back disability was incurred in service. At the February 2018 Board hearing, he testified that his low back did not hurt prior to service, that during his active service he was required to lift heavy objects and went on sick call for low back pain, and that he has had low back pain ever since his separation from active service. The Veteran's service treatment records (STRs) show that on service entrance examination in May 1965, his spine was normal on clinical evaluation. In May 1966, a complaint of back pain was noted. On June 1966 examination. his spine normal on clinical evaluation. In January 1968 and May 1968, he was seen for a complaint of back pain. A June 1968 lumbar spine x-ray showed scoliosis. On October 1968 service separation examination, he reported having recurrent low back pain since 1966. It was noted that an x-ray showed a minimal amount of rotary dextroscoliosis and no evidence of spondylosis or spondylolisthesis, and that the Veteran was still having back problems. In November 1968, just prior to separation from active service, he was seen for low back pain, and lumbar strain was diagnosed. Following service, a March 1971 statement from the Veteran's physician notes that the Veteran was treated for low back pain; he was periodically being seen for lumbar myositis every two to three weeks. On May 1971 VA examination, the Veteran reported a history of low back pain that started during his active service in 1966, and that he was seeing a physician for low back pain. A lumbar spine x-ray showed a moderate thoracolumbar dextroconvex scoliotic curve. An August 2002 lumbar spine MRI showed arthritis and dextroscoliosis. An August 2013 lumbar spine MRI showed arthritis. On October 2017 VA examination, the examiner opined there was no in-service superimposed spine injury or disease that aggravated the defect or symptoms caused by scoliosis. The examiner opined that the Veteran had recurrent back pain that was as likely as not related to back strain or muscle sprain. The examiner opined that the Veteran's lumbar spine arthritis was as likely as not related to aging and degenerative process, and that his abnormal lateral curvature of the spine was as likely as not a congenital spinal anomaly or defect. The examiner also opined that the Veteran's scoliosis was less likely than not permanently aggravated or increased in severity beyond the normal progression during his active service. On November 2018 VA examination, the examiner opined that the Veteran's low back disability was less likely than not due to his active service. The examiner explained that although there was a record of treatment of back pain in service, no chronic disability or permanent residual subject to service connection was shown by the Veteran's STRs or demonstrated by evidence immediately within one year of his separation from active service. The examiner opined that the Veteran's recurrent back pain was as likely as not related to back strain or muscle sprain, and that his lumbar spine rotoscoliosis and arthritis were both at least as likely as not worse with age. After the November 2018 VA examination, the Veteran submitted medical treatment records showing that he was treated for back pain in February 1973, April 1976, March 1979, August 1979, and September 1980. Here, no examiner has provided an opinion that reflects consideration of the Veteran's lumbar spine strain just prior to separation from service and the medical records showing what appears to be ongoing treatment for back complaints after service. Furthermore, after the June 2020 supplemental statement of the case (SSOC), the Veteran submitted evidence of treatment for his low back disability from 2015 to 2018 (which may contain pertinent information, and was not considered). Regarding the claim of service connection for a psychiatric disorder, a September 2019 VA examiner found the Veteran has a depressive disorder. The examiner also opined that the Veteran's depressive disorder was at least as likely as not due to the Veteran's low back disability. Consequently, the matter of service connection for a psychiatric disorder as secondary to a service-connected disability is inextricably intertwined with the claim of service connection for a low back disability that is being remanded, and that issue must also be remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following: 1. Obtain for the record any records of VA and private treatment the Veteran received for low back disability and a psychiatric disorder that may be available and are outstanding. 2. Then, arrange for the Veteran to be examined by an appropriate clinician (in orthopedics) to determine the nature and likely etiology of his current low back disability(ies). The examiner should review the Veteran's claims file (noting in particular his low back complaints noted in service, the low back complaint and diagnosis of lumbar strain just prior to his separation from service, and the medical records submitted showing and suggesting ongoing back complaints and treatment following service). Upon review of the claims file and examination and interview of the Veteran, the VA examiner should: a. Identify (by diagnosis) each low back disability found on examination (or shown by the record during the pendency of the claim). Regarding each disability, indicate (with explanation) whether it is in the nature of a congenital or development anomaly or is an acquired disability (pathology or impairment) hat may have been incurred or aggravated due to disease or injury in service. b. Identify the likely etiology of each low back disability entity diagnosed, and specifically whether it is at least as likely as not (a 50 percent or greater probability) that the disability is etiologically related to the Veteran's active service (was incurred or aggravated therein)? c. If a diagnosed low back disability is determined to be unrelated to the Veteran's active duty service and the complaints, treatment and injury noted therein, identify the etiology for the disability that is considered to be more likely, and explain why that is so. All opinions must include rationale that cites to supporting factual data and medical principles. The rationale must include discussion of the significance of the Veteran's multiple low back complaints and treatment in service, his diagnosis of low back strain just prior to separation from service, his lay accounts of continuing low back complaints from separation from service to the present, and the medical records he submitted in support of his reports of continuity. 2. If service connection for a low back disability is granted, following any further development indicated (and noting the September 2019 VA psychiatric examiner's opinion), readjudicate the claim of service-connection for a psychiatric disability to encompass the secondary service connection theory of entitlement (that the claimed psychiatric disability is secondary to the low back disability for which service connection is established. GEORGE R. SENYK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Berryman, 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.