Citation Nr: 21028229 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 17-62 734 DATE: May 10, 2021 ORDER Entitlement to an initial rating in excess of 10 percent for hemorrhoids is denied. Entitlement to an initial rating of 30 percent, but no higher, for impairment of sphincter with leakage associated with external hemorrhoids (impaired sphincter control), prior to October 16, 2017, is granted; and in excess of 60 percent, thereafter, is denied. Entitlement to a rating of 50 percent, but no higher, for an unspecified depressive disorder associated with irritable bowel syndrome (depressive disorder) is granted. FINDINGS OF FACT 1. Throughout the period on appeal, the Veteran's hemorrhoids have not resulted in persistent bleeding with secondary anemia, or with fissures. 2. Prior to October 16, 2017, the Veteran had occasional involuntary bowel movements necessitating the wearing of a pad. 3. Beginning October 16, 2017, the Veteran exhibited extensive leakage and fairly frequent involuntary bowel movements but did no demonstrate complete loss of sphincter control. 4. Throughout the period on appeal, the Veteran's acquired psychiatric disorder has manifested by symptoms which are most consistent with occupational and social impairment with reduced reliability and productivity. CONCLUSIONS OF LAW 1. The criteria for a rating higher than 10 percent for hemorrhoids are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.114, Diagnostic Code (DC) 7336. 2. Prior to October 16, 2017, the criteria for an increased rating of 30 percent, but no higher, for impaired sphincter control is granted. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.20, 4.113, 4.114, DC 7332. 3. Beginning October 16, 2017, the criteria for a rating in excess of 60 percent for impaired sphincter control is denied. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.20, 4.113, 4.114, DC 7332. 4. The criteria for a disability rating of 50 percent, but no higher, for depressive disorder have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130, DC 9435 REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1989 through February 1992 through February 1993 through December 1995. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from March 2013 and November 2017 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran was provided a hearing before the undersigned Veterans Law Judge in January 2020. Increased Ratings Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § § 1155; 38 C.F.R. § Part 4. Where there is a question as to which of two evaluations 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. 38 C.F.R. § § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § § 4.3. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple, distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). Therefore, the following analysis is undertaken with the possibility that staged ratings may be appropriate. 1. Entitlement to an initial rating in excess of 10 percent for hemorrhoids is denied. The Veteran is currently assigned a 10 percent rating for hemorrhoids under DC 7336. He contends that he is entitled to a higher rating. Under DC 7336, a 10 percent rating is assigned for large or thrombotic, irreducible hemorrhoids with excessive redundant tissue, evidencing frequent recurrences. A maximum 20 percent rating is assigned for hemorrhoids with persistent bleeding and with secondary anemia, or with fissures. Turning to the evidence of record, the Veteran was afforded a VA examination for hemorrhoids in February 2013. Here, he endorsed a history of surgical removal of hemorrhoids in the past. His hemorrhoids had resolved post-surgery for six to eight years, but later returned. On examination, his hemorrhoids were assessed as moderate external hemorrhoids. Fissures or anemia was not documented. His hemorrhoids were irreducible with no noted complications. He was afforded another VA examination in April 2014. Here, he reported an increase in the severity and frequency of pain and bleeding. Occasional leakage of stool was also documented. On exam, the Veteran's rectal tone was good with small or moderate external hemorrhoids. Thereafter, treatment notes document a July 2014 colonoscopy noting moderately severe proctitis and small internal hemorrhoids. The hemorrhoids were not bleeding, and no other abnormality was noted. At a November 2017 VA examination, the Veteran endorsed continued pain with hemorrhoids, occasional blood in his stool, rectal bleeding, and rectal fullness. On examination, the Veteran was deemed to have mild or moderate hemorrhoids. There was no anemia or fissures documented. The examiner found that the Veteran's hemoglobin and hematocrit was on the low side of normal for a male, which suggested the presence of mild blood loss with stools. No active bleeding was noted on the rectal exam. At the January 2020 hearing, the Veteran endorsed the presence of fissures in his last colonoscopy, which he believed was around 2016. Based on the aforementioned, the Board has determined that a higher 10 percent rating for hemorrhoids is not warranted during the course of the appeal, as the record fails to confirm the presence of persist bleeding with anemia or fissures. Although the Veteran reported the presence of fissures, medical evidence of record document good rectal tone and show no notation of fissures. Similarly, although he was documented to have blood tests results on the lower end of normal, there was no diagnosis of anemia secondary to hemorrhoids. Considering the pertinent evidence in light of the applicable rating criteria and rating considerations noted above, the Board finds that the Veteran's hemorrhoids have not approximated the criteria for a rating greater than 10 percent under DC 7336 at any pertinent point. Although the Veteran's representative argued that the Veteran has had a lot issues with fissures all through his medical records, this statement is unverified by a review of the Veteran's treatment records and is contrary to VA examination findings of record and most recent colonoscopy. The Board has also considered the applicability of other diagnostic codes for evaluating the disability. The Veteran is already in receipt of a separate ratings for his symptoms related to impairment of sphincter control for leakage and bowel incontinence under DC 7332, as discussed further below, and irritable bowel syndrome (IBS) for his symptoms of abdominal distress and diarrhea. The Board finds that a higher rating is not warranted under any other relevant diagnostic code. For all the foregoing reasons, the claim for increased rating must be denied. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against assignment of a higher rating for the Veteran's hemorrhoids at any pertinent point, this doctrine is not applicable. See 38 U.S.C. § § 5107 (b); 38 C.F.R. § §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 2. Entitlement to an initial rating of 30 percent, but no higher, for impairment of sphincter with leakage associated with external hemorrhoids (impaired sphincter control), prior to October 16, 2017, is granted; and in excess of 60 percent, thereafter, is denied In a November 2017 rating decision, the RO granted the Veteran service connection for impaired sphincter with leakage having a 10 percent disability evaluation, prior to October 16, 2017, and a 60 percent disability evaluation, thereafter, under DC 7332. The Veteran disagrees with the ratings assigned. Pursuant to DC 7332, a noncompensable rating is assigned for healed or slight impairment of sphincter control, without leakage. A 10 percent rating is warranted for constant slight, or occasional moderate leakage. A 30 percent rating is warranted for occasional involuntary bowel movements necessitating wearing of a pad. A 60 percent rating is warranted for extensive leakage and fairly frequent involuntary bowel movements, and a 100 percent rating is warranted for complete loss of sphincter control. Turning to the evidence of record, the Veteran was afforded a VA examination for hemorrhoids in February 2013. Here, no leakage or involuntary bowel movements were documented. At the April 2014 VA exam, the Veteran complained of having leakage of stool occasionally. He was deemed to have impairment of his rectal sphincter control with occasional leakage requiring him to change clothes but did not require pads. By October 2017, a VA examination recorded the Veteran's complaint that his symptoms has gotten worse with stool leakage. He had frequent passage of loose or liquid stool, which required him to carry medicated wipes and change of underwear at all the times. The examiner documented symptoms of constant leakage, fairly frequent involuntary bowel movements, flatulence, and use of medicated wipes. Complete loss of sphincter control was not recorded. A functional limitation of the Veteran included having to interrupt his work schedule to change pads and clean himself. At the January 2020 hearing, the Veteran testified that he experienced leakage and involuntary bowel movements for the past 12 to 13 years. This required him to change clothes frequently and wear pads. Based on the aforementioned, a rating of 30 percent is warranted under DC 7332 prior to October 16, 2017. The Veteran testified that he had leakage and involuntary bowel movements for over twelve years. Although the April 2014 VA examination documented that the Veteran did not use pads, the Board resolves doubt in the Veteran's favor, as the record consistently documents his need to change clothes due to bowel incontinence occasionally as early February 2013. However, prior to October 16, 2017, the record does not demonstrate extensive leakage with frequent involuntary bowel movements. To this point, the Veteran only complained of occasional leakage of stool at his April 2014 VA exam. There is no evidence of record that his frequency or severity of leakage and bowel movements increased to the level required for a 60 percent rating prior to October 16, 2017. Accordingly, an increased rating of 30 percent, but no higher, is warranted prior to October 16, 2017. Beginning October 16, 2017, a rating in excess of 60 percent is not warranted under DC 7332. The record demonstrates that the Veteran began to complain of worsening leakage and bowel movements at the October 2017 VA examination. Here, he was noted to have constant leakage with fairly frequent involuntary bowel movements. Thus, the Veteran's impaired sphincter manifested with symptoms more approximated by a 60 percent rating under DC. 7332. However, the records fails to demonstrate the presence of complete loss of sphincter control at any point during the period on appeal. Relatedly, the October 2017 VA examiner did not indicate that complete loss of sphincter control was present. As such, beginning October 16, 2017, a rating in excess of 60 percent is not warranted. 3. Entitlement to a rating of 50 percent, but no higher, for depressive disorder is granted. In a November 2017 rating decision, the RO granted service connection for the Veteran's acquired psychiatric disorder with a disability rating of 30 percent, effective September 30, 2010. The Veteran disagrees with the rating assigned. Except for eating disorders, all psychiatric disabilities are evaluated pursuant to General Rating Formula for Mental Disorders under DC 9400. Under Diagnostic Code 9400, a 30 percent disability evaluation is contemplated for occupational and social impairment with occasional decrease in work efficiency, and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 50 percent rating is warranted when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is warranted when there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and inability to establish and maintain effective relationships. Id. To be assigned a particular rating, a Veteran need not demonstrate the presence of all, most, or even some, of the symptoms listed as examples in the rating criteria. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). The key element for a rating under the General Formula for Mental Disorders is the degree of social and occupational impairment caused by those symptoms. Further, the United States Court of Appeals for the Federal Circuit has acknowledged the "symptom-driven nature" of the General Rating Formula and that "a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116 (Fed. Cir. 2013). The Federal Circuit has explained that "symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating." Id. at 117. In March 2013, the Veteran was afforded a VA examination. He informed that he was employed as a deputy sheriff and married to his high school sweetheart. At the time of the examination, his psychiatric symptoms were attributed to his non-service-connected anxiety disorder. By December 2014, the Veteran reported an increase in depression within the past two months. He admitted that there were days he would go without showering and he had to push himself to go to work. He experienced a loss in appetite, grouchiness, and irritability. He also endorsed dark thoughts and insomnia. In February 2015, he denied suicidal or homicidal ideation. On examination, he was appropriately dressed, made good eye contact, had normal attention, concentration, and memory, and denied psychosis. In October 2017, the Veteran was afforded another VA examination for his mental symptoms. The examiner documented diagnoses of an unspecified depressive disorder and an unspecified anxiety disorder. It was determined that his depressive disorder caused symptoms relating to mood quality, decreased energy, and motivation. Panic attacks and periodic nervousness were attributed to the Veteran's non-service-connected anxiety disability. His overlapping symptoms included concentration and sleep problems. The Veteran described a good relationship with his wife and children. He reported that he also had a few friends with whom he would participate in social activities. However, he endorsed decreased socialization due to his problems with IBS and hemorrhoids. He avoided going places due these conditions and had decreased motivation in general. He admitted to having a work decline. He presented as depressed during the evaluation, but otherwise had intact thought content, was cooperative, and well groomed. The examiner found that the Veteran had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily with normal routine behavior, self-care and conversation. At the January 2020 hearing, the Veteran reported psychiatric symptoms of sleep disturbances and depressed moods. He complained of short-term memory loss, isolating behaviors. He also endorsed ruminating on small things and problems with short-term memory. At the time of the hearing, he was still working as a teacher. Reviewing the record in the light most favorable to the Veteran, his depressive disorder has manifested with symptomology that is consistent with a level of severity most approximated by a 50 percent rating. The Veteran has endorsed limiting symptoms of withdrawal from activities and others, irritability, and sleep disturbances. Such symptoms indeed exhibited problems with disturbances in mood and motivation, and caused difficulty in establishing and maintaining effective work and social relationships. Therefore, the Board finds that the Veteran's symptomatology more nearly approximates the criteria for 50 percent rating. Although VA examinations of record opined less restrictive impairments in social and occupational functioning, the Board is persuaded by the Veteran's testimony noting greater limitations. However, the Veteran's service-connected depressive disorder was manifested by no more than occupational and social impairment with reduced reliability and productivity. Despite his symptoms, the Veteran was still able to sustain good relationships with his wife of over 30 years, children, and a few friends. During the period at issue, the Veteran has endorsed socializing with a few friends at social gatherings. He did not show persistent problems with maintaining proper grooming or attire, or other persistent symptomology warranting a higher rating. Further, he had no history of persistent impaired impulse control. Although panic attacks were reported at times during the period at issue, these symptoms were attributed to his non-service-connected anxiety disorder. To obtain a 70 percent rating, the evidence must show that he has occupational and social impairment with deficiencies in most areas. The Veteran was found to be able to function relatively normally in most areas, such as participation in the social activities with a few friends, maintaining relationships reasonably good relationships with his wife, sustaining work as a teacher, and caring for himself. Additionally, the Veteran's symptoms are not reflective of the more serious symptoms discussed for a 70 percent evaluation in the Rating Schedule, such as speech intermittently illogical, obscure, or irrelevant, near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence), spatial disorientation, or neglect of personal appearance and hygiene. Thus, a 70 percent rating is not warranted at any time during the period on appeal. In sum, the most probative evidence of record shows that the Veteran's acquired psychiatric disorder symptoms more nearly approximate those associated with a 50 percent rating. In reaching this conclusion, the Board has considered both the lay and medical evidence and the specific symptoms associated with this Veteran's depressive disorder. Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N.B. Mmeje, 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.