Citation Nr: 21029055 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 15-27 103A DATE: May 12, 2021 ORDER Entitlement to an initial rating in excess of zero percent (noncompensable) prior to February 17, 2021 and in excess of 20 percent thereafter for service-connected hemorrhoids is denied. FINDING OF FACT Prior to February 17, 2021, the Veteran's hemorrhoids were no worse than moderate in severity; were not large, thrombotic, or irreducible; did not involve excessive redundant tissue, or evidence frequent recurrences; and were without persistent bleeding or fissures. From February 17, 2021 his hemorrhoids have not been manifested by any extraordinary symptoms that would warrant extra-schedular consideration for a higher rating in excess of 20 percent maximum rating under the schedular criteria. CONCLUSION OF LAW The criteria for entitlement to a higher initial rating in excess zero percent (noncompensable) prior to February 17, 2021 and in excess of 20 percent thereafter for service-connected hemorrhoids have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.400, 4.1, 4.21, 4.3, 4.114, Diagnostic Code 7336. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active military duty from June 1977 to November 1985. This matter comes before the Board of Veterans' Appeals ("Board") from an April 2013 rating decision of the Department of Veterans Affairs ("VA") Regional Office ("RO"). The Veteran appeared at a May 2019 hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. The Board notes that while the Veteran was previously represented by a private attorney, the attorney withdrew representation in a letter received in April 2019. The attorney provided a copy of the letter to the Veteran, and the Veteran has not objected to the attorney's withdrawal of representation. As the private attorney withdrew and the Veteran has not appointed a new attorney, agent, or representative, he is currently unrepresented. The Board remanded this matter in November 2020 to afford the Veteran a new VA medical examination in order to determine the current severity and manifestations of service-connected hemorrhoids. The Board is obligated by law to ensure that the RO complies with its directives; where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board finds that the RO substantially complied with the directives set forth in the November 2020 remand, and afforded the Veteran a VA examination in February 2021, which is consistent with and responsive to the remand directives, and adequate for deciding the issue on appeal. See Stegall, 11 Vet. App. at 271; see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only "substantial" rather than strict or exact compliance with the Board's remand directives is required under Stegall). Entitlement to a higher initial rating in excess zero percent (noncompensable) prior to February 17, 2021 and in excess of 20 percent thereafter for service-connected hemorrhoids. The appeal period for the issue on appeal starts from March 19, 2012, when the Veteran submitted his claim of entitlement to service connection for hemorrhoids. The RO granted the claim for service connection in an April 2013 rating decision and assigned a noncompensable rating from March 19, 2012. The Veteran filed a notice of disagreement in December 2013 and contended that a higher rating was warranted for his hemorrhoids. He asserted that he had been experiencing bleeding three to four times a week and was not able to walk or sit for longer period of time. The RO denied an entitlement to a compensable rating in a July 2015 statement of the case. The Veteran timely appealed the matter to the Board in August 2015 and requested the Board hearing. At the May 2019 Board's hearing, the Veteran asserted that his hemorrhoids disability had increased in severity. Specifically, the Veteran stated that he experienced bleeding three to four times in a week. Also, he was anemic once and VA doctors prescribed iron pills. The Board remanded the matter in November 2019 to afford the Veteran a VA examination to ascertain the increased severity and manifestations of his service-connected hemorrhoids disability. The Veteran was afforded an examination in January 2020; however, the Board found the examination inadequate and remanded the matter again in November 2020. Pursuant to the November 2020 Board's remand, the Veteran was afforded another VA examination in February 2021. Thereafter, in March 2021 rating decision, the RO increased the disability rating from noncompensable to 20 percent for the Veteran's service-connected hemorrhoids with effective date of February 17, 2021, which is the date of examination. The RO also issued a supplemental statement of the case in March 2021 and returned the matter to the Board for appellate consideration. Disability ratings are determined by the application of the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a Diagnostic Code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating applies. 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 should be resolved in favor of the Veteran. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. Where the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Veteran's entire history is to be considered when assigning disability rating. See Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991); 38 C.F.R. § 4.1. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the period of claim on appeal. See Fenderson, 12 Vet. App. at 126; Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007). The applicable rating period is from March 19, 2012, the effective date for the award of service connection for hemorrhoids, through the present. See 38 C.F.R. § 3.400. The Veteran's disability of hemorrhoids is currently rated as noncompensable (zero percent) disabling from March 19, 2012 to February 16, 2021 and 20 percent disabling thereafter under 38 C.F.R. § 4.114, Diagnostic Code 7336. Under Diagnostic Code 7336, a noncompensable rating is warranted for external or internal hemorrhoids that are mild or moderate. 38 C.F.R. § 4.114, Diagnostic Code 7336. A 10 percent rating is warranted for irreducible external or internal hemorrhoids that are large or thrombotic, have excessive redundant tissue, and evidence frequent recurrences. Id. A maximum 20 percent rating is warranted for external or internal hemorrhoids with persistent bleeding and with secondary anemia, or with fissures. Id. Turning to the relevant evidence of record during and recent to the rating period, the April 2011 VA treatment record noted external hemorrhoids with normal limits but there was no anal fissure. During the January 2012 VA treatment, the Veteran denied unusual bleeding, however, the examiner noted the history of anemia. During the February 2012 VA treatment, the examiner noted internal and external hemorrhoids without any bleeding, however, the examiner noted history of anemia. During the December 2012 VA treatment, the Veteran reported increased frequency in having BRBPR (bright red blood per rectum), however, there was no indication of persistent bleeding. The Veteran underwent a VA examination as to his hemorrhoids in March 2013. The examiner noted mild and moderate hemorrhoids, which were not large or thrombotic, irreducible, involve excessive redundant tissue, and evidence frequent recurrences; also, without persistent bleeding, secondary anemia, or anal fissure. The Veteran denied any rectal bleeding, constipation, or diarrhea. During physical examination, the examiner did not find external hemorrhoids but only skin tags. The laboratory testing showed normal HGB (hemoglobin) and HCT (hematocrit) values. The examiner also noted that previously a colonoscopy was performed in March 2011, where the clinician noted external and internal hemorrhoids. During October 2013 VA treatment, the examiner noted iron deficiency anemia, likely secondary to hemorrhoids. However, the examiner noted that hemorrhoids had been bleeding only 3 to 4 times in a week. During November 2013 VA treatment, the Veteran reported complaints of rectal bleeding on/off for three weeks that soiled his underwear. The examiner performed anoscopy (rectum examination) and noted only grade 1 to grade 2 internal hemorrhoids, with little bleeding on cotton swab. However, the Veteran mentioned that he occasionally had done some manual replacement of the hemorrhoids. The VA treatment records from the September 2014 and October 2015 noted history of anemia, however, there are no notations or complaints of rectal bleeding. At the May 2019 Board's hearing, the Veteran testified that he was experiencing bleeding three to four times in a week. The Veteran also stated that he was anemic once and VA doctors prescribed iron pills. He also stated that he had not visited a doctor for hemorrhoids for past couple of years. The Veteran also indicated that he had been getting treatment for his hemorrhoids only at VA facilities. The Veteran underwent another VA examination as to his hemorrhoids in January 2020. The examiner noted mild and moderate hemorrhoids, which were not large or thrombotic, irreducible, with excessive redundant tissue, evidencing frequent recurrences, and without persistent bleeding, secondary anemia, or anal fissure. The examiner also noted symptoms of itching, burning and discomfort. The Board found the January 2020 VA examination inadequate because no laboratory testing was performed for diagnosing anemia. Therefore, the matter was remanded by the Board in November 2020. Consequently, the Veteran was afforded another VA examination in February 2021. The examiner noted mild or moderate hemorrhoids with persistent bleeding, however, no secondary anemia or fissures were noted. The examiner did not note external hemorrhoids, only skin tags. The examiner explained that the hemorrhoid suppository was needed daily, suggesting that the disability had increased, and it seemed as if the hemorrhoids were more internal, as evidenced by the soreness, bleeding, and itching. The examiner opined that the hemorrhoids had increased in severity, to include intermittent pain and bleeding that was persistent, with occasional anemia secondary to the bleeding from the hemorrhoids. The examiner elaborated that the labs drawn did not show iron deficiency anemia, but showed elevated MCH (mean corpuscular hemoglobin) and MCHC (mean corpuscular hemoglobin concentration), which was at least as likely the body's way of compensating for blood loss; and due to this compensation, there was no noted iron deficiency anemia, and the hemoglobin and hematocrit (16.2/43.8) were within the normal values. Based on the above February 2021 examination, the Veteran has been granted a disability rating of 20 percent with an effective date of February 17, 2021, the date of examination. The Board acknowledges the Veteran's belief that his hemorrhoids warrants a compensable initial rating throughout the rating period. He is considered competent to report his symptoms relating to the hemorrhoids. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). As such the Veteran reported bleeding three to four times during May 2019 Board's hearing and in his statements in support of the claim. However, the Veteran is not considered competent to provide an opinion as to the relative severity of his hemorrhoids, as doing so requires medical knowledge and expertise the Veteran has not been shown to possess. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Furthermore, the treatment records indicate that the Veteran has been reporting on/off rectal bleeding. Persistent bleeding has not been noted by any examiner until the February 2021 examination. However, no examination ever noted anal fissures, or large or thrombotic, irreducible hemorrhoids with excessive redundant tissue and evidence of frequent recurrences. After analyzing the above described medical and lay evidence, the Board finds that before February 17, 2021, the record does not show that the Veteran's hemorrhoids had been large or thrombotic, irreducible, involve excessive redundant tissue, and evidence frequent recurrences; or that they have manifested in persistent bleeding with secondary anemia or anal fissures, as is required for a compensable or higher rating under Diagnostic Code 7336. See 38 C.F.R. § 4.114, Diagnostic Code 7336. Therefore, the Board concludes that a rating in excess of zero percent (noncompensable) is not warranted prior to February 17, 2021. As described above, the Veteran has been granted 20 percent rating from February 17, 2021, which is the highest rating under Diagnostic Code 7336. 38 C.F.R. § 4.114, Diagnostic Code 7336. Even though during the February 2021 examination, the examiner noted persistent bleeding and indication of occasional anemia, which warranted a 20 percent maximum schedular rating; however, the examiner did not note any extraordinary symptoms that would warrant extra-schedular consideration. Therefore, a higher rating in excess of 20 percent is not warranted from February 17, 2021. Additionally, the Board recognizes the holding of the United States Court of Appeals for Veterans Claims in Rice v. Shinseki that the issue of entitlement to a total disability rating based on individual unemployability ("TDIU") is part and parcel of an increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009) (noting that a claim for a TDIU rating is part of an increased rating claim when such a claim is raised by the record). TDIU can either overtly stated or implied by a fair reading of the claim or of the evidence of record. Id. In the March 2021 supplemental statement of the case, the RO appears to have considered entitlement to a TDIU evidenced by the statement that "[t]his case does not meet the criteria for submission to the Director, Compensation Service, for extra-schedular consideration for veterans who may be unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards for schedular individual unemployability." However, as the Veteran has not asserted and the evidence of record does not otherwise indicate that the Veteran's hemorrhoids render him unemployable or contribute to other service-connected disabilities to render him unable to secure and follow substantially gainful employment, entitlement to TDIU has not been raised in this case. In view of the foregoing, the Board concludes that the preponderance of the evidence is against the assignment of a higher initial rating in excess of zero percent (noncompensable) prior to February 17, 2020 and in excess of 20 percent thereafter for the Veteran's service-connected hemorrhoids. Consequently, entitlement to a higher initial rating in excess zero percent (noncompensable) prior to February 17, 2020 and in excess of 20 percent thereafter for service-connected hemorrhoids, is denied. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Tariq, Nadeem, 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.