Citation Nr: 21030340 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 16-58 309 DATE: May 18, 2021 ORDER New and material evidence having been received, the claim for service connection for hemorrhoids is reopened. Entitlement to service connection for hemorrhoids is granted. Entitlement to an initial 10 percent rating, but no higher, for sinusitis is granted. FINDINGS OF FACT 1. The Veteran's claim for service connection for hemorrhoids was originally denied in a September 2011 rating decision. The Veteran was notified of that decision but did not appeal within one year of its issuance. 2. Evidence associated with the record since the September 2011 rating decision relates to unestablished facts necessary to substantiate the Veteran's claim for service connection for hemorrhoids. 3. The preponderance of evidence shows the Veteran's hemorrhoids manifested during service. 4. The Veteran's sinusitis is manifested by three to four non-incapacitating episodes per year characterized by headaches, pain, and purulent discharge or crusting without more severe manifestations. CONCLUSIONS OF LAW 1. The September 2011 rating decision denying entitlement to service connection for hemorrhoids is final. 38 U.S.C. § 1705(c); 38 C.F.R. § 20.1103. 2. The evidence received since the September 2011 rating decision is new and material, and the claim of entitlement to service connection for hemorrhoids is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 3. The criteria for service connection for hemorrhoids are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for a 10 percent rating, but no higher, for service-connected sinusitis are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.115a, Diagnostic Code 6511. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1995 to June 1999. This case comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). New and Material Evidence Although a decision is final, a claim will be reopened if new and material evidence is presented. 38 U.S.C. § 5108. New and material evidence can be neither cumulative, nor redundant, of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. New evidence means existing evidence not previously submitted to VA. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156 (a). In determining whether evidence is new and material, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence need not relate specifically to the reason why the claim was last denied; rather it need only relate to any unestablished fact necessary to substantiate the claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Additionally, the phrase "raises a reasonable possibility of substantiating the claim" is meant to create a low threshold that enables, rather than precludes, reopening. Id. at 117. Reopening is required when the newly submitted evidence, combined with VA assistance and considered with the other evidence of record, raises a reasonable possibility of substantiating the claim. Id. at 117. Whether new and material evidence has been received to reopen a previously denied claim for entitlement to service connection for hemorrhoids The Veteran's claim for service connection for hemorrhoids was denied in September 2011. The Veteran was informed of the rating decision, but he did not appeal or submit new and material evidence within one year; hence, the September 2011 decision became final. The Board further notes that at the time of the rating decision, the Veteran's service treatment records were solely considered. Since that time, a May 2015 lay statement was submitted by the Veteran's wife, revealing that she was aware that the Veteran had hemorrhoids before 1999 and that over the years, he battled inflammation and flare-ups. In May 2015, a January 2000 VA treatment record was associated with the claims file, revealing that the Veteran had an internal hemorrhoid and presented with complaints of blood in his stools. This treatment record also includes a notation that the Veteran had a similar episode one year prior. Also, the Veteran testified at an April 2021 hearing, noting that he had rectal bleeding and pain in service. The medical evidence and lay statements, in support of his claims, shed additional light on the in-service occurrence, post-service symptomatology, and the nature of his disability. The Board finds this evidence "new," because it postdates the aforementioned rating decision. The Board also finds the new evidence "material," because it bears directly on points at issue on the question of entitlement to service connection in the instant case and raises at least a reasonable probability of substantiating the underlying claims. Consequently, the claim of service connection for hemorrhoids is reopened. Service Connection Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition; (2) the layperson is reporting a contemporaneous medical diagnosis; or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent, the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d at 1376-77. Entitlement to service connection for hemorrhoids The Veteran contends that service connection is warranted for hemorrhoids. The Veteran has a current diagnosis of hemorrhoids. See February 2012 VA treatment records. Additionally, a VA treatment record, dated six months after discharge, shows that the Veteran had an internal hemorrhoid and bloody stools and had a similar episode while in service. See January 2000 VA treatment record. Additionally, the Veteran has competently and credibly testified that he had hemorrhoids during service. See April 2021 Hearing Transcript; see also Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The Veteran's wife has also stated that the Veteran had hemorrhoids before 1999, which have continued post service. See May 2015 Lay Statement. As the first two elements of service connection have been met, the crux of this issue relies on establishing a nexus between the Veteran's current hemorrhoids and his in-service occurrence of hemorrhoids. As to a nexus, the Veteran stated that his duties as a military firefighter required that he lift and drag heavy items and that he was required to sit for long periods of time. See September 2015 VA Form 9. The Veteran's DD-214 reveals an MOS of Aircraft Firefighting and Rescue Specialist. The Veteran further reported that while he had hemorrhoids and blood in his stool during service, he used over-the-counter medication to relieve his symptoms rather than going to sick call. The Veteran also noted that the condition has continued to present. Finally, the Veteran reported, and medical treatment records corroborate, that he was treated in January 2000 and that, at such time, he was assessed for hemorrhoids which were determined to have started a year prior. See November 2016 Correspondence, See April 2021 Hearing Testimony. The Board finds that the evidence, to specifically include the Veteran's competent and credible lay statements and testimony shows that the Veteran's hemorrhoids initially began during service and have been recurrent since discharge. As such service connection for hemorrhoids is warranted. See 38 C.F.R. § 3.303(a), (d). Increased Rating Disability ratings are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. See 38 C.F.R. § 4.3. Separate evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as "staged" ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). VA's determination of the present level of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased-rating claim has been pending. Hart v. Nicholson, 21 Vet. App. 505, 509 (2007). The Veteran's entire history is reviewed when making disability evaluations. See generally, Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 4.1. Where, as here, the question for consideration is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of staged ratings are required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Further, [w]here there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Entitlement to a compensable rating for sinusitis. The Veteran generally contends that a higher rating is warranted for his sinusitis. The Veteran's sinusitis is evaluated as noncompensably disabling, pursuant to 38 C.F.R. § 4.97, Diagnostic Code 6511. Diagnostic Code 6511 provides for chronic ethmoid sinusitis and is rated under the General Rating Formula for Sinusitis. Under the General Rating Formula for Sinusitis, which covers Diagnostic Codes 6510-6514, a noncompensable rating is assigned when sinusitis is only detected by x-ray. A 10 percent rating is assigned for one or two incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or; three to six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. A 30 percent rating is assigned for three or more incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or; more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. A 50 percent rating is assigned following radical surgery with chronic osteomyelitis, or; near constant sinusitis characterized by headaches, pain and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries. 38 C.F.R. § 4.97, Diagnostic Codes 6510-6514. During the November 2015 Sinusitis/Rhinitis and Other Conditions of the Nose, Throat, Larynx and Pharynx Disability Benefits Questionnaire (DBQ), the examiner diagnosed chronic ethmoid sinusitis. The Veteran reported having pressure build-up during service, following exposure and burns to jet and diesel fuels. The Veteran also reported that during sinusitis episodes, he experienced constant pressure behind the eyes and temple, mucosal thickening and discharge, congestion, cough, and headaches. Upon examination, the examiner also endorsed that the Veteran suffered from headaches and had purulent discharge or crusting during sinusitis episodes. The examiner noted that the Veteran had not had any non-incapacitating or incapacitating episodes within the past 12 months. The Veteran's sinus condition did not impact his ability to work. Of record are numerous statements by the Veteran that describe the severity of his sinusitis. Specifically, the Veteran has stated that he had constant headaches, congestion, and crusting of the sinuses and nose. The Veteran also reported that he had been prescribed several rounds of antibiotics for sinus infections and had been given ongoing NSAIDS and a steroid nose spray that had not resolved or provided any real relief from his symptoms. The Veteran also noted that the constant, daily headaches impact his mood, ability to sleep, and ability to concentrate. The Veteran stated that when he has significant flare-ups and headaches, he often needs to miss work and takes time off. The Veteran stated that the constant inflammation often leads to nose bleeds. Additional throat issues further upset his stomach, and congestion has caused fluctuation in speech and nasal plugging. He has also suffered ear infections as a result of spreading of his sinus infections. The Veteran further noted that despite septum correction and the removal of enlarged turbinates, he continues to have severe headaches, sinus pressure, and crusting/congestion. See January 2016 NOD, November 2016 VA Form 9. A May 2017 VA treatment record showed that the Veteran's sinus symptoms included occasional pressure and congestion, recent sinus infections that resolved with antibiotics. A December 2017 VA treatment record reveals that the Veteran's sinus symptoms included daily headaches and pressure and that recent sinus infections presented with colored nasal discharge that resolved with antibiotics. A February 2018 VA treatment note reveals that the Veteran had frontal and maxillary sinus pressure with nasal obstruction that is worse at night. The Veteran noted that he was using a steroid nasal spray and had chronic headaches. An August 2018 VA treatment note reveals that the Veteran's sinus symptoms included an occasional infection. The note also reflects that the treatment visit was a follow-up for allergic rhinitis. During the April 2021 hearing, the Veteran testified that he underwent sinus surgery and rescheduled a second surgery. The Veteran stated that he continued to take steroidal nose spray and frequently used nasal wash. The Veteran also endorsed three to four non-incapacitating episodes per year when it was hard to breathe from his nose. The Veteran also stated that he had accompanying sinus pain and pressure and bright green neon discharge. The Veteran also testified that he always had a low-grade headache. Additionally, the Veteran testified that since separation, his symptoms have been consistent. Upon review of the evidence, the Board finds that the Veteran's overall disability picture supports the assignment of an initial rating of 10 percent, but no higher, for his sinusitis. In this regard, the Veteran consistently reported pain and headaches and suffered three to four non-incapacitating episodes of sinusitis per year. Here, the Veteran's sinusitis has been confirmed by CT scans and the Veteran's medical records reflect his repeated complaints. Thus, the Board finds that the Veteran's sinusitis reaches the level requiring a 10 percent rating when considered in totality. The Board further finds that the evidence fails to reveal more severe manifestations that more nearly approximate the levels required for the 30 or 50 percent ratings. In this regard, the record does not reflect nor does the Veteran allege that he has suffered three or more incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or; more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. Furthermore, as the record does not support that the Veteran's condition has reached the level required for a 30 percent rating, it also has not reached the level of severity required for a 50 percent rating. The record does not reflect and the Veteran has not alleged that he has undergone radical surgery with chronic osteomyelitis, or; experienced near constant sinusitis characterized by headaches, pain and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries. Neither the lay or medical evidence reflects that the Veteran's sinusitis results in functional loss that more nearly approximates the severity required for the 30 or 50 percent ratings, even in consideration of the totality of his symptoms. Accordingly, a 10 percent rating, but no higher, for sinusitis is granted. (CONTINUED ON NEXT PAGE) GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Hanson, 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.