Citation Nr: 21030697 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 15-03 559 DATE: May 19, 2021 ORDER Entitlement to a rating in excess of 10 percent prior to July 12, 2019 for service-connected hemorrhoids is denied. FINDING OF FACT Prior to July 12, 2019, the Veteran's hemorrhoids were large or thrombotic that were irreducible, with excessive redundant tissue, evidencing frequent recurrences, but were not productive of persistent bleeding and with secondary anemia, or with fissures. CONCLUSION OF LAW The criteria for an evaluation in excess of 10 percent for hemorrhoids have not been met prior to July 12, 2019. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.114, Diagnostic Code 7336. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 2009 to May 2012. This case comes before the Board of Veterans' Appeals (Board) from a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. The Veteran testified before the undersigned Veterans Law Judge at a videoconference hearing in May 2018. A transcript of the hearing has been associated with the file. This case was remanded by the Board in September 2018 for additional development, and again in February 2021 to allow the RO to consider additional evidence added to the record since the May 2020 Supplemental Statement of the Case. That development having been completed; the case has returned to the Board. The Veteran was granted service connection for hemorrhoids and assigned a noncompensable rating in October 2012 with an effective date of May 12, 2012. The Veteran filed a Notice of Disagreement (NOD) and requested his rating be increased to 10 percent. In November 2014, the Decision Review Officer (DRO) increased the Veteran's rating for hemorrhoids to 10 percent with an effective date of May 12, 2012, due to evidence of frequent recurrences. The Veteran filed a NOD in February 2014 and requested his rating be increased to 30 percent. The Veteran's rating was increased to 20 percent following a July 2019 VA examination, which is the highest schedular rating available. Disability ratings are determined by applying the criteria set forth in the VA Rating Schedule, found in 38 C.F.R. Part 4. The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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 (1999). While the Veteran's entire history is reviewed when making a disability determination, where service connection has already been established and an increase in the disability rating is at issue, it is a present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). The Court has held that, in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. The Veteran's hemorrhoids are rated under Diagnostic Code 7336. Diagnostic Code 7336 provides a 10 percent evaluation for external or internal hemorrhoids that are large or thrombotic, irreducible, with excessive redundant tissue, evidencing frequent recurrences. A 20 percent evaluation is provided for external or internal hemorrhoids with persistent bleeding and with secondary anemia, or with fissures. 38 C.F.R. § 4.114, Diagnostic Code 7336. A review of the Veteran's outpatient treatment records reveals that he has continued to receive treatment for his hemorrhoids. At a VA examination in June 2012, the Veteran was diagnosed with internal, nonbleeding hemorrhoids. He did not have anemia or fissures at that time. In May 2013, the Veteran underwent a hemorrhoidectomy. Thereafter, the Veteran continued to report bulging and inflammation. At his follow up appointment after his hemorrhoidectomy, the Veteran complained of a lump in his perianal area. The surgeon examined the Veteran and noted that the lump the Veteran had noticed was a skin tag. In February 2014, the Veteran was again examined for his hemorrhoid condition. He was noted to have internal or external hemorrhoids that were moderate, without anemia or fissures. He utilized continuous medication for his condition. The February 2014 examiner indicated that since the Veteran had his hemorrhoidectomy, he had not had further problems with bleeding. According to VA records, the Veteran continued to be treated with a medication regimen. He was not diagnosed with persistent bleeding, anemia, or fissures. The Veteran testified before the Board in May 2018 that his condition had worsened and that his hemorrhoids resulted in blood in his stool. He noted that his hemorrhoids were very painful, and that they were present internally and externally. The Veteran testified he had not been diagnosed with anemia. He did not know if he had fissures and stated that he had not been tested for or diagnosed with fissures. Due to the Veteran indicating that his condition had worsened, the Board remanded the matter in September 2018 for an examination. The Veteran was afforded a VA examination in July 2019. The examiner noted that the Veteran had internal and external hemorrhoids that were large or thrombotic, irreducible, with excessive redundant tissue, and evidence of frequent recurrences. The examiner also noted that the Veteran has had sporadic fissures. No persistent bleeding was noted. The Veteran was not diagnosed with anemia. The examiner noted that the Veteran's condition impacted his ability to work, as he should avoid prolonged sitting. The Veteran was assigned a 20 percent rating in a May 2020 Rating Decision, with an effective date of July 12, 2019, the date of the VA examination, due to the diagnosis of fissures. After having carefully reviewed the evidence of record, the Board finds that the Veteran's hemorrhoids most closely approximated the criteria contemplated by the 10 percent rating criteria prior to July 12, 2019, as he was not found to have persistent bleeding and secondary anemia, or fissures prior to the July 2019 examination. The Veteran has not been diagnosed with anemia at any time. His treatment records prior to 2019 did not mention fissures but rather noted frequent recurrences of hemorrhoids, which are contemplated in the rating criteria for a 10 percent evaluation. Based upon the Veteran's treatment records and the July 2019 examination, the Board finds that the earliest date the Veteran's hemorrhoids were factually ascertainable to meet the 20 percent criteria was July 12, 2019, the date the 20 percent rating was assigned by the RO. The Board notes that this is the highest schedular evaluation available for this disability and that the Veteran's symptoms are contemplated in the rating schedule. Therefore, no higher evaluation is warranted. The Veteran has given competent and credible testimony that he experienced blood in his stool and persistent bleeding. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994); see also 38 C.F.R. § 3.159 (a)(1) (competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience). However, he was not shown to have anemia at any time, and he was not diagnosed with fissures until the July 2019 VA examination. The Veteran believes his condition had worsened before that date; however, the Veteran has not been shown to be competent to determine that he had persistent bleeding with secondary anemia, or fissures, and whether these symptoms were related to his hemorrhoids. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Thus, the Board finds that the competent and credible medical evidence of record supports the assigned date of July 12, 2019 for the rating of 20 percent, but not earlier. While the Veteran raised the matter of an extra-schedular rating when he requested his disability evaluation be increased to 30 percent, the evidence does not present exceptional or unusual circumstances, as the evidence of record shows that the Veteran's condition is contemplated by the rating criteria at the 20 percent rating criteria. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (holding that either the veteran must assert that a schedular rating is inadequate, or the evidence must present exceptional or unusual circumstances). (Continued on the next page) For these reasons, the Board finds that the evidence does not support a disability rating in excess of 10 percent prior to July 12, 2019. 38 C.F.R. §§ 4.3, 4.7. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board V. Geer, 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.