Citation Nr: 21031197 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 19-35 072 DATE: May 20, 2021 REMANDED Entitlement to a disability rating in excess of 20 percent for hemorrhoids is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1982 to July 2002. This matter comes before the Board of Veteran's Appeals (Board) from a November 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In an April 2020 Board decision, the Board denied a disability rating in excess of 20 percent for the Veteran's hemorrhoids. The Veteran disagreed with that decision and appealed to the United States Court of Appeals for Veterans Claims (Court). In January 2021, the Court granted a Joint Motion for Remand (JMR) wherein the parties requested vacatur of the April 2020 Board decision and that the claim was remanded for re-adjudication. The claim is now before the Board. Entitlement to a disability rating in excess of 20 percent for hemorrhoids is remanded. The Veteran seeks a disability rating in excess of 20 percent for his hemorrhoids. In favor of his claim, the Veteran asserts that the disability rating assigned to his disability does not reflect the severity of his condition. Specifically, the Veteran asserts that his hemorrhoid condition manifests with fecal leakage about once per week. He also noted that although he communicated his symptom to his medical providers, that he has managed the condition on his own by wearing pads. See Statement in support of claim, dated March 2020. In a Questionnaire, completed by the Veteran in October 2017, and associated with the claims file in March 2018, the Veteran noted that, in addition to pain and other symptomatology, he experiences leakage and that he occasionally wears pads. See Questionnaire, dated October 2017, associated with the claims file in March 2018. In January 2020, a medical opinion was associated with the claims file. In this opinion, the examiner noted the Veteran's report of leakage but determined that he was unable to confirm a current diagnosis because the Veteran's medical records did not show notes of stool leakage or fecal incontinence and the examination had not revealed stool leakage. Nonetheless, the examiner noted that the Veteran had a history of anal fissures and hemorrhoids which could lead to occasional stool leakage. See medical opinion dated January 2020. In February 2021, the Veteran underwent a colonoscopy which revealed second degree hemorrhoids and diverticulosis of large intestine without perforation or abscess without bleeding. These records also contain a note of "full incontinence of feces." See medical records, dated February 2021, associated with the claims file in March 2021. Based on the above, the Board finds the evidence of record is insufficient to adjudicate the matter on appeal. Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. See 38 C.F.R. § 4.27. Separate ratings may be assigned for distinct disabilities resulting from the same injury, where the symptomatology for one condition is not duplicative or overlapping with the symptomatology of the other condition. However, the evaluation of the same disability under several Diagnostic Codes, known as pyramiding, must be avoided. See 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). The Veteran's hemorrhoids are rated under diagnostic code 7336, which specifically addresses hemorrhoids. Fecal leakage is not a symptom contemplated under diagnostic code 7336. However, diagnostic code 7332 pertains to impairment of sphincter control and assigns ratings for leakage and involuntary bowel movements. From the evidence of record, the Board is unable to determine whether the Veteran's fecal leakage is a symptom or manifestation of his service-connected hemorrhoids or whether such symptomatology is related to another condition causing impairment of sphincter control. Accordingly, the Board finds a remand is necessary to obtain a medical opinion that addresses the Veteran's hemorrhoid symptomatology and his lay statements of experiencing fecal leakage, to include its frequency and severity. The Veteran is competent to report on the onset and continuity of his current symptomatology that is observable to the senses. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). Further, the Board notes that the absence of medical evidence of treatment for a disability cannot serve as the basis for a negative opinion, particularly as the Veteran has provided competent and credible lay evidence pertaining to his symptomatology and has further explained that he did not seek medical care as he preferred to treat the condition on his own. See Dalton v. Nicholson, 12 Vet. App. 23 (2007) (holding that the lack of documentary evidence during or after service cannot be the sole basis for an opinion against the claim); Buchannan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). The matter is REMANDED for the following actions: 1. Update existing medical records. Any response, including negative responses, must be associated with the claims file. 2. Return the record to the VA examiner that subscribed the January 2020 medical opinion, or to another appropriate examiner, for an addendum opinion regarding the Veteran's hemorrhoid condition, to include his statements on leakage. Re-examination of the Veteran is left to the examiner's discretion. The examiner is asked to: a. Specifically address all manifestations of the Veteran's service-connected hemorrhoid disability to include whether it includes fecal leakage. b. Explain whether the Veteran's report of fecal leakage is a complication of his hemorrhoid disability or whether it is a separate condition with distinct symptomatology. c. If the Veteran's fecal leakage is found to be a manifestation of his service-connected hemorrhoids, the examiner is asked to describe its frequency and severity. Particularly, the examiner must explain whether the Veteran's leakage is slight, or occasionally moderate; whether there are occasional involuntary bowel movements, necessitating wearing of pad; whether there is extensive leakage and fairly frequent involuntary bowel movements or whether the Veteran has complete loss of sphincter control. d. If the examiner determines the Veteran's fecal leakage is a separate condition, the examiner must diagnose and describe the condition, describe its symptomatology, frequency and severity, and opine whether such condition is caused by or aggravated by the Veteran's service-connected hemorrhoid disability. The examiner is advised that the Veteran is competent to describe his symptomatology. The examiner is asked to provide a complete rationale for all opinions expressed. If the examiner cannot provide the requested opinion(s) without resorting to speculation, the report should expressly indicate this, and the examiner should explain why an opinion cannot be provided without resorting to speculation. If the inability to provide an opinion is the result of a need for additional information, the physician must identify the additional information needed. 3. After completing the above requested actions, and any additional notification and/or development deemed warranted, readjudicate the issue on appeal. If the benefit sought on appeal remains denied, furnish to the Veteran and his representative an appropriate supplemental statement of the case that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Gonzalez-Maldonado 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.