Citation Nr: 21031301 Decision Date: 05/21/21 Archive Date: 05/21/21 DOCKET NO. 15-03 617A DATE: May 21, 2021 REMANDED Entitlement to a compensable rating for hemorrhoids, prior to November 14, 2013 is remanded. Entitlement to an increased rating in excess of 20 percent for hemorrhoids since November 14, 2013 is remanded. Entitlement to an increased rating in excess of 10 percent for postoperative bond block, secondary to anterior subluxation of perineal tendon, left ankle (left ankle disability) is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from June 1984 to April 1987 and from November 1990 to May 1991, and additional service in the Army National Guard. This appeal arises from a June 2014 rating decision, denying an increased rating claim in excess of 10 percent for postoperative bond block secondary to anterior subluxation of perineal tendon, left ankle, and a TDIU. This appeal also arises from a February 2015 rating decision, which increased the Veteran's service-connected hemorrhoids to 20 percent disabling, effective November 14, 2013. In November 2018, the Board of Veterans' Appeals (Board) remanded the case to the agency of original jurisdiction (AOJ) for additional development and consideration. Then, in April 2020, the Board issued a decision denying the increased rating claims for hemorrhoids and the left ankle disability, and a TDIU. The Board's April 2020 decision also denied a compensable rating for bilateral hearing loss. On appeal, the U.S. Court of Appeals for Veterans Claims (Court) issued a January 2021 Order that partially vacated the Board's prior April 2020 decision's denials of the hemorrhoids, left ankle and TDIU claims, and remanded the matter to the Board. The Court's Order granted a January 2021 Joint Motion for Remand (JMR) filed by both VA and Appellant ("the Parties"). However, the JMR did not disturb the portion of the April 2020 Board decision which denied a compensable rating for bilateral hearing loss. The remaining issues, as they have been characterized above, have since been returned to the Board for further consideration. 1. Entitlement to a compensable rating for hemorrhoids, prior to November 14, 2013. 2. Entitlement to an increased rating in excess of 20 percent for hemorrhoids since November 14, 2013. The Veteran's hemorrhoids are assigned staged 0 and 20 percent ratings under 38 C.F.R. § 4.114, Diagnostic Code (DC) 7336. Under DC 7336, a noncompensable evaluation is assigned for hemorrhoids that are mild or moderate in degree. A 10 percent evaluation is assigned for hemorrhoids which are large or thrombotic, irreducible, with excessive redundant tissue, evidencing frequent recurrences. A maximum 20 percent evaluation is assigned for internal or external hemorrhoids with persistent bleeding and with secondary anemia, or with fissures. Id. Per the JMR, the Veteran has submitted competent lay statements on the symptoms of his hemorrhoids that the Board must consider. For instance, the September 2012 VA hemorrhoids examiner noted that that the Veteran described experiencing large or thrombotic, irreducible hemorrhoids with excessive redundant tissue and frequent recurrences with persistent bleeding. He also reported his hemorrhoids as bleeding "a [l]ot," resulting in a loss of approximately one half a cup of blood. See July 2013 VA treatment record. He also reported that the pain from his hemorrhoids was so severe that it caused him to lose consciousness. See April 2013 Veteran's statement. However, at his February 2019 VA hemorrhoids examination, the Veteran reported occasional rectal discomfort and very minor bleeding on the toilet paper. Moreover, per the JMR, DC 7336 does not contemplate relief provided by medication, so that the Board is precluded from considering the ameliorative effects of prescribed medication the Veteran takes to treat his hemorrhoids. See Jones v. Shinseki, 26 Vet. App. 56, 63 (2012) (A higher rating may not be denied on the basis of relief provided by medication when those effects are not specifically contemplated by the rating criteria). In this regard, the September 2012 VA examiner noted the Veteran's use of medication to treat his hemorrhoids. Notably, the Veteran also submitted an April 2013 lay statement that he was having "bad issues with [hemorrhoids]" because his correctional institution was not letting him have his medications and that he had "passed out [eight] or [nine] times from the pain being so bad." On remand, another VA examination and medical comment must be obtained to address the severity of his hemorrhoids during the pendency of the appeal, to include consideration of the Veteran's competent lay statements on the symptoms of his hemorrhoids, but excluding the ameliorative effects of any prescribed medications. 3. Entitlement to an increased rating in excess of 10 percent for postoperative bond block, secondary to anterior subluxation of perineal tendon, left ankle (left ankle disability). Notably, the February 2014 VA ankle examiner noted the Veteran's report of flare-ups in his left ankle and that it impacts the function of the ankle, and that there was no limitation of motion due to flare-ups. However, per the JMR, the examiner's opinion does not reflect whether the examiner elicited information on limitation of motion due to flare-ups from the Veteran or whether such information as to limitation of motion during flare-ups based upon review of medical records or other sources. See Sharp v. Shulkin, 29 Vet. App. 26, 35 (2017). At the February 2019 VA examination, the Veteran again reported experiencing flare-ups that interfere with his ability to walk. The examiner indicated this examination was not conducted during a flare-up and he was unable to describe the Veteran's flare-ups in terms of range of motion because, "The degree of ROM changes varies depending on the level severity of the symptoms and cannot be expressed in terms of one set of values." Per the JMR, before the Board can accept an examiner's statement that an opinion cannot be provided without resort to speculation, it must be clear that this is predicated on a lack of knowledge among the 'medical community at large' and not on insufficient information or unprocured testing. Sharp, 29 Vet. App. at 36 (citing Jones v. Shinseki, 23 Vet. App. 382, 390 (2010)). Here, it is unclear if the February 2019 VA examiner's statement was predicated on a lack of knowledge among the 'medical community at large' and not on insufficient information or unprocured testing. Accordingly, a remand to obtain another VA examination to address the severity of his left ankle disability, per Sharp is needed. 4. Entitlement to a TDIU. The issue of entitlement to a TDIU is inextricably intertwined with the increased rating claims on appeal. Thus, the adjudication of the claim is deferred. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination of the current severity of his left ankle disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. The examiner must specifically test both passive and active range of motion for the Veteran's left ankle condition, in weight-bearing and non-weight-bearing, indicating on both right and left ankles where any pain begins. If the examiner finds that active and passive range of motion cannot be tested, explain why, with a complete rationale. The examination must also include an opinion on the issue of functional loss with repeated use over time, or adequately explain why an opinion cannot be provided. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. The examiner must also elicit and consider the Veteran's lay statements on any other functional loss and ankle instability. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). To the extent possible, the examiner should identify any symptoms and functional impairments due to his left ankle disability alone and discuss the effect of the Veteran's left ankle disability on any occupational functioning and activities of daily living. 2. Schedule the Veteran for an examination of the current severity of his hemorrhoids. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. The examiner must also elicit and consider the Veteran's lay statements on any hemorrhoids symptoms and functional loss. Obtain a retrospective medical opinion from a qualified VA examiner (or if not available, then another appropriate clinician), to determine the severity of the Veteran's hemorrhoids both prior to November 14, 2013, and since November 14, 2013. After reviewing the record, the examiner should comment whether there was any increasing functional impairment due to his hemorrhoids during the staged periods of the appeal: (a) prior to November 14, 2013, and (b) from November 14, 2013 to the present. Discuss the effect of the Veteran's hemorrhoids on any occupational functioning and activities of daily living. A complete rationale should be provided for all opinions rendered. The examiner must reconcile the Veteran's lay statements on his hemorrhoid symptoms. For instance, the September 2012 VA hemorrhoids examiner noted that that he described experiencing large or thrombotic, irreducible hemorrhoids with excessive redundant tissue and frequent recurrences with persistent bleeding. He also reported his hemorrhoids as bleeding "a [l]ot," resulting in a loss of approximately one half a cup of blood. See July 2013 VA treatment record. He also reported that the pain from his hemorrhoids was so severe that it caused him to lose consciousness. See April 2013 Veteran's statement. However, at his February 2019 VA hemorrhoids examination, he reported occasional rectal discomfort and very minor bleeding on the toilet paper. If such cannot be accomplished, the examiner must explain why this is so. The examiner may not consider the ameliorative effects of prescribed medication the Veteran takes to treat his hemorrhoids. C. CRAWFORD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Biswajit Chatterjee, 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.