Citation Nr: 21031312 Decision Date: 05/21/21 Archive Date: 05/21/21 DOCKET NO. 16-58 918 DATE: May 21, 2021 ORDER Entitlement to an increased rating for internal hemorrhoids, initially evaluated as non-compensable prior to October 12, 2018, and 20 percent disabling thereafter is denied. REMANDED Entitlement to service connection for a respiratory condition, including as due to Gulf War environmental hazard/undiagnosed illness, and as secondary to the service-connected irritable bowel syndrome (IBS) and gastroesophageal reflux disease (GERD), is remanded. FINDINGS OF FACT 1. Prior to October 12, 2018, the Veteran's hemorrhoids were manifested by no more than mild or moderate symptoms with no evidence of large, thrombotic, or irreducible hemorrhoids or excessive redundant tissue. There was also no evidence of persistent bleeding and with secondary anemia or fissures. 2. From October 12, 2018, the Veteran's hemorrhoids disability is rated at the maximum 20 percent evaluation under Diagnostic Code 7336. CONCLUSIONS OF LAW 1. Prior to October 12, 2018, the criteria for an initial compensable rating for internal hemorrhoids have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.114, Diagnostic Code 7336. 2. From October 12, 2018, the criteria for a rating in excess of 20 percent for internal hemorrhoids have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.114, Diagnostic Code 7336 REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service in the United States Marine Corps from October 1990 to February 1994, including service in Southwest Asia during the Persian Gulf War. This matter comes before the Board of Veterans' Appeals (Board) on appeal from April 2016 and January 2017 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In September 2019, the Veteran provided testimony before the undersigned Veterans Law Judge. A transcript of the record is associated with the claims file. These matters were previously remanded by the Board for further development in January 2020. The matters return for appellate consideration. In January 2020, the Board referred the issue of service connection for GERD. The Board notes that in a December 2020 rating decision, the RO granted service connection for GERD, combined with IBS, effective October 2, 2020. In a September 2020 rating decision, the Agency of Original Jurisdiction (AOJ) increased the rating for the Veteran's hemorrhoids to 20 percent, effective October 12, 2018. As the increase did not satisfy the appeal in full, the issue remains on appeal and has been characterized as shown above. See AB v. Brown, 6 Vet. App. 35 (1993). The Board also notes that additional VA treatment records, from February 2011 to November 2020, have been associated with the claims folder following issuance of the September 2020 SSOC. No waiver of initial review of the evidence by the Agency of Original Jurisdiction (AOJ) has been received. However, as these VA treatment records are not relevant and in part duplicative, the Board finds that it may proceed to adjudication of the issues on appeal. Increased Rating Disability ratings are determined by applying the criteria established in VA's Schedule for Rating Disabilities, which is based upon the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.20. Where there is a question as to which of two evaluations shall be applied under a particular Diagnostic Code, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the claimant. 38 C.F.R. § 4.3. Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007) (citing Fenderson v. West, 12 Vet. App. 119, 126 (1999)). 1. Entitlement to an increased rating for internal hemorrhoids, initially evaluated as non-compensable prior to October 12, 2018, and 20 percent disabling thereafter is denied. The Veteran's hemorrhoid disability is rated as noncompensable prior to October 12, 2018 and 20 percent disabling thereafter under Diagnostic Code 7336. 38 C.F.R. § 4.114. Under Diagnostic Code 7336, a noncompensable rating is warranted for mild or moderate hemorrhoids. A 10 percent rating is warranted for large or thrombotic irreducible hemorrhoids with excessive redundant tissue evidencing frequent recurrences. A 20 percent rating is warranted for hemorrhoids with persistent bleeding and secondary anemia or fissures. The criteria to be considered for assigning an extra-schedular disability rating are defined in Thun v. Peake, 22 Vet. App. 111 (2008). In that case, the United States Court of Appeals for Veterans Claims established a three-step inquiry for determining whether an extra-schedular disability rating is warranted by the evidence. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular ratings for that service-connected disability are inadequate. Second, if the schedular rating does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation Service to determine whether, in order to afford justice, the veteran's disability picture requires the assignment of an extra-schedular disability rating. Thun, 22 Vet. App. 111. Prior to October 12, 2018 VA treatment records in 2013 and 2014 reflected the Veteran's complaints of intermittent rectal bleeding and abdominal pain. In October 2013, the Veteran reported rectal bleeding for three weeks upon defecation and was referred for a colonoscopy. An October 2013 emergency room records echoed the Veteran's complaints of abdominal pain, distention, diarrhea, and blood in the stool for four days. A January 2014 VA treatment record reflected normal tissue from the anus to the transverse colon. The June 2014 colonoscopy procedure demonstrated normal findings and small internal hemorrhoids but unremarkable for any other serious symptoms. See March 2016 and January 2017 CAPRI. The Veteran was first examined for his hemorrhoids during an April 2016 VA examination. The Veteran reported that his rectal bleeding started with diarrhea and constipation in 1994 after leaving the military, and that the bleeding occurred daily and worsened following constipation. The examination reflected mild or moderate internal or external hemorrhoids, and pain with every bowel movement. The examiner noted that the Veteran did not take continuous medications at such time. An April 2016 VA intestinal conditions examination reflected a diagnosis of irritable bowel syndrome (IBS). Again, the Veteran reported daily abdominal bloating, rectal bleeding associated with internal hemorrhoids, diarrhea, and constipation. The Veteran described his diarrhea as watery with intermittent blood at least five times a day. The examiner noted continuous medication for his IBS condition. In his October 2016 Notice of Disagreement (NOD), the Veteran reported he suffered from constant bleeding and fissures. A June 2017 VA treatment record reflected the Veteran's complaints of rectal bleeding with every bowel movement noted in stool and on toilet paper, and the use of hemorrhoid medication with some relief. In addition to the medical examination, the evidence of record contains the Veteran's competent hearing testimony in September 2019 of increased frequency and persistency of rectal bleeding and ongoing issues with fissures since his 2016 VA examination. Based on review of the evidence of record, there is no basis for a compensable rating for the Veteran's hemorrhoids prior to October 12, 2018. There is no evidence of large, thrombotic, or irreducible hemorrhoids. During the period on appeal, the Veteran's documented hemorrhoid was described as small with no evidence of abnormal tissue in the anal region. His complaints of daily rectal bleeding without any signs of anemia or severe blood loss are consistent with mild to moderate symptoms. Without evidence of more severe symptoms, a compensable rating cannot be assigned under the currently assigned diagnostic code. In order to receive a 20 percent rating, the applicable regulation requires hemorrhoids "with persistent bleeding and with secondary anemia, or with fissures." 38 U.S.C. § 4.114, Diagnostic Code 7336. While the Veteran has asserted that he experienced persistent bleeding, his reports are contradicted by the April 2016 VA examination report, where the examiner found his symptoms to be mild or moderate with no evidence of anemia or fissures. Furthermore, while VA treatment records reflected persistent and daily bleeding, they do not reflect secondary anemia or fissures prior to October 12, 2018. Thus, even if the Board accepted the Veteran's reports of persistent bleeding prior to October 12, 2018 as credible, there is no evidence that he had anemia or fissures as a result of the persistent bleeding. The Board acknowledges that the Veteran is competent to report symptoms such as daily rectal bleeding and pain as a result of his hemorrhoids. To the extent the Veteran contends that his hemorrhoidal disability is more severe than currently evaluated, his contentions, however, are outweighed by the competent and credible medical evidence that assessed the true extent of the severity of his disability and found a normal rectal/anal area and no external hemorrhoids, anal fissures or other abnormalities. In this regard, the Board notes that the VA examiners have the training and expertise necessary to administer the appropriate tests for a determination of the type and degree of the impairment associated with the Veteran's complaints. For these reasons, the Board assigns more probative weight to the April 2016 VA examiner than the Veteran's lay assertions. In sum, as a preponderance of the evidence is against a finding of hemorrhoids that are large or thrombotic, irreducible, evidencing frequent recurrences, or result in persistent bleeding with secondary anemia, or fissures, the criteria for a compensable rating for hemorrhoids have not been met prior to October 12, 2018. The Board has considered the benefit-of-the-doubt rule; however, since a preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt rule is not for application. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55. From October 12, 2018 As noted above, Diagnostic Criteria 7336 establishes a maximum 20 percent rating for hemorrhoids. Thus, the Veteran is currently in receipt of the maximum award possible per the applicable rating criteria from October 12, 2018, and an increased rating may only be granted if entitlement is established on an extraschedular basis. An extra-schedular rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321 (b)(1). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet. App. 111 (2008), there is a three-step inquiry for determining whether a Veteran is entitled to an extra-schedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular ratings for that service-connected disability are inadequate. Second, if the schedular rating does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extra-schedular rating. With respect to the first prong in Thun, the evidence in this case does not show such an exceptional or unusual disability picture that the available schedular ratings for service-connected hemorrhoids are inadequate. The criteria under which the Veteran's disability is rated are found by the Board to specifically contemplate the Veteran's levels of disability and symptomatology. Although the Veteran is shown to have difficulties with daily rectal bleeding, diarrhea, constipation, and fissures, these symptoms have been contemplated by the assigned rating. The Board finds that the criteria for the currently assigned rating reasonably describes the Veteran's disability level and symptomatology. Furthermore, the medical evidence of record does not reflect any hospitalizations for the hemorrhoid condition itself, nor does it show that this condition creates marked interference with employment. The January 2020 VA examination does not support a finding that the Veteran's hemorrhoid condition impacted his ability to work. Also, there is no evidence to support that the Veteran had frequent periods of hospitalization. There is no indication in the medical evidence of record to show an extra-schedular evaluation is warranted at this time. As such, no unusual or exceptional disability pattern has been demonstrated that would render application of the regular rating criteria as impractical. Also, neither the Veteran nor his representative have raised entitlement to an extraschedular rating for the internal hemorrhoids. The Board finds that the preponderance of evidence is against finding that an increased rating is warranted on an extraschedular basis In sum, the evidence does not reflect that the Veteran's service-connected internal hemorrhoids are so exceptional in nature as to not be fully contemplated by the rating schedule. Rather, there is no unusual clinical picture presented, nor is there any other factor which takes the disability outside the usual rating criteria. Thus, the Veteran has not carried the burden of demonstrating that his disability is of such a nature that an extraschedular rating is warranted. 38 C.F.R. § 3.321 (b)(1); Thun v. Peake, 22 Vet. App. 111. REASONS FOR REMAND 1. Entitlement to service connection for a respiratory condition, including as due to Gulf War environmental hazard/undiagnosed illness, and as secondary to the service-connected IBS and GERD, is remanded. The Veteran seeks service connection for a respiratory condition, which he asserts as attributable to Gulf War environmental hazard/undiagnosed illness and/or service-connected IBS and GERD. Pursuant to the January 2020 Board remand, the RO was asked to schedule the Veteran for a VA respiratory examination. The examiner was asked to address whether there are objective indications that the Veteran's respiratory condition is associated with: (a) an undiagnosed illness; (b) a diagnosable but medically unexplained chronic multi-symptom illness of unknown etiology; (c) a diagnosable but medically unexplained chronic multi-symptom illness with a partially explained etiology and pathophysiology; (d) a diagnosable chronic multi-symptom illness with a partially explained etiology and pathophysiology; or (e) a condition with a clear and specific diagnosis, etiology, and pathophysiology, and whether the symptom or diagnosis for a respiratory condition is related to the Veteran's service, to specifically include service in Southwest Asia. Furthermore, because the issue of service connection for GERD was referred for adjudication and if service connection for GERD was granted, then the examiner was asked to provide an opinion indicating whether it is at least as likely as not (50 percent or greater probability) that the Veteran's respiratory disability is due to or has been aggravated by a service-connected gastrointestinal disability, to specifically include GERD. A March 2020 VA examination and opinion was obtained. The examination report did not reflect a diagnosis for a respiratory condition but noted the Veteran required intermittent inhalational bronchodilator therapy. The examiner provided a negative nexus opinion indicating that there is no current respiratory condition or anything in the service records to suggest a chronic respiratory condition. A March 2020 Gulf War examination demonstrated that the claimed respiratory condition was not an undiagnosed illness for which an etiology had not been established. A September 2020 addendum opinion was obtained. The examiner noted the Veteran's use of Albuterol for shortness of breath and tightness of chest, but reported no evidence of asthma or COPD, normal PFTs, and no significant improvement in a 2016 post-dilator test. The examiner also stated the Veteran had bronchitis in the past but that his March 2020 VA examination did not suggest asthma, bronchitis, or any other respiratory condition. The examiner also indicated the Veteran's coughs could be attributable to his GERD or recurrent bronchitis; however, objective evidence did not support a diagnosis at such time. Notably, the examiner recommended a bronchoprovocation challenge to evaluate the possibility for asthma. The examiner concluded the Veteran's symptoms did not represent an undiagnosed illness because all likely diagnostic possibilities for abnormalities had not been ruled out and that his coughs may be due to his GERD. Lastly, the examiner reported it remained unlikely the coughs were due to hazardous material exposure in SWA. The Board finds the evidence, particularly the September 2020 VA opinion, is inadequate. While the examiner found that there was not enough objective evidence for a definitive diagnosis for a respiratory condition, she then indicated that further testing should be provided to evaluate asthma. As such, as addendum opinion is warranted to determine the nature and etiology of the Veteran's respiratory condition. The matter is REMANDED for the following actions: 1. Schedule the Veteran for a VA examination by an appropriate clinician to determine the nature and etiology of the Veteran's respiratory condition. The entire claims file, including a copy of this remand, must be made available and reviewed by the clinician. As recommended by the September 2020 VA examiner, perform a bronchoprovocation challenge or any other appropriate test to evaluate the presence of asthma, bronchitis, or any other respiratory condition as evidenced by the Veteran's shortness of breath and intermittent inhalational bronchodilator therapy. Thereafter, the clinician should address whether there are objective indications that the Veteran's respiratory condition is associated with: (a) an undiagnosed illness; (b) a diagnosable but medically unexplained chronic multi-symptom illness of unknown etiology; (c) a diagnosable but medically unexplained chronic multi-symptom illness with a partially explained etiology and pathophysiology; (d) a diagnosable chronic multi-symptom illness with a partially explained etiology and pathophysiology; or (e) a condition with a clear and specific diagnosis, etiology, and pathophysiology. If positive responses to the above prompts fall within categories (d) or (e), please state whether it is at least as likely as not (50 percent probability or more) that the symptom or diagnosis for a respiratory condition is related to the Veteran's service, to specifically include service in Southwest Asia. The examiner is then asked to determine if it is at least as likely as not (50 percent probability or greater) that a respiratory condition was proximately caused by or aggravated by the service-connected GERD? "Permanent worsening" of a non-service-connected disability is not required to establish secondary service connection on the basis of aggravation. See Ward v. Wilkie (16-2157, 17-1204). The examiner must provide separate findings and rationales relating to causation and aggravation. The examiner must provide a rationale in support of all opinions provided. If the examiner cannot provide the opinion without conducting an examination of the Veteran, then an examination must be scheduled. If any opinion cannot be provided without resorting to speculation, the examiner must explain why this is so. 2. Readjudicate the Veteran's claim on appeal. If the benefit sought on appeal remains denied, provide the Veteran and his representative a supplemental statement of the case and allow an appropriate period for response. L. CHU Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Y. Asfaw, 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.