Citation Nr: 21031897 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 16-42 448 DATE: May 24, 2021 ORDER Entitlement to a compensable rating for hemorrhoids prior to October 28, 2019, and in excess of 20 percent thereafter is denied. FINDING OF FACT 1. Prior to October 28, 2019, the Veteran's service-connected hemorrhoids were neither large or thrombotic, irreducible, with excessive redundant tissue, evidencing frequent recurrences; nor persistent bleeding, secondary anemia or fissures were not shown. 2. From October 28, 2019, the Veteran's service-connected hemorrhoids have manifested with persistent bleeding. CONCLUSION OF LAW The criteria for entitlement to a compensable rating for hemorrhoids prior to October 28, 2019, and in excess of 20 percent thereafter have not been met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 3.102, 4.114, Diagnostic Code (DC) 7336. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who had active service from July 2009 to July 2013. This matter is before the Board of Veterans' Appeals (Board) on appeal from the January 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) granting service connection for hemorrhoids with a noncompensable rating effective July 21, 2013. In October 2018, the issue was before the Board and remanded for further development, to include VA examination. Pursuant to the Board remand, in October 2019, the Veteran was afforded a VA examination. As the directives in the October 2018 remand having been substantially compiled with, the matter is again before the Board. See Stegall v. West, 11 Vet. App. 268, 271 (1998). A June 2020 rating decision granted an increased rating of 20 percent effective October 28, 2019. The claim has been returned for further appellate review. INCREASED RATINGS Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where a Veteran appeals the initial rating assigned for a disability at the time that service connection for that disability is granted evidence contemporaneous with the claim and with the initial rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous... " Fenderson v. West, 12 Vet. App. 119, 126 (1999). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). If later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time based on facts found. Id.; see also Hart v. Mansfield, 21 Vet. App. 505 (2007). Here, staged ratings will be considered and discussed below. Entitlement to a compensable rating for hemorrhoids prior to October 28, 2019, and in excess of 20 percent thereafter The Veteran seeks a compensable rating prior to October 28, 2019 and a rating in excess of 20 percent thereafter for his service-connected hemorrhoids. Hemorrhoids are evaluated pursuant to 38 C.F.R. § 4.114, DC 7336. Under that DC, a noncompensable evaluation is for assignment for mild or moderate external or internal hemorrhoids. A 10 percent evaluation is for assignment for external or internal hemorrhoids that are large or thrombotic, irreducible, with excessive redundant tissue, evidencing frequent recurrences. A 20 percent evaluation is warranted for internal or external hemorrhoids with persistent bleeding and with secondary anemia, or with fissures. Review of service treatment records (STRs) showed the Veteran first noted hemorrhoids in April 2013 that manifested with periodic bleeding and was treated with sitz baths and high fiber diet. In May 2013, the Veteran was afforded a VA rectum and anus conditions examination, in which he reported having a gradual onset of intermittent bleeding with bowel movements, itching, and soreness that had improved with diet. The examiner noted that the Veteran's symptoms were mild or moderate. Examination revealed small or moderate external hemorrhoids. The examiner noted that the Veteran's hemorrhoids do not impact his ability to work. Service connection for hemorrhoids was granted in a January 2014 rating decision and a noncompensable rating was assigned. In an August 2014 notice of disagreement (NOD), the Veteran reported that over the course of his service his hemorrhoids had increased in size and number; were irreducible with frequent episodes of bleeding and irritation lasting often greater than 2 weeks; were minimally soothed by sitz baths and witch hazel pads; and is problematic to his profession because he has to sit for long hours during the day. In November 2014 correspondence, the Veteran reported that his hemorrhoids had become progressively more debilitating because his job required him to spend 90 to 100 percent of the time sitting at his desk which puts constant pressure on his hemorrhoids contributing to an increase in size and number, as well as more frequent flare-ups. Additionally, the Veteran reported that the hemorrhoids were affecting his active lifestyle as a recreational bicycler due to discomfort and fear or risk of additional flare-ups. In March 2016, the Veteran was afforded another VA examination. The Veteran reported having intermittent bleeding, itching, and pain around the rectum. He also reported taking sitz baths and using topical cream as needed for relief of symptoms. The examiner noted that the Veteran's intermittent bleeding, itching and pain around the rectum were mild to moderate symptoms due to small, mild external hemorrhoids. Examination revealed small or moderate and reducible external hemorrhoid approximately 0.5 centimeter in diameter. The examiner noted that the Veteran's hemorrhoids do not impact his ability to work. In an August 2016 substantive appeal, the Veteran reported that his hemorrhoids had continued to increase in size and number; with frequent blood on the toilet paper and frequent blood "squirt" when stooling. The Veteran reported that they were irreducible with frequent flares around once per month; were itchy and uncomfortable; and is compounded by long hours sitting for his job warranting a rating of 10 percent. In an August 2018 appellate brief, the Veteran's representative asserted that a compensable rating was warranted because the Veteran reported in the 2014 NOD that his condition was irreducible with frequent episodes of bleeding and irritation lasting more than 2 weeks at a time; and requested a new examination to assess the current severity. Pursuant to the Board's October 2018 remand, the Veteran was afforded another VA examination in October 2019. The examination was a telephonic interview, which included review of the Veteran's claims folder. The Veteran reported more frequent flare-ups since his last evaluation, bleeding when wiping, itching, and bleeding soilage in the toilet. The Veteran reported using witch hazel pads, and steroid creams; as well as sitz baths during flare-ups twice a month. Based on the Veteran's report, the examiner indicated that the Veteran had internal/external hemorrhoids with persistent bleeding. The examiner noted that the Veteran's hemorrhoids do not impact his ability to work. A June 2020 rating decision granted an increased rating of 20 percent (the highest schedular evaluation allowed under the law for hemorrhoids) effective October 28, 2019 (the date of the last VA examination) due to persistent bleeding. In June 2020, during a VA telephone interview, the Veteran reported that his hemorrhoids were ok. In a September 2020 appellate brief, the Veteran's representative asserted that a 20 percent rating is warranted because the March 2016 VA examiner noted that the Veteran had an external reducible hemorrhoid approximately 0.5 centimeters in diameter; and in August 2016, the Veteran reported having increased hemorrhoids with blood on toilet paper and squirting when stooling. However, the Board finds these contentions are not supported by the probative evidence of record. The representative did not cite any records, communications from the Veteran, or other factors to support a worsening of symptoms or symptoms not contemplated in the rating criteria, and the Board finds none of these in the record, prior to the current granted increased rating. VA benefits may not be granted based on speculative opinions. Lastly, the benefit of the doubt rule is for application when the evidence is in equipoise, which occurs only when there is an approximate balance between the positive and negative evidence. 38 C.F.R. § § 3.102 (2020). That evidence must be both competent and credible. Here, there is no such balance of evidence. After reviewing the evidence discussed above, as well as all other evidence of record, the Board finds that a compensable rating is not warranted for the Veteran's hemorrhoids for the period prior to October 28, 2019. In this regard, the VA examinations prior to October 28, 2019 indicate that the Veteran's hemorrhoid condition did not manifest as large or thrombotic hemorrhoids that were irreducible with excessive redundant tissue, evidencing frequent recurrences; nor was there documented medical evidence of persistent bleeding, secondary anemia, or fissures. Here, the Veteran's hemorrhoids were increased to 20 percent disabling on October 28, 2019, which is the date that the VA examiner determined that the Veteran's hemorrhoids had manifested with persistent bleeding based on his reports and not a physical examination. A 20 percent rating is the highest schedular evaluation available for hemorrhoids and neither the evidence of record, nor the Veteran have indicated that extraschedular consideration is warranted. The Board also considered the Veteran's lay statements. While the Veteran is competent to report symptoms because this requires only personal knowledge as it comes through his senses, he is not competent to identify a specific level of disability as derived from medical examination. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). However, nothing in those statements provides any support for a finding that the Veteran's symptoms are more severe than those revealed by the VA examinations of record. The Board additionally considered whether there are any other Diagnostic Codes which could apply to the Veteran's hemorrhoids. DC 7336 is the only Diagnostic Code applicable to hemorrhoids. The Board therefore finds that there are no other potentially applicable Diagnostic Codes by which a higher rating can be assigned. Therefore, entitlement to a compensable rating for hemorrhoids for the period prior to October 28, 2019 and in excess of 20 percent thereafter is not warranted. In reaching these conclusions, the Board has considered the applicability of the benefit of the doubt doctrine; however, as the preponderance of the evidence is against assignment of a higher rating, that doctrine is not applicable. See 38 U.S.C. § 5107 (b). K.R. Kardian Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Camille NeSmith, 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.