Citation Nr: 21039804 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 10-36 473A DATE: July 1, 2021 ORDER Entitlement to an increased rating in excess of 10 percent for hemorrhoids is denied. REMANDED Entitlement to an increased rating in excess of 10 percent for left knee degenerative joint disease (DJD) is remanded. Entitlement to an initial rating in excess of 20 percent prior to August 21, 2020 and a compensable rating thereafter for left knee limitation of extension is remanded. Entitlement to an increased rating in excess of 10 percent for right knee DJD is remanded. Entitlement to an initial rating in excess of 20 percent prior to August 21, 2020 and a compensable rating thereafter for right knee limitation of extension is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to September 30, 2015 is remanded. FINDING OF FACT Throughout the period on appeal, the Veteran's hemorrhoids have been manifested by intermittent bleeding and pain; but not by persistent bleeding with secondary anemia or fissures. CONCLUSION OF LAW The criteria for an increased rating in excess of 10 percent for hemorrhoids have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 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 November 1978 to November 1998. This matter is before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in April 2004 and August 2014 by a Department of Veterans Affairs (VA) Regional Office (RO). By way of background, in April 2004 the RO granted service connection for left and right knee DJD and assigned 10 percent ratings for each knee. The Veteran filed a substantive appeal that the RO accepted as a notice of disagreement in November 2004, a statement of the case was issued in May 2005, and the Veteran perfected an appeal to the Board in July 2005. In December 2007 the Board remanded the claims for increased ratings for the left and right knee DJD for further development. 38 C.F.R. § 20.1100(b). While the increased rating claims were awaiting recertification to the Board, in July 2013 the Veteran filed a claim for service connection for gastroesophageal reflux disease (GERD) and an increased rating for hemorrhoids. Service connection for GERD and an increased rating for hemorrhoids were denied in an August 2014 rating decision, and the Veteran perfected an appeal to the Board as to those issues in December 2015. These issues were then combined into a single appeal with the pending increased ratings claims for the left and right knees. The Board most recently remanded the issues on appeal for additional development in July 2018. A statement of the case addressing service connection for left and right hip disabilities was issued in May 2020 and the requested examinations were obtained in May 2020 and August 2020. As such, the directives have been substantially complied with and the appeal is again properly before the Board. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). In July 2018 the Board also granted service connection for sleep apnea and denied an increased rating for a right quadriceps tear. As the grant of service connection is a full grant of the benefits sought, that issue is no longer on appeal. Ab v. Brown, 6 Vet. App. 35 (1993). Further, the Veteran did not appeal the denial of the increased rating for the right quadriceps tear, and therefore that issue is also no longer on appeal. 38 C.F.R. § 20.1100. While on remand, the RO granted service connection for GERD in a July 2020 rating decision. As this constitutes a full grant of the benefits sought, that issue is no longer before the Board. Ab, 6 Vet. App. 35. The Board further notes that the Veteran was granted entitlement to a TDIU and Dependents Educational Assistance (DEA) benefits in a May 2020 rating decision, effective September 20, 2015. However, the Veteran's claim for a TDIU is part and parcel of the increased rating claims on appeal. Rice v. Shinseki, 22 Vet. App. 447 (2009). As TDIU was not granted for the entirety of the appellate period for the increased rating claim, the grant does not bifurcate the TDIU issue. Harper v. Wilkie, 30 Vet. App. 356, 35962 (2018). The issue has been recharacterized to reflect the effective date of the current TDIU award. Finally, the Board also notes that the Board initially remanded the issues of entitlement to increased ratings for left and right knee DJD in excess of 10 percent prior to October 2, 2008 and in excess of 20 percent thereafter. However, in a rating decision issued in September 2020, the RO stated that it committed clear and unmistakable error (CUE) in failing to assign a separate rating for limitation of extension in both knees. See Young v. Wilkie, 31 Vet. App. 51 (2019). Accordingly, the RO assigned a separate 20 percent rating for limitation of extension of the left and right knees from October 2, 2008 to August 21, 2020, and a noncompensable rating thereafter. The RO then amended the ratings assigned for the left and right knee DJD to 10 percent throughout the period on appeal. The increased rating claims for the left and right knee disabilities have been recharacterized to reflect the assignment of the separate ratings for left and right knee limitation of extension and the adjustment of the ratings for left and right knee DJD. Id. Increased Ratings Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. 1. Entitlement to an increased rating for hemorrhoids. The Veteran's hemorrhoids are rated under Diagnostic Code 7336. 38 C.F.R. § 4.114, Diagnostic Code 7336. Under Diagnostic Code 7336, a 10 percent rating is warranted for hemorrhoids that are large and thrombotic, irreducible, with excessive redundant tissue and evidencing frequent recurrences. Id. A 20 percent rating is warranted for internal or external hemorrhoids with persistent bleeding and secondary anemia, or with fissures. Id. During the period at issue, the Veteran was provided with VA examinations in June 2013 and August 2020. In June 2013, the Veteran reported infrequent recurrence of the hemorrhoids and that they were reducible. The Veteran denied bleeding at the time, but reported protrusion and painful bowel movements. On examination the Veteran was found to have no hemorrhoids, fissures, or other abnormalities. The examiner stated the Veteran had mild or moderate internal or external hemorrhoids. In August 2020 the Veteran reported regular hemorrhoids causing pain, bleeding, and itching. The examiner noted that the Veteran declined a physical examination because he was asymptomatic at the time. Overall, the examiner stated that the Veteran had mild or moderate internal or external hemorrhoids. The examiner explained that since the Veteran reported that he was asymptomatic n, the hemorrhoids were likely mild to moderate as they were not visible or actively bleeding at all times. There is no evidence that the above examiners were either not competent or credible. Further, both assessments were based on the Veteran's own reports of his symptoms and a review of the medical evidence, and the June 2013 report was further based on an objective examination of the Veteran. As such, the Board finds that each respective examination report is entitled to significant probative weight as to the severity of the Veteran's disability during the period on appeal. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). VA and private treatment records reflect on-going treatment for hemorrhoids throughout the period on appeal, with reports of intermittent bleeding and painful stools. Treatment records from 2015 to 2016 also note a medical history of fissures, but contain no formal diagnoses of fissures associated with the Veteran's hemorrhoids. A September 2018 colonoscopy report provided a diagnosis of grade 1 to 2 hemorrhoids, but noted no other abnormalities. None of the treatment records note that the Veteran experienced persistent bleeding or was anemic. Based on the foregoing, the preponderance of the evidence is against a finding that a rating in excess of 10 percent is warranted in this case. While the evidence of record reflects reports of intermittent bleeding, none of the evidence indicates that the bleeding is persistent. Indeed, the Veteran himself stated at the August 2020 examination that he was completely asymptomatic at the time, thus indicating that the Veteran's bleeding is not persistent. This is corroborated by the Veteran's treatment records which do not reflect routine reports of bleeding. Further, even if the Veteran's bleeding were to be considered persistent, there is no evidence that the Veteran is anemic. Therefore, an increased rating based on persistent bleeding with secondary anemia is not warranted. Concerning the presence of fissures, the Board notes that treatment records from 2015 and 2016 note a past medical history of anal fissures. However, these notations appear to be the Veteran's report of his own medical history, and not an assessment based on the examination of a medical professional. There is no evidence in the Veteran's treatment records of a formal diagnosis of a fissure at any point, other than by history. As such, the notations of a history of fissures are entitled to only minimal probative weight. The June 2013 examiner noted no abnormalities on objective examination. The August 2020 examiner then stated that as the Veteran reported he was asymptomatic it was unlikely that the hemorrhoids were more severe than mild to moderate or were accompanied by other manifestations. See DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 710 (32D ED. 2012) (defining an "anal fissure" as a painful linear ulcer at the margin of the anus). Finally, a September 2018 colonoscopy noted only grade 1 to 2 hemorrhoids, with no other abnormalities. Based on the above, the preponderance of the evidence is against a finding that the Veteran's hemorrhoids are manifested by fissures. The notations of a medical history of fissures, without a supporting formal diagnosis based on an objective examination, are outweighed by the June 2013 examiner's findings, the findings of the September 2018 colonoscopy, and the August 2020 examiner's opinion, which was based on the Veteran's own report of his symptoms at the time of the examination. As such, the Board finds that the Veteran's hemorrhoids do not more nearly approximate the level of severity contemplated by higher ratings for hemorrhoids. Therefore, a rating in excess of 10 percent is not warranted in this case. 38 C.F.R. §§ 4.3, 4.7, 4.114, Diagnostic Code 7336. The Veteran has only been diagnosed with hemorrhoids, which is specifically covered by Diagnostic Code 7336. As such, it would be inappropriate to rate this disability by analogy to any other Diagnostic Codes. Copeland v. McDonald, 27 Vet. App. 333, 33637 (2015) ("the Court reiterates that when a condition is specifically listed in the Schedule, it may not be rated by analogy"). Thus, consideration of any alternative Diagnostic Codes is not warranted in this case. All potentially applicable Diagnostic Codes have been considered. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 36970 (2017). The preponderance of the evidence is against an increased rating in excess of 10 percent for the Veteran's service-connected hemorrhoids. As such, the benefit-of-the-doubt doctrine is inapplicable. 38 C.F.R. § 4.3. For these reasons, the claim is denied. REASONS FOR REMAND 1. Entitlement to increased ratings for left and right knee disabilities. Effective February 7, 2021, VA amended the regulations governing the rating of musculoskeletal disabilities. 85 Fed. Reg. 76,453 (Nov. 30, 2020) (eff. Feb. 7, 2021). Of particular import to this case, VA completely revised the rating criteria contained in Diagnostic Code 5257, governing instability of the knee. Id. at 76,463. Where the law or regulations governing a claim are changed while the claim is pending, the version most favorable to the claimant applies (from the effective date of the change), absent Congressional intent to the contrary. Karnas v. Derwinski, 1 Vet. App. 308, 31213 (1991); see VA Gen. Coun. Prec. 7-2003 (Nov. 19, 2003) (stating that new provisions should generally be applied to pending claims provided there is no express intent to the contrary and the application of the new provision does not result in impermissible retroactive effects). In this case, the Veteran has intermittently reported that he experiences giving way and instability in both of his knees. Further, the most recent VA examination noted that the Veteran uses braces for both of his knees. Thus, the Veteran has reported symptoms which may warrant additional ratings for instability of the knee under both the pre-amendment and post-amendment rating criteria. However, as the criteria for rating knee instability have been completely revised, it is not clear based on the evidence currently of record whether an increased rating for the reported left or right knee instability is possible based on the new rating criteria. As such, in order to ensure that the Board is able to accurately rate the Veteran's left and right knee disabilities a remand is necessary for a new examination which makes findings consistent with the revised rating criteria for instability of the knee. 2. Entitlement to a TDIU prior to September 30, 2015. Concerning entitlement to a TDIU, the Board finds that any determinations with respect to the remanded claims would materially affect a determination concerning a TDIU. As such, it is inextricably intertwined with the increased rating claims being remanded and must therefore be remanded as well. Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination with an appropriate medical professional to determine the current severity of his left and right knee disabilities. The examiner is asked to provide the following: (a) Report the extent of the symptoms of the left and right knee disabilities in accordance with VA rating criteria. (b) Conduct testing for pain on active motion, passive motion, weightbearing, and non-weightbearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, an explanation must be provided. (c) Render specific findings as to whether there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination. (d) State whether the examination is taking place during a flare-up. If not, the examiner should ask the Veteran to describe the flare-ups, including: frequency, duration, characteristics, severity, and/or extent of functional impairment he experiences. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Wendell, 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.