Citation Nr: 21040372 Decision Date: 07/03/21 Archive Date: 07/03/21 DOCKET NO. 12-32 793 DATE: July 3, 2021 ORDER Entitlement to a compensable disability rating prior to March 24, 2015, and to a disability rating greater than 30 percent thereafter, for fistula in ano is denied. Entitlement to a separate zero percent rating effective September 3, 2008, for hemorrhoids associated with fistula in ano is granted. FINDINGS OF FACT 1. The record evidence shows that, prior to March 24, 2015, the Veteran's fistula in ano more nearly approximated symptoms manifested by healed or slight impairment of sphincter control without leakage. 2. The record evidence shows that, effective March 24, 2015, the Veteran's anal fistula more nearly approximate symptoms manifest by occasional moderate leakage and necessitating wearing of pads. 3. The record evidence shows that, effective September 3, 2008, the Veteran's hemorrhoids associated with anal fistula more nearly approximate symptoms manifested by mild to moderate external and internal hemorrhoids. CONCLUSIONS OF LAW 1. The criteria for a compensable disability rating prior to March 24, 2015, and to a disability rating greater than 30 percent thereafter, for fistula in ano have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.114, Diagnostic Code (DC) 7332, 7335. 2. The criteria for a separate zero percent rating effective September 3, 2008, for hemorrhoids associated with fistula in ano have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.114, DC 7336. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from January 1980 to January 1984. In January 2019, the Board denied staged ratings for the service-connected fistula in ano. The Veteran, through an attorney, and VA's Office of General Counsel appealed the Board's January 2019 decision to the United States Court of Appeals for Veterans Claims (Court) by filing a Joint Motion for Remand (Joint Motion). In October 2020, the Court issued an Order granting the Joint Motion, vacating the Board's January 2019 decision with respect to the currently appealed claims, and remanding the matter to the Board for further action. In October 2016, the Veteran testified at a Board hearing before a Veterans Law Judge who subsequently retired. The Board notified the Veteran of this in March 2021 and requested that he respond within 30 days if he wanted a second hearing in accordance with 38 U.S.C. § 7107(c) and 38 C.F.R. § 20.717. There is no record of a response. Thus, the Board will proceed with adjudication of this appeal. Increased Rating 1. Entitlement to a compensable disability rating prior to March 24, 2015, and to a disability rating greater than 30 percent thereafter, for fistula in ano is denied. 2. Entitlement to a separate zero percent rating effective September 3, 2008, for hemorrhoids associated with fistula in ano is granted. The Veteran maintains that he is entitled to higher staged ratings for his service-connected anal fistula. At his personal hearing in in October 2016, he maintained that his condition is worse than currently rated by the VA. He indicated that he experienced continuous anal leakage which occurs about three times a week. He also indicated that he works in patient transportation for VA. He stated that he has missed work a couple of times when he had problems with leakage and had to go home and change his clothing. He indicated that he was too embarrassed to tell the examining physician of the leakage at his last examination. The record evidence shows that the Veteran underwent a VA examination in June 2009. At that time, he indicated that he currently has pain, discomfort, itching and bleeding. He also reported problems with irritation of the sphincter with passing stool, as well as soreness to anus/sphincter after wiping post defecation. He also complained of recurring pilonidal cyst. Examination revealed the presence of external hemorrhoids. No anorectal fistula and no anal stricture were present. No impairment of the sphincter was noted. He lost 12 weeks of work in the last 12 month period due to anal discomfort. The examiner found no current impairment of sphincter control. The diagnosis was hemorrhoids associated with impairment of sphincter control. VA treatment records dated during the appeal period indicate that he received clinical attention for hemorrhoids. A September 2008 VA treatment record revealed non-thrombosed external hemorrhoids. During a clinical visit in June 2012, he indicated that he had a history of blood in his stool for years, sometimes only with wiping. He also indicated that he had a colonoscopy in 2009 with hemorrhoids. The assessment was hemorrhoids. In October 2014, he was seen for complaints of blood in his stool. An emergency department note dated in October 2014 indicates that a rectal examination revealed no mass or blood. He had a colonoscopy on March 24, 2015, which revealed that he had anal leakage. A 2016 colonoscopy showed internal/external hemorrhoids with no other abnormalities. A February 2018 VA treatment record show he endorsed anal bleeding associated with bowel movements dating back to the 1980s as well as small amounts of blood with stools, sometimes dripping blood into the toilet bowl. Rectal examination revealed good tone and no blood. The assessment was moderate size, right posterior internal and external hemorrhoids, and left posterior external hemorrhoids. He had another VA examination for evaluation of rectum and anal conditions in November 2017. He indicated that his condition had worsened since the date of its onset; he noted that he currently wears diapers and changes 1 to 2 times per day. It was noted that there had not been much change in leakage from the fistula. The VA examiner noted that the Veteran had anal fistula with occasional moderate leakage that necessitates wearing a pad. On physical examination, the VA examiner noted that the Veteran had an anal fissure which he described as being a small quarter size skin defect at the 9 o'clock position and no leakage. There was no diagnosis or findings related to hemorrhoids. The VA examiner opined that the Veteran had a rectal cyst removed which developed into an anal fistula; however, no involuntary bowel movements were reported. This examiner noted that the Veteran had intermittent fistula leakage that required the wearing of diapers that must be changed 1 to 2 times per day. The Board finds that the preponderance of the evidence is against granting the Veteran's claim of entitlement to a compensable disability rating prior to March 24, 2015, and to a disability rating greater than 30 percent thereafter, for fistula in ano. Prior to March 24, 2015, the preponderance of the evidence does not reflect constant slight, or occasional moderate leakage due to impairment of sphincter control, nor occasional involuntary bowel movements, necessitating wearing of a pad. During this period, the anal fistula symptoms showed a condition that was healed or slight, without leakage. Significantly, during the June 2009 VA examination, the VA examiner noted that there was no impairment of sphincter control. No anorectal fistula and no anal stricture were present. The VA examiner stated that the Veteran's current condition is due to hemorrhoids and not impairment of sphincter control. As such, a compensable evaluation under DCs 7332 and 7335 is not warranted. 38 C.F.R. § 4.114. As for other relevant DCs, there is no evidence of stricture of the rectum or anus or a prolapsed rectum to warrant consideration under DCs 7333 or 7334. Id. The Board also finds the evidence of intermittent bleeding of the hemorrhoids since September 3, 2008, to be consistent with mild to moderate symptoms as contemplated by a zero percent (non-compensable) rating in DC 7336. The hemorrhoid symptoms have not been consistent during the period on appeal. While there have been episodes of bleeding, the hemorrhoids have not been described to include persistent bleeding with secondary anemia, or with fissures. Furthermore, the hemorrhoids have not been described as large or thrombotic, irreducible, with excessive redundant tissue, evidencing frequent recurrence. Although he experiences hemorrhoids, the rating criteria for DC 7336 specifically include the conjunctive "with," and "or," so that the symptoms must be present in conjunction with additional criteria listed for each higher rating. See Melson v. Derwinski, 1 Vet. App. 334 (1991) (finding use of the conjunctive in a statutory provision meant that all of the conditions listed in the provision must be met); compare Johnson v. Brown, 7 Vet. App. 95 (1994) (finding only one disjunctive "or" requirement must be met in order for an increased rating to be assigned). Based on the foregoing, the preponderance of the evidence is against a finding that the Veteran's hemorrhoids associated with anal fistula warrant a compensable rating. Although the Veteran contended at his Board hearing in October 2016 that he experiences continuous anal leakage about three times a week, and that he has missed work a couple of times when he has had problems with leakage and had to go home and change, the Board finds that the Veteran's statements made for compensation purposes appear to describe a greater severity of symptoms than what is identified in medical records. The severity of the symptoms described by the Veteran also appear less consistent with the severity of symptoms identified in VA treatment records and during his VA examination in November 2017. At that time, the VA examiner indicated that no current leakage was noted on examination. The VA examiner opined that the Veteran had a rectal cyst removed which developed into an anal fistula; however, no involuntary bowel movements were reported. The examiner noted that the Veteran had occasional moderate fistula leakage which requires the wearing of diapers that must be changed 1 to 2 times per day. The Board finds that these symptoms are contemplated by the currently assigned 30 percent rating under DC 7335-7332. Based on the foregoing, since March 24, 2015, the symptoms of the Veteran's impairment of rectal sphincter control with fecal incontinence as a result of anal fissures are best described as occasional involuntary bowel movements necessitating the wearing of a pad. A higher rating is not warranted as the preponderance of the evidence does not show nor do the medical treatment providers describe the Veteran's anal fistula symptoms as showing extensive leakage and fairly frequent involuntary bowel movements, or complete loss of sphincter control. Furthermore, he has not endorsed involuntary bowel movements although he has endorsed leakage which the November 2017 VA examiner described as occasional and moderate. Although he had rectal bleeding and discharge, it has not been described as involving both extensive leakage and frequent involuntary bowel movements as is required for a higher rating. Therefore, the Board finds that a disability rating greater than 30 percent effective March 24, 2015, for anal fistula is not warranted. The Veteran is competent to report symptomatology relating to his disability because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470. To the extent that he alleges greater severity, the Board finds that the probative value of his allegations is outweighed by the examination findings as well as medical treatment records. Competent evidence concerning the nature and extent of his disability has been provided by trained health care professionals during the current appeal and provided relevant medical findings in conjunction with the examinations and treatment records. In this regard, the medical findings (as provided in the examinations and treatment reports) directly address the evaluation criteria for this disability. Accordingly, the Board finds that the medical examination opinions and findings, in conjunction with the medical treatment records, are of greater probative value than the Veteran's lay allegations regarding the severity of his disability. In conclusion, the preponderance of the evidence is against finding that the service-connected anal fistula more nearly approximates the schedular criteria for higher staged ratings than currently assigned during either period of time at issue in this appeal. In contrast, the record evidence supports assigning a separate zero percent rating effective September 3, 2008, for hemorrhoids associated with fistula in ano. The Veteran otherwise has not identified or submitted any evidence demonstrating his entitlement to increased ratings for his service-connected anal fistula or a compensable disability rating for his hemorrhoids associated with his service-connected anal fistula. Thus, the Board finds that the criteria for a compensable disability rating prior to March 24, 2015, and to a disability rating greater than 30 percent thereafter, for fistula in ano have not been met and the criteria for a separate zero percent rating effective September 3, 2008, for hemorrhoids have been met. MICHAEL T. OSBORNE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Connally, 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.