Citation Nr: 21040771 Decision Date: 07/06/21 Archive Date: 07/06/21 DOCKET NO. 16-15 128 DATE: July 6, 2021 ORDER Entitlement to a compensable rating for hemorrhoids is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. Throughout the appeal period, the Veteran's hemorrhoids have been mild or moderate in severity, with evidence that such were reducible and without evidence of excessive redundant tissue, persistent bleeding, fissures, or secondary anemia. 2. The Veteran does not meet the criteria for a TDIU, and the evidence does not show that his service-connected disabilities render him unable to secure and follow substantially gainful employment such that referral for extraschedular consideration is warranted. CONCLUSIONS OF LAW 1. The criteria for entitlement to a compensable rating for hemorrhoids have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.114, Diagnostic Code 7336. 2. The criteria for entitlement to a TDIU have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service in the United States Army from June 1972 to June 1975. He testified at a Travel Board hearing in October 2018. A transcript of the hearing is of record. In March 2019, the Board remanded the issues noted above as well as service connection for a left knee and low back disorder. By an August 2020 rating decision, the RO granted service connection for left knee and low back disorders. Therefore, these issues are no longer before the Board. The Board also notes for clarification purposes that the Veteran was previously represented by a private attorney. See e.g. November 2011 VA Form 21-22a. However, in March 2016, he filed a new VA Form 21-22a, designating The American Legion as his representative. In September 2020, the Veteran's previous attorney resubmitted the fee agreement dated in October 2011. However, this was for the purpose of advising VA that there was no fee to be paid. The Veteran's current representative has been included on all correspondence from VA and has also submitted an Appellate Brief in support of his appeal. Therefore, the Board does not find any privacy or due process violation and will proceed to adjudicate the Veteran's claims. 1. Entitlement to a compensable rating for hemorrhoids. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C. § 1155. The evaluation of a service-connected disorder requires a review of a veteran's entire medical history regarding that disorder. 38 U.S.C. § 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When a reasonable doubt arises regarding the degree of disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Throughout the appeal period, the Veteran has been in receipt of a noncompensable rating for his service-connected hemorrhoids under Diagnostic Code 7336. Under Diagnostic Code 7336, hemorrhoids are assigned a zero percent rating where there is evidence of mild to moderate symptomatology. A 10 percent rating is warranted where there is evidence of large or thrombotic hemorrhoids, which are irreducible, with excessive redundant tissue, evidencing frequent recurrences. Finally, a 20 percent rating, the maximum schedular rating, is warranted where hemorrhoids are present, with persistent bleeding and secondary anemia, or with fissures. See 38 C.F.R. § 4.114, Diagnostic Code 7336. Words such as "mild," "moderate," "moderately severe," and "severe" are not defined in the Rating Schedule or in the regulations. Consequently, the Board must evaluate all of the evidence to ensure that its decisions are "equitable and just." 38 C.F.R. § 4.6. The Veteran was afforded a VA examination for his hemorrhoids in March 2012. At the time, he reported a history of swelling and pain which occurred every several months. His treatment did not require taking continuous medication. The examiner opined that the Veteran's internal hemorrhoids were mild, and at worst moderate, in severity. There were no large or thrombotic, irreducible hemorrhoids with excessive redundant tissue evidencing frequent recurrences; no persistent bleeding; and no anemia or fissures. There was also no rectal stricture, impairment of rectal sphincter control, rectal prolapse, or pruritus ani. On examination no external hemorrhoids were found only skin tags. The Veteran was afforded another VA examination in July 2014. On examination, the Veteran endorsed flare-ups in the form of burning pain, itching, and blood when he would wipe following bowel movements. He treated his hemorrhoids with preparation suppositories and ProctoFoam. The examiner again found that the Veteran's hemorrhoids were mild, and at most moderate, in severity. Small or moderate external hemorrhoids were noted on examination. The Veteran's VA treatment records document complaints related to hemorrhoids. For example, VA treatment records from October 2016 document that the Veteran was given a stool softener and cream for his hemorrhoid pain. He was advised to increase his water and vegetable intake as well as soak in a bathtub with lukewarm water for relief during flare-ups. VA treatment records from April 2017 document that the Veteran complained of internal hemorrhoids that were painful. He reported having hemorrhoid surgery three times (last being in 1996). See also February 2017 VA Treatment Records. VA treatment records from May 2017 and July 2017 note a history of hemorrhoids with need for sitz bath. At the time, the Veteran endorsed hemorrhoidal bleeding. VA treatment records from February 2018 indicate that the Veteran requested rectal suppositories for hemorrhoidal flare-ups. He believed the suppositories worked better than the cream he used. At his Board hearing in October 2018, the Veteran reported taking stool softeners and cream for his hemorrhoids. He reported a worsening of his symptoms since the July 2014 VA examination. VA treatment records from February 2019 document that the Veteran has a history of hemorrhoids with a recent flare-up in the 3-4 days prior with bulging tissue after straining. The records indicate that the Veteran's hemorrhoids are managed by hydrocortisone cream. Based on his reports of worsening, the Veteran was afforded an additional VA examination for his hemorrhoids in October 2019. The Veteran endorsed symptoms of pain, itching, and bleeding that are relieved with medication, including Hydrocortisone Acetate 25mg suppository (as needed). The examiner again opined that the Veteran had mild non-thrombosed external and internal hemorrhoids. The hemorrhoids are not large with excessive redundant tissue; and there is no persistent bleeding with anemia or fissures. There is also no anal/perianal fistula; rectal stricture; impairment of rectal sphincter control; or rectal prolapse. Pruritis ani (anal itching) was noted. After having considered all of the evidence of record, the Board finds that a compensable rating for hemorrhoids is not warranted at any time during the appeal period. As noted above, a 10 percent rating is warranted where there is evidence of large or thrombotic hemorrhoids, which are irreducible, with excessive redundant tissue, evidencing frequent recurrences. In this instance, at no point during the appeal period has the Veteran's hemorrhoids been characterized as large or thrombotic. In addition, there was no indication of excessive redundant tissue, evidencing frequent recurrences. Moreover, there is absolutely no evidence to indicate that the Veteran's hemorrhoids have manifested by persistent bleeding and secondary anemia, or with fissures. The evidence shows that, at worst, the Veteran's hemorrhoids were characterized as moderate in nature. They have caused anal itching, pain, and burning, but are treatable with suppositories. These symptoms are not of the type or severity to warrant a 10 percent rating. The Board acknowledges that by advancing this appeal, the Veteran believes a higher rating is warranted. He is competent to state the symptoms related to his hemorrhoids and as much are documented within the VA treatment records and examination reports. Indeed, the VA examination reports are almost exclusively based on the Veteran's lay statements regarding his symptoms. Thus, in this instance, the Board affords the most probative weight to the medical evidence of record. The examiners had the opportunity to consider the Veteran's reports and physical examinations. It is also worth noting that the Veteran himself has not stated that he experiences symptoms consistent with the 10 percent rating criteria or higher. That is, he has not contended that his hemorrhoids are large, thrombotic, irreducible, that he has excessive redundant tissue, persistent bleeding, anemia, or fissures. As such, the Board finds that a compensable rating for service-connected hemorrhoids is not warranted at any time during the appeal period. The preponderance of the evidence is against the claim. The benefit-of-the-doubt rule does not apply, and the claim must be denied. 2. Entitlement to a TDIU. Entitlement to a TDIU requires the presence of impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. A TDIU may be assigned to a veteran who meets certain disability percentage standards and is "unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities." 38 C.F.R. § 4.16(a). Alternatively, if a claimant is found to be unemployable because of service-connected disabilities but does not meet the percentage standards set forth in § 4.16(a), the rating authority should refer the matter to the director of the Compensation and Pension Service for extraschedular TDIU consideration. 38 C.F.R. § 4.16(b). However, the Board cannot consider entitlement to TDIU on an extraschedular basis in the first instance, but it is required to ensure that all cases where there is evidence of unemployability due to service connected conditions are referred to the Director for initial consideration under 38 C.F.R. § 4.16(b). Bowling v. Principi, 15 Vet. App. 1 (2001). To qualify for a schedular TDIU, if there are two or more service-connected disabilities, at least one shall be rated at 40 percent or more, and there shall be sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Prior to April 14, 2016, the Veteran was service-connected for left knee degenerative arthritis, rated as 10 percent disabling; lumbar strain, rated as 10 percent disabling; and hemorrhoids, rated as noncompensable. His combined rating was 20 percent. From April 14, 2016 to May 16, 2017, in addition to his left knee, low back, and hemorrhoids, the Veteran was also service-connected for tinnitus, rated as 10 percent disabling; bilateral hearing loss, rated as noncompensable; and pseudofolliculitis barbae, rated as noncompensable. His combined rating was 30 percent. Since May 16, 2017, the Veteran has also been service-connected for tender residual scarring of the face, rated as 10 percent disabling; and residual scarring of the face, rated as 10 percent disabling. His combined rating is 40. Therefore, he has not met the schedular criteria for TDIU at any point during the appeal period. Although the Veteran does not meet the scheduler criteria for consideration of TDIU, the Board must also consider whether referral for extraschedular consideration is warranted. Under the extraschedular provision of 38 C.F.R. § 4.16(b), a claimant must show that he is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities in order to warrant a referral to the Director, Compensation Service, for extraschedular consideration. The Board finds that the evidence of record does not substantiate a reasonable possibility that the Veteran is unemployable by reason of his service-connected disabilities alone. Ray v. Wilkie, 31 Vet. App. 58 (2019) (holding that the initial extraschedular referral decision under § 4.16(b) addresses whether there's sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable by reason of his or her service-connected disabilities). In Ray, the United States Court of Appeals for Veterans Claims (Court) defined "substantially gainful employment," holding that there is both an economic and a noneconomic component. The economic component means "an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person," while the noneconomic component requires consideration of a veteran's ability to secure or follow that type of employment. Id. The Veteran's October 2012 Application for Increased Compensation Based on Unemployability indicates that he last worked full time as a janitor. He has a high school diploma with two years of college. At his Board hearing, he also reported a history of driving trucks. See Board Hearing Transcript, pg. 9. Thus, the evidence shows that the Veteran has experience in both sedentary and physical employment. Merriam-Webster online dictionary defines "sedentary" as (a) "doing or requiring much sitting" or (b) "not physically active." https://www.merriam-webster.com/dictionary/sedentary. The Board employs this definition in the current analysis. See Withers v. Wilkie, 30 Vet. App. 139, 148 (2018). It is worth nothing that, at his Board hearing, the Veteran reported that he stopped working "because of my heart condition, COPD, and the problem with my knee. And I have this oxygen problem. The blood-the oxygen in my blood." Of the disabilities described by the Veteran as causing unemployability, the Board notes that he is only service-connected for his left knee. That is, he is not service-connected for a heart condition, COPD, or blood issue. The Veteran was afforded a VA examination for his left knee in March 2012. At that time, he denied experiencing flare-ups and instead reported pain on the lateral side of his left knee. He had full range of motion on examination and there was no objective evidence of painful motion. He had full muscle strength in knee flexion and extension. It was noted that prolonged walking and standing caused pain in the left knee. The examiner opined that the Veteran's left knee would not impact his ability to work. On VA examination in July 2014, the examiner opined that the Veteran's hemorrhoids would negatively impact his ability to work but did not provide any rationale or describe such impairment. Later and earlier VA examination reports indicate that the Veteran's hemorrhoids would not impact his ability to work. See e.g. March 2012 VA Examination Report; October 2019 VA Examination Report. An October 2019 VA examination report shows that the Veteran's low back pain interfered with standing, sitting, lying flat, and ambulating. It was noted that the Veteran uses a cane for his back strain and left knee arthritis. Despite the cane, however, his VA treatment records show that he remains ambulatory. In addition, VA treatment records, including in December 2019, how that the Veteran was able to bathe, dress, eat, use the toilet, move around in bed, transfer himself, move around indoors, and transport himself (drive) without any assistance. The evidence does not show that the Veteran's hearing loss, tinnitus, scarring, or pseudofolliculitis barbae impacts his ability to work. The Board has considered the impairment caused by his low back and left knee and acknowledges that these disabilities cause some level of impairment. Indeed, the Veteran's VA examination reports show that his low back and left knee cause pain with standing and sitting. The assignment of a rating evaluation is itself recognition of industrial impairment. Significantly, the evidence of record does not reflect that the Veteran's service-connected knee and back disabilities manifested in symptoms of such severity as to impact his employability beyond what is contemplated by the assigned schedular ratings. The severity of the Veteran's service-connected symptomatology was specifically contemplated by assigned evaluations. In accordance with the Court's holding in Ray, the Board has considered the economic and noneconomic components of the Veteran's TDIU claim. The evidence of record shows that the Veteran has experience with driving trucks. Although he reported his left knee impacted his ability to use a clutch during his hearing, this would not preclude him from driving an automatic transmission vehicle. Specifically, the Veteran could continue to drive a truck for a delivery service, such as Amazon or UPS, which has automatic vehicles among their fleets. These jobs would also allow for the Veteran to get up and move his low back often. He would not be required to either sit or stand for an extended period of time. Although the Veteran contends he is unemployable, he himself has admitted that almost all of the impairments causing his unemployability are not service-connected. After reviewing the functional impairments caused by the Veteran's service-connected disabilities alone, the Board finds that the Veteran would be able to secure and follow substantially gainful employment. For the above reasons, the evidence of record does not support a conclusion that the Veteran's service-connected disabilities alone make him unemployable. Thus, there is no basis to refer the Veteran's case for consideration of an extraschedular evaluation. Id. at 1354 ("[A]pplicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner"). Referral for extraschedular consideration is not warranted. Accordingly, the Board finds that the preponderance of the evidence is against the Veteran's claim. The benefit-of-the-doubt rule does not apply, and the issue of entitlement to a TDIU must be denied. See 38 U.S.C. § 5107. H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Martha R. Luboch, 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.