Citation Nr: 22014606 Decision Date: 03/14/22 Archive Date: 03/14/22 DOCKET NO. 17-34 449 DATE: March 14, 2022 ORDER Entitlement to a compensable rating for hemorrhoids is denied. REMANDED Entitlement to a compensable evaluation for degenerative changes with chondromalacia patella, right knee, with limitation of extension, prior to September 10, 2018, is remanded. Entitlement to a rating in excess of 30 percent for total right knee arthroplasty effective from November 1, 2019. Entitlement to a compensation for total disability based on individual unemployability (TDIU) is remanded. FINDING OF FACT The most probative evidence does not reflect large or thrombotic, irreducible hemorrhoids with excessive redundant tissue evidencing frequent recurrences or hemorrhoids with persistent bleeding and with secondary anemia or with fissures. CONCLUSION OF LAW The criteria for entitlement to a compensable rating for hemorrhoids have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.114, Diagnostic Code 7336. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1972 to November 1976 and from November 1980 to July 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2016 rating decision by the Department of Veterans Affairs (VA). In December 2018, the RO issued a rating decision that awarded a temporary 100 percent based on surgical or other treatment necessitating convalescence. The RO also assigned a 30 percent rating for the Veteran's knee effective from November 1, 2019. The period of the appeal in which the Veteran was in receipt of the maximum schedular rating for his right knee disability is not before the Board. In December 2019, the Veteran appeared at a Board Hearing. The transcript of that hearing has been associated with the Veteran's claims file. The Judge who conducted that hearing has left the Board. In December 2021, the Veteran was informed that the Judge who conducted his hearing is no longer employed by the Board and the Veteran could request an additional hearing. The Board notes that the Veteran did not request an additional hearing. Therefore, the Board can proceed with the adjudication of hs remaining claims on appeal. In March 2020, the case came before the Board. The Board awarded entitlement to service connection for allergic rhinitis and denied entitlement to service connection for erectile dysfunction. In addition, the Board found that new and material evidence was not submitted to reopen the claim for service connection for a cervical strain. Lastly, the Board remanded the Veteran's claims for increased ratings for a right knee disability and hemorrhoids. In May 2021, the RO issued a rating decision that awarded service connection for impairment of sphincter control with an evaluation of 30 percent effective April 13, 2021. 1. Entitlement to a compensable rating for hemorrhoids The Veteran contends that his hemorrhoids warrant an increased rating throughout the course of the appeal. Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degrees of disability specified by the schedule are considered adequate to compensate veterans for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. In general, when 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). However, staged ratings are also appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in this decision is, therefore, undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." Butts v. Brown, 5 Vet. App. 532, 538 (1993). One Diagnostic Code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis, and demonstrated symptomatology. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). Any change in a diagnostic code by VA must be specifically explained. Id. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). VA received the Veteran's claim for an increased rating on February 16, 2016. The Veteran's disability was rated as noncompensable according to Diagnostic Code 7336. The medical evidence of record deals directly with the Veteran's currently diagnosed disability and the evidence of record does not support consideration of any additional Diagnostic Codes. Under Diagnostic Code 7336, a noncompensable rating is warranted for external or internal hemorrhoids with mild or moderate symptomatology. A 10 percent rating is warranted when hemorrhoids are large or thrombotic and irreducible, with excessive redundant tissue evidencing frequent recurrences. A maximum 20 percent rating is warranted when there is persistent bleeding and with secondary anemia, or with fissures. As to a current diagnosis, the Board notes that the Veteran's disability has been diagnosed as hemorrhoids. As to the Veteran's lay statements, the Board notes that the Veteran testified that he experiences frequent episodes of hemorrhoids. Turning to the medical evidence at hand, the Board notes that the Veteran attended a VA examination for this issue in April 2021. The Veteran reported that he experiences bleeding twice a month with painful leakage. Upon examination, the examiner indicated that the Veteran exhibited mild or moderate hemorrhoids. The Board has also reviewed the Veteran's treatment records. After a review of the Veteran's records the Board finds that the Veteran's records are silent for a medical opinion that has found that the Veteran exhibits hemorrhoids that are large or thrombotic and irreducible, with excessive redundant tissue evidencing frequent recurrences. The Board further finds that the evidence of record is silent for a medical opinion that has found that the Veteran exhibits persistent bleeding and with secondary anemia, or with fissures. In sum, the Board finds that the Veteran's disability has remained consistent and an increased rating is not warranted. After a review of the record, the medical evidence of record does not show that the Veteran exhibits hemorrhoids that are large or thrombotic and irreducible, with excessive redundant tissue evidencing frequent recurrences. In addition, the evidence of record does not show that he Veteran exhibits persistent bleeding with secondary anemia, or with fissures. The Board has considered the Veteran's contentions; however, the Veteran's contentions are outweighed by the medical examiners in this case who have not found that the Veteran's symptomatology meets the criteria for an increased rating. For the above stated reasons, the most persuasive evidence is against the claim, the benefit-of-the-doubt doctrine does not apply, and the claim for entitlement to a compensable rating for hemorrhoids, must be denied. REASONS FOR REMAND 2. A compensable evaluation for degenerative changes with chondromalacia patella, right knee, with limitation of extension is remanded. 3. Entitlement to a rating in excess of 30 percent for total right knee arthroplasty effective from November 1, 2019, is remanded. In March 2020, the Board remanded the Veteran's claim because the Veteran reported experiencing flareups at his September 2016 VA examination, but the examiner was unable to provide range of motion estimates during a flareup. Consequently, the Board requested the VA examiner to address the level of the Veteran's functional loss prior to his knee replacement surgery. In April 2021, the Veteran attended a VA examination, but the examiner did not provide a medical opinion that addressed the lost range of motion that the Veteran experienced prior to his knee replacement surgery. Accordingly, the Board finds this examination report to be inadequate and that there has not been substantial compliance with the remand orders; therefore, the matter must be remanded once again for compliance with the previous order/completion of the actions sought. Stegall v. West, 11 Vet. App. 268 (1998) (holding that where the remand orders of the Board are not satisfied the Board itself errs in failing to ensure compliance). 4. TDIU The Board acknowledges that the Veteran's claims for increased ratings include a claim for TDIU when it is expressly raised by the Veteran or reasonably raised by the record. After a review of the record, the Board finds that the claim for TDIU has been raised by the record. Therefore, the Board finds that the issue of entitlement to TDIU has been raised by the record and is part and parcel to the Veteran's increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447. Thus, this issue must be remanded for further development and then adjudication by the RO. The matters are REMANDED for the following action: 1. Obtain the Veteran's VA treatment records from May 10, 2021, to the present. 2. Schedule the Veteran for an additional VA examination to determine the severity of his right knee disability. The VA examiner must provide a medical opinion that addresses the level of functional loss that the Veteran experienced during a flareup prior to his knee replacement surgery. 3. Take all steps necessary to properly develop the Veteran's claim for TDIU, to include verifying the Veteran's entire educational and occupational history. 4. Thereafter, the AOJ must readjudicate the Veteran's appealed issues in light of the totality of evidence of record. If any benefit sought is not granted to the fullest extent, the AOJ must provide the Veteran and his representative with a copy of the readjudication and afford them an appropriate period to respond. SCOTT W. DALE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Department of Veterans Affairs 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.