Citation Nr: 22017013 Decision Date: 03/23/22 Archive Date: 03/23/22 DOCKET NO. 09-07 263 DATE: March 23, 2022 ORDER 1. Service connection for posttraumatic stress disorder (PTSD) and depressive disorder is granted. 2. A compensable rating for hemorrhoids is denied. REMANDED A total disability rating based on individual unemployability (TDIU). FINDINGS OF FACT 1. The Veteran has PTSD due to in-service stressors. 2. The Veteran has depressive disorder due to in-service events. 3. The Veteran's hemorrhoids manifest by pain, itching, constipation, and bleeding resulting in no more than moderate impairment. CONCLUSIONS OF LAW 1. The criteria for service connection for PTSD and depressive disorder have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 2. The criteria for a compensable rating for hemorrhoids are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.31, 4.114, Diagnostic Codes (DCs) 7332, 7335, 7336. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1973 to February 1977 and from February 1982 to July 1982. This matter is on appeal from April 2008 and April 2017 rating decisions. The Veteran had a Board hearing in September 2010 in regard to his hemorrhoid and left varicocele rating claims. Since that time, the Veteran has appealed the psychiatric disorder claim. In Mach 2018, he indicated that he did not want another Board hearing. Most recently, in a June 2018 decision, the Board granted reopening service connection for a psychiatric disorder, denied a rating in excess of 10 percent for left varicocele, and remanded service connection for a psychiatric disorder, a compensable rating for hemorrhoids, and a TDIU. The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). I. Service Connection 1. Service connection for a psychiatric disorder. Legal Criteria Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. A veteran seeking compensation under these provisions must establish three elements: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (i.e., under the criteria of DSM); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). Analysis The Veteran contends that he has PTSD due to his military service. In regard this regard, he reported in a March 2013 statement that he witnessed a fellow service member commit suicide by jumping from an airplane. In addition, in October 2016 statements, the Veteran reported saving a Sergeant's life by helping him fight off a fellow service member in November 1975. Thereafter, in July 2019, he submitted a statement from a fellow service member. The service member reported serving with the Veteran in Korea. He also reported witnessing the Veteran stop a fight between two other service members in which one soldier was choking the other soldier and that the Veteran detained the attacker until military police arrived. During VA treatment in August 2010, the Veteran reported experiencing several traumas during service in Korea, including witnessing a fellow service member committing suicide and stopping another soldier from killing someone. He also reported experiencing poor sleep since discharge from service in the 1970's as well as anxiety and depression that began 10 years earlier. He further reported suppressing these feelings for many years. The treatment provider diagnosed him with depression. The Veteran was afforded a VA examination for this claim in September 2015. The examiner diagnosed the Veteran with depressive disorder, but found that he did not meet all criteria for a PTSD diagnosis. The examiner found that the Veteran's depression is more likely than not caused by the Veteran's reported in-service stressors and results in social impairment, but not occupational impairment. The examiner noted a history of alcohol and marijuana use, but also noted that it appeared to be in remission. Pursuant to the June 2018 Board decision, the Veteran was afforded another VA psychiatric examination for this claim in December 2021. The Veteran reported in-service stressors of saving a service member's life by assaulting his attacker and witnessing another service member commit suicide by jumping out of an airplane. The examiner found that the reported stressors meet criterion A for a PTSD diagnosis and diagnosed the Veteran with PTSD. The examiner concluded that the Veteran's PTSD is due to the reported in-service stressors and that he continues to experience prominent symptoms despite current treatment with medication. The Board finds that the evidence is at least in equipoise as to whether the Veteran has PTSD and due to an in-service stressor. The Veteran has competently and credibly reported experiencing in-service PTSD stressors. In addition, he reported these stressors in the course of seeking treatment for psychiatric symptoms in August 2010. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (observing that statements made to physicians for the purposes of diagnosis and treatment are trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care). In addition, a fellow service member corroborated his report of one of the PTSD stressors. Finally, the December 2021 psychiatric examiner found the reported stressors credible and that they caused the Veteran's currently diagnosed PTSD. This is sufficient, credible supporting evidence to corroborate the Veteran's reported in-service stressors and a positive nexus between the stressors and PTSD. The Board also finds that the evidence is at least in equipoise as to whether the Veteran has depressive disorder due to service. In this regard, during the September 2015 VA examination, the examiner diagnosed the Veteran with depressive disorder that is more likely than not caused by the reported in-service stressors. Therefore, resolving reasonable doubt in the Veteran's favor, the Board finds that service connection for PTSD and depressive disorder is warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. II. Increased Rating 2. A compensable rating for hemorrhoids. Legal Criteria Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. The Veteran is rated under DC 7336 for hemorrhoids. Under DC 7336, a noncompensable rating is assigned for hemorrhoids that are mild or moderate; a 10 percent rating is assigned for hemorrhoids that are large or thrombotic, irreducible, with excessive redundant tissue, evidencing frequent recurrences; and a 20 percent rating is assigned for hemorrhoids with persistent bleeding and with secondary anemia, or with fissures. 38 C.F.R. § 4.114, DC 7336. In addition, under DC 7332, a 10 percent rating is warranted for impairment of sphincter control with constant slight or occasional moderate leakage; a 30 percent rating is warranted for occasional involuntary bowel movements necessitating wearing of pad; a 60 percent rating is warranted for extensive leakage and fairly frequent involuntary bowel movements; and a 100 percent rating is warranted for complete loss of sphincter control. Furthermore, pruritus ani is rated under DC 7335. DC 7335 states that this symptoms is to be rated for the underlying condition. For the purposes of evaluating these disabilities, moderate is "tending toward the mean or average amount or dimension." See www.merriam-webster.com/dictionary/moderate. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Factual History The Veteran is seeking a compensable rating for hemorrhoids. During a June 2009 RO hearing, he reported this condition results in stomach pain, constipation, and the need to take laxatives. In a July 2013 correspondence, the Veteran reported experiencing a small amount of constant anal leakage that is unpredictable and requires him to stay near a bathroom. In a July 2013 correspondence, the Veteran's representative at such time stated that the Veteran experiences anal pruritus, anal fissures, itching, blood in stools, and anemia. The representative also stated that the Veteran should be rated separately for impaired sphincter control. Thereafter, this representative submitted another statement in April 2014. The representative then stated that the Veteran experiences leakage 3 times per week. The representative also argued that another examination was required to determine if the Veteran experiences anemia due to this disability. The Veteran was afforded a VA examination for this claim in February 2008. The Veteran reported experiencing anal pruritus, painful defecation, and chronic constipation. The examiner denied the presence of fecal incontinence, involuntary bowel movements, or requirement for use of a pad. The examiner reported that the examination showed normal sphincter tone, one internal hemorrhoid, and that there was no blood present on the glove after the examination. The Veteran was again afforded a VA examination in May 2010. The Veteran reported experiencing daily symptoms of itching and pain and bleeding 3 to 4 times per week a small amount of blood. He also reported experiencing leakage 3 times per week after using a laxative and missing 4 days of work per month due to this condition. The examiner reported the presence of external hemorrhoids that were non-bleeding, non-thrombosed, and reducible. The examiner also reported good sphincter tone and denied evidence of current fecal leakage as well as signs of anemia, fissures, and rectal prolapse. The examiner further reported that the colonoscopy report referred to medium internal hemorrhoids. In a December 2010 decision, the Board denied a compensable rating for hemorrhoids. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). A June 2011 VA treatment record notes that the Veteran told a treatment provider he was anemic in the prior month. However, the treatment provider found that the laboratory test results did not show anemia. The Veteran was examined for this claim in June 2011. The Veteran reported constipation, anal pruritus, bleeding, and internal hemorrhoids that are symptomatic every other day. The Veteran denied experiencing any fecal leakage or involuntary bowel movements. The examiner reported normal sphincter tone and the presence of very small, non-bleeding, non-thrombosed external hemorrhoids. The examiner denied the presence of fissures, fistulas, and evidence of rectal prolapse and fecal leakage. Thereafter, later in June 2011, the parties to the Veteran's appeal entered into a Joint Motion for Remand (Joint Motion), in which they agreed that the Board's decision should be vacated. The Court granted the parties' Joint Motion in an Order issued in July 2011. The Joint Motion found that the Board erred in not addressing whether a 10 percent rating was warranted due to the Veteran's reports of rectal bleeding. The Board again denied this claim in a February 2012 decision and the Veteran again appealed the decision to the Court. In November 2012, the parties to the Veteran's appeal entered into a Joint Motion in which they agreed that the Board's decision should be vacated. The Court granted the parties' Joint Motion in an Order issued in November 2012. The Joint Motion found that the Board erred in not addressing whether an extraschedular rating was warranted due to the reported symptoms of constipation, pain, and leakage that are not expressly listed under DC 7336. Pursuant to a September 2013 Board remand, the Veteran was afforded another examination in December 2013. The Veteran reported experiencing constipation and hemorrhoid pain daily. He also reported itching and bleeding 3 times a week. The examiner reported the presence of mild or moderate hemorrhoids with persistent bleeding and pruritus ani. The examiner noted that the Veteran's VA treatment records do not indicate evidence of problems with his hemorrhoids requiring treatment or intervention since 1999. The examiner denied that this condition results in any impairment of the Veteran's ability to work. In January 2014, the Veteran was found during VA treatment to be negative for anemia. In May 2014, a VA treatment provider noted the presence of anemia and that it could be secondary to a recent total knee arthroplasty procedure. Later in May 2014, a VA treatment provider noted anemia suspected to be secondary to the knee surgery. In June 2014, the Veteran was found to be negative for anemia. An October 2014 VA colonoscopy was found to show minimally decreased sphincter tone, small external and internal hemorrhoids that were not bleeding, mildly hypertrophied anal papillae, and an otherwise normal appearing colon. The provider estimated insignificant blood loss. In May 2015, another VA treatment provider denied the presence of anemia. During VA treatment in December 2016, a treatment provider noted that the Veteran denied experiencing symptoms of anemia. The Veteran underwent another VA colonoscopy in May 2017. The treatment provider found mildly decreased sphincter tone, small external and internal hemorrhoids that were not thrombosed or not bleeding, normal colon appearance, constipation, and insignificant estimated blood loss. Pursuant to the June 2018 Board decision, the Veteran was afforded another examination in December 2019. The Veteran reported symptoms of pain, swelling, itching, burning, and occasional bleeding. The examiner noted that no examination was performed because the Veteran declined. The examiner reported a diagnosis of internal and external hemorrhoids that are mild or moderate in severity. The examiner denied the presence of large or thrombotic, irreducible hemorrhoids with excessive redundant tissue, persistent bleeding, secondary anemia, fissures, anal or perianal fistula, rectal stricture, impairment of rectal sphincter control, rectal prolapse, pruritus ani, or leakage necessitating wearing of a pad. The examiner found that prolonged sitting aggravates the condition. Analysis As noted in the June 2011 Joint Motion, DC 7336 implicates 38 C.F.R. § 4.7 because it does not employ successive rating criteria. Instead, it is possible to have all of the criteria for a 20 percent rating without having any of the requirements for a 10 percent rating. Therefore, where there is a question as to which of two evaluations is to be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. Id. In this case, the Board finds that a 10 percent rating is not warranted. The evidence of record does not show that at any time during the appeal period the Veteran's hemorrhoids were large, thrombotic, irreducible, or with excessive redundant tissue. In this regard, the February 2008, May 2010, June 2011, December 2013, and December 2019 examiners as well as the May 2017 VA colonoscopy treatment provider all denied the presence of these symptoms. Consequently, the Board finds that the manifestations of the Veteran's service-connected hemorrhoids do not meet the criteria for a 10 percent rating under DC 7336 at any time during the appeal period. 38 C.F.R. § 4.114. In regard to a higher 20 percent rating, the evidence of record does not show at any time during the appeal period that the Veteran's hemorrhoids caused secondary anemia or fissures. During the February 2008, May 2010, and December 2019 examiners all denied the presence of anemia and fissures. In addition, the Veteran's VA treatment records do not show the presence of anemia during the appeal period except for a period of time in May 2014 when it was noted as possibly or likely secondary to an unrelated knee surgery. In June 2014, a VA treatment provider again denied the presence of anemia. While the Veteran has reported experiencing regular bleeding related to hemorrhoids, a 20 percent rating is only warranted with both persistent bleeding and secondary anemia. In this regard, the 20 percent rating is conjunctive. Here, the evidence of record establishes that the Veteran has persistent bleeding, but does not establish that this persistent bleeding is accompanied by anemia or fissures. To the extent that the Veteran's representative at such time claimed in July 2013 that the Veteran had anal fissures, she did not provide any support for this assertion. The diagnosis of anal fissures is a complex medical question outside the competence of a non-medical expert to determine and cannot be considered within the competence of a non-expert lay witness. As a lay person, the Veteran's prior representative has not established the competence needed to rebut the expert medical opinions of record. See Fountain v. McDonald, 27 Vet. App. 258, 274-75 (2015). Consequently, the Board finds that the manifestations of the Veteran's service-connected hemorrhoids do not meet the criteria for a 20 percent rating under DC 7336 at any time during the appeal period. 38 C.F.R. § 4.114. Instead, the evidence the disability picture more nearly approximates the criteria for a noncompensable rating mild or moderate hemorrhoids. See 38 C.F.R. § 4.7. In this regard, both the December 2013 and December 2019 examiners found the severity of the Veteran's hemorrhoids to be mild or moderate. In addition, a separate rating under another DC is not appropriate for this disability. The Veteran claims that he experiences leakage related to this condition. However, a compensable rating is not warranted under DC 7332 for impairment of sphincter control. In this regard, the VA examiners and VA treatment providers have not found more than mildly decreased sphincter tone. In addition, DC 7332 requires at least constant slight or occasional moderate leakage for a compensable rating. The Veteran reported experiencing leakage 3 times per week during the May 2010 VA examination and the examiner denied the presence of current leakage. The June 2011 VA examiner denied the presence of fecal leakage and rectal prolapse. In July 2013, the Veteran reported experiencing constant anal leakage. However, the Veteran did not report and the examiners did not note any leakage during the December 2013 VA examination. Shortly thereafter in April 2014, the Veteran's representative at such time reported the Veteran experiences leakage 3 times per week. In addition, the Veteran did not report and the examiner did not note any leakage during the December 2019 examination. The examiner denied that the condition results in the need to wear a pad. Furthermore, the Veteran did not report experiencing constant leakage during VA treatment at any time. The Board finds that the examination reports, treatment records, and lay statements do not indicate the presence of at least constant slight or occasional moderate leakage. While the Veteran was competent to report experiencing constant leakage in July 2013, the Veteran's other statements, treatment records, and the examination reports weigh persuasively against a finding of constant leakage at any time during the period on appeal. In this regard, in weighing credibility, VA may consider bias and self-interest in weighing the credibility of evidence. See Caluza v. Brown, 7 Vet. App. 498 (1995). The Board has also considered whether an extraschedular rating is warranted for this condition. Consideration of an extraschedular rating requires a three-step inquiry. The first question is whether the schedular rating criteria adequately contemplate the veteran's disability picture. If the schedular evaluation does not contemplate the level of disability and symptomatology shown and is found inadequate, then the second inquiry is whether the exceptional disability picture exhibits other related factors, such as marked interference with employment or frequent periods of hospitalization. See Thun v. Peake, 22 Vet. App. 111 (2008). The first Thun element compares a claimant's symptoms to the rating criteria, while the second addresses the resulting effects of those symptoms. Thus, the first and second Thun elements, although interrelated, involve separate and distinct analyses. Yancy v. McDonald, 27 Vet. App. 484, 495 (2016). If the veteran's disability picture meets the second inquiry, then the third step is to refer the case to the Director of Compensation Services to determine whether an extraschedular rating is warranted. See Thun, 22 Vet. App. 111. The Court addressed the standard for extraschedular claims in Long v. Wilkie, 33 Vet. App. 167, 177 (2020). Focusing on the first step in Thun, the Court in Long explained that because an extraschedular determination is, by nature, fact bound and highly contextual, it should be approached as a totality of the factors inquiry that considers whether the veteran's symptomatology presents an impairment so exceptional that the rating schedule is not capable of assessing it in the first instance. Thus, the first step in Thun is not met simply because the symptoms of the disability are not considered in the rating criteria for that disability; rather, it is met when the impairment cannot be evaluated by the rating schedule. To facilitate proper analysis of the first step, the Court in Long provided six non-exhaustive or mandatory guiding principles. First, the sole focus of Thun's first step is on the ability of the rating schedule to evaluate the veteran's symptomatology; extraschedular consideration is not applicable to claims that may be properly evaluated with conventional schedular rating tools. See Morgan v. Wilkie, 31 Vet. App. 162, 168 (2019). Second, Thun's first step deals exclusively with whether the veteran's symptoms are exceptional, whereas Thun's second step considers the functional effects of those symptoms. See Yancy v. McDonald, 27 Vet. App. 484, 494 (2016). Third, where a symptom or impairment is not compensable under the rating schedule, it also does not warrant extraschedular consideration as this would amount to a backdoor means to obtaining compensation for a condition the rating schedule intends to exclude. Fourth, extraschedular consideration is not warranted for symptoms or effects that lack a nexus to service or to a service-connected disability. Fifth, the Board is only required to discuss the theories of entitlement raised by the veteran or reasonably raised by the record. Sixth, in reviewing the Board's analysis of referral for extraschedular consideration, the Court will be mindful of the rule against prejudicial error. Thus, a failure of the Board to discuss whether extraschedular consideration is warranted for a particular symptom does not require an automatic remand. In this case, the Board finds the rating schedule is adequate to evaluate the Veteran's hemorrhoids. The Veteran has reported symptoms of itching, pain, and constipation. While these symptoms are not expressly listed under DC 7336, they are all properly evaluated under DC 7336. In this regard, anal itching and pain are not an exceptional symptoms for hemorrhoids. In fact, these are the first two symptoms listed for external hemorrhoids on the Mayo Clinic website. See https://www.mayoclinic.org/diseases-conditions/hemorrhoids/symptoms-causes/syc-20360268. In addition, pain occurs naturally with constipation and constipation is also not an exceptional symptom for hemorrhoids. The first cause of constipation listed on the Mayo Clinic website is a blockage in the colon or rectum and internal hemorrhoids occur in the rectum. Id.; see also https://www.mayoclinic.org/diseases-conditions/constipation/symptoms-causes/syc-20354253. While DC 7336 does not expressly list itching, pain, or constipation, none of these symptoms present an exceptional disability picture for hemorrhoids. Therefore, extraschedular consideration is not warranted. Accordingly, the evidence is persuasively against the claim. As there is not an approximate balance of positive and negative evidence, the benefit-of-the-doubt doctrine is not applicable and a compensable rating for hemorrhoids is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Although the Board is remanding another claim for additional development, remand is not necessary for this issue, as there is no reasonable possibility that further assistance would substantiate the claim. See 38 C.F.R. § 3.159(d). REASONS FOR REMAND A TDIU. In a May 2017 form, the Veteran claimed entitlement to a TDIU due to impairment from PTSD, diabetes, high blood pressure, and a kidney disorder. As service connection for PTSD is granted herein, a remand is necessary to allow the RO to assign a disability rating for this condition. This claim is REMANDED for the following action: After assigning a disability rating for the Veteran's PTSD, readjudicate the issue of entitlement to a TDIU. Unless the benefit sought is granted in full, issue an supplemental statement of the case (SSOC) and return the case to the Board. RYAN T. KESSEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Jimerfield 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.