Citation Nr: 22017128 Decision Date: 03/24/22 Archive Date: 03/24/22 DOCKET NO. 18-29 236 DATE: March 24, 2022 ORDER As new and material evidence has been received, the claim for service connection for a traumatic brain injury (TBI) is reopened; to this extent only, the appeal is granted. An initial rating greater than 20 percent prior to December 6, 2011 for hemorrhoids is denied. An initial compensable rating from February 1, 2012 to December 4, 2018 for hemorrhoids is denied. An initial 10 percent, but no higher, rating from December 5, 2018 for hemorrhoids is granted, subject to the regulations governing the payment of monetary awards. REMANDED Entitlement to service connection for a TBI is remanded. Entitlement to a separate compensable rating for scar related to hemorrhoid surgery is remanded. FINDINGS OF FACT 1. The Veteran's claim for service connection for a TBI was previously denied by a July 2010 rating decision; the Veteran did not appeal the decision and documentation constituting new and material evidence was not actually or constructively received within the one-year appeal period. 2. Additional evidence received since the July 2010 rating decision is not cumulative or redundant of the evidence of record at the time of that decision, relates to an unestablished fact necessary to substantiate the claim for service connection for a TBI, and raises a reasonable possibility of substantiating the claim. 3. Prior to December 6, 2011, the Veteran's hemorrhoids were manifested by fissures and persistent bleeding. 4. From February 1, 2012 to December 4, 2018, the Veteran's hemorrhoids were mild or moderate and the evidence is persuasively against there being hemorrhoids that were large or thrombotic, irreducible, with excessive redundant tissue, or evidencing frequent recurrences; and against persistent bleeding with secondary anemia or fissures. 5. Beginning December 5, 2018, the Veteran's hemorrhoids have been large and have had frequent recurrences, and with no evidence of persistent bleeding with secondary anemia or fissures. CONCLUSIONS OF LAW 1. The July 2010 rating decision denying service connection for a TBI is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104, 3.156, 19.20, 19.21, 19.52, 20.1103 (2021). 2. Evidence received since the July 2010 rating decision is new and material to reopen the claim for service connection for a TBI. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2021). 3. Prior to December 6, 2011, the criteria for an initial rating in excess of 20 percent for the Veteran's service-connected hemorrhoids are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.114, Diagnostic Code 7336 (2021). 4. From February 1, 2012 to December 4, 2018, the criteria for an initial compensable rating for hemorrhoids are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.114, Diagnostic Code 7336 (2021). 5. From December 5, 2018, the criteria for an initial 10 percent, but no higher, rating for hemorrhoids are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.114, Diagnostic Code 7336 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty for training (ACDUTRA) from January 1980 to April 1980. These matters are before the Board of Veterans' Appeals (Board) on appeal from August 2016 and November 2018 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the Board at a hearing held by the undersigned in December 2019. A transcript of the hearing is of record. In February 2020, the Board remanded the Veteran's claim for an increased rating for hemorrhoids and claim for service connection for migraine headaches for further development. Following the issuance of a March 2020 supplemental statement of the case, the Veteran submitted a VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) in May 2020 opting his claim of entitlement to service connection for migraine headaches into the modernized review system. The Veteran selected the Evidence Submission lane. A separate decision addressing this matter will be issued under a separate docket number pursuant to the modernized review system. New and Material Evidence TBI A claim for service connection for concussion with loss of coordination was originally denied in a July 2010 rating decision on the basis that the Veteran did not have a head injury that occurred during a period of ACDUTRA. The Agency of Original Jurisdiction (AOJ) notified the Veteran of its decision and of his appellate rights. The Veteran did not appeal the decision, nor was any new and material evidence actually or constructively received within a year following the decision; therefore, the decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156, 19.20, 19.21, 19.52, 20.1103. The Veteran's petition currently before the Board to reopen his claim for service connection for a TBI was received by the AOJ in November 2018. The AOJ denied the petition to reopen the claim in a November 2018 rating decision and a December 2019 statement of the case. The Board must independently consider the question of whether new and material evidence has been received because it goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim de novo. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380, 1384 (Fed. Cir. 1996). Generally, a claim which has been denied may not thereafter be reopened and allowed based on the same record. 38 U.S.C. §§ 7104, 7105. However, pursuant to 38 U.S.C. § 5108, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the VA Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. Id. In determining whether evidence is "new and material," the credibility of the new evidence must be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003); Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly received evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA Secretary's duty to assist or through consideration of an alternative theory of entitlement. Shade, 24 Vet. App. at 118. If the Board determines that the evidence submitted is both new and material, it must reopen the case and evaluate the claim in light of all the evidence. Justus, 3 Vet. App. at 512. Such evidence is presumed to be credible for the purpose of determining whether the case should be reopened; once the case is reopened, the presumption as to the credibility no longer applies. Id. at 513. The Board finds the Veteran has submitted new and material evidence since the July 2010 rating decision denying service connection for a TBI. In a January 2020 VA Form 9, Appeal to Board of Veterans' Appeals, the Veteran reported regarding the April 1980 in-service motor vehicle accident that he "briefly lost consciousness and when I regained consciousness, I remember having a severe headache." The evidence of the Veteran losing consciousness in the April 1980 accident was not before adjudicators when the Veteran's claim was last denied in July 2010, and the evidence is not cumulative or redundant of the evidence of record at the time of that decision. The evidence also relates to an unestablished fact necessary to substantiate the claim for service connection for a TBI as it provides additional evidence that the Veteran may have suffered a TBI and raises a reasonable possibility of substantiating the claim. Accordingly, the claim is reopened. Increased Rating Hemorrhoids The Veteran and his representative generally contend the Veteran is entitled to increased ratings for his service-connected hemorrhoids. See August 2020 Informal Hearing Presentation. The AOJ has assigned the Veteran's hemorrhoids a 20 percent rating from September 30, 2008 to December 5, 2011, a temporary total evaluation based on surgical treatment necessitating convalescence from December 6, 2011 to January 31, 2012, and a noncompensable rating thereafter under Diagnostic Code 7336. 38 C.F.R. § 4.114. As expressed in the February 2020 Board remand, the period from December 6, 2011 to January 31, 2012 is not before the Board as the Veteran is in receipt of a maximum evaluation during this period. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. A Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and 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). The Board acknowledges that with respect to a claim for an increased rating for an already service-connected disability, a Veteran may experience multiple distinct degrees of disability that might result in different levels of compensation. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The following analysis is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. Under Diagnostic Code 7336, a noncompensable rating is assigned for mild to moderate hemorrhoids. A 10 percent rating is assigned for external or internal hemorrhoids, large or thrombotic, irreducible, with excessive redundant tissue, evidencing frequent recurrences. A 20 percent rating is assigned for external or internal hemorrhoids, with persistent bleeding and with secondary anemia, or with fissures. 38 C.F.R. § 4.114, Diagnostic Code 7336. Prior to December 6, 2011 For the period prior to December 6, 2011, the Veteran has a 20 percent rating under Diagnostic Code 7336. A 20 percent rating is the maximum rating under the rating schedule for hemorrhoids. 38 C.F.R. § 4114, Diagnostic Code 7336. The Board finds that a rating in excess of 20 percent is not warranted. The Veteran and his representative have not alleged that the Veteran is entitled to a separate or higher rating under 38 C.F.R. § 4.114 for impairment of sphincter control, stricture of the rectum, or prolapse of the rectum. Diagnostic Codes 7332-7334. A review of the medical evidence illustrates there is no evidence of such impairment. See November 2009 VA Examination Report. As such, the Board finds that the weight of the evidence is persuasively against a rating in excess of 20 percent for the Veteran's hemorrhoids prior to December 6, 2011. The Board has considered the benefit-of-the-doubt rule; however, the benefit-of-the-doubt rule is not for application here based on the entirety of the record. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Lynch v. McDonough, 2021 U.S. App. LEXIS 37307, No. 2020-2067 (Fed. Cir. Dec. 17, 2021). February 1, 2012 to December 4, 2018 For the period from February 1, 2012 to December 4, 2018, the Veteran has a noncompensable rating under Diagnostic Code 7336. The Board finds that a compensable rating during this period is not warranted. A review of the medical records during this period illustrates that the Veteran reported rectal itching and pain following bowel movements at a September 2016 VA appointment. He reported no bleeding. The physical examination revealed no external hemorrhoids, but the examination revealed internal hemorrhoids with mild tenderness to palpation. At a May 2018 VA appointment, the Veteran reported itching that is exacerbated by bowel movements. He denied any pain or bleeding. He reported using Anusol with some relief. The physical examination revealed no external hemorrhoids, but the examination revealed small internal hemorrhoids with no bleeding. The Veteran reported having no hemorrhoids at a July 2018 VA appointment. Furthermore, the Veteran reported at a February 2019 VA appointment that he was asymptomatic for seven years following his 2011 hemorrhoidectomy. A review of the medical and lay evidence illustrates that a compensable rating for hemorrhoids is not warranted during this period. The competent and credible reports from the Veteran illustrate he had itching and pain with bowel movements during this period. Although there is evidence of internal hemorrhoids during this period, there is no objective evidence that the Veteran had external hemorrhoids at any point during this period. Furthermore, there are no reports of or objective evidence that the Veteran had internal or external hemorrhoids that were large or thrombotic, irreducible, with excessive redundant tissue, or with frequent recurrences at any point during this period. In addition, the treatment records and the Veteran's reports do not reflect bleeding, secondary anemia, or fissures during this period. Thus, the evidence most nearly approximates that during this period, the Veteran's hemorrhoids were mild or moderate in severity. In sum, as the evidence weighs persuasively against a finding of hemorrhoids that are large or thrombotic, irreducible, evidencing frequent recurrences, result in persistent bleeding with secondary anemia, or with fissures, the criteria for a compensable rating for hemorrhoids were not met from February 1, 2012 to December 4, 2018. The Board has considered the benefit-of-the-doubt rule; however, the benefit-of-the-doubt rule is not for application here as the evidence weighs persuasively against the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Lynch, 2021 U.S. App. LEXIS 37307. From December 5, 2018 After a thorough review of the evidence, the Board finds that a 10 percent, but no higher, rating is warranted under Diagnostic Code 7336 beginning December 5, 2018. A December 5, 2018 VA treatment note reflects that the Veteran reported he continues to have issues with hemorrhoids. No physical examination of the Veteran's hemorrhoids was conducted at the December 2018 VA appointment. In February 2019, the Veteran reported having continued symptomatic hemorrhoids since the December 2018 visit for his hemorrhoids. He reported that they bleed infrequently but caused daily pruritis. He was told to use metamucil for bulking. He was referred for a colonoscopy given his persistent symptoms. A March 2019 colonoscopy showed external grade III hemorrhoids and internal grade II hemorrhoids. An April 2019 VA treatment record reflects that the Veteran would be examined in one month and would likely plan an excisional hemorrhoidectomy if not better. The record does not reflect that the Veteran underwent an excisional hemorrhoidectomy following the April 2019 appointment. The Veteran reported using metamucil at the April 2019 appointment, and he stated it was helping. During a May 2019 VA appointment, the Veteran reported that since his hemorrhoidectomy he had not experienced further episodes of bleeding. He also denied ever seeing blood in his bowel movements. During August and November 2019 VA appointments, the Veteran reported that the hemorrhoids had improved with a high fiber diet and supplementing with Metamucil and Colace. The Veteran attended a VA examination in March 2020 for an evaluation of his hemorrhoids where the examiner diagnosed the Veteran with internal or external hemorrhoids. The examiner assessed the severity to be mild or moderate, and the examiner described the signs and symptoms as frequent hemorrhoidal pain. No physical examination was performed because of the recent colonoscopy evidence and there being no flare-ups at the time of the examination. The examiner noted the Veteran uses a stool softener, topical creams, and witch hazel pads for his condition. The examiner noted the Veteran's hemorrhoids cause no functional impact. The Veteran reported having hard stools two times per day. At his December 2019 Board hearing, the Veteran reported that he is unable to leave the house during episodes of hemorrhoids due to the pain being so horrific. He reported having hemorrhoids four times per week, and he reported that stool softeners work a little bit. The Board acknowledges that the March 2020 VA examiner assessed the severity of the Veteran's hemorrhoids to be mild or moderate. However, the March 2019 colonoscopy showed external grade III hemorrhoids and internal grade II hemorrhoids and the Veteran has described having hemorrhoids four times a week that would cause significant pain. The Board notes that in July 2018 the Veteran reported he did not have hemorrhoids, and subsequently it was factually ascertainable at the December 5, 2018, VA appointment that his hemorrhoid symptoms were worsening, as was confirmed by his subsequent treatment and the March 2019 colonoscopy findings. In giving the Veteran the benefit of the doubt, the Board finds that the Veteran is entitled to a 10 percent, but no higher, rating beginning December 5, 2018, for his hemorrhoids under Diagnostic Code 7336 as it is factually ascertainable from that date that the Veteran's hemorrhoids have manifested with frequent recurrences and are large, given the March 2019 colonoscopy showing grade III external hemorrhoids. The medical records and the Veteran's reports do not reflect persistent bleeding, secondary anemia, or fissures during this period. Therefore, a rating in excess of 10 percent is not warranted during this period. The Veteran and his representative have not alleged that the Veteran is entitled to a separate or higher rating under 38 C.F.R. § 4.114 for impairment of sphincter control, stricture of the rectum, or prolapse of the rectum. Diagnostic Codes 7332-7334. A review of the medical evidence illustrates there is no evidence of such impairment. See, e.g., March 2020 VA Examination Report. As such, the Board finds that the evidence more nearly approximates an assignment of a 10 percent, but no higher, rating beginning December 5, 2018, for the Veteran's hemorrhoids. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Lynch, 2021 U.S. App. LEXIS 37307. REASONS FOR REMAND 1. Entitlement to service connection for TBI is remanded. The Board cannot make a fully-informed decision on the issue of service connection for a TBI because no VA examiner has opined whether the Veteran has a TBI or residuals of a TBI that is related to the April 1980 motor vehicle accident that occurred during his period of ACDUTRA. 2. Entitlement to a separate rating for scar related to hemorrhoid surgery is remanded. The Veteran had transanal hemorrhoidal dearterialization surgery for his service-connected hemorrhoids in December 2011. A March 2019 colonoscopy reflects that a "scar was found in the rectum, possibly due to a prior intervention." The March 2020 rectum and anus conditions VA examination report reflects that the Veteran does not have a scar related to his hemorrhoids. However, no physical examination was performed at the March 2020 examination because of the recent colonoscopy evidence. Thus, as it is unclear from the record as to whether the Veteran has a surgical scar due to his hemorrhoid surgery and as to whether any scar is painful or unstable, a VA examination is necessary as to the nature and etiology of any scar. The matters are REMANDED for the following actions: 1. Obtain and associate with the Veteran's electronic record VA treatment records from February 2020 to the present. Contact the Veteran and afford him the opportunity to identify or submit any pertinent evidence in support of his claims, to include records of any private treatment. Based on his response, attempt to procure copies of all records which have not been obtained from identified treatment sources. If any of the records requested are unavailable, clearly document the claims file to that effect and notify the Veteran of any inability to obtain these records, in accordance with 38 C.F.R. § 3.159(e). 2. After completing the development requested in item 1, afford the Veteran a VA examination with an appropriate clinician to determine the etiology of any TBI residuals. The entire claims file should be made available to the examiner in conjunction with this request. All tests deemed necessary should be performed and all findings should be reported in detail. After reviewing the claims file, the examiner should address the following: (a.) The examiner should determine whether the Veteran has any residuals of a TBI. (b.) Is it at least as likely as not (approximately a 50 percent probability or greater) that any TBI or residuals of a TBI is related to an injury during his period of ACDUTRA, to include the April 1980 motor vehicle accident? The examiner is advised that the Veteran is competent to report his symptoms and history and that such reports must be acknowledged and considered in formulating any opinion. The examiner must fully explain the rationale for any opinion, with citation to supporting clinical data/lay statements, as deemed appropriate. If the examiner cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and provide supporting rationale as to why an opinion cannot be made without resorting to speculation. 3. After completing the development requested in item 1, schedule the Veteran for an examination to determine the nature and etiology of any scar related to the Veteran's hemorrhoid surgery. The evidentiary record, including a copy of this remand, must be made available to and be reviewed by the examiner. After reviewing the claims file, the examiner should address the following: (a.) Identify if the Veteran has any scar of the rectum/anus. (b.) If a scar is identified, is it at least as likely as not (approximately a 50 percent probability or greater) that any such scar is related to the Veteran's December 2011 transanal hemorrhoidal dearterialization? If so, please describe the severity of any scar, including the size, and whether any scar is unstable, painful, and/or has any underlying soft tissue damage. (Continued on the next page) The examiner is advised that the Veteran is competent to report his symptoms and history and that such reports must be acknowledged and considered in formulating any opinion. The examiner must fully explain the rationale for any opinion, with citation to supporting clinical data/lay statements, as deemed appropriate. If the examiner cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and provide supporting rationale as to why an opinion cannot be made without resorting to speculation. M. SORISIO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Breitbach, 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.