Citation Nr: 23004232 Decision Date: 01/24/23 Archive Date: 01/24/23 DOCKET NO. 17-47 525 DATE: January 24, 2023 ORDER Entitlement to an initial disability rating in excess of 10 percent for a hemorrhoid disability is denied. For the period from May 27, 2015 to October 19, 2020, entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. For the period from October 19, 2020 forward, entitlement to a TDIU is moot, and thus, is dismissed. REMANDED For the period from November 11, 2003 to May 27, 2015, entitlement to a TDIU is remanded. FINDINGS OF FACT 1. The evidence of record persuasively weighs against a finding that the Veteran's hemorrhoids manifested as external or internal hemorrhoids with persistent bleeding and with secondary anemia, or with fissures. 2. For the period from May 27, 2015 to October 19, 2020, the evidence of record persuasively demonstrates the Veteran was unable to secure and maintain substantially gainful employment due to his service-connected disabilities. 3. For the period from October 19, 2020 forward, the Veteran was service-connected for renal failure associated with cirrhosis of the liver at a 100 percent disability rating with additional service-connected disabilities separately ratable at 60 percent or more, and was granted special monthly compensation based on housebound status, thereby rendering the claim for a TDIU moot. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial disability rating in excess of 10 percent for a hemorrhoid disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.10, 4.114, Diagnostic Code 7336. 2. For the period from May 27, 2015 to October 19, 2020, the criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5110, 5121A; 38 C.F.R. §§ 3.102, 3.340, 3.341, 3.1010, 4.3, 4.16. 3. For the period from October 19, 2020 forward, the claim for entitlement to a TDIU is moot. 38 U.S.C. § 1114; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.25, 4.26. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S Navy from October 1981 to April 1983. He died in April 2022. The Appellant is the Veteran's son, and he has been substituted for the Veteran in this appeal. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2014 rating decision, which, in pertinent part, declined to award a disability rating in excess of 10 percent for the Veteran's service-connected hemorrhoid disability, and from a December 2015 rating decision which denied his claim of entitlement to a TDIU. In July 2020, the Board remanded the issues on appeal for additional evidentiary development. 1. Entitlement to a disability rating in excess of 10 percent for a hemorrhoid disability is denied. The Appellant seeks an initial disability rating in excess of 10 percent for the Veteran's service-connected hemorrhoid disability. Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Further, in deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staging the ratings." See Fenderson v. West, 12 Vet. App. 119 (1999). In determining the appropriate disability rating for the Veteran's disability, the Board shall consider the benefit-of-the-doubt doctrine. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. That is, the claimant is entitled to the benefit of the doubt when the evidence is in "approximate" balance, i.e., "nearly equal," but does not require that the evidence be in exact equipoise. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). The Veteran's hemorrhoid disability is rated as 10 percent disabling under Diagnostic Code 7336. Under Diagnostic Code 7336, a non-compensable rating is given for mild or moderate internal or external hemorrhoids. Large or thrombotic hemorrhoids, irreducible, with excessive redundant tissue, evidencing frequent recurrences, are rated 10 percent disabling, and hemorrhoids with persistent bleeding and with secondary anemia, or with fissures, are rated 20 percent disabling. 38 C.F.R. § 4.114, Diagnostic Code 7336. The record includes VA examination reports, private and VA medical records, and lay statements and testimony. These records have been reviewed by the Board, although they will not all be discussed in assessing the rating assigned to the Veteran's hemorrhoid disability. In July 1999, the Veteran underwent a colonoscopy at a private facility. The examiner noted that the Veteran was extremely poorly prepared for the procedure, especially beyond the hepatic flexure. The ascending colon and cecum were not visualized, and the examiner described it as a suboptimal examination because the field of vision was obscured by stool. Mild diverticulosis of the sigmoid was seen. Findings in the rectum revealed internal hemorrhoids. Two fusiform swellings were also palpable by the digital examination and were in line of the hemorrhoidal findings. The examiner was unsure, but presumed that these most likely represented either thrombosed hemorrhoids or something else. A colorectal consultation was recommended. The Veteran attended the private colorectal consultation in July 1999. The physician noted that the Veteran had undergone the June 1999 colonoscopy due to complaints of occasional bleeding and that he had a previous hemorrhoidectomy. The physician observed that the Veteran's colon was essentially normal, but that two whitish areas were noted on retroflection. The physician examined the Veteran very carefully and on anoscopic examination the whitish areas were found to be compatible with hypertrophic anal papilla. The physician saw no evidence of internal hemorrhoids and stated that the Veteran was doing very well at the time of the consultation. In a January 2004 statement, the Veteran indicated that his condition was active with unbearable pain most of the time, as well as with discharge. He echoed these assertions in his January 2007 Board hearing testimony and in a May 2011 statement. The Veteran underwent a VA examination in November 2014. There, he reported current symptoms of fecal incontinence and constant rectal itching. He denied the use of medications or ointments for these symptoms. He denied experiencing rectal pain. The VA examiner documented the Veteran's impairment with sphincter control, noting occasional involuntary bowel movements and sphincter tone laxity with occasional slight leakage. He also documented pruritis ani, characterized by hyperpigmentation of the perianal area with distinct border, however extending significantly distally toward the lower extremity, and a maculopapular rash. No other pertinent findings were documented. In February 2020, the Veteran testified again regarding his hemorrhoid disability. When asked about whether he noticed any bleeding attributable to his hemorrhoids, the Veteran reported that any bleeding he experienced was due to wiping several times a day related to his fecal leakage. He denied bleeding due specifically to his hemorrhoids, even during flare-ups of the condition. He stated that the condition was characterized primarily by itching and discomfort. The Veteran attended another VA examination in December 2020. There, the Veteran reported symptoms of fecal incontinence and perianal itching. He denied pain with defecation. On clinical evaluation, the VA examiner noted small or moderate external hemorrhoids as well as perianal hyperpigmented macular skin lesions. He indicated that a finger rectal examination was precluded by pain. The VA examiner was asked to discuss whether the Veteran's hemorrhoid disability resulted in persistent bleeding. Following a review of the Veteran's claims file and the performance of the aforementioned clinical evaluation, the VA examiner determined that the Veteran has not experienced persistent bleeding due to his hemorrhoids. He reported that the Veteran had undergone a successful hemorrhoidectomy in 1981 and had not experienced any bleeding from his rectum since that that time attributable to this disability. Laboratory studies were performed at the time of the December 2020 VA examination revealed that the Veteran's hemoglobin was 11.6 grams per deciliter (normal range being from 13.5 grams per deciliter to 17.5) and his hematocrit was 33.9 percent (normal range being from 42.0 to 54.0 percent). As several laboratory studies over the appeal period similarly demonstrated that the Veteran's hemoglobin and hematocrit levels were regularly decreased or subnormal, the VA examiner was asked to opine whether such levels were reflective of anemia and, if so, whether this anemia was due to the Veteran's service-connected hemorrhoid disability. The VA examiner found that the Veteran's laboratory results were indeed reflective of normochromic anemia. However, the VA examiner determined that the Veteran's anemia was more likely than not due to his service-connected cirrhosis of the liver and his service-connected hepatitis C. He reasoned that the Veteran himself made no complaint of rectal bleeding, there was no evidence of blood loss from the rectum seen on examination, and the type of anemia diagnosed, normochromic, is not typically seen in hemorrhagic anemia. As the Veteran's in-service medical history contains a history of anal fissures, the VA examiner was also asked to opine whether such anal fissures persisted. He noted the Veteran's 1980 diagnosis of hemorrhoids and anal fissures and the successful hemorrhoidectomy and lateral internal sphincterectomy he underwent in response to this diagnosis the following year. While the Veteran continued to complain of perianal pain, subsequent evaluations with anoscopy and colonoscopic examinations did not reveal evidence of anal fissures since the Veteran joined the Navy in 1981. As such, the VA examiner determined that such anal fissures were no longer present. After a review of the evidence, the Board finds that a rating in excess of 10 percent is not warranted for the Veteran's hemorrhoid disability. A higher, 20 percent disability rating requires competent, credible evidence of hemorrhoids with persistent bleeding and with secondary anemia, or with fissures. Here, the Veteran himself has denied experiencing bleeding due to his hemorrhoids; the only bleeding he has reported has been due to persistent wiping due to fecal incontinence from his separately service-connected pruritis ani. Further, while there is one medical record documenting bleeding, it is from July 1999 and characterized such bleeding as occasional, not persistent. Additional medical evidence of record during the appeal period does not support a finding of persistent bleeding. The record does reflect a diagnosis of normochromic anemia. However, the December 2020 VA examiner reviewed the claims file, including all laboratory studies, and provided a clinical evaluation of the Veteran before determining that the Veteran's anemia is not secondary to his service-connected hemorrhoid disability but is more likely than not attributable to his service-connected cirrhosis of the liver and his service-connected hepatitis C. In so finding, the VA examiner utilized his medical knowledge and expertise and applied it to the Veteran's specific case. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). As such, the Board finds his opinion on this matter holds significant probative value. Further, there is no contrary medical opinion of record which relates the Veteran's anemia to his service-connected hemorrhoid disability and neither the Veteran nor the Appellant identified or referred to the existence of any other medical opinion that, in fact, supports such a relationship. Finally, there is no subjective or objective evidence that demonstrates that the Veteran had anal fissures at any time during the appeal period. To the extent that any of the lay statements and testimony express the Veteran's and the Appellant's belief that the Veteran's hemorrhoid disability was of a greater severity than reflected in the 10 percent disability evaluation, the Board notes that the Veteran and Appellant were and are competent to testify to their observations. However, the Board finds that these statements are outweighed by the probative medical evidence of record, especially the December 2020 VA examination report, as the VA examiner reviewed the entire record and made specific findings regarding the severity of the Veteran's disability in light of his medical knowledge and expertise. The Board concludes that the evidence persuasively weighs against the claim, is not in approximate balance, and the benefit-of-the-doubt rule does not apply. See Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). Accordingly, a rating in excess of 10 percent for the Veteran's hemorrhoid disability is not warranted. 2. For the period from May 27, 2015 to October 19, 2020, entitlement to a TDIU is granted. 3. For the period from October 19, 2020 forward, entitlement to a TDIU is moot, and thus, is dismissed. The Appellant seeks entitlement to a TDIU. A total disability rating based upon individual unemployability may be assigned where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). From October 19, 2020 forward, the Veteran had an overall disability rating of 100 percent, as well as special monthly compensation based on housebound status. Thus, entitlement to a TDIU is moot from October 19, 2020 forward, as the Veteran was already in receipt of maximum benefits for that period. However, the issue of whether a TDIU is warranted prior to that date remains on appeal. From May 27, 2015 to October 19, 2020, the Veteran was service-connected for cirrhosis of the liver associated with hepatitis C, rated as 70 percent disabling, pruritis ani, rated as 60 percent disabling, hemorrhoids, rated as 10 percent disabling, hepatitis C, rated as 10 percent disabling, and pleural effusion associated with cirrhosis of the liver, rated as 0 percent disabling from April 23, 2016. This resulted in a combined disability rating of 90 percent; therefore, the Veteran met the schedular criteria for a TDIU during that period. The remaining question for the Board is whether the Veteran's service-connected conditions have rendered the Veteran unable to obtain and maintain substantially gainful employment consistent with his education and occupational experience from May 27, 2015 to October 19, 2020. The Court has indicated that unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, entitlement to a TDIU is based on an individual's particular circumstances. Ray v. Wilkie, 31 Vet. App. 58, 72 (2019) (quoting Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, in adjudicating a TDIU claim, VA must consider the individual Veteran's education, training, and work history. See id. (In evaluating a veteran's ability to "secure and follow" substantially gainful employment, attention must be given to the veteran's occupational history, education, skill, and training; whether the veteran has the physical ability to perform occupational activities; and whether the veteran has the mental ability to perform occupational activities). However, a TDIU may not be based upon the Veteran's age or impairment attributable to non-service-connected disability. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). The evidence reflects that the Veteran completed two years of college, with additional training in HVAC. He indicated that he has not worked during the entirety of the appeal period, stating that he became too disabled to continue working due to his service-connected disabilities in May 2002. The Veteran was employed in physical labor for the majority of his adult life; he reported that he was primarily self-employed as an HVAC technician/stationary building engineer for thirty years. Regarding the Veteran's service-connected disabilities and their impact on his employment, the Board notes the Veteran's competent, credible statements that his pruritis ani caused involuntary bowel movements that he described as "frequent[ly]" and "extensive" and daily seepage. Further, while there are no specific VA examinations concerning this disability during the appeal period being discussed, in both November 2014 and December 2020, VA examiners found that this disability particularly caused an adverse impact on the Veteran's ability to work. The Veteran's chronic fecal incontinence resulted in increased bathroom breaks, slowing down the Veteran's pace and performance, and engendered feelings of self-consciousness and embarrassment due to odor. Additionally, the physical exertion necessary to perform the type of work for which he was trained and received an education to perform (i.e., lifting heavy objects, standing for prolonged periods, stooping, squatting, and climbing ladders) would increase instances of fecal leakage. Considering the Veteran's educational and occupational experience, it is plausible to conclude that he would not be able to maintain a substantially gainful occupation given his service-connected pruritis ani and associated symptoms of pervasive fecal incontinence, resulting in markedly limited social interaction and frequent bathroom breaks, which would undoubtedly impact the Veteran's pace and performance in physical labor positions that require precise time management for the accomplishment of building goals and the handling of emergencies. In summary, the Board finds that the probative evidence of record persuasively demonstrates the Veteran was rendered unable to obtain and maintain gainful employment due to his service-connected disabilities and a grant of TDIU is warranted from for the period from May 27, 2015 to October 19, 2020. The issue of entitlement to a TDIU from October 19, 2020 forward is moot. REASONS FOR REMAND For the period from November 11, 2003 to May 27, 2015, entitlement to a TDIU is remanded. From November 11, 2003 to May 27, 2015, the Veteran was service-connected for pruritis ani, rated as 60 percent disabling, and hemorrhoids, rated as 10 percent disabling. This resulted in a combined disability rating of 60 percent. Thus, the Veteran did not meet the schedular criteria for a TDIU during that period. However, even if the Veteran does not meet the schedular criteria, the inquiry continues regarding whether the Veteran is in fact unemployable due to his service-connected disabilities. If the Board finds that the Veteran is unemployable due to his service-connected disabilities, the case must be referred to the Director, Compensation and Pension Service, for extraschedular consideration of the period in question. 38 C.F.R. § 4.16 (b). In the present case, for the period from November 11, 2003 to May 27, 2015, the Board finds the evidence indicates the Veteran may have been unemployable as a result of his service-connected disabilities. For example, at the Veteran's November 2014 VA examination, a VA examiner noted that the symptoms of the Veteran's service-connected pruritis ani and hemorrhoids would adversely impact his ability to work as the Veteran had problems socially due to fecal leakage and the need to take frequent bathroom breaks. The Board finds that referral to the Director of Compensation Service for an opinion as to whether the Veteran's service-connected disabilities rendered him unable to secure and follow a substantially gainful occupation for the period from November 11, 2003 to May 27, 2015 is necessary. The matter is REMANDED for the following action: Refer the Veteran's claim for entitlement to a TDIU from November 11, 2003 to May 27, 2015 to the Director of Compensation Service for an opinion as to whether the Veteran's service-connected disabilities rendered him unable to secure and follow a substantially gainful occupation, pursuant to § 4.16 (b) during that period due to symptoms such as fecal leakage, associated odor, and the need for frequent bathroom breaks. The Veteran's employment history, educational and vocational attainment, and all other factors having a bearing on his employability (or lack thereof) should be considered. JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Bush 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.