Citation Nr: A25035669 Decision Date: 04/17/25 Archive Date: 04/17/25 DOCKET NO. 240917-477108 DATE: April 17, 2025 ORDER The reduction to noncompensable being improper, restoration of a 20 percent rating for service-connected hemorrhoids, effective October 30, 2023, is granted. Entitlement to a disability evaluation in excess of 20 percent for hemorrhoids, to include on an extraschedular basis, is denied. REMANDED Entitlement to service connection for erectile dysfunction (ED) is remanded. FINDINGS OF FACT 1. The evidence of record does not demonstrate that the Veteran's hemorrhoids have improved under the ordinary conditions of life and work. 2. The current 20 percent disability rating assigned for hemorrhoids is the maximum schedular evaluation under the VA rating schedule for that disability; the Veteran's hemorrhoids have not presented an exceptional disability picture and are considered adequately by the assigned disability rating. CONCLUSIONS OF LAW 1. The criteria for restoration of the Veteran's 20 percent rating for hemorrhoids, effective October 30, 2023, have been met. 38 U.S.C. §§ 1155, 5112; 38 C.F.R. §§ 3.102, 4.124a, Diagnostic Code (DC) 7336. 2. The criteria for a rating in excess of 20 percent for hemorrhoids, including on an extraschedular basis, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.124a, DC 7336. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1983 to January 1994. He appeals October 2023, December 2023, and January 2024 rating decisions by the Agency of Original Jurisdiction (AOJ). In a September 2024 notice of disagreement (NOD), the Veteran appealed the decisions directly to the Board and chose the Direct Review docket. See September 2024 VA Form 10182. Therefore, the Board may only consider the evidence of record at the time of the AOJ decision on appeal. 38 C.F.R. § 20.301. Rating Restoration 1. Hemorrhoids In this case, a rating reduction is proper when the evidence shows improvement in the Veteran's hemorrhoids under the ordinary conditions of life and work. The Supreme Court in Brown v. Brown concluded that "in any rating-reduction case not only must it be determined that an improvement in a disability has actually occurred but also that that improvement actually reflects an improvement in the veteran's ability to function under the ordinary conditions of life and work." 5 Vet. App. 413, 421 (1993). Significantly, in a rating reduction case, VA has the burden of establishing that the disability has improved. This is in stark contrast to a case involving a claim for an increased (i.e., higher) rating, in which it is the veteran's responsibility to show the disability has worsened. A rating reduction case focuses on the propriety of the reduction and is not the same as an increased rating issue. See Peyton v. Derwinski, 1 Vet. App. 282, 286 (1991). Medical and non-medical indicators of improvement may be considered. See Faust v. West, 13 Vet. App. 342, 349 (2000). Having reviewed the evidence of record, the Board finds that restoration of the 20 percent rating for service-connected hemorrhoids, effective October 30, 2023, is warranted. During the course of the appeal, DC 7336, which evaluates hemorrhoids, was changed. Prior to May 19, 2024, DC 7336 provides that hemorrhoids (external or internal) will be rated as noncompensable when they are mild or moderate, 10 percent disabling when the hemorrhoids are large or thrombotic, irreducible, with excessive redundant tissue, evidencing frequent recurrences, and a maximum, 20 percent disabling when the hemorrhoids cause persistent bleeding with secondary anemia, or with fissures. See 38 C.F.R. § 4.114. From May 19, 2024, DC 7336 provides that a 10 percent rating is warranted for prolapsed internal hemorrhoids with two or less episodes per year of thrombosis, or external hemorrhoids with three or more episodes per year of thrombosis; and a 20 percent rating is warranted for internal or external hemorrhoids with persistent bleeding and anemia, or continuously prolapsed internal hemorrhoids with three or more episodes per year of thrombosis. The claims file contains three VA Rectum and Anus Conditions Examinations. In a May 2022 examination, the Veteran reported worsening hemorrhoids with bowel movements and occasional cramps with constipation. The examiner noted mild/moderate small external hemorrhoids. See May 2022 VA examination report. In a December 2022 VA examination, the Veteran reported bleeding when using the bathroom and occasional pain. He had difficulty sitting down for long periods of time. He treats his symptoms with Preparation H cream and warm baths. The examiner noted mild external hemorrhoids with persistent bleeding. Laboratory testing in December 2022 revealed hemoglobin of 14.7 and hematocrit of 41.4. See December 2022 VA examination report. The examiner opined that the Veteran's hemorrhoids impact his ability to work due to difficulty sitting down for long periods of time. Id. Lastly, in an October 2023 VA examination, the Veteran reported that his symptoms had increased in severity yet again. He described itching and a small amount blood on tissue when wiping after using the bathroom. He stated that he continues to use over the counter Preparation H cream as needed. Upon examination, the examiner noted no external hemorrhoids, anal fissures, or other abnormalities. Despite the Veteran's reports of itching and bleeding, the examiner also noted no findings, signs, or symptoms attributable to his hemorrhoids. See October 2023 VA examination report. The Board affords little probative value to the October 2023 VA examination. The examiner failed to account for the relevant evidence, including the Veteran's competent lay statements regarding his worsening symptoms. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (holding that an examination must take into account an accurate history to be adequate). Upon review of the medical evidence of record, the Board is not persuaded that the Veteran's hemorrhoid disability sufficiently improved to warrant a reduction from 20 percent to noncompensable. The evidence of record at the time of the October 2023 reduction does not demonstrate that the Veteran's hemorrhoid disability underwent actual improvement in his ability to function under the ordinary conditions of life and work-particularly given the lack of consideration afforded to the Veteran's lay statements regarding symptom severity. Critically, the Veteran specifically stated that his hemorrhoid symptoms had increased in severity when he was examined in October 2023. See October 2023 VA examination report. At no point did the Veteran indicate that his symptoms had improved. Ultimately, the Board finds that the Veteran's ability to function under the ordinary conditions of life and work has not improved as his symptoms have been generally consistent throughout the years. As noted above, in reduction cases, the burden of proof lies with VA to show that the Veteran's disability has undergone an observable improvement. To be precise, the burden is on VA to establish that the evidence of record persuasively weighs in favor of a rating reduction. See Brown v. Brown, 5 Vet. App. 413, 421 (1993). Ultimately, the Board finds that VA has not met its burden and that the reduction in the Veteran's disability evaluation for his hemorrhoids was improper. The 20 percent rating is therefore restored from October 30, 2023. Increased Rating 2. Hemorrhoids Here, the Veteran's service-connected hemorrhoids have been assigned the maximum schedular rating available for that disability. 38 C.F.R. § 4.87, DC 7336. However, the Veteran believes that his hemorrhoids should be rated higher than the schedular maximum assigned. See September 2024 VA Form 10182. Thus, the Board interprets the Veteran's argument to be that he contends his hemorrhoids warrant extraschedular consideration. Id. 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 Service to determine whether an extraschedular rating is warranted. See Thun, 22 Vet. App. 111. Regarding the first element, comparison of the Veteran's symptoms and associated functional impairment does not show that the rating criteria are inadequate to describe his disability picture. Specifically, the Veteran and his representative have not reported or described symptoms or functional effects related to the hemorrhoids that are not contemplated by the rating schedule for evaluating the disability. The evidence is negative for factors such as marked interference with employment or frequent periods of hospitalization, so as to render impractical the application of the regular schedular standards. The symptoms the Veteran has reported include itching and bleeding, both of which are contemplated by the schedular evaluation criteria for hemorrhoids. Here, the extraschedular rating request was only considered raised by the record because the Veteran was seeking an increased rating when the maximum schedular rating had already been provided. Thus, the central question is whether his service-connected hemorrhoids present such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. The Board reiterates that throughout the appeal period the Veteran has consistently indicated that his hemorrhoids manifest with pain, itching, and bleeding-all of which are contemplated by DC 7336 and for which he is receiving the maximum schedular evaluation. In sum, the functional difficulties caused by the Veteran's hemorrhoids are contemplated fully in the defined regulations and criteria under DC 7336. Thus, the Board finds the first Thun element is not met as the schedular rating adequately contemplates the Veteran's disability picture. As such, consideration of an extraschedular disability rating for the Veteran's hemorrhoids and referral of this case for such consideration pursuant to 38 C.F.R. § 3.321(b)(1) are not warranted. REASONS FOR REMAND 1. ED The Veteran contends that his ED is secondary to his service-connected acquired psychiatric disorder. See July 2023 VA Form 21-526EZ. The Veteran has a diagnosis of ED and is service connected for unspecified trauma and stressor related disorder and alcohol use disorder. See January 2024 rating decision favorable findings. The Veteran attended a VA examination in October 2023. The examiner opined that the Veteran's ED was less likely than not due to or the result of the Veteran's service-connected acquired psychiatric disorder. She reasoned, in part, that "there is no evidence in the claims file to support [the Veteran's] diagnosis of erectile dysfunction is caused by unspecified trauma and stressor related disorder and alcohol use disorder... According to literature, uncontrolled diabetes and uncontrolled hypertension increases the risk of erectile dysfunction. The current medical record are [sic] insufficient for evidence to support chronic erectile dysfunction condition. Therefore, a nexus has not been established." See October 2023 VA medical opinion. First, the Board finds that the above causation opinion is inadequate. The examiner relied on the lack of medical literature supporting a causal relationship without any further discussion as to why the lack of same is dispositive of the claim. Moreover, there is no discussion of the facts specific to the Veteran in relation to the medical literature referenced by the examiner. See Bailey v. O'Rourke, 30 Vet. App. 54, 60 (2018) (reliance on the absence of medical literature supporting nexus without discussing the specific facts of the case renders an opinion inadequate). Further, the examiner failed to address the question of aggravation. See El-Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013) (holding that medical opinions addressing the issue of secondary service connection are inadequate when they fail to adequately encompass the question of aggravation). The examiner did not use the check box on the medical opinion form regarding aggravation, nor did her supporting rationale discuss the concept of aggravation. Based on the foregoing, the Board finds that remand is necessary to obtain a new medical opinion regarding the Veteran's contention that his ED is secondary to his service-connected acquired psychiatric disorder. As the above constitute predecisional duty to assist errors, remand is appropriate. 38 C.F.R. § 20.802 (a). The matters are REMANDED for the following action: 1. Obtain an opinion from an appropriately qualified clinician to determine the nature and etiology of the Veteran's ED. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the reviewing clinician. It is up to the discretion of the reviewing clinician as to whether a new examination is necessary to provide an adequate opinion. Following review of the record and examination of the Veteran, if deemed necessary, the reviewing clinician should answer the following: Is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's ED was caused OR aggravated by his service-connected acquired psychiatric disorder? (Continued on the next page) ? A full and complete rationale for all opinions must be provided, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the reviewing clinician cannot provide a requested opinion without resorting to mere speculation, it must be stated, and the reviewing clinician must provide the reasons why an opinion would require speculation. As such, the reviewing clinician must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Poe, 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.