Citation Nr: 0003184 Decision Date: 02/08/00 Archive Date: 02/15/00 DOCKET NO. 98-08 849A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to an increased (compensable) evaluation for service-connected hemorrhoids. WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD Jeanne Schlegel, Associate Counsel INTRODUCTION The veteran had active service from March 1976 to November 1985 and from July 1989 to June 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a September 1995 rating action by the Department of Veterans Affairs (VA) Regional Office (RO) in which the RO granted entitlement to service connection for hemorrhoids and assigned a noncompensable disability evaluation, effective from June 14, 1994. The veteran duly appealed that decision. In his June 1998 substantive appeal, the veteran indicated that he would determine later if he wanted a Board hearing. In September 1999, the RO contacted the veteran requesting that he clarify whether or not he wanted a Board hearing on a VA form which was enclosed in that correspondence. The RO advised the veteran that a response should be sent within 30 days following the date of the letter or it would be assumed that he did not want a Board hearing. No response in this regard was received from the veteran and accordingly the Board concludes that the veteran did not want a Board hearing to be scheduled. Other issues In the September 1995 rating action the RO granted the veteran's claim of entitlement to service connection for plantar fasciitis of both feet, for which an evaluation of 10 percent was assigned. No substantive appeal was ever filed by the veteran as to that claim, nor was the issue subsequently raised. Accordingly, it is not currently before the Board for appellate review. Also addressed in the September 1995 rating action were claims which included entitlement to service connection for bronchitis and sinus/allergies/reactive airway disease; hearing loss, asthma and pes planus, all of which were denied. The veteran filed a Notice of Disagreement with respect to these issues in October 1995. These claims were addressed in a March 1996 Statement of the Case. By rating action of July 1997, the RO granted service connection for left ear hearing loss. A review of the claims folder does not reveal that a Notice of Disagreement was been filed relative to that issue. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) [where an appealed claim for service connection is granted during the pendency of the appeal, a second Notice of Disagreement must thereafter be timely filed to initiate appellate review of the claim concerning the compensation level assigned for the disability]. By rating action of July 1997, the RO also granted service connection for sinusitis/rhinitis and for a deviated nasal septum, for which noncompensable disability evaluations were assigned. The veteran's claims of entitlement to compensable evaluations for sinusitis/rhinitis and deviated nasal septum were denied in an August 1999 rating action. That determination has not been appealed, to the Board's knowledge. By rating action of July 1997, the veteran's claim of entitlement to service connection for gingivitis was denied. That action was not appealed. By rating action of April 1998, the claim of entitlement to service connection for reactive airway disorder and bronchitis secondary to Gulf War exposure was granted and a 30 percent evaluation was assigned. That determination was not appealed. The veteran's claim of entitlement to service connection for pes planus was withdrawn at the June 1998 RO hearing. In the August 1999 rating action, the RO denied the claim of entitlement to service connection for subjective numbness along the nasal tip, status post and secondary to septoplasty. To the Board's knowledge, that determination has not been appealed to this point. In June 1997 the veteran was notified that his Chapter 31, vocational rehabilitation benefits were placed in a discontinued status. In June 1997, he filed a Notice of Disagreement with respect to the discontinuance of Chapter 31, vocational rehabilitation benefits. A Statement of the Case was issued in July 1997. A substantive appeal was filed in November 1997. In a decision rendered by a RO hearing officer in June 1998 it was determined that the provisions of 38 C.F.R. § 21.634 had been met to permit reinstatement of Chapter 31 benefits. Accordingly, the Board finds that this matter has been resolved and is not currently before the Board on appeal. FINDING OF FACT The current clinical evidence indicates the presence of an external hemorrhoid, without evidence of thrombosis or inflammation. Symptoms of intermittent rectal bleeding have been reported by the veteran, unaccompanied by anemia or fissures. CONCLUSION OF LAW The criteria for a compensable evaluation for hemorrhoids have not been met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R.§ 4.114, Diagnostic Code 7336 (1999). REASONS AND BASES FOR FINDING AND CONCLUSION The veteran is seeking an increased disability rating for service-connected hemorrhoids with history of anal fissure, which is currently evaluated as being noncompensably disabling. In the interest of clarity, the Board will review the law, VA regulations and other authority which may be relevant to this claim; briefly describe the factual background of this case; and then proceed to analyze the claim and render a decision. Relevant Law and Regulations Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Ratings Schedule), 38 C.F.R. Part 4 (1999). Separate diagnostic codes identify the various disabilities. The schedular criteria call for a noncompensable disability rating for mild or moderate hemorrhoids. A 10 percent disability rating is warranted for large or thrombotic irreducible hemorrhoids, with excessive redundant tissue. A 20 percent disability is called for in cases involving persistent bleeding and with secondary anemia, or with fissures. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.114, Diagnostic Code 7336 (1999). VA has a duty to acknowledge and consider all regulations which are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusion. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The requirements set forth in these regulations for evaluation of the complete medical history of the veteran's condition operate to protect veterans against adverse decisions based on a single, incomplete or inaccurate report, and to enable the VA to make a more precise evaluation of the level of the disability and of any changes in the condition. Schafrath, 1 Vet. App. at 593-94. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. See 38 C.F.R. §§ 4.1, 4.2 (1999); see also Francisco v. Brown, 7 Vet. App. 55 (1994). In Fenderson v. West, 12 Vet. App.119 (1999), however, the Court held that evidence to be considered in the appeal of an initial assignment of a rating disability was not limited to that reflecting the then current severity of the disorder. Since this is an appeal of an initial rating assignment, the Board is not limited to consideration of the current diagnosis of the veteran's disability. Factual Background Service medical records reflected that the veteran was seen in June 1991 due to bleeding from the rectum. An assessment of anal fissures was made at that time. An entry dated later in June 1991 reflected that the fissures had resolved. Complaints of rectal bleeding were shown again in January 1992. At that time there was evidence of both anal fissures and hemorrhoids. Upon separation examination conducted in October 1993, clinical evaluation of the anus and rectum was normal. A VA examination was conducted in February 1995, at which time the veteran reported that he was found to have internal hemorrhoids in 1991 and was also found to have anal fissure. He stated that he had experienced severe rectal bleeding three to four times during the past year, which had most recently occurred in December 1994. Rectal examination showed a small skin tag at the anus. The examiner indicated that hemorrhoids were not felt or seen and that there was no detectable anal fissure and no remarkable tenderness of the anus. A diagnosis of hemorrhoids or anal fissure, not detected, was made. A June 1995 medical record reflected that the veteran was seen due to complaints of rectal bleeding and pain. The veteran presented testimony at a hearing held at the RO in June 1998. He testified that he continued to have flare- ups of hemorrhoids with some bleeding at times. He indicated that he had been told by a VA doctor that he also had fissures which might require surgery and might make him susceptible to cancer in that area. He testified that he was last treated for hemorrhoids in 1994 or 1995. He indicated that his current symptoms included bleeding twice a month, lasting for a couple of days, and testified that he did not use any medication to treat the condition. A VA examination was conducted in June 1998, at which time a history of a diagnosis of internal hemorrhoids and anal fissure made in 1991 was noted. Upon examination it was noted that there was no bleeding per rectum, no anal pain and no itching. Physical examination revealed no colostomy, no evidence of fecal leakage, normal size of the lumen of the rectum and the anus, no signs of anemia, no fissures, and no evidence of bleeding. A mild external hemorrhoid which was not thrombosed was shown. A diagnosis of no evidence of internal hemorrhoids or fissure during anoscopic and rectal examination, with evidence of a mild external hemorrhoid, not thrombosed, asymptomatic was made. It was also noted that the veteran as not on medication. In a RO hearing officer's decision in November 1998, a compensable evaluation for hemorrhoids was denied. In addition, service connection for anal fissure was established and included in the noncompensable evaluation assigned for hemorrhoids. Analysis Preliminary matters The Board believes that the veteran has presented a well- grounded claim for an increased rating for service-connected hemorrhoids within the meaning of 38 U.S.C.A. § 5107(a). When a claimant is awarded service connection for a disability and subsequently appeals the RO's initial assignment of a rating for that disability the claim continues to be well grounded as long as the rating schedule provides for a higher rating and the claim remains open. Shipwash v. Brown, 8 Vet. App. 218, 224 (1995). Upon the submission of a well-grounded claim, the VA has a duty to assist the veteran in developing the facts pertinent to his claim. 38 U.S.C.A. § 5107. In the instant case, there is ample medical and other evidence of record, the veteran has testified at a personal hearing and has been provided with a recent VA examination. There is no indication that there are additional records that have not been obtained and which would be pertinent to the present claim. Thus, no further development is required in order to comply with VA's duty to assist as mandated by 38 U.S.C.A. § 5107(a). Once the evidence has been assembled, it is the Board's responsibility to weigh the evidence. When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the veteran. 38 U.S.C.A. § 5107(b), 38 C.F.R. §§ 3.102, 4.3 (1999). In Gilbert, 1 Vet. App. at 53, the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the evidence must preponderate against the claim. Alemany, 9 Vet. App. at 519, citing Gilbert, 1 Vet. App. at 54. Discussion A noncompensable evaluation is currently in effect for hemorrhoids, evaluated under 38 C.F.R. § 4.114, Diagnostic Code 7336. The schedular criteria call for a noncompensable disability rating for mild or moderate hemorrhoids. A 10 percent disability rating is warranted for large or thrombotic irreducible hemorrhoids, with excessive redundant tissue. A 20 percent disability is called for in cases involving persistent bleeding and with secondary anemia, or with fissures. 38 C.F.R. § 4.114 Diagnostic Code 7336 (1999). The evidence reflects that upon VA examination conducted in June 1995, the veteran reported that he had experienced severe rectal bleeding three to four times during the past year. Rectal examination showed a small skin tag at the anus. The examiner indicated that hemorrhoids were not felt or seen and that there was no detectable anal fissure and no remarkable tenderness of the anus. Upon VA examination conducted in 1998, physical examination revealed no colostomy, no evidence of fecal leakage, normal size of the lumen of the rectum and the anus, no signs of anemia, no fissures, and no evidence of bleeding. The only symptomatology which was shown at that time was a mild external hemorrhoid which was not thrombosed. The examination reports reflect that there was no evidence of thrombosed hemorrhoids or inflammation no evidence of excessive redundant tissue. There have been no outpatient records submitted which have shown evidence of large or thrombotic irreducible hemorrhoids, with excessive redundant tissue Accordingly, the 10 percent rating criteria have not been met. Symptoms of intermittent rectal bleeding have been reported by the veteran. This appears to be the primary symptomatology associated with the veteran's hemorrhoids. The rating criteria provides that a 20 percent evaluation is warranted for persistent bleeding and with secondary anemia, or with fissures. In this case the veteran has reported that his rectal bleeding is only intermittent. Moreover, the clinical evidence, in particular the report of the June 1998 VA examination, does not reflect that the veteran has evidence of bleeding, anemia or fissures associated with his hemorrhoids. Accordingly, the criteria for a 20 percent rating have not been met. In a RO hearing officer's decision rendered in November 1998, a compensable evaluation for hemorrhoids was denied and service connection for anal fissure was established and included in the noncompensable evaluation assigned for hemorrhoids. The Board notes that the record does reveal a history of anal fissures, although such are not currently shown. See the June 1998 examination report, which was specifically and pertinently negative. Theoretically, it is possible for a veteran to have separate and distinct manifestations from the same disease entity which would permit rating under more than one diagnostic code. The critical element is that none of the symptomatology for any one of the conditions is duplicative of or overlapping with the symptomatology of the other another condition. See Esteban v. Brown, 6 Vet. App. 259, 261 (1994). In this case, however, inasmuch as anal fissures are specifically enumerated in the rating criteria for hemorrhoids, there is no basis for a separate evaluation based upon that symptomatology. See 38 C.F.R. § 4.14 [the evaluation of the same disability under various diagnoses is to be avoided]. See also Fanning v. Brown, 4 Vet. App. 225 (1993).. In evaluating the veteran's disability, the Board has considered all the evidence of record, to include the service medical records and the records of post-service medical treatment and evaluations to date, without predominant focus on only the most recent evidence of record. Such review is consistent with the Court's recent decision in Fenderson v. West, 12 Vet. App.119 (1999). However, the Board is unable to identify any clinical evidence which would provide a basis for the assignment of a compensable evaluation for hemorrhoids at any time from June 14, 1994, the day after the veteran left the service. In short, while the record does reveal current evidence of an external hemorrhoid and intermittent rectal bleeding, based on the medical and other evidence discussed above, the Board finds that such symptomatology most nearly comports to the criteria for a noncompensable evaluation; the veteran's condition is best characterized by mild or moderate hemorrhoids, warranting a noncompensable disability rating. See 38 C.F.R. § 4.7. As stated previously, there is no indication that the veteran has large or thrombotic irreducible hemorrhoids, excessive redundant tissue, persistent bleeding, secondary anemia or anal fissures. Therefore, a 10 percent disability rating for hemorrhoids is not warranted under the schedular criteria and is denied. ORDER Entitlement to a compensable disability rating for hemorrhoids is denied. Barry F. Bohan Member, Board of Veterans' Appeals