Citation Nr: 0003825 Decision Date: 02/14/00 Archive Date: 02/15/00 DOCKET NO. 95-43 338 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to an effective date prior to April 19, 1994 for the award of service connection for status post hemorrhoidectomy with moderately swollen internal and external hemorrhoids. 2. Evaluation of status post hemorrhoidectomy with moderately swollen internal and external hemorrhoids, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Mississippi Veterans Affairs Board WITNESS AT HEARING ON APPEAL Veteran and his spouse ATTORNEY FOR THE BOARD C. L. Mason, Associate Counsel INTRODUCTION The veteran had active service from September 1953 to September 1956. This case comes to the Board of Veterans' Appeals (Board) on appeal from a December 1993 rating decision of the Jackson, Mississippi Department of Veterans Affairs (VA) Regional Office (RO), which determined that new and material evidence had not been submitted to reopen the veteran's claim for service connection for hemorrhoids. The Board REMANDED the case to the RO in April 1998. In September 1998, the veteran, spouse, and his representative appeared before a hearing officer at the RO. In October 1998, the RO reopened the veteran's claim for service connection for hemorrhoids and granted service connection for status post hemorrhoidectomy with moderately swollen internal and external hemorrhoids effective from April 19, 1994. FINDINGS OF FACT 1. The RO denied the veteran's claim for service connection for hemorrhoids in March 1958, and the veteran did not submit a notice of disagreement with that decision. 2. On September 9, 1993, the RO received the veteran's claim to reopen his claim for service connection for hemorrhoids. CONCLUSIONS OF LAW 1. The March 1958 rating decision is final. 38 U.S.C.A. §§ 5108, 7105 (West 1991). 2. The effective date of service connection for status post hemorrhoidectomy with internal and external hemorrhoids is the date of the reopened claim after a final disallowance: September 9, 1993. 38 U.S.C.A. § 5107, 5110 (West 1991); 38 C.F.R. § 3.400 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran and his representative assert on appeal that the appropriate effective date for the award of service connection for post status hemorrhoidectomy with moderately swollen internal and external hemorrhoids should be September 9, 1993, the date that his current claim was submitted to the VA. The veteran further contends that the appropriate effective date for the award of service connection for post status hemorrhoidectomy with moderately swollen internal and external hemorrhoids should be November 1957, when he originally filed his claim. Unless otherwise specifically provided in Chapter 51 of Title 38 of the United States Code (1991), the effective date of an award based on a claim for compensation which is reopened after final adjudication shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C.A. § 5110(a) (West 1991). The Code of Federal Regulations (1999) directs that when an award of service connection is granted upon new and material evidence which is received after the final disallowance of the veteran's initial claim and which does not encompass service department records, the effective date of such an award shall be the date of receipt of the veteran's reopened claim or the date on which entitlement arose, whichever is later. 38 C.F.R. § 3.400 (1999). Lapier v. Brown, 5 Vet.App. 215 (1993); Waddell v. Brown, 5 Vet.App. 454, 456 (1993). The effective date of a grant of service connection is based upon a variety of factors, including date of claim, date entitlement is shown and finality of prior decisions. The Court has addressed the issue of effective dates. Pursuant to 38 U.S.C.A. § 5108 (West 1991), the Secretary must reopen a previously and finally disallowed claim when new and material evidence is presented or secured with respect to that claim. See 38 U.S.C.A. § 7104(b) (West 1991). Under 38 C.F.R. § 3.400(r), the effective date of an award for a reopened claim is the date of receipt of the claim or the date entitlement arose, whichever is later. See also 38 U.S.C.A. § 5110(a) (West 1991). Therefore, under the applicable statute and regulation, the effective date cannot be the date of veteran's original claim. Waddell, 5 Vet. App. at 456. Any contention that an effective date should be retroactive to the date of an original final claim is groundless in law. The veteran's original claim for service connection for rectal surgery, to include hemorrhoids, was received in November 1957. Service medical records were reviewed in 1958 and there were no reports of rectal surgery or findings of hemorrhoids. A December 1957 examination by the service department revealed hemorrhoidal tags and that the veteran reported a history of hemorrhoid surgery in January 1954. A February 1958 medical records inquiry reply from the Department of the Navy Bureau of Medicine and Surgery stated that according to the US Naval Hospital at Camp Pendleton, California, their files contain no record of treatment for the alleged condition; hemorrhoids or rectal surgery. In March 1958, the RO denied service connection for hemorrhoids. The veteran was notified in writing of the adverse decision and his appellate rights in March 1958. The veteran did not submit a notice of disagreement within one year of notice of the adverse decision, and the March 1958 rating decision became final. 38 U.S.C.A. §§ 5108, 7105 (West 1991). The veteran attempted to reopen his claim of entitlement to service connection for hemorrhoids in September 1993. The RO, in a December 1993 rating decision, determined that the veteran had not submitted new and material evidence to reopen his claim for service connection for hemorrhoids. Additional information was received in April 1994, and the RO again denied in claim in June 1994. The case was appealed to the Board. In an April 1998 decision, the Board determined that the case was on appeal from the December 1993 rating decision and thereafter, REMANDED the case to the RO for further development. In 1998, additional private and VA medical reports were received showing current treatment for hemorrhoids. The veteran testified at his September 1998 hearing that he had surgery during service in 1954 for hemorrhoids and has continued to experience hemorrhoids. Support statements from the veteran's spouse and former employer indicating that the veteran had complained of hemorrhoids for many years and reported having surgery for such while in service were submitted at the hearing. In October 1998, the RO reopened the claim and granted service connection for status post hemorrhoidectomy with moderately swollen internal and external hemorrhoid and assigned a 10 percent evaluation effective from April 19, 1994. According to the RO, the veteran reopened his claim in September 1993, was notified of the denial in December 1993, but did not disagree with this decision. Subsequently in April 1994, the veteran submitted additional evidence and service connection was again denied in a June 1994 rating decision, to which he submitted a notice of disagreement in January 1995. Thus, according to the RO, the effective date of the award of service connection is April 19, 1994. The Board has reviewed the relevant evidence of record. In February 1994, the veteran requested a personal hearing at the RO in connection with his claim for service connection for hemorrhoids. This letter shows that the veteran did not agree with the RO's December 1993 decision denying the reopening of his claim and indicated his intent to continue his claim. Thus, there was a timely notice of disagreement. Moreover, the Board notes that at the time of the March 1958 decision, the case was denied on the basis that there was no current evidence of disability. At the time of the December 1993 decision, the veteran had submitted evidence of current disability. Thus, the Board finds that the December 1993 decision was in error as there was new and material evidence of record at that time. Accordingly, the Board concludes that the effective date of the award of service connection for status post hemorrhoidectomy with moderately swollen internal and external hemorrhoids should be September 9, 1993, the date of the veteran's claim to reopen. However, the Board concludes that an earlier effective date prior to September 9, 1993, may not be established. The Board has scoured the record prior to September 9, 1993 and subsequent to the 1958 final RO decision; however, there was no claim, informal claim, or intent to file a claim filed in that time frame. Accordingly, the Board concludes that the appropriate effective date for the award of service connection for status post hemorrhoidectomy with moderate swollen internal and external hemorrhoids is September 9, 1993. ORDER The appropriate effective date for the award of service connection for status post hemorrhoidectomy with moderate swollen internal and external hemorrhoids is September 9, 1993. REMAND The Board notes that a 20 percent evaluation disability evaluation is warranted for hemorrhoids with persistent bleeding and secondary anemia or with fissures. 38 C.F.R. § 7336, Diagnostic Code 7336 (1999). However, the medical evidence of record, including the February 1999 examination, does not provide sufficient information about the veteran's hemorrhoids to make that determination. The RO, in its February 1999, request for VA examination, specifically asked that the examiner determine whether certain factors were present including whether there was secondary anemia. However, although the examiner addressed the other factors, including persistent bleeding, the issue of anemia was not addressed. In fact, it does not appear that a blood test was performed. The veteran should be referred to another examiner for an adequate examination. The Board regrets the further delay; however, this case must be REMANDED to the RO for the following: 1. The veteran should be scheduled for a VA examination. The entire claims folder, including a copy of this REMAND must be made available to and be reviewed by the examiner prior to the examination. All necessary tests should be conducted and the examiner should review the results. The examiner should perform a blood test to determine anemia. 2. The General Counsel, in representing VA before the Court, has noted that the regional office has duties. Pursuant to 38 C.F.R. § 3.655, when the claimant without good cause fails to report for examination, the claim will be denied. However, the Secretary must show a lack of good cause for failing to report. Further, VA has a duty to fully inform the veteran of the consequences of the failure to undergo the scheduled examination. The regional office must comply with all notification requirements regarding the duty to report and the failure to report for examination. The remand serves as notification of the regulation. After the requested development has been accomplished to the extent possible, the RO should again review the record. The Board intimates no opinion as to the ultimate outcome of this case. The veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. H. N. SCHWARTZ Member, Board of Veterans' Appeals