Veteranclaims’s Blog

February 3, 2018

Single Judge Application; Moore v. Shinseki, 555 F.3d 1369, 1373 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet.App. 289, 294 (2013); medical records created prior to the effective date of a claim are still relevant;

Excerpt from decision below:

“These records predate appellant’s claim. Nonetheless, he argues “they are relevant evidence of the severity of his condition before” his hemorrhoid surgery. Appellant’s Br. at 11. He cites Moore v. Shinseki, 555 F.3d 1369, 1373 (Fed. Cir. 2009), and Romanowsky v. Shinseki, 26 Vet.App. 289, 294 (2013), for the proposition that medical records created prior to the effective date of a claim are still relevant in determining the proper rating for a disability after the effective date of the claim. Appellant’s Br. at 11.
The Moore Court held that VA is required to obtain potentially relevant records even when those records concern periods prior to the effective date of a disability, because VA must assess a disability “in relation to its history” when determining the proper rating to assign. 555 F.3d at 1373; see also 38 C.F.R. § 4.1 (2017). In Romanowsky, this Court held that “when the record contains a recent diagnosis of disability prior to a veteran filing a claim for benefits based on that disability,
the report of diagnosis is relevant evidence that the Board must address” when determining “whether a current disability existed at the time the claim was filed or during its pendency.” 26 Vet.App. at 294.”

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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 17-0897
SALVADORE FRANCO, APPELLANT,
V.
DAVID J. SHULKIN, M.D.,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before ALLEN, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.
ALLEN, Judge: Appellant Salvadore Franco appeals through counsel a December 14,
2016, Board of Veterans’ Appeals (Board) decision denying him an initial compensable rating for hemorrhoids. This appeal was timely filed and the Court has jurisdiction pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). For the reasons discussed below, the Court will set aside the Board’s December 14, 2016, decision and remand the matter for further proceedings.

I. RELEVANT FACTS AND PROCEDURAL HISTORY
Appellant served in the United States Army from 1963 to 1966. In 2006, he filed a claim
for hemorrhoids. A VA regional office (RO) denied his claim later that year. Appellant timely
disagreed with the RO’s decision in 2007. The RO continued its denial in a 2007 Statement of the
Case. The record reflects that appellant did not perfect an appeal to the Board of this decision.
A July 2007 VA medical examination revealed three hemorrhoids, one of which was
thrombosed. An April 2008 VA examination found some large hemorrhoids, one of which was
recently thrombosed.
In 2011, appellant sought to reopen his claim. He underwent another VA examination in
2012 that revealed small or moderate hemorrhoids that were at least as likely as not incurred in or
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caused by his service. Later that year, the RO reopened the claim and granted service connection
for hemorrhoids at a noncompensable rating effective November 10, 2011, the date he sought to
reopen his claim.
Appellant timely disagreed with the RO’s decision in March 2012. In his Notice of
Disagreement, he stated that his hemorrhoids were a main reason behind his retirement. A 2012
Statement of the Case affirmed appellant’s noncompensable rating. He filed an appeal of that
decision which was denied in a 2013 Supplemental Statement of the Case.
In July 2015, appellant attended a hearing where he stated he was bothered by his
hemorrhoids on a “fairly frequent basis” and suffered from persistent itching and problems
walking.
An August 2015 treatment record reflected small hemorrhoids with intermittent bleeding.
The examiner also noted that appellant “has not manually reduce what sounds like prolapsed
hemorrhoid most times after having a bm.”
The Board remanded appellant’s claim in October 2015 to obtain a more recent examination
due to appellant’s possibly worsening condition. That same month, appellant had hemorrhoid
surgery. Afterwards, a January 2016 VA examination found no hemorrhoids and no bleeding since
the surgery.
In December 2016, the Board denied appellant’s claim, finding that at no time during the
appeal period did appellant’s disability warrant more than a noncompensable rating and that
extraschedular referral was not warranted. This appeal followed.

II. ANALYSIS
Appellant argues the Board provided inadequate reasons or bases for its decisions that his hemorrhoids didn’t warrant more than a noncompensable rating and that extraschedular referral was not warranted. Appellant’s Brief (Br.) at 8-16. The Court considers each argument in turn.
A. Schedular Rating
Appellant argues his hemorrhoids warrant a rating of more than 0% because the “[e]vidence of record indicates Appellant has had large, thrombotic, irreducible hemorrhoids” as required for a higher rating. Appellant’s Br. at 11.
Hemorrhoids are evaluated under 38 C.F.R. § 4.114, diagnostic code (DC) 7336 (2017). A noncompensable rating is assigned for mild or moderate hemorrhoids. Id. A 10% rating is assigned
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for hemorrhoids that are large or thrombotic, irreducible, with excessive redundant tissue, evidencing frequent recurrences. Id. A 20% rating is assigned for hemorrhoids with persistent bleeding and with secondary anemia, or with fissures. Id. The Board’s assignment of a particular degree of disability is a factual finding this Court reviews for clear error. See 38 U.S.C. § 7261(a)(4); McGarth v. Gober, 14 Vet.App. 28, 33 (2000).
The Board found that “[a]t no time during the appeal period has there been any clinical finding” of the symptoms required for the assignment of a 10% or 20% rating. Appellant cites two pieces of evidence he argues the Board overlooked when making its decision: an April 2008 VA treatment record finding “some large hemorrhoids, one of which shows that it has recently thrombosed and erupted” and a July 2007 VA treatment record noting one thrombosed hemorrhoid.
Appellant’s Br. at 11. The Board didn’t specifically discuss either record. It did note that it had  “reviewed all the evidence in the Veteran’s claims file, with an emphasis on the evidence relevantto the appeal.” (emphasis added).
These records predate appellant’s claim. Nonetheless, he argues “they are relevant evidence of the severity of his condition before” his hemorrhoid surgery. Appellant’s Br. at 11. He cites Moore v. Shinseki, 555 F.3d 1369, 1373 (Fed. Cir. 2009), and Romanowsky v. Shinseki, 26 Vet.App. 289, 294 (2013), for the proposition that medical records created prior to the effective date of a claim are still relevant in determining the proper rating for a disability after the effective date of the claim. Appellant’s Br. at 11.
The Moore Court held that VA is required to obtain potentially relevant records even when those records concern periods prior to the effective date of a disability, because VA must assess a disability “in relation to its history” when determining the proper rating to assign. 555 F.3d at 1373; see also 38 C.F.R. § 4.1 (2017). In Romanowsky, this Court held that “when the record contains a recent diagnosis of disability prior to a veteran filing a claim for benefits based on that disability,
the report of diagnosis is relevant evidence that the Board must address” when determining “whether a current disability existed at the time the claim was filed or during its pendency.” 26 Vet.App. at 294.
Because the Board failed to discuss these records, the Court and appellant are only left to speculate as to what value, if any, the Board assigned them. It may very well be that the Board assigned them limited probative value because of a lack of temporal proximity, which would be entirely within its power to do. See Caluza v. Brown, 7 Vet.App. 498, 06 (1995) (holding that it is
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the Board’s duty to “analyze the credibility and probative value of all material evidence . . . and provide the reasons for its rejection of any such evidence”) aff’d per curiam 78 F.3d 604 (Fed. Cir. 1996) (table). It also may be that the Board violated the Federal Circuit’s holding in Moore by categorically excluding these records because they predate the effective date of appellant’s claim.
Remand is warranted to enable the Court and appellant to understand the precise basis for the Board’s decision. See Allday v. Brown, 7 Vet.App. 517, 528 (1995) (holding that the Board’ statement of reasons or bases “must be adequate to enable a claimant to understand the precise
basis for the Board’s decision, as well as to facilitate review in this Court”); see also Tucker v.
West, 11 Vet.App. 369, 374 (1998) (holding that remand is warranted “where the Board has
incorrectly applied the law, failed to provide an adequate statement of reasons or bases for its
determinations, or where the record is otherwise inadequate”).
B. Extraschedular Referral
Appellant also argues the Board failed to adequately explain how his symptoms are
contemplated by a noncompensable rating under DC 7336 such that extraschedular referral was
not warranted. Appellant’s Br. at 14; see also 38 C.F.R. § 4.114, DC 7336.
Regarding extraschedular referral, the Board found that appellant’s “hemorrhoid condition
has manifested in symptoms that are either explicitly part of the schedular rating criteria or are
‘like or similar to’ those symptoms and impairment explicitly listed in the schedular rating criteria.”
The Board cited Mauerhan v. Principi, 16 Vet.App. 436 (2002), in support of this statement.
The Board’s reliance on Mauerhan is misplaced. Mauerhan held that the language “such
as” in a DC “provides guidance as to the severity of symptoms contemplated for each rating, in
addition to permitting consideration of other symptoms[.]” Id. at 442. DC 7336 contains no such
language and only states that a noncompensable rating should be assigned for “mild or moderate
hemorrhoids” without any further explanation.
Therefore, the Court and appellant cannot understand the precise basis for the Board’s
conclusion that all of appellant’s symptoms are “like or similar to” the “mild or moderate”
hemorrhoids listed in DC 7336 without it providing a definition for “mild or moderate”
hemorrhoids and comparing appellant’s symptoms to that definition. See Allday, 7 Vet.App. at 528;
see also Thun v. Peake, 22 Vet.App. 111, 115 (2008) (holding that the initial step in an
extraschedular analysis requires “a comparison between the level of severity and symptomatology
of the claimant’s service-connected disability with the established criteria found in the rating
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schedule for that disability”). Accordingly, remand is warranted for this portion of the Board’s
decision. See Tucker, 11 Vet.App. at 374.
Given this disposition, the Court need not address the remaining arguments and issues
raised by appellant at this time. See Best v. Principi, 15 Vet.App. 18, 20 (2001). On remand,
appellant is free to submit additional evidence and argument, including the arguments raised in the
briefs to this Court, in accordance with Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999)
(per curiam) and the Board must consider any such evidence or argument submitted, Kay v.
Principi, 16 Vet.App. 529, 534 (2002). The Court reminds the Board that “[a] remand is meant to
entail a critical examination of the justification for the decision,” Fletcher v. Derwinski, 1 Vet.App.
394, 397 (1991), and the Board must proceed expeditiously, in accordance with
38 U.S.C. §§ 5109B and 7112.
III. CONCLUSION
After consideration of the parties’ briefs and the record, the Board’s December 14, 2016,
decision denying appellant a higher schedular rating and extraschedular referral is SET ASIDE
and REMANDED for further proceedings consistent with this decision.
DATED: February 1, 2018
Copies to:
Glenn R. Bergmann, Esq.
VA General Counsel (027)

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