Case A26036585

Summary

The veteran, who served in the U.S. Navy from May 2000 to February 2020, appeals decisions regarding disability ratings and service connection for several conditions. The veteran initially sought higher ratings for left knee chondromalacia, cervical spine disability, and a right inguinal hernia, but later withdrew these specific appeals. The Board dismissed these withdrawn claims. The veteran also appealed the denial of service connection for hypertension and a cardiovascular disability. The Board granted service connection for hypertension, finding it incurred during service based on in-service diagnoses and continued treatment. For coronary atherosclerosis with sinus bradycardia, the Board found the evidence in approximate balance and granted service connection, noting the conditions were diagnosed during service and the AOJ's assessment of asymptomatic bradycardia and non-disabling calcification was unclear. The Board also granted service connection for fecal leakage as secondary to service-connected hemorrhoids, recognizing the condition was raised by the record and substantiated by evidence of post-surgical symptoms and ongoing fecal seepage. The remaining claims for pharyngitis, essential tremors of both upper extremities, hemorrhoids, and colon polyps were remanded due to a pre-decisional duty-to-assist error, as the AOJ failed to obtain all service treatment records before issuing initial ratings.

Full Decision Text

Citation Nr: A26036585
Decision Date: 04/20/26	Archive Date: 04/20/26

DOCKET NO. 210223-141795
DATE: April 20, 2026

ORDER

The appeal concerning the issue of entitlement to an initial disability rating greater than 30 percent for a cervical spine disability is dismissed.  

The appeal concerning the issue of entitlement to an initial disability rating greater than 10 percent for left knee chondromalacia is dismissed.  

The appeal concerning the issue of entitlement to an initial disability rating greater than 0 percent for a right inguinal hernia is dismissed.

Entitlement to service connection for hypertension is granted.

Entitlement to service connection for coronary atherosclerosis with sinus bradycardia is granted.

Entitlement to service connection for a disability manifesting in fecal leakage is granted.  

REMANDED

Entitlement to an initial disability rating greater than 0 percent for pharyngitis is remanded.

Entitlement to an initial disability rating greater than 0 percent for essential tremors of the left upper extremity is remanded.

Entitlement to an initial disability rating greater than 0 percent for essential tremors of the right upper extremity is remanded.

Entitlement to an initial disability rating greater than 0 percent for hemorrhoids is remanded.

Entitlement to an initial disability rating greater than 0 percent for colon polyps, status post polypectomy, is remanded.

FINDINGS OF FACT

1. At the September 2024 Board hearing, and again in April 2025 written correspondence, the Board received notification from the Veteran that a withdrawal of the appeal for higher initial left knee, cervical spine and right inguinal hernia disability ratings is requested.  

2. The evidence supports a finding that the Veteran has hypertension that was incurred during active duty service. 

3. The evidence supports a finding that the Veteran has coronary atherosclerosis with sinus bradycardia that was incurred during active duty service.  

4. The evidence of record supports a finding that the Veteran has a disability manifesting in fecal leakage that is secondary to his service-connected hemorrhoids disability.

CONCLUSIONS OF LAW

1. The criteria for withdrawal of the appeal for higher initial left knee, cervical spine and right inguinal hernia disability ratings have been met.  38 U.S.C. § 7105; 38 C.F.R. § 20.205.

2. The criteria for the award of service connection for hypertension have been met.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303.

3. The criteria for the award of service connection for coronary atherosclerosis with sinus bradycardia have been met.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303.

4. The criteria for the award of service connection for a disability manifesting in fecal leakage have been met.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.310.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the U.S. Navy from May 2000 to February 2020.  

The rating decisions on appeal were issued in February and September 2020 and constitute initial decisions; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies.  In the February 2020 rating decision, the agency of original jurisdiction (AOJ) awarded service connection for left knee chondromalacia, with a 10 percent initial rating, and for pharyngitis, essential tremors of each upper extremity, hemorrhoids and colon polyps, each with a noncompensable (zero percent) initial rating.  The AOJ also denied entitlement to service connection for hypertension and a cardiovascular disability.  In the September 2020 rating decision, the AOJ awarded service connection for a cervical spine disability, with a 30 percent initial rating, and for a right inguinal hernia, with a noncompensable (zero percent) initial rating.  All awards were made effective March 1, 2020, the date immediately following the Veteran's date of discharge.

In the February 2021 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Hearing docket, and a Board hearing was held on September 25, 2024.  On his VA Form 10182, the Veteran disagreed with the assigned initial ratings for his left knee, essential tremors, pharyngitis, colon polyps, hemorrhoid
 awarded service connection for a cervical spine disability, with a 30 percent initial rating, and for a right inguinal hernia, with a noncompensable (zero percent) initial rating.  All awards were made effective March 1, 2020, the date immediately following the Veteran's date of discharge.

In the February 2021 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Hearing docket, and a Board hearing was held on September 25, 2024.  On his VA Form 10182, the Veteran disagreed with the assigned initial ratings for his left knee, essential tremors, pharyngitis, colon polyps, hemorrhoid, cervical spine, and inguinal hernia disabilities, as well as the AOJ's denial of entitlement to service connection for heart disease.  The Veteran and his representative made clear at the September 2024 Board hearing that the Veteran did not disagree with the assigned effective dates for each award. 

Therefore, with respect to the Veteran's left knee, essential tremors, pharyngitis, colon polyps, hemorrhoid, and heart claims, the Board may only consider the evidence of record at the time of the February 2020 AOJ decision on appeal, as well as any evidence submitted by the Veteran or his representative at the hearing or within 90 days following the hearing.  With respect to the Veteran's cervical spine and inguinal hernia claims, the Board may only consider the evidence of record at the time of the September 2020 AOJ decision on appeal, as well as any evidence submitted by the Veteran or his representative at the hearing or within 90 days following the hearing.  38 C.F.R. § 20.302(a).  If evidence was submitted either (1) during the period after the AOJ issued the decisions on appeal, respectively, and prior to the Board hearing, or (2) more than 90 days following the hearing, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.302(a), 20.801. 

As discussed below, the Board is dismissing the Veteran's withdrawn claims, and is granting entitlement to service connection for hypertension, for coronary atherosclerosis with sinus bradycardia, and for disability manifesting in fecal leakage, as secondary to the Veteran's hemorrhoid disability.   

The Board is remanding the Veteran's remaining claims.  As such, any evidence the Board could not consider will be considered by the AOJ in the adjudication of those claims. 38 C.F.R. § 3.103(c)(2)(ii).

As noted above, in the February 2020 rating decision, the AOJ denied entitlement to service connection for hypertension and cardiovascular disability.  The Veteran did not specifically express disagreement with the prior hypertension denial on his VA Form 10182, but he did disagree with the decision to deny service connection for a cardiovascular disability.  At the September 2024 hearing, the Veteran and his representative explained the Veteran's belief that his hypertension was related to the heart claim.  Having considered the matter, the Board will expand the scope to include consideration as to whether service connection can be granted for any cardiovascular disability, to include hypertension.  

1. The appeal concerning the issue of entitlement to an initial disability rating greater than 30 percent for a cervical spine disability is dismissed.  

2. The appeal concerning the issue of entitlement to an initial disability rating greater than 10 percent for left knee chondromalacia is dismissed.  

3. The appeal concerning the issue of entitlement to an initial disability rating greater than 0 percent for a right inguinal hernia is dismissed.

The Board may dismiss any appeal which fails to allege specific error of fact or law in the determinations being appealed.  38 U.S.C. § 7105.  An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision.  38 C.F.R. § 20.205.  Withdrawal may be made by the appellant or by his or her authorized representative.  Id. 

In the present case, at a September 2024 Board hearing, the Veteran and his attorney orally requested withdrawal of the Veteran's appeal as to the issues of entitlement to higher initial disability ratings for his service-connected left knee, cervical spine and right inguinal hernia disabilities.  The Veteran's request explicitly and unambiguously identified the issues he desired to withdraw, and the Veteran confirmed on the record at his hearing that he understood that the withdrawal would remove the issues from the appeal and preclude further consideration by the Board.

Subsequently, the Veteran, through his attorney, submitted written correspondence dated April 24, 2025,
  Withdrawal may be made by the appellant or by his or her authorized representative.  Id. 

In the present case, at a September 2024 Board hearing, the Veteran and his attorney orally requested withdrawal of the Veteran's appeal as to the issues of entitlement to higher initial disability ratings for his service-connected left knee, cervical spine and right inguinal hernia disabilities.  The Veteran's request explicitly and unambiguously identified the issues he desired to withdraw, and the Veteran confirmed on the record at his hearing that he understood that the withdrawal would remove the issues from the appeal and preclude further consideration by the Board.

Subsequently, the Veteran, through his attorney, submitted written correspondence dated April 24, 2025, again requesting withdrawal of the Veteran's initial rating claims for his left knee, cervical spine and right inguinal hernia disabilities.  

Therefore, there remain no allegations of errors of fact or law for appellate consideration as to these issues.  Accordingly, the appeal as to these issues is dismissed.  

4. Entitlement to service connection for hypertension is granted.

5. Entitlement to service connection for coronary atherosclerosis with sinus bradycardia is granted.

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 

As noted above, the Board has expanded the scope of the Veteran's service-connection claim to consider whether service-connection can be granted for any cardiovascular disability, to include hypertension.

The Veteran contends his hypertension and heart disease both had onset during active duty service.  The medical evidence of record supports the Veteran's contentions.

Concerning hypertension, the AOJ denied the Veteran's service-connection claim for hypertension in the February 2020 rating decision on appeal based on the assessment of an October 2019 VA-contract examiner, who concluded that the Veeran did not have a hypertension disability at the time of the examination.  

As will be discussed in the Remand section below, the AOJ did not secure all of the Veteran's service treatment records before issuing the February 2020 rating decision on appeal.  Nevertheless, the service treatment records that were available for AOJ review at the time of the February 2020 rating decision clearly showed that the Veteran was diagnosed with "essential hypertension" on several occasions in the years leading up to his February 2020 discharge.  See, e.g., service treatment reports dated July 12, 2017, October 3, 2017, February 15, 2018 and March 5, 2018.  The October 2019 examiner made no reference to the fact that the Veteran had already been diagnosed with hypertension by his treating physicians in the years leading up to the examination, nor did the examiner address the Veteran's own report at the examination that he had a history of hypertension for the past 5-7 years, and that his blood pressure fluctuated.  Because the October 2019 examiner did not reconcile the non-diagnosis of hypertension that day, with the Veteran's prior history of hypertension diagnosis and care for the same, the Board affords the examiner's October 2019 assessment little probative value.

During the 90-day period following the Veteran's September 2024 Board hearing, the Veteran submitted medical evidence showing that he continues to carry a hypertension diagnosis, and receives care for hypertension.  See July 14, 2022 and September 15, 2022 private treatment reports from Dr. M.R. (acknowledging a prior medical history of hypertension, a current diagnosis, and prescription of blood pressure medication); see also a December 11, 2023 VA CT Chest examination report (referencing hypertension as a condition on the Patient Problem List).  As the evidence establishes that the Veteran's has a current hypertension disability with in-service onset, entitlement to service connection is granted under the provisions of 38 C.F.R. § 3.303.

Regarding cardiovascular disease other than hypertension, the AOJ similarly denied the Veteran's claim in February 2020 based on a finding that a current disability did not exist.  The AOJ based this determination on a conclusion that in-service heart calcification documented within in-service treatment records was not considered disabling, and that sinus bradycardia identified by the October 2019 VA-contract examiner, was not considered a disability for VA purposes.  See the AOJ's February 2020 rating decision.   

Current VA regulations stipulate that asymptomatic bradycardia is a medical finding only, and is not a disability subject to compensation.  See 38 C.F.R. § 4.104, Diagnostic Code 7009, Note (2).  While this Note was not formally added to the Rating Schedule until
 2020 based on a finding that a current disability did not exist.  The AOJ based this determination on a conclusion that in-service heart calcification documented within in-service treatment records was not considered disabling, and that sinus bradycardia identified by the October 2019 VA-contract examiner, was not considered a disability for VA purposes.  See the AOJ's February 2020 rating decision.   

Current VA regulations stipulate that asymptomatic bradycardia is a medical finding only, and is not a disability subject to compensation.  See 38 C.F.R. § 4.104, Diagnostic Code 7009, Note (2).  While this Note was not formally added to the Rating Schedule until after the AOJ issued its February 2020 decision, it appears the AOJ considered the Veteran's October 2019 diagnosis as an asymptomatic medical finding when it found that such was "not considered a disability for VA purposes."  

Whether the Veteran's bradycardia was actually asymptomatic at the time of the October 2019 examination is, at best, unclear, as the Veteran specifically noted feeling shortness of breath when a heart condition was first identified 2-3 years prior, and when he was placed on Lipitor.  The Veteran reported still feeling some shortness of breath at the examination.  

Notably, the service treatment records on file at the time of the February 2020 rating decision did not include a diagnosis of sinus bradycardia, but rather a different heart condition-"coronary atherosclerosis due to calcified coronary legion"-following a CT scan.  See, e.g., an August 17, 2018 in-service Medical Record.  As noted above, the AOJ addressed this condition in its February 2020 rating decision, but similarly determined that service connection could not be granted because calcification was not considered to be disabling.  The AOJ cited no medical evidence, or relevant law or regulation that would support that conclusion.  Indeed, the October 2019 examiner made no mention of the prior coronary atherosclerosis diagnosis.  

There is no dispute that coronary atherosclerosis and sinus bradycardia were both  diagnosed during the Veteran's period of active service, to include while the Veteran's claim was being processed by VA as he approached his discharge in February 2020.  While VA does classify asymptomatic bradycardia as medical finding only, and not a disability for VA purposes, the evidence is, at best, unclear as to whether the Veteran's bradycardia was asymptomatic at the time of the October 2019 examination and the February 2020 rating decision on appeal.  Regarding coronary atherosclerosis, the AOJ in a similar way, determined such cannot be service connected because it is not considered disabling.  In doing so, the AOJ appeared to conflate the question of whether a disability may be service connected with the question of whether a service-connected disability may be rated and compensated.  Unlike as with asymptomatic bradycardia, VA has not stated by regulation that coronary atherosclerosis may not be considered a disability for VA purposes.  

After considering the facts and evidence unique to this case, the Board finds the evidence to be, at the very least, in approximate balance as to whether the Veteran has a cardiovascular disability other than hypertension-namely, coronary atherosclerosis with sinus bradycardia.  Such disability was diagnosed during the Veteran's period of active duty service, and while the claim was pending before the AOJ.  The Board accordingly finds that entitlement to service connection for the same is granted based on in-service incurrence under the provisions of 38 C.F.R. § 3.303.

In awarding service connection, the Board is no way commenting on whether a compensable initial disability rating may or may not be warranted.  Such is a determination that the AOJ will make in the first instance upon implementation of this decision.  

6. Entitlement to service connection for a disability manifesting in fecal leakage is granted.  

In the February 2020 rating decision on appeal, the AOJ assigned an initial noncompensable (zero percent) disability rating for the Veteran's service-connected hemorrhoids.  The Veteran disagreed with the assigned initial rating, and has appealed that issue to the Board.

In evaluating a claim for an increased rating, VA has a duty to maximize benefits, to include consideration of whether secondary service connection may be warranted for conditions raised by the record.  See Morgan v. Wilkie, 31 Vet. App. 162 (2019); see also Bailey v. Wilkie, 33 Vet. App. 188 (2021) ("VA is required to develop and adjudicate related claims for secondary service connection for disabilities that are reasonably raised during the adjudication of a formally
 on appeal, the AOJ assigned an initial noncompensable (zero percent) disability rating for the Veteran's service-connected hemorrhoids.  The Veteran disagreed with the assigned initial rating, and has appealed that issue to the Board.

In evaluating a claim for an increased rating, VA has a duty to maximize benefits, to include consideration of whether secondary service connection may be warranted for conditions raised by the record.  See Morgan v. Wilkie, 31 Vet. App. 162 (2019); see also Bailey v. Wilkie, 33 Vet. App. 188 (2021) ("VA is required to develop and adjudicate related claims for secondary service connection for disabilities that are reasonably raised during the adjudication of a formally initiated claim for the proper evaluation level for the primary service-connected disability.")

For reasons discussed in the Remand section below, the Board must remand the primary hemorrhoids rating claim to the AOJ for correction of a pre-decisional duty-to-assist error.  That said, notwithstanding the pre-decisional error, there is sufficient evidence on file for the Board to recognize service connection for a disability manifesting in fecal leakage, as secondary to the hemorrhoid disability at this time.  

Indeed, the medical evidence contained within the Veteran's service treatment records shows that in November 2018, the Veteran underwent a transanal hemorrhoidal dearterialization (THD) procedure to treat his service-connected hemorrhoid disability.  At a subsequent May 6, 2019 outpatient appointment, the Veteran described experiencing anal seepage following his THD procedure, with leaking about once a week.  He was diagnosed with "fecal smearing" 5 months status post THD, with leaking of fluid from the anus.  The Veteran completed an August 25, 2019 Report of Medical History, upon which he indicated he had hemorrhoids for which a procedure was done in November 2018, and "as a result, there is a recurrent feces bleed (x2-3 a month)."  At an October 2019 VA-contract rectum and anus examination, the examiner diagnosed hemorrhoids, and acknowledged that post-surgical symptoms included fecal discharge requiring the Veteran take time out from duty time to clean and change clothes.  

In its February 2020 rating decision, the AOJ awarded service connection for hemorrhoids only, but recognized that such was claimed as "hemorrhoids unresolved status post repair with intermittent fecal breathing."  The AOJ then rated the hemorrhoids disability utilizing Diagnostic Code 7336 [hemorrhoids], which has since been revised.  

At his September 2024 Board hearing, the Veteran testified that he continues to have fecal leakage, which has become more frequent since its onset after the November 2018 surgery in service.  

It does not appear that the AOJ formally granted service connection for fecal leakage as part of the initially rated hemorrhoid disability.  Given that the Veteran has disagreed with and is appealing the AOJ's assigned initial rating for hemorrhoids, that the reviewable evidence on file both raises and substantiates a claim for compensation for fecal leakage, as secondary to service-connected hemorrhoids, and in light of VA's duty to maximize benefits as outlined above and emphasized by the Court in Bailey, the Board will award service connection for a disability manifesting in fecal leakage at this time.  To this extent only, the benefit sought on appeal is granted.  

The AOJ will assign an initial rating for the Veteran's fecal leakage disability in the first instance, upon implementation of this decision.  

REASONS FOR REMAND

1. Entitlement to an initial disability rating greater than 0 percent for pharyngitis is remanded.

2. Entitlement to an initial disability rating greater than 0 percent for essential tremors of the left upper extremity is remanded.

3. Entitlement to an initial disability rating greater than 0 percent for essential tremors of the right upper extremity is remanded.

4. Entitlement to an initial disability rating greater than 0 percent for hemorrhoids is remanded.

5. Entitlement to an initial disability rating greater than 0 percent for colon polyps, status post polypectomy, is remanded.

As indicated above, the Board must remand the remaining issues on appeal to correct a pre-decisional duty-to-assist error under the provisions of 38 C.F.R. § 20.802(a).

By way of background, in September 2019, the Veteran filed his initial compensation claim prior to his discharge, under the Benefits Delivery at Discharge (BDD) program.  The AOJ promptly secured the Veteran's service treatment records, and such were entered into the Veteran's claims file on September 17, 2019.  The AOJ adjudicated the Veteran's claims in the February 2020 rating
 rating greater than 0 percent for colon polyps, status post polypectomy, is remanded.

As indicated above, the Board must remand the remaining issues on appeal to correct a pre-decisional duty-to-assist error under the provisions of 38 C.F.R. § 20.802(a).

By way of background, in September 2019, the Veteran filed his initial compensation claim prior to his discharge, under the Benefits Delivery at Discharge (BDD) program.  The AOJ promptly secured the Veteran's service treatment records, and such were entered into the Veteran's claims file on September 17, 2019.  The AOJ adjudicated the Veteran's claims in the February 2020 rating decision on appeal, three days before the Veteran's February 29, 2020 discharge date.  As noted, the AOJ granted entitlement to service connection for pharyngitis, right and left upper extremity essential tremors, colon polyps status post surgery, and hemorrhoids, and assigned initial noncompensable disability ratings for each.  The Veteran timely disagreed with the assigned initial ratings when he filed his VA Form 10182 in February 2021. 

Unfortunately, prior to assigning the initial evaluations at issue for each of the above-referenced disabilities, the AOJ did not request the Veteran's service treatment records pertaining to any care the Veteran received from September 2019 to February 2020.  Indeed, VA has a duty to obtain records in the custody of a Federal department or agency, to include service medical records.  See 38 C.F.R. §  3.159(c)(2).  Because the AOJ assigned initial disability ratings in February 2020 for the disabilities at issue without first securing the Veteran's complete record of in-service care, the AOJ committed a pre-decisional duty-to-assist error.  On remand, the AOJ must readjudicate the Veteran's claims after ensuring that the service treatment records on file are complete.  

The matters are REMANDED for the following action:

Ensure that the Veteran's claims file contains all of his service treatment records, spanning his entire period of active duty service through February 29, 2020.  Take all appropriate steps to obtain missing records.  Then,  readjudicate the Veteran's claims for higher initial disability ratings for pharyngitis, essential tremors of the right upper extremity, essential tremors of the left upper extremity, hemorrhoids, and colon polyps, status post polypectomy.   

 

 

ANTHONY C. SCIRÉ, JR

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	V. Chiappetta, 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.