Entitlement to an increased compensable disability rating for hemorrhoids is denied.

Citation Nr: A26069933 Decision Date: 07/30/26 Archive Date: 07/30/26 DOCKET NO. 250725-570014 DATE: July 30, 2026 ORDER Entitlement to an increased compensable disability rating for hemorrhoids is denied. Entitlement to an increased disability rating higher than 50 percent for migraine headaches is denied. FINDINGS OF FACT 1. The Veteran's hemorrhoids did not at any time during the appeal period more nearly approximate prolapsed internal hemorrhoids with episodes of thrombosis or external hemorrhoids with three or more episodes per year of thrombosis. 2. The Veteran is in receipt of the maximum possible schedular disability rating for migraine headaches manifesting as very frequent completely prostrating and prolonged attacks capable of producing severe economic inadaptability, and there is no evidence or argument for a separate or higher disability rating. CONCLUSION OF LAW 1. The criteria for an increased compensable disability rating for hemorrhoids are not met at any point during the appeal period. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.10, 4.114, Diagnostic Code (DC) 7336. 2. The criteria for an increased disability rating higher than 50 percent for migraine headaches are not met at any point during the appeal period. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.10, 4.124a, DC 8100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1974 to April 1989. These matters come to the?Board of Veterans' Appeals?(Board) on appeal from a May 2025 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) that, after Higher-Level Review (HLR), confirmed and continued the noncompensable evaluation for hemorrhoids and the 50 percent evaluation for migraine headaches. The HLR was requested in response to a January 2025 rating decision that continued the 50 percent rating for migraines and noncompensable rating for hemorrhoids. The January 2025 rating decision was in response to a supplemental claim filed in September 2024, following a July 2024 rating decision that increased the rating for the migraine headaches from 30 to 50 percent, effective the June 11, 2024, date of claim for increase. As the Veteran continuously pursued the June 11, 2024 claim for increase for migraines by timely filing in succession the available review options specified in 38 C.F.R. § 3.2500(c), see 38 C.F.R. § 3.2500(h), the issue is whether he is entitled to receive an increased rating higher than 50 percent from the June 11, 2024 date of claim or within one year prior if factually ascertainable that an increase occurred. 38 U.S.C. § 5110(b)(3). The Veteran timely appealed the May 2025 rating decision in a July 2025 Decision Review Request: Board Appeal (Notice of Disagreement) (NOD) (VA Form 10182) and selected direct?review?by a Veterans Law Judge (VLJ). ?38 C.F.R. § 20.202(b)(1). Accordingly, the Board will?review?the evidence of record as of the date of January 2025 rating decision that resulted in a?Request for Higher-Level Review?and?the May 2025 rating decision. ?38 U.S.C. § 7113(a);?38 C.F.R. § 3.2601(f), 20.301. ?The Board will not consider evidence added to the record after the date of the January 2025 rating decision. If evidence was added during any ineligible period, the Board did not consider it. If the Veteran wishes to have VA consider any evidence that was not considered, he may at any time file a supplemental claim with the Agency of Original Jurisdiction (AOJ) after receiving this decision and the additional evidence will be considered in connection with the supplemental claim. 38 U.S.C. §§ 5104C(a)(1)(B), (b); 5108;?38 C.F.R. §§ 3.2501, 20.1105(a). If filed within one year, this supplemental claim will preserve the date of the claim denied herein as the effective date of the grant of the benefit sought. 38 U.S.C. § 5110(a)(2)(B); 38 C.F.R. § 3.2500(h). As a final preliminary matter, the Veteran in his September 2024 Supplemental Claim (VA Form 20-0995), February 2025 Request for Higher Level Review, and July 2025 VA Form 10182 alleged clear and unmistakable error (CUE) in a March 1990 rating decision that awarded noncompensable disability ratings for hemorrhoids and migraine headaches, effective April 8, 1989, the day after separation from service. However, the AOJ has yet to adjudicate the assertion of CUE, and the Board cannot adjudicate that issue in the first instance. Jarrell v. Nicholson, 20 Vet. App. 326, 334 (2006) (en banc) (assertion of CUE in an RO decision must first be presented to and decided by the RO before the Board has jurisdiction to decide the matter). The Veteran may resubmit a CUE motion to the AOJ or notify the AOJ that the CUE issue is still pending. The Board will proceed to adjudicate increased disability rating claims for hemorrhoids and migraine headaches given that the September 2024 Supplemental Claim form was submitted in response to a July 2024 rating decision stemming from a June 2024 increased disability rating claim. To the extent that the Veteran seeks to appeal any prior rating decision for which notification was issued more than a year prior to the NOD on a direct basis, the Board declines to waive the claim processing rule requiring that a NOD be filed within one year of notification of a rating decision, as there has been no request for waiver and none is apparent from the record. 38 U.S.C. § 7105(b)(1)(A) ("a notice of disagreement shall be filed within one year from the date of the issuance of notice of the decision of the agency of original jurisdiction"); Ferko v. McDonough, 37 Vet. App. 262, 265 (2024) (the one-year deadline in 38 U.S.C. § 7105 (b) to file an NOD is a claim-processing rule that may be waived and not a jurisdictional bar to the Board's review of a claim); id. at 271 (38 C.F.R. § 3.109(b) "sets forth a well-established regulatory standard for seeking acceptance of an untimely NOD"). Disability ratings Disability evaluations are?determined?by the application of VA's Schedule?for Rating Disabilities, which?is?based on average impairment of earning capacity.? 38 U.S.C. § 1155;?38 C.F.R. Part 4.???? Where, as here, 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. ?Francisco?v. Brown,?7 Vet. App. 55?(1994). In evaluating a disability, the Board considers the current examination reports?in light of?the whole recorded history to ensure that the current rating accurately reflects the severity of the condition.? The medical as well as industrial history?is?to be considered, and a full description of the effects of the disability upon ordinary activity is also?required.? 38 C.F.R. §§ 4.1, 4.2, 4.10.???? Where there?is?a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required?for?that rating.? Otherwise, the lower rating will be assigned.? 38 C.F.R. § 4.7.???? Entitlement to an increased compensable disability rating for hemorrhoids The Veteran's hemorrhoids are rated noncompensable under 38 C.F.R. § 4.114, DC 7336, from April 8, 1989, the day after separation from service. The Veteran submitted a Supplemental Claim in September 2024. Under DC 7336, mild or moderate internal or external hemorrhoids warrant a noncompensable disability rating. Large or thrombotic, irreducible hemorrhoids, with excessive redundant tissue, evidencing frequent recurrences, warrant a 10 percent disability rating. A 20 percent disability rating is warranted with persistent bleeding and with secondary anemia, or with fissures, which is the highest schedular rating under this Diagnostic Code. Id. Turning to the evidence of record, in April 2018, the Veteran reported for a VA rectum and anus conditions examination. The Veteran reported that he experienced blood and discomfort with defecation that had worsened. The clinician found that the Veteran's internal or external hemorrhoids were of mild or moderate severity. Upon physical examination, the clinician noted small or moderate external hemorrhoids. The clinician opined that the Veteran's hemorrhoids impacted his ability to work in that the Veteran had constant symptoms of soreness and irritation that interfered with his concentration and productivity and that were mild improved with Preparation H. For the following reasons, an increased compensable disability rating for hemorrhoids is not warranted. Significantly, while this appeal was pending, the Court held that the Board is?required?"to discount beneficial?medication?effects when relevant rating criteria do not specifically contemplate?medication?use."??Ingram v. Collins, 38?Vet. App.?130, 131 (2025). DC 7336, under which the Veteran's hemorrhoids are?rated, does not include any reference to?medication.??Thus,?the Board's analysis in this case?discounts?the beneficial?effects?of the Veteran's treatment and medications?in assessing the severity of his hemorrhoid disability and contemplates the nature, severity, and frequency of his hemorrhoid symptoms without treatment and?medications.?? The evidence of record reflects that the Veteran reported that he experiences hemorrhoids with symptoms of blood, soreness, irritation, and discomfort with defecation. However, the Veteran's hemorrhoid symptoms have not more nearly approximated prolapsed internal hemorrhoids with two or less episodes per year of thrombosis; or external hemorrhoids with three or more episodes per year of thrombosis, at any point during the appeal period. For the above reasons, the evidence is neither evenly balanced nor approximately so with regard to whether the Veteran's hemorrhoid symptoms more nearly approximated an increased compensable disability rating at any point during the appeal period. Rather, the evidence persuasively weighs against such a disability rating, and the benefit of the doubt doctrine is not for application. Lynch v. McDonough, 21 F.4th 776, 781-82 (Fed. Cir. 2021) (en banc) (only when the evidence persuasively favors one side, or the other is the benefit of the doubt doctrine not for application). Entitlement to an increased disability rating higher than 50 percent for migraine headaches The Veteran's headaches are currently rated 50 percent under 38 C.F.R. § 4.124a, DC 8100, from June 11, 2024, the date of an increased disability rating claim. The Veteran submitted a Supplemental Claim in September 2024 after a July 2024 rating decision that awarded the 50 percent evaluation. Under DC 8100, 50 percent rating is assigned for very frequent, completely prostrating and prolonged attacks that are productive of severe economic inadaptability. Id. The rating criteria of DC 8100 are considered successive, meaning that a claimant cannot fulfill the criteria of the higher rating without fulfilling those of the next lower rating, and the general rule of 38 C.F.R. § 4.7, that symptoms need only more nearly approximate the criteria for a higher rating, is not for application. Johnson v. Wilkie, 30 Vet. App. 245, 252 (2018). Additionally, in rating headaches under DC 8100, the Board may not consider the ameliorative effects of medication. Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). The rating criteria do not define "prostrating." Dorland's Illustrated Medical Dictionary defines "prostration" as "extreme exhaustion or powerlessness." Dorland's Illustrated Medical Dictionary 1554 (31st ed. 2007). The Court in Johnson v. Wilkie, 30 Vet. App. 245, 252 (2018) defined "prostrating" as "lacking in vitality or will: powerless to rise: laid low" (citing Webster's Third New International Dictionary of The English Language Unabridged 1822 (1966)). The rating criteria for a 50 percent rating contains additional undefined phrases. The descriptive phrase "very frequent" connotes a frequency at least greater than once a month, as is required by the rating criteria corresponding to a lesser 30 percent rating. Johnson, 30 Vet. App. At 345. The phrase "completely prostrating" generally means that the migraines attack must render the veteran entirely powerless. Id. The completely prostrating attacks must also be "prolonged," which is defined as "to lengthen in time: extend duration: draw out: continue, protract." Id. (internal citation omitted). Lastly, the 50 percent rating criteria requires that the very frequent completely prostrating and prolonged attacks be "productive of severe economic inadaptability." Productive can be interpreted as having either the meaning of "producing" or "capable of producing," and, with regard to severe economic inadaptability, nothing in DC 8100 requires that the claimant be completely unable to work in order to qualify for a 50 percent disability rating. Pierce v. Principi, 18 Vet. App. 440 (2004). For the following reasons, an increased disability rating higher than 50 percent for migraine headaches is not warranted. The Veteran has competently and credibly described the effects of his migraine headaches. His competent and credible lay statements, to include during a June 2024 VA examination and June 2024 private evaluation, disclose that he suffers from more than 10 headaches a month that last approximately one to two days with symptoms of typically one-sided head pain, nausea, vomiting, weakness, dizziness, sensitivity to light and sound, changes in vision, and sensory changes. Importantly, the Veteran's headaches affected the Veteran's ability to work, and he indicated that he was unable to function during a headache and was incapacitated. Consequently, the Veteran's severe migraine symptoms produce or have been capable of producing severe economic inadaptability, warranting the current 50 percent rating for migraine headaches. This is the maximum schedular rating under DC 8100. However, the evidence of record fails to show that the Veteran's migraine headaches, at any time during the appeal period, demonstrated a disability picture not contemplated by DC 8100. Neither the Veteran, his attorney, nor the evidence of record reasonably raises the issue of entitlement to a separate or higher disability rating for symptoms caused by the headaches that are outside the criteria in DC 8100. Morgan v. Wilkie, 31 Vet. App. 162, 164 (2018) ("VA's duty to maximize benefits requires it to exhaust all schedular alternatives for rating a disability before the extraschedular analysis is triggered. This is a threshold analysis intended to ensure that VA has satisfied its duty to maximize benefits by examining all possible rating methods in search of the highest level of established schedular compensation before resorting to the extraschedular referral process-something that is meant to be exceptional.'"); Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009) (explaining the three step process for applying 38 C.F.R. § 3.321(b)(1), including symptoms not contemplated in the criteria). In this regard, in Holmes v. Wilkie, 33 Vet. App. 67, 69 (2020), the Court "noted that a 'migraine' is defined as a familial symptom complex of periodic attacks preceded by prodromal sensory symptoms and commonly associated with irritability, nausea, vomiting, constipation, or diarrhea, and photophobia") (citing Dorland's Illustrated Medical Dictionary 1166 (32d ed. 2012)). Thus, the Court held "that DC 8100 contemplates more than just headache symptoms and requires that VA consider all the symptoms the veteran experiences as a result of migraine attacks, and then rate those symptoms based on the frequency, duration, severity, and economic impact of the attacks." Id. at 73. Thus, the Veteran's symptoms as detailed above are contemplated by DC 8100. For the above reasons, the evidence is neither evenly balanced nor approximately so with regard to whether the Veteran's migraine headaches warrant a separate or higher disability rating. Rather, the evidence persuasively weighs against the Veteran's claim for an increased disability rating higher than 50 percent for migraine headaches. The benefit of the doubt doctrine is therefore not for application as to the claim. Lynch, 21 F.4th at 781-82. Moreover, there is no evidence or argument that there was a factually ascertainable increase within one year prior to the June 11, 2024 claim for increase. (Continued on the next page) ? The Board has considered the Veteran's claims and decided entitlement based on the evidence. Neither the Veteran nor his attorney have raised any other issues, nor have any other issues been reasonably raised by the record, to include entitlement to a separate disability rating, an extraschedular disability rating, a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities, or service connection secondary to disability. Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Styer, 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.