Citation Nr: 9919636 Decision Date: 07/19/99 Archive Date: 07/28/99 DOCKET NO. 96-02 195 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an increased (compensable) evaluation for hemorrhoids. 2. Entitlement to an increased evaluation for hypertension, currently evaluated as 10 percent disabling. 3. Entitlement to service connection for cancer of the rectum with colostomy as secondary to hemorrhoids. WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD Nancy R. Kegerreis INTRODUCTION The veteran served on active duty from December 1958 to April 1977. This matter comes before the Board of Veterans' Appeals (Board) from an August 1991 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, which denied the benefits sought on appeal. In March 1998, the veteran withdrew his claim for service connection for degenerative disc disease of the lumbar spine and a claim for an increased evaluation for lumbar strain, stating that he accepted the RO's December 1997 rating of 40 percent for degenerative disc disease of the lumbosacral spine with lumbosacral strain. The claim for an increased rating for hypertension has been remanded. The Board has decided the other two claims. FINDINGS OF FACT 1. The claim for an increased evaluation for hemorrhoids is not supported by cognizable evidence showing that the claim is plausible or capable of substantiation. 2. The claim for service connection for cancer of the rectum with colostomy as secondary to hemorrhoids is not supported by cognizable evidence showing that the claim is plausible or capable of substantiation. CONCLUSIONS OF LAW 1. The veteran has not submitted evidence of a well-grounded claim for an increased evaluation for hemorrhoids. 38 U.S.C.A. § 5107(a) (West 1991). 2. The veteran has not submitted evidence of a well-grounded claim for service connection for cancer of the rectum with colostomy as secondary to hemorrhoids. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDING AND CONCLUSION A claim for an increased rating is a new claim and may generally be considered well grounded when there is an assertion that the condition has undergone an increase in severity. Proscelle v Derwinski, 2 Vet. App. 629, 632 (1992). A well grounded claim is a plausible claim, one which is meritorious on its own or capable of substantiation. 38 U.S.C.A. § 5107(a) (West 1991). In this case, it does not appear that the veteran is claiming a compensable rating on the basis of increased severity of hemorrhoids. Instead, he appears to be claiming that he should be awarded a compensable rating because of the alleged relationship between the hemorrhoids and cancer of the rectum. At his December 1997 RO hearing, he argued that symptoms of rectal bleeding believed to be due to "excessive external and internal" hemorrhoids essentially camouflaged symptoms of bleeding due to colorectal cancer, with the result that he delayed seeking medical assistance. As a consequence, he was forced to undergo surgical resection of the sigmoid colon and also resection of the rectum and anus. He testified that the rectum had been "closed off" as a consequence of the necessity for a colostomy due to removal of the above portions of his bowel. Service medical records refer to the presence of hemorrhoids during service. A July 1975 re-enlistment examination noted hemorrhoids at 3 and 6 o'clock. His separation examination in April 1977 made a note of a small internal, non-thrombosed hemorrhoid, which was not considered disabling. Following service, an October 1985 VA outpatient report indicated that the veteran's hemorrhoids had flared up and that he was to see a physician. A medical history dated in February 1988 by George Nunn, M.D., a private physician, disclosed that the veteran had had a history of hemorrhoids and had had some bleeding about two weeks previously. He had undergone a colonoscopy and had been admitted to a hospital for elective bowel preparation and surgery. Other than having observed a little bright red blood several months previously, he had been doing fine, with no real problems. His bowel movements had generally been within normal limits. Although the veteran was hospitalized in anticipation of surgery, after additional evaluation it was decided to postpone surgery until after a course of preoperative radiation to the low rectal neoplasm with chemotherapy. In April 1988 the veteran underwent resection of a segment of the sigmoid colon and resection of the rectum and anus for cancer of the rectum. Subsequent records since the 1988 surgery include an October 1991 letter from Dr. Nunn in which he stated that he had treated the veteran since January 1988 for carcinoma of the rectum. He underwent abdominal perineal resection and had done extremely well since then, with no evidence of any recurrence. In February 1997, the veteran underwent a VA disability evaluation examination. Reported medical history included high blood pressure, hemorrhoids, and cancer of the rectum believed to be due to the hemorrhoids. He eventually underwent resection of the bowel and permanent colostomy in April 1988. At that time the rectum was closed off. He continued to get a colonoscopy once or twice a year. Physical examination revealed a laparotomy scar with a permanent left-sided colostomy. His rectum had been surgically closed. The impression was status post permanent colostomy for carcinoma of the rectum since 1988; status post radiation. The colostomy had been increasingly bothersome. He has had to take time to go home and irrigate the colostomy. A VA progress note by Dr. E.M., believed to be written in May 1997, noted that the veteran was diagnosed with rectal cancer in 1988. He had had a long history of internal and external hemorrhoids prior to this. The hemorrhoids may have camouflaged the discovery of rectal carcinoma for some time. When the cancer was found, he had to have an irreversible colostomy. If this had been found sooner, it may not have been the case. A December 1997 progress note by Dr. T.S. appears to state that the veteran had had rectal bleeding since 1972 and off and on since then. Internal and external hemorrhoids were initially manifested and diagnosed in service, prior to the diagnosis of cancer of the rectum. This hid the initial manifestation of cancer of the rectum that was later diagnosed in 1988. A November 1997 progress note by Dr. E.M. states that she strongly concurred with the comments of the previous physician regarding the hemorrhoids and their interference with the prompt discovery of the rectal tumor. During his December 1997 hearing before the RO, the veteran testified that he had suffered from severe internal and external hemorrhoids in 1973 while he was on active duty. He said that he had been advised to treat them conservatively. Before January 1998, he had had a few periodic bleeding episodes, which were not excessive. In January 1998, however, he hemorrhaged and immediately reported to an emergency physician, who felt a lump on rectal examination. He then had a colonoscopy and biopsy, which revealed a cancerous tumor. Physicians told him that the hemorrhoids had masked the rectal tumor. When questioned off the record by the hearing officer, the veteran continued to maintain that his hemorrhoids had resulted in cancer of the rectum and that his claim was for service connection for cancer of the rectum as secondary to hemorrhoids. Considering first the claim for a compensable evaluation for hemorrhoids, the veteran has not really claimed increased severity of the hemorrhoids per se, and, in view of the fact that he has undergone resection of the anus and rectum, has produced no medical evidence of increased severity of hemorrhoids. The claim for an increased rating is clearly implausible and must be denied as not well grounded. If the veteran's claim for an increased rating is predicated on a contention that this service-connected disorder has increased in severity because it has caused a new disease, the appellant must provide evidence of such causal relationship. See Jones (Wayne L.) v. Brown, 7 Vet. App. 124 (1994). For reasons that will be set forth hereinafter, the veteran has not met this evidentiary burden. Considering next the claim for service connection for cancer of the rectum with colostomy as secondary to hemorrhoids, the veteran has provided no evidence to support this claim. To establish that a claim for secondary service connection is well grounded, a veteran must present medical evidence of a current disability and credible, i.e., satisfactory, evidence that his service-connected disorder caused his current disability. Credible evidence as to causation requires competent medical evidence. Libertine v. Brown, 9 Vet. App. 521, 524 (1996); Caluza v. Brown, 7 Vet. App. 498, 506 (1995). It is not disputed that the veteran currently has a colostomy following resection of the bowel due to cancer of the rectum. What is at issue here is whether his service-connected hemorrhoids caused the colorectal carcinoma. The Board finds that he has provided no evidence whatsoever to support a contention of a causal relationship between his hemorrhoids and his cancer. He has, to be sure, provided medical opinion that the hemorrhoids may have interfered with the prompt discovery of the rectal tumor. Even if it were conceded, for the sake of argument, that this were true in his case, it would still not provide a basis for secondary service connection. He has provided no medical opinion to support the claim, and, accordingly, that claim must be denied as not well grounded. The veteran's opinion as to the alleged causation have been noted. A lay person may, in some instances, be able to offer probative evidence as to the physical manifestations of a disorder, as the veteran has done effectively here. On the other hand, with regard to a claim for secondary service connection, a claimant must provide competent medical evidence that the secondary condition was caused by the service-connected condition. Wallin v. West, 11 Vet. App. 509, 512 (1998). Without the necessary competent medical evidence to support the contention as to an alleged relationship between service-connected hemorrhoids and residuals of colorectal cancer, the claim is not plausible and must be denied. The Board recognizes that the RO denied the veteran's claims on the merits, whereas the Board has concluded that these claims are not well grounded. The United States Court of Appeals for Veterans Claims has held that when an RO does not specifically address the question whether a claim is well grounded, but proceeds to adjudication on the merits, there is no prejudice to the veteran solely from the omission of the well-grounded analysis. Meyer v. Brown, 9 Vet. App. 425, 432 (1996). Furthermore, the Board views its discussion as sufficient to inform the veteran of the elements necessary to submit a well-grounded claim for service connection for the claimed condition and the reasons why his current claim is inadequate. Robinette v. Brown, 8 Vet. App. 69, 77-78 (1996). ORDER An increased evaluation for hemorrhoids is denied. The claim for service connection for cancer of the rectum with colostomy as secondary to hemorrhoids is denied. REMAND The Board notes that the schedular criteria for evaluation of diseases of the cardiovascular system were revised, effective January 12, 1998. Where a law or a regulation changes after a claim has been filed or reopened, but before the administrative judicial process has been concluded, the version most favorable to an appellant applies unless Congress provided otherwise or permitted the Secretary to do otherwise and the Secretary does so. Marcoux v. Brown, 9 Vet. App. 289 (1996); Bernard v. Brown, 4 Vet. App. 384 (1993); Karnas v. Brown, 1 Vet. App. 308 (1991). Accordingly, the claim for an increased evaluation for hypertension must be evaluated under both the old and new criteria to determine which version is most favorable to the veteran. The Board also notes that the veteran has had a long history of hypertension. Since this is true, there are likely more recently dated medical records which should be obtained. Since the last VA examination for hypertension was accomplished in December 1991, an additional VA examination conducted in consideration of the new regulations is required for a proper evaluation of this veteran's appeal. Accordingly, this case is REMANDED for the following actions: 1. The RO should contact the veteran and request that he identify names, addresses, and approximate dates of treatment for any health care providers from whom he has received treatment for hypertension since the date of the latest records in the claims file. After obtaining the proper authorization from the veteran, the RO should obtain those records identified by the veteran which are not currently of record and incorporate them with the claims file. 2. The RO should obtain and incorporate with the claims file all VA records since the date of the latest records in the claims file. 3. The veteran should be afforded a special VA examination for hypertension in accordance with the revised regulations to determine the current nature and severity of his hypertension. He should be carefully evaluated as to whether he is in compliance with recommended medical advice and medications. Any indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished. The veteran's claims file must be made available to the examiner for a complete study of the case in connection with the evaluation before and during the examination. When the requested development has been completed, the case should again be reviewed by the RO. Unless the veteran is satisfied with any favorable outcome and withdraws his appeal, the case then should be returned to the Board after compliance with the provisions for processing appeals, including the issuance of a supplemental statement of the case and provision of the applicable time period for response. The purpose of this REMAND is to obtain clarifying medical information and to ensure that due process requirements are met. The Board does not intimate any opinion as to the merits of this case, either favorable or unfavorable, at this time. No action is required of the veteran unless he is notified. 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) and 38 U.S.C.A. § 5101 (West 1991 and Supp. 1966) (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 by the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. NANCY I. PHILLIPS Member, Board of Veterans' Appeals