Citation Nr: 1535306 Decision Date: 08/18/15 Archive Date: 08/20/15 DOCKET NO. 11-01 180 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for a gastrointestinal disability manifested by rectal bleeding, to include colon polyps and hemorrhoids. 2. Entitlement to service connection for an acquired psychiatric disability, claimed as secondary to service-connected disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Andrew Mack, Counsel INTRODUCTION The Veteran served on active duty from October 1994 to July 1998. This appeal is before the Board of Veterans' Appeals (Board) from February 2009 and April 2010 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In December 2012, the Veteran testified at a Board videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript is included in the claims file. In January 2014, the Board remanded the matters on appeal. The issue of service connection for an acquired psychiatric disability, claimed as secondary to service-connected disabilities, is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT No current gastrointestinal disability manifested by rectal bleeding, to include colon polyps and hemorrhoids, began during service or is related to service in any other way. CONCLUSION OF LAW The criteria for service connection for a gastrointestinal disability manifested by rectal bleeding, to include colon polyps and hemorrhoids, have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. § 3.303 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In this case, required notice was provided in a July 2008 letter. See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II); Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). As to VA's duty to assist, all necessary development has been accomplished. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Veteran's service treatment records, VA medical records, and identified private treatment records have been obtained. Also, the Veteran was provided VA examinations in connection with his claim in March 2012 and May 2014. These examinations and their associated reports were together adequate. Along with the other evidence of record, they provided sufficient information and a sound basis for a decision on the Veteran's claim. 38 C.F.R. § 3.159(c)(4); Barr v. Nicholson, 21 Vet. App. 303 (2007). Moreover, in obtaining updated VA treatment records and the May 2014 VA examination report, the AOJ substantially complied with the Board's January 2014 remand instructions. See D'Aries v. Peake, 22 Vet. App. 97, 104-106 (2008); Stegall v. West, 11 Vet. App. 268 (1998). Also, 38 C.F.R. 3.103(c)(2) requires that the VLJ who conducts a hearing fulfill two duties consisting of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). In this case, during the December 2012 Board personal hearing, the VLJ complied with these requirements. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) or identified any prejudice in the conduct of the Board hearing. Thus, the VLJ sufficiently complied with the duties set forth in 38 C.F.R. § 3.103(c)(2), and any error in notice provided during the Veteran's hearing was harmless. Therefore, VA has satisfied its duties to notify and assist, and there is no prejudice to the Veteran in adjudicating this appeal. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). II. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection requires: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. As reflected in a January 2009 written statement, July 2010 notice of disagreement, December 2012 testimony before the Board, and July 2014 written statement, the Veteran asserts that his rectal bleeding began in service and has continued to the present, although the cause of his bleeding was discovered and diagnosed many years after service. He further asserts that he sought treatment for rectal bleeding only once in service because he felt uncomfortable going back to the doctor to complain, but that his rectal bleeding continued from the time of that initial in-service incident. He testified that after service he began seeking treatment because he continued to bleed and thought that something might be wrong. Service treatment records reflect that the Veteran was seen once in January 1995 for complaint of a one-day history of bright red blood of the rectum, without pain, diarrhea, or constipation, with no prior history of such. On rectal examination, there was normal tone with no masses or external lesions, and guaiac test was negative. The assessment was history of blood in stool, possibly secondary to firm stool or abrasion by paper. Service treatment records reflect no further complaints or findings related to rectal bleeding. On July 1998 examination for separation from service, the Veteran was noted to have had a normal clinical evaluation of the anus and rectum, including with respect to hemorrhoids, fistulae, or hemoccult results. In his report of medical history at the time, the Veteran reported having no past or current medical history of hemorrhoids or rectal disease, and reported no history of rectal bleeding, despite reporting a past history of numerous other medical issues. VA treatment records from June 1999 to July 2004 reflect that the Veteran sought treatment for numerous complaints and health problems, but not for rectal bleeding or problems. In December 2004, on treatment for his knee, it was noted that the Veteran also complained of blood in his stool. On rectal examination, there was no reason for bleeding seen, and the assessment was rectal bleeding; it was noted that a colonoscopy would be ordered. In April 2008, the Veteran underwent a colonoscopy for complaints of rectal bleeding. Internal hemorrhoids and a large polyp, which was removed, were discovered. In January 2010, the Veteran was noted to have had a new complaint of a bump on the top of the rectum that itched, hurt, and had some bleeding. It was noted that he had had a colonoscopy about two years prior, that hemorrhoids were seen at that time, and that he had now discovered a bump on his anus that was very irritating when he wiped and bled. It was also noted that the Veteran had been treated for rectal bleeding while in the military, and that this could be related to that condition. On examination, there was an external hemorrhoid at the 10 o'clock position, and the assessment was external hemorrhoids. The Veteran underwent another VA colonoscopy in April 2014, and findings were internal hemorrhoids, and otherwise normal colon to cecum. In this case, the Veteran's service connection claim must be denied. The competent and probative medical evidence of record weighs against the Veteran's claim. The only competent and probative opinions regarding whether any current hemorrhoids, polyps, or other gastrointestinal disability manifested by rectal bleeding is related to service, and specifically to the Veteran's in-service treatment for rectal bleeding in January 1995, are those of VA examiners in March 2012 and May 2014. On March 2012 VA examination, after reviewing the record and examining the Veteran, the examiner noted the Veteran's diagnoses of hemorrhoids and former colon polyp. The examiner also noted the Veteran's reports that he had a history of intermittent rectal bleeding since 2004, that in 2008 he underwent a colonoscopy, that he had had no followup or repeat colonoscopy since then, and that he took no medication for his diagnosed conditions. The examiner opined that the Veteran's history of polyp/rectal bleeding that by history dated back to 2004 had no bearing or relationship to his military history, and that it was less likely than not that the claimed colon polyps were related to his to in-service treatment for blood in stool because there was no relationship between an isolated polyp and rectal bleeding. On May 2014 VA examination, the Veteran reported that his hemorrhoids began in 1994 when he had rectal bleeding, but that he had a colonoscopy in 2009 to determine the etiology of rectal bleeding, at which time hemorrhoids were diagnosed. On examination, the Veteran had moderate internal hemorrhoids that were palpated. It was noted that the Veteran did not take continuous medication for his hemorrhoids. After reviewing the record, the examiner opined that the Veteran's internal hemorrhoids, confirmed on the current examination and seen on colonoscopy in April 2008, were less likely than not related to the in-service complaint of rectal bleeding in January 1995, because that incident was negative for masses or external lesions on rectal examination, guaiac was negative at that time, and no diagnosis of hemorrhoid was made. The Board finds the VA examiners' reports to be highly probative. Both examiners examined the Veteran and based their opinions on a review of the record. Both examiners gave clear rationales for their opinions, that were based on their own medical expertise, and which were consistent with the evidence of record. The Board notes that on VA treatment in January 2010 it was noted that the Veteran had been treated for rectal bleeding while in the military, and that an external hemorrhoid diagnosed at that time could be related to such in-service bleeding. However, the medical provider, while stating that the two conditions "could be related," did not provide any definitive or nonequivocal opinion as to any such nexus. Also, the medical provider did not indicate any review of the service treatment records, which is relevant as such records, at the time of the Veteran's January 1995 bleeding, reflected no masses or external lesions, with guaiac test negative, on rectal examination; these January 1995 findings largely provided the basis for the May 2014 VA examiner's opinion that the Veteran's current hemorrhoids were not related to his in-service incident of rectal bleeding. There is no other competent and probative evidence, such as a medical opinion, contradicting the opinions of the March 2012 and May 2014 VA examiners or otherwise suggesting a nexus between any current gastrointestinal disability manifested by rectal bleeding, to include colon polyps and hemorrhoids, and the Veteran's in-service rectal bleeding. The Board notes the Veteran's assertions that his in-service rectal bleeding was the result of a gastrointestinal disorder such as colon polyps or hemorrhoids that were only formally diagnosed many years after service. However, such a determination is medical in nature, and requires medical expertise to make. As such, the Veteran is not competent to make it. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Moreover, even if the Veteran were in some way competent to make any such assertion, the Board would find his lay opinion to be heavily outweighed by the medical opinions of the VA examiners, which the Board finds highly probative for the reasons discussed above. The Board also notes the Veteran's assertions that his rectal bleeding began in service and has continued to the present, that he only sought treatment once in service because he felt uncomfortable going back to the doctor to complain, and that after service he began seeking treatment because he continued to bleed and thought that something might be wrong, at which time his hemorrhoids and polyp were found. However, the Board does not find these assertions to be credible. The Veteran was treated once in service for a one-day history of rectal bleeding, and sought no follow-up or further treatment for rectal bleeding, despite seeking treatment for numerous other medical complaints and problems including acne, a right arm wart, and cough, congestion and runny nose; there is no indication as to why the Veteran would have felt uncomfortable returning for further treatment for continuous rectal bleeding throughout his service from January 1995 until July 1998. Furthermore, on July 1998 separation examination, the Veteran was noted to have had a normal clinical evaluation of the anus and rectum, including with respect to hemorrhoids, fistulae, or hemoccult results, and, at that time, reported having no past or current medical history of hemorrhoids or rectal disease, and reported no history of rectal bleeding, despite reporting a past history of numerous other medical issues. Also, post-service treatment records reflect treatment from June 1999 to July 2004 for numerous complaints and health problems, but not for rectal bleeding or problems; the initial mention of rectal bleeding was in December 2004, on treatment for his knee, and the Veteran did not undergo colonoscopy until April 2008. In this regard, on March 2012 VA examination, the examiner specifically noted that the Veteran reported a history of intermittent rectal bleeding since 2004, which contradicts his history of rectal bleeding dating back to the time of service. Moreover, even considering the Veteran's reports of rectal bleeding, as discussed above, the probative medical evidence of record reflects that the rectal bleeding experienced by the Veteran during service is not medically related to any gastrointestinal disorder currently causing rectal bleeding. Therefore, the evidence weighs against a finding that colon polyps, hemorrhoids, or any other current gastrointestinal disability manifested by rectal bleeding began during service or is related to service in any other way. Accordingly, service connection for a gastrointestinal disability manifested by rectal bleeding, to include colon polyps and hemorrhoids, must be denied. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 53-56. ORDER Service connection for a gastrointestinal disability manifested by rectal bleeding, to include colon polyps and hemorrhoids, is denied. REMAND In its January 2014 remand, the Board instructed that a VA examiner should provide an opinion as to whether the Veteran's current acquired psychiatric disability is aggravated by any of his service-connected disabilities, and/or chronic pain from these conditions. The Veteran was provided a VA examination in April 2014. However, while the VA examiner acknowledged that the Veteran had been treated with Wellbutrin for five years and had had psychotherapy within the past year, the examiner determined that there was no currently diagnosed psychiatric disorder, as there was no pathology to render a diagnosis, and did not provide the requested nexus opinion. The examiner did not explain this opinion in light of the Veteran's VA diagnoses and treatment of psychiatric disorders as reflected repeatedly in the record, including on VA examination in April 2010, at which time major depression was diagnosed. Also, as noted in the January 2014 Board remand, the Veteran reported on December 2012 VA treatment that he is getting depressed secondary to his painful physical condition; a March 2013 mental health note reflects that the Veteran gave history of depression related to his knee and back pain, an August 2013 VA mental health note reflects that he reported getting "depressed at times secondary to chronic pain," and both times he was diagnosed with depressive disorder. In light of the unexplained inconsistencies of April 2014 VA examination report with the record, the Veteran should be afforded a new VA examination. See Barr, 21 Vet. App. at 311. Also, in its January 2014 remand, the Board noted that the Veteran testified at the December 2012 Board hearing that he underwent VA vocational rehabilitation treatment, which might be pertinent to his psychiatric disability claim, and therefore, in connection with that claim, requested that the AOJ obtain and associate with the record the Veteran's VA vocational rehabilitation file. However, while a July 2014 supplemental statement of the case reflects that the Veteran's vocational rehabilitation folder was received from the Muskogee RO and associated with claims file on March 7, 2014, the record reflects that, in a March 7, 2014, email, the AOJ requested his vocational rehabilitation folder or a written negative response, but neither the vocational rehabilitation folder or a negative response to the request is of record. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the record the Veteran's VA vocational rehabilitation file. 2. Schedule the Veteran for the appropriate VA examination of his currently diagnosed acquired psychiatric disability. After reviewing the record, to include all pertinent treatment records reflecting diagnoses of and treatment for any acquired psychiatric disability, the examiner should answer the following question: * Is it at least as likely as not (i.e., a probability of 50 percent or more) that any current acquired psychiatric disability, to include any such diagnosed disability from the time of the Veteran's June 2008 claim for benefits to the present (that is, depression/major depression), was caused by any of his service-connected disabilities (tinnitus, chondromalacia of the knees, instability of the knees, total right knee replacement, left varicocele, distal numbness of the right hand, and right hand scar post metacarpal boss excision) and/or chronic pain from these conditions. * Is it at least as likely as not (i.e., a probability of 50 percent or more) that any current acquired psychiatric disability, to include any such diagnosed disability from the time of the Veteran's June 2008 claim for benefits to the present (that is, depression/major depression), was aggravated (worsened) by any of his service-connected disabilities (tinnitus, chondromalacia of the knees, instability of the knees, total right knee replacement, left varicocele, distal numbness of the right hand, and right hand scar post metacarpal boss excision) and/or chronic pain from these conditions. Note: Aggravation connotes a permanent worsening above the base level of disability, not merely acute and transitory increases in symptoms or complaints. Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but that the medical evidence for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. A complete rationale must be provided for all opinions. If an opinion cannot be rendered without resorting to speculation, the examiner should explain why it would be speculative to respond. 3. After completing the above and any other necessary development, readjudicate the appeal. If the benefit sought remains denied, provide a supplemental statement of the case to the Veteran. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. 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 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs