Citation Nr: 1536021 Decision Date: 08/24/15 Archive Date: 08/31/15 DOCKET NO. 11-32 514 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for hemorrhoids. REPRESENTATION Veteran represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD Steven D. Najarian, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1974 to June 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of December 3, 2009 and December 21, 2009 by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. A rating decision of December 3, 2009 denied the Veteran's claim of entitlement to service connection for hemorrhoids. By a further rating decision of December 21, 2009, the RO considered additional evidence submitted by the Veteran on December 14, 2009, and continued the denial of the claim. In March 2010, the Veteran filed a notice of disagreement as to the denial of entitlement to service connection for hemorrhoids. In November 2011, he perfected an appeal by timely filing VA Form 9. The Veteran and his wife testified in a hearing at the RO before the undersigned Veterans Law Judge in June 2015. A transcript of each hearing has been associated with the Veteran's claims file. The Board has reviewed the record maintained in the Veteran's Virtual VA paperless claims processing system folder. This appeal was processed using the Veterans Benefits Management System (VBMS). Any future consideration of the Veteran's case should take into consideration the existence of this electronic record. FINDING OF FACT The Veteran's current hemorrhoid condition had its onset during active military service. CONCLUSION OF LAW Resolving doubt in the Veteran's favor, the criteria necessary to establish service connection for a hemorrhoid disability are met. 38 U.S.C.A. §§ 1101, 1110, 1131, 5100, 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran seeks entitlement to service connection for the condition of hemorrhoids. Under the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and to assist claimants in substantiating a claim for VA disability benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, & 5126 (West 2014); 38 C.F.R. §§ 3.159, 3.326(a) (2015). Because sufficient evidence is of record to grant the claim of entitlement to service connection for hemorrhoids, any error in complying with the notice or assistance requirements with respect to the claim would be harmless and need not be considered. Generally, service connection may be granted for a disability resulting from disease or injury incurred during, or aggravated by, service. See 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303(a) (2015). Service connection may be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that the disability was incurred in service. See 38 C.F.R. § 3.303(d) (2015). Service connection generally requires: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (nexus) between the present disability and the disease or injury incurred or aggravated during service. See Hickson v. West, 12 Vet .App. 247, 253 (1999); Walker v. Shinseki, 708 F.3d 1331, 1333 (Fed. Cir. 2013). After assembling the evidence, the Board must evaluate the entire record. See 38 U.S.C.A. § 7104(a) (West 2014). The Board determines whether the requirements for service connection are met based on an evaluation of the probative value of all the evidence of record. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). In evaluating the evidence, the Board must assess its credibility and weight. See Bryan v. West, 13 Vet. App. 482, 488-89 (2000). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the claimant will receive the benefit of the doubt in the resolution of the issue. See 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.3 (2015). A claimant need demonstrate only that there is an approximate balance of positive and negative evidence in order to prevail. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); Fagan v. Shinseki, 573 F.3d 1282, 1287-88 (2009). A denial of a claim on the merits requires that the preponderance of the evidence be against the claim. See Alemany v. Brown, 9 Vet App. 518, 519 (1996). In the case at hand, the Board finds that the first element of Hickson, a current disability, has been met. In June 2009, shortly before the Veteran filed his claim in July 2009, the Veteran underwent surgery for the removal of an internal hemorrhoid. See VA treatment record of June 2009. He was also diagnosed at that time as having "a small external skin tag and some low-grade hemorrhoids." Id. With regard to element (2), an in-service incurrence of a disease or injury, the Veteran contends that his hemorrhoid condition began during service and he was told to apply an over-the-counter gel. See Veteran's statement of December 2009; Veteran's notice of disagreement of March 2010; hearing transcript of June 2015. The Veteran states that, beginning during military service, his hemorrhoid flare-ups lasted between two or three weeks, and that he treated the hemorrhoids during service with a cream or gel and later with a suppository, following medical advice. See June 2015 hearing transcript. Evidence that tends to weigh against a finding of an injury in service is the fact that the Veteran's service treatment records contain no complaint of, treatment for, or diagnosis of hemorrhoids. A medical examination report of July 1983 made a "digital rectal exam" and reported a negative result for hemorrhoids and for the presence of blood in the feces (stool guaiac test). A service medical examination report of January 1986 found the Veteran to have a "normal" anus and rectum without indication of hemorrhoids, and the Veteran answered "no" to the form question, "Have you ever had or have you now piles or rectal disease?" Service medical records reflect that the Veteran answered the latter question negatively again in a medical examination of January 1993 and in his separation examination of January 1996. The Veteran states that, while stationed in Germany, he returned to an Army clinician who had just diagnosed his hemorrhoids and said, "Hey, I have hemorrhoids. You all didn't annotate this in my records and for the physical." The response was, "Well, you still got another physical when you get to the United States." See June 2015 hearing transcript. He also reports that, upon returning to the United States during service, he received another medical examination and medicine for hemorrhoids and was told by the clinician, "Yes, you definitely have hemorrhoids." See June 2015 hearing transcript. The Board finds the Veteran's report of having been told by clinicians during service that his symptoms were caused by hemorrhoids to be competent and credible. Resolving doubt in the Veteran's favor, the Board finds that Hickson element (2) is satisfied. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a layperson. See 38 C.F.R. § 3.159(a)(2) (2015). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Because the adverse symptomatology of hemorrhoids is observable by a layperson, the Veteran is competent to identify hemorrhoids in the same way that a layperson can diagnosis, for example, tinnitus or varicose veins. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). The competence of lay testimony depends on the nature of the condition. See Young v. McDonald, 766 F.3d 1348, 1353 (Fed. Cir. 2014). The Veteran is competent to report on what he can see and feel, such as having rectal pain and bleeding beginning during service, even if not documented in his medical records, because these observations come to him through his own senses. See Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009). Lay evidence cannot be found to lack credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). The Veteran testified that his hemorrhoid condition would come and go, being characterized by "flare-ups." See June 2015 hearing transcript. Therefore, the fact that the digital rectal examination of July 1983 found no hemorrhoids is not dispositive. Furthermore, the Board concludes that the severity of his hemorrhoid symptoms relative to other contemporaneous symptoms reasonably explain the Veteran's failure to report his hemorrhoid symptoms to medical examiners during examinations. See Fountain v. McDonald, 27 Vet. App. 258, 273-74 (2015). Service treatment records document numerous other health issues of the Veteran, including knee pain, chronic dyspepsia, hypertension, and frostbite. The Veteran has stated, ""When I went in to do my physical, our most concern with the hypertension and everything I had going on and stuff." See June 2015 hearing transcript. With regard to element (3), nexus, the Board finds sufficient evidence that the Veteran's current hemorrhoid condition was incurred during military service. The Veteran reports that he has had hemorrhoids since military service. A VA treatment record of August 2005 documents "one external hemorrhoid" found upon examination. A record of a colonoscopy performed on the Veteran at a VA facility in September 2005 also contains a finding of "Ext. Wall - R skin tag." As noted above, surgery was performed in June 2009 to remove an epidermal inclusion cyst of the perianal region. Grade 1 internal hemorrhoids were also identified. The Veteran is competent to report his observable symptoms relating to his external hemorrhoids. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). At his June 2015 Board hearing, the Veteran competently and credibly testified that he started having hemorrhoids during military service. The Veteran maintains that "the treatment kept going on and off, and the symptoms kept getting worse. By worse, I've had blood in my underwear and everything else." See June 2015 hearing transcript. Notwithstanding the lack of a medical opinion relating the Veteran's current hemorrhoid condition to his military service, the record statements of the Veteran are competent evidence as to observable symptoms and factual matters of which they have first-hand knowledge. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994); Washington v. Nicholson, 19 Vet. App. 362 (2005). The Board also notes that the Veteran's lay testimony of hemorrhoid symptoms during and after service supports the later diagnosis of hemorrhoids made by medical professionals in 2005 and in June 2009. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board has resolved all reasonable doubt in the Veteran's favor. See 38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. § 3.102 (2015). The Board finds that the evidence is at least in equipoise as to whether the Veteran has had recurring hemorrhoids that began during military service. ORDER Service connection for hemorrhoids is granted. ____________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs