Citation Nr: 0813308 Decision Date: 04/23/08 Archive Date: 05/01/08 DOCKET NO. 05-21 991 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to service connection for hemorrhoids. 2. Entitlement to service connection for a colon disability. 3. Entitlement to service connection for an acquired psychiatric disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Michael T. Osborne, Counsel INTRODUCTION The veteran had active service from October 1977 to December 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an April 2004 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington, which denied the veteran's claims of service connection for hemorrhoids, a colon disability, and for an acquired psychiatric disability. The veteran disagreed with this decision in January 2005. He perfected a timely appeal in July 2005 and requested a Travel Board hearing which was held at the RO in February 2008. This matter also is on appeal of a September 2004 rating decision in which the RO denied the veteran's claim of service connection for post-traumatic stress disorder (PTSD). Although the veteran perfected a timely appeal on this claim, in a written statement received at his Travel Board hearing in February 2008, he withdrew his appeal for service connection for PTSD. See 38 C.F.R. § 20.204 (2007). The issues of entitlement to service connection for a colon disability and for an acquired psychiatric disability are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify you if further action is required on your part. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's service connection claim for hemorrhoids has been obtained. 2. There is no competent medical evidence of hemorrhoids which are attributable to active service. CONCLUSION OF LAW The veteran's claimed hemorrhoids were not incurred in active service. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Before assessing the merits of the appeal, VA's duties under the Veterans Claims Assistance Act of 2000 (VCAA) must be examined. The VCAA provides that VA shall apprise a claimant of the evidence necessary to substantiate his claim for benefits and that VA shall make reasonable efforts to assist a claimant in obtaining evidence unless no reasonable possibility exists that such assistance will aid in substantiating the claim. In a July 2003 letter, VA notified the veteran of the information and evidence needed to substantiate and complete his claim, including what part of that evidence he was to provide and what part VA would attempt to obtain for him. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). This letter informed the veteran to submit medical evidence, statements from persons who knew the veteran and had knowledge of his hemorrhoids during service, and noted other types of evidence the veteran could submit in support of his claim. The veteran was informed of when and where to send the evidence. After consideration of the contents of this letter, the Board finds that VA has substantially satisfied the requirement that the veteran be advised to submit any additional information in support of his claim. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). Although the notification did not advise the veteran of the laws regarding degrees of disability or effective dates for any grant of service connection, the Board finds that failure to satisfy the duty to notify in that regard is not prejudicial. Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). Because the veteran's claim of service connection for hemorrhoids is being denied in this decision, the Board finds that any failure to notify and/or develop this claim under the VCAA cannot be considered prejudicial to the veteran. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). The claimant also has had the opportunity to submit additional argument and evidence and to participate meaningfully in the adjudication process. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). With respect to the timing of the notice, the Board points out that the Veterans Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim for VA benefits. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, the July 2003 letter was issued to the veteran and his service representative prior to the April 2004 rating decision which denied the benefits sought on appeal; thus, this notice was timely. Since the veteran's claim is being denied in this decision, any question as to the appropriate disability rating or effective date is moot and there can be no failure to notify the veteran. See Dingess, 19 Vet. App. at 473. There has been no prejudice to the appellant, and any defect in the timing or content of the notices has not affected the fairness of the adjudication. See Mayfield, 444 F.3d at 1328. The Board also finds that VA has complied with the VCAA's duty to assist by aiding the veteran in obtaining evidence and affording him the opportunity to give testimony before the Board. It appears that all known and available records relevant to the issue here on appeal have been obtained and are associated with the veteran's claims file; the veteran does not contend otherwise. As to any duty to provide an examination and/or seek a medical opinion, the Board notes that in the case of a claim for disability compensation, the assistance provided to the claimant shall include providing a medical examination or obtaining a medical opinion when such examination or opinion is necessary to make a decision on the claim. An examination or opinion shall be treated as being necessary to make a decision on the claim if the evidence of record, taking into consideration all information and lay or medical evidence (including statements of the claimant) contains competent evidence that the claimant has a current disability, or persistent or recurring symptoms of disability; and indicates that the disability or symptoms may be associated with the claimant's act of service; but does not contain sufficient medical evidence for VA to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). As will be explained below, there is no evidence that the veteran's claimed hemorrhoids may be associated with active service. Thus, an examination is not warranted. In summary, the Board finds that VA has done everything reasonably possible to notify and to assist the veteran and no further action is necessary to meet the requirements of the VCAA. The veteran contends that he incurred hemorrhoids during active service. Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 C.F.R. § 3.102. A review of the veteran's service medical records indicates that a copy of his enlistment physical examination was not available for review. The veteran was not treated for hemorrhoids during active service. At the veteran's separation physical examination in December 1978, clinical evaluation was completely normal. The post-service medical evidence shows that, on private outpatient treatment in December 1998, the veteran complained of a lump near his rectum a week earlier which had since resolved. The veteran denied any change in his bowel habits. Objective examination of the veteran's rectum showed normal sphincter tone, no skin tags, and no hemorrhoids. The assessment included no evidence of hemorrhoids or change in bowel pattern. On private outpatient treatment in March 2003, the veteran complained of hemorrhoids. The assessment included hemorrhoidal bleeding, improved on medication. The Board finds that the preponderance of the evidence is against the veteran's claim of service connection for hemorrhoids. There is no evidence that he complained of or was treated for hemorrhoids during active service. It appears that he was first diagnosed as having and treated for hemorrhoids in March 2003, or almost 25 years after his service separation in December 1978, when a private examiner noted that the veteran's hemorrhoidal bleeding was improving on medication. With respect to negative evidence, the fact that there was no record of any complaint, let alone treatment, involving the veteran's condition for many years is significant. See Maxson v. West, 12 Vet. App. 453, 459 (1999), affirmed sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (holding that it was proper to consider the veteran's entire medical history, including a lengthy period of absence of complaints). A service connection claim must be accompanied by evidence which establishes that the claimant currently has a disability. Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Simply put, service connection is not warranted in the absence of proof of a present disability. As the preponderance of the evidence is against the veteran's claim, the benefit-of- the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App 49, 55-57 (1990). ORDER Entitlement to service connection for hemorrhoids is denied. REMAND The veteran testified credibly at his February 2008 Travel Board hearing that he had experienced a colon disability and an acquired psychiatric disability since active service. A review of the veteran's service medical records indicates that he was treated for a personality disorder, which is not considered a disability for VA purposes, and for frequent gastrointestinal complaints, including tenderness to palpation of the medial and lateral aspects of the transverse colon, while on active service. See 38 C.F.R. § 4.127 (2007) (personality disorders not a disability for which service connection is available). The post-service medical evidence shows continuing outpatient treatment for a colon disability and for an acquired psychiatric disorder (variously diagnosed as schizoaffective disorder, major depressive disorder, and anxiety disorder). Given the foregoing, and because the veteran has not been provided with VA examinations to determine the nature, extent, and etiology of his colon and psychiatric disabilities, on remand, the veteran should be scheduled for VA examinations. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 C.F.R. § 3.159(c)(4). The RO also should obtain the veteran's up-to-date VA and private treatment records. Accordingly, the case is REMANDED for the following action: 1. Ask the veteran to identify all VA and non-VA clinicians who have evaluated or treated him for a colon disability or for an acquired psychiatric disability since his separation from service. Obtain outstanding VA treatment records that have not already been associated with the claims file. Once signed releases are received from the veteran, obtain outstanding private treatment records that have not already been associated with the claims file. A copy of any negative response(s) should be included in the claims file. 2. Thereafter, the veteran should be afforded appropriate VA examination to determine the current nature and likely etiology of his colon disability. The claims folder should be made available to the examiner(s) for review. Based on the examination and review of the record, the examiners should express an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that any currently diagnosed colon disability is causally linked to any incident during service, including frequent in-service treatment for gastrointestinal complaints. 3. The veteran also should be afforded appropriate VA examination to determine the current nature and likely etiology of his acquired psychiatric disability. The claims folder should be made available to the examiner(s) for review. Based on the examinations and review of the record, the examiners should express an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that any currently diagnosed acquired psychiatric disability is causally linked to any incident during service. 4. Thereafter, readjudicate the claims for service connection for a colon disability and for an acquired psychiatric disability on a de novo basis. If the benefit sought on appeal remains denied, the veteran and his representative should be provided a supplemental statement of the case. An appropriate period of time should be allowed for response. The appellant has the right to submit additional evidence and argument on the matter or matters 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 Supp. 2007). ______________________________________________ JAMES L. MARCH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs