Citation Nr: 1007368 Decision Date: 02/26/10 Archive Date: 03/05/10 DOCKET NO. 06-16 155 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to service connection for hemorrhoids. 2. Entitlement to service connection for a left foot disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. dR. Dale, Associate Counsel INTRODUCTION The Veteran had active military service from December 1995 to August 1996, and from October 2004 to November 2004. She had active duty for training (ACDUTRA) prior to and including the periods of March 1994 to June 1994, and May 2003 to May 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. FINDINGS OF FACT 1. The Veteran had hemorrhoids in 1997, 1999, 2001, 2003, 2004, and 2005. 2. She continued to suffer from hemorrhoids between 2004 and her stapled hemorrhoidectomy in May 2005; hemorrhoids therefore existed at and beyond the filing of her claim in September 2004. 3. The evidence reflects continuity of symptoms with respect to the hemorrhoids first diagnosed in February and April 2004, and the Veteran's hemorrhoidectomy in May 2005. 4. The evidence reflects continuity of symptoms of left plantar fasciitis between the time of onset in November 1993, and the present. CONCLUSIONS OF LAW 1. Hemorrhoids were incurred in or aggravated as result of service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2009). 2. Left plantar fasciitis was incurred in, or aggravated by, active military service. 38 U.S.C.A. § 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Hemorrhoids The Veteran seeks service connection for hemorrhoids that she maintains were aggravated during sit-ups and other physical activity while on active duty. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease in service. See Pond v. West, 12 Vet. App. 341 (1999); Hickson v. West, 12 Vet. App. 247, 253 (1999). Every veteran shall be taken to have been in sound condition when examined, accepted and enrolled into service, except as to defects, infirmities or disorders noted at the time of the examination, acceptance and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. 1111; 38 C.F.R. § 3.304(b); see also VAOPGCPREC 3-03 and Wagner v. Principi, 370 F. 3d 1089 (Fed. Cir. 2004). VA's General Counsel has held that to rebut the presumption of sound condition under 38 U.S.C.A. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. The Veteran is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. VAOPGCPREC 3-2003; see also Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306(a) (2009). Clear and unmistakable evidence (obvious and manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. This includes medical facts and principles which may be considered to determine whether the increase is due to the natural progress of the condition. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence in the record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 C.F.R. § 3.306(b) (2009). Temporary or intermittent flare-ups during service of a preexisting injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted to symptoms, is worsened. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Service treatment records (STRs) include an August 1993 enlistment examination report, a 1996 separation examination report, and an August 2001 physical examination report that all specifically noted the Veteran's anus and rectum were normal. In February 2004 the Veteran complained of "possible" hemorrhoids. Physical examination found a small, external hemorrhoid. Diagnosis was hemorrhoids. In April 2004 the Veteran complained of a bulging hemorrhoid "off [and] on for one year." In November 2004, it was now indicated that "preexisting" hemorrhoids now required surgical intervention. VA medical records show that in March 2005 the Veteran complained of a flare-up of hemorrhoids following a weekend drill. She stated that she was doing sit-ups/push-ups, which caused her hemorrhoids to flare. She was referred for surgery. She underwent a stapled hemorrhoidectomy in May 2005. In August 2005 the Veteran was accorded a compensation and pension (C&P) rectum and anus examination. During the examination the Veteran reported that she developed hemorrhoids during her three pregnancies in 1997, 1999, and 2001 but that they resolved after delivery. She stated that they recurred in September 2003. She further reported that she underwent a stapled hemorrhoidectomy in May 2005. Physical examination revealed a moderately sized external hemorrhoid at "12 o'clock" and no internal hemorrhoids. Impression was hemorrhoids. In September 2009 the Veteran was accorded another C&P examination. During the examination the Veteran reported that she confirmed that she developed hemorrhoids during her three pregnancies in 1997, 1999, and 2001 and that they resolved with over-the-counter treatment. She further reported that they recurred in September 2003 and April 2004. She stated that she has not had any recurrence of hemorrhoids since she had her stapled hemorrhoidectomy in May 2005. She reported that she had a little tag of skin that appeared but stated that she did not have any symptoms from the piece of skin. She no longer had any bleeding but reported that she had an occasional burning sensation. She denied having any hemorrhoid treatment since 2005. Physical examination found no external or internal hemorrhoids and a tiny hemorrhoidal skin tag. The examiner found no hemorrhoids. The examiner stated that while the record supported that the Veteran had recurrent hemorrhoids, there was no indication that she had a hemorrhoid when she entered ACDUTRA. The Veteran developed a new hemorrhoid in 2003, but that resolved and no residuals could be attributed to that hemorrhoid. A review of the record indicates that the RO contacted the Veteran in July 2009 and August 2009 and requested medical records or authorization forms that would allow VA to obtain medical records pertaining to the treatment of the Veteran prior to 1993 and from 1993 to the present. The response was negative. While the medical evidence of record shows that Veteran's hemorrhoids had, at times, resolved, the Board finds that the Veteran has had a current diagnosis of hemorrhoids while her claim has been pending. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (noting that the requirement of a current disability is satisfied when the claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim and that a claimant may be granted service connection even though the disability resolves prior to the Secretary's adjudication of the claim). The Board notes that the Federal Circuit recently held in Davidson v. Shinseki that the VA must give due consideration to all pertinent medical and lay evidence and that a lay person is competent to provide testimony as to nexus. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (citing Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir.2007) and Buchanan v. Nicholson, 451 F .3d 1331, 1337 (Fed.Cir.2006)). Moreover, the Board notes that it is unclear in the record whether the hemorrhoids the Veteran complained of in 2003 are the same hemorrhoids that were symptomatic in February 2004. What is clear to the Board is that the hemorrhoids that were first diagnosed in February and April 2004 continued to be symptomatic during ACDUTRA and active duty in October and November 2004, and ultimately required surgical intervention in May 2005. This disability (prolapsing hemorrhoids) is also found to be the type of disability that a Veteran is capable of recognizing associated symptoms from the end of ACDUTRA in May 2004 to the end of her final period of active service in November 2004, and continuing thereafter until her surgery in May 2005. The Board further finds that the September 2009 examiner is essentially supportive of such continuing symptoms in noting that the Veteran had no hemorrhoids when entering ACDUTRA. In any event, the Board will give the Veteran the benefit of the doubt, and conclude that continuity of symptoms associated with the hemorrhoids diagnosed in February and April 2004 warrants service connection for residuals of those hemorrhoids status post the Veteran's stapled hemorrhoidectomy in May 2005. Left foot disorder The Veteran also seeks service connection for a left foot condition which she attributes to wearing boots and the constant pounding on the pavement from physical training. STRs include an enlistment examination dated in August 1993 that marked the Veteran's feet as normal. In November 1993, she was diagnosed with pes planus and plantar fasciitis during what the Board finds to be a period of ACDUTRA. While she was on ACDUTRA from March 1994 to June 1994, she complained of arch pain for seven months. She was diagnosed with bilateral plantar fasciitis and left ankle sprain. Also included was a reenlistment examination dated in January 1995 that showed a diagnosis of moderate pes planus, asymptomatic. A periodic examination dated in February 2001 showed a diagnosis of moderate pes planus, asymptomatic, and hallux valgus, asymptomatic. In February 2004 the Veteran complained of pain and discomfort of both feet. She denied trauma and reported that the pain was worse with activity and at the end of the day. The physician noted that both feet had minimal bunion formation. The feet were tender to palpation along the metatarsophalangeal joint, bilaterally. Diagnosis was metatarsalgia. In March 2004 the Veteran again complained of foot pain on the bottom of the feet. She reported the pain was greater in the right foot than the left foot. Physical examination found the anterior heels and the insertion of peroneus brevis tendon tender to palpation. Diagnosis was plantar fasciitis, bilaterally, and peroneus brevis tendonitis of the right foot. In August 2005 the Veteran was accorded a C&P feet examination. Physical examination found the feet were tender to palpation bilaterally with the right foot worse than the left foot. The arches were normal but there was very slight hallux valgus on the right foot. Diagnosis was plantar fasciitis with decreased range of motion noted and hallux valgus on the left foot, minimal or slight degree. The examiner opined that the diagnoses were not due to military service. No rationale for the opinion was provided nor were any of the service treatment records acknowledged. In September 2009 the Veteran was accorded another C&P feet examination. During the examination the Veteran reported that she experienced pain along the bottom of her foot when standing. She described it as an aching sensation especially after running. She stated that she had symptoms every day that vary with activity. An x-ray revealed no fracture, dislocation, or degenerative changes. The diagnoses were left foot pes planus, plantar fasciitis mild asymptomatic hallux valgus and mild Achilles tendonitis. The examiner found that the Veteran's left foot condition was present prior to the military. She opined that there might have been temporary aggravation of her plantar fasciitis in the military but no permanent progression. She further found that the Achilles tendonitis had never been diagnosed prior to the examination and thus there was no indication that the condition neither preexisted service nor was it present during service. The Board once again notes that the Federal Circuit recently held in Davidson v. Shinseki that the VA must give due consideration to all pertinent medical and lay evidence and that a lay person is competent to provide testimony as to nexus. Davidson, supra. Thus, the record reflects that since the initial diagnosis of plantar fasciitis during what the Board recognizes as a period of ACUTRA in November 1993, the Veteran continued to experience left foot pain, and the Veteran currently carries a diagnosis of left plantar fasciitis. Consequently, for essentially the same reasons noted with respect to the Veteran's claim for service connection for hemorrhoids, the Board finds that service connection is warranted for left plantar fasciitis. As a result of the Board's decision to grant service connection for residuals of hemorrhoids status post stapled hemorrhoidectomy and left plantar fasciitis, any failure on the part of VA to notify and/or develop the claims pursuant to the Veterans Claims Assistance Act of 2000, 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2009) (VCAA), cannot be considered prejudicial to the Veteran. The Board therefore proceeded to a review of the claims on the merits. ORDER Entitlement to service connection for the residuals of hemorrhoids status post stapled hemorrhoidectomry is granted. Entitlement to service connection for left plantar fasciitis is granted. ____________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs