Citation Nr: 1123119 Decision Date: 06/16/11 Archive Date: 06/28/11 DOCKET NO. 10-23 432 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas THE ISSUES 1. Entitlement to service connection for hemorrhoids. 2. Entitlement to a rating in excess of 10 percent for gastroesophageal reflux disease (GERD). 3. Entitlement to a compensable rating for right knee degenerative joint disease (DJD). REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD D. Schechner, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from December 1984 to September 2008. These matters are before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision of the Waco, Texas VARO, which in pertinent part denied service connection for hemorrhoids; and granted service connection for GERD rated 10 percent, and right knee DJD rated 0 percent, each effective since separation. The Veteran also initiated an appeal of a denial of his claim of service connection for sinusitis (by July 2009 Notice of Disagreement (NOD)); his June 2010 Form 9 (substantive appeal) limited his appeal to the matter of the ratings for GERD and for right knee DJD, and service connection for hemorrhoids; therefore, the matter of service connection for sinusitis is not before the Board. The Veteran had filed claims of service connection for both GERD and for irritable bowel syndrome (IBS). The RO addressed these as "service connection for GERD (also claimed as IBS)". The Veteran asserts that these are two separate disabilities; the Board agrees, and notes that the claim of service connection for IBS remains pending (consequently the Board does not have jurisdiction in the matter). However, because the claim of service connection for IBS is inextricably intertwined with the matter of the rating for GERD, it must be addressed concurrently, and will be addressed in the remand. The matters of the ratings for GERD and for right knee DJD are being REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action on his part is required. FINDING OF FACT Hemorrhoids were not noted or shown in service, to include on service retirement examination, and such disability is not shown at any time during the pendency of this claim. CONCLUSION OF LAW Service connection for hemorrhoids is not warranted. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran was advised of VA's duties to notify and assist in the development of the claim prior to the initial adjudication of his claim. An August 2008 letter explained the evidence necessary to substantiate his claims, the evidence VA was responsible for providing, and the evidence he was responsible for providing. This letter also informed the appellant of disability rating and effective date criteria. The Veteran has had ample opportunity to respond/supplement the record and he has not alleged that notice in this case was less than adequate. The Veteran's service treatment records (STRs) and pertinent post-service treatment records have been secured. The RO arranged for VA examinations in November 2008 and December 2009, which will be discussed in greater detail below, though the Board finds these examinations to be adequate as each included both a review of the Veteran's history and a physical examination that included all necessary findings. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (VA must provide an examination that is adequate for rating purposes). The Veteran has not identified any evidence that remains outstanding. VA's duty to assist is also met. Accordingly, the Board will address the merits of the claim. Legal Criteria, Factual Background, and Analysis Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In general, service connection requires (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). A disease may be service connected if shown to be of a chronic nature in service, or if not chronic, then seen in service with continuity of symptomatology demonstrated after discharge. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-97 (1997). Disorders diagnosed after discharge may still be service connected if all the evidence establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Lay evidence may be competent evidence to establish incurrence. See Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009). 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, (e.g., a broken leg), (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). However, competent medical evidence is necessary where the determinative question is one requiring medical knowledge. Id. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. Competent medical evidence may also include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. 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 lay person. 38 C.F.R. § 3.159(a)(2). The Board notes that it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence that is relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss in detail every piece of evidence. See Gonzales v. West, 218 F, 3d, 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the evidence as deemed appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. The Veteran contends that he has hemorrhoids that became manifest in service (and were self-treated under direction by military medical personnel), and have recurred. The Veteran's rather voluminous STRs are silent for complaints, treatment, or diagnosis of hemorrhoids. On January 2008 retirement examination, there was no complaint or diagnosis of hemorrhoids. The Veteran's post-service treatment records are entirely silent for any treatment or diagnosis of hemorrhoids. On November 2008 VA general medical examination, the Veteran reported that he developed hemorrhoids on active duty, with no rectal surgery. He reported occasional rectal itching with no incontinence or bleeding. He reported flare-ups about 3 to 4 times per year, lasting for 1 to 2 weeks, which ease with medication. He reported that the last flare-up occurred 4 months earlier, with no effect on his occupation or his activities of daily living. On physical examination, rectal exam found no hemorrhoids. The examiner noted in the list of diagnoses that hemorrhoids were not seen on physical examination. On January 2009 VA treatment, the Veteran had no complaints of new skin lesions, rashes, or pruritis. On December 2009 VA rectal examination, the Veteran reported symptoms such as perianal itching and pain treated conservatively in service. The examiner noted that a colonoscopy performed in service [in 2006] showed no hemorrhoids. The Veteran reported itching in the anal area occurring four to five times per year. He reported diarrhea with abdominal cramps from his IBS. He denied any treatment for hemorrhoids. On physical examination the Veteran declined to have a rectal exam performed, stating that he had no hemorrhoidal bleeding or swelling in the anal area at the time of examination. The examiner stated that no hemorrhoids were found. The examiner noted that the Veteran does have a diagnosis of IBS with diarrhea, and opined that the perianal itching could be related to such. The threshold question that must be addressed (here, as in any claim seeking service connection) is whether or not the Veteran has (or during the pendency of the claim has had) the disability for which service connection is sought, i.e., hemorrhoids. See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.310. As the record does not show that the Veteran has/has had hemorrhoids at any time since his separation from service there is no valid claim of service connection for hemorrhoids. Brammer v. Derwinski, 3 Vet. App. 223 (1992). The Veteran is certainly competent to report that he has had rectal itching; it is not in dispute that he has such symptom (it has been acknowledged by a VA examiner who attributed it to his IBS). The Veteran alleges that the itching is due to hemorrhoids. However, that is a medical question that is resolved by examination/inspection or diagnostic studies, such as colonoscopy, which require medical expertise. The only medical (and thus competent) evidence in this matter consists of the reports of the November 2008 and December 2009 VA examiners. These reports/opinions merit great probative weight, as the examiners took into account the complete factual record, the Veteran's reported history, and (conducted on November 2008 examination) a thorough physical examination (the Veteran declined rectal examination on the latter occasion, indicating his hemorrhoids were not then manifest). The examiners explained the rationale for the conclusions reached, citing to the lack of objective evidence of hemorrhoids. Because there is no competent evidence to the contrary, the Board finds the VA examiners' opinions persuasive. The Veteran alleges that hemorrhoids manifested in service; although they were not noted in the STRs, for the limited purpose of this appeal, such allegation may be conceded. However, there is no medical evidence to support that hemorrhoids have manifested at any time since the Veteran's retirement from active duty service (i.e., during the pendency of this claim). This is not a situation where the diagnosis may be established by lay evidence: the disability is not one capable of diagnosis by lay observation (it requires medical knowledge); the Veteran is not reporting a contemporaneous diagnosis (there is no diagnosis of hemorrhoids); and the Veteran does not describe symptoms supporting a later diagnosis (as hemorrhoids are not diagnosed). See Jandreau v. Nicholson, 492 F.3d, 1372 (Fed. Cir 2007). The preponderance of the evidence is against this claim. Accordingly, it must be denied. ORDER Service connection for hemorrhoids is denied. REMAND Regarding service connection for IBS and the rating for GERD, the Veteran's August 2008 claim application sought service connection for both GERD and IBS. However, in the February 2009 rating decision on appeal, the RO addressed and granted service connection for GERD only, adding that the disability was "also claimed as irritable bowel syndrome". The Veteran contends that the two disabilities are distinct entities with separate and separable symptoms and rating criteria; the Board agrees. The Veteran's claim regarding IBS remains pending. Because it is inextricably intertwined with the matter of the rating for GERD it must be developed (and adjudicated) concurrently. Specifically, the medical evidence leaves unclear what symptoms (and associated impairment) are attributable to GERD and what symptoms are attributable to IBS (inasmuch as 38 C.F.R. § 4.14 prohibits rating the same symptoms under different diagnoses). An examination to secure a clarifying medical opinion is indicated. Regarding the matter of the rating for right knee DJD, the Veteran stated in his July 2009 NOD that he had pain on motion beginning upon inactivity such as going from sitting or sleeping to motion, which was not found on November 2008 VA examination. He also reported pain with any more than minimal usage of the joint. He has also correctly noted that the right knee disability was not addressed on the most recent, December 2009, VA examination. As that examination is now quite dated (and because the Veteran is competent to observe a worsening of symptoms), an examination to assess the current severity of the disability is necessary. Furthermore, updated records of any VA treatment the Veteran may have received for the disabilities at issue are pertinent evidence that is constructively of record, and must be secured. Accordingly, the case is REMANDED for the following action: 1. Regarding service connection for irritable bowel syndrome, the RO should provide the Veteran all VCAA-mandated notice, and afford him opportunity to respond. The RO should also arrange for any further development indicated. 2. The RO should secure for association with the claims file copies of the complete clinical records (those not already associated with the claims file) of any and all VA evaluations and/or treatment the Veteran has received for the disabilities on appeal. He should also be asked to specify whether he received any private treatment or evaluation for these disabilities, the records for which have not already been obtained, and to provide releases for records of any such treatment or evaluation (which the RO should then obtain for association with his claims file). 3. The RO should then arrange for an orthopedic examination of the Veteran to assess the current severity of his right knee disability. The Veteran's claims file (including this remand) must be reviewed by the examiner in conjunction with the examination. The examiner must be provided a copy of the criteria for rating knee disabilities, and the findings reported must be sufficiently detailed to allow for rating under the applicable criteria, i.e., note the presence or absence of each symptom in the criteria for compensable ratings (under all applicable Codes), to specifically include ranges of motion (including restrictions due to pain or with use) and whether there is subluxation or instability (and if so the extent of such). The examiner should comment on the Veteran's specific complaints of functional impairment, and must explain the rationale for all opinions offered. 4. The RO should also arrange for a gastrointestinal diseases examination of the Veteran to assess the severity of his GERD. The Veteran's claims file must be reviewed by the examiner in conjunction with the examination, and all findings must be described in detail. Based on examination findings and review of the record, the examiner should provide an opinion that includes responses to the following: (a) With respect to the two diagnostic entities of (a) irritable bowel syndrome and (b) gastroesophageal reflux disorder, please identify all pathology, symptoms, and associated impairment that are clearly attributable to diagnosis (a) and all distinct pathology, symptoms, and associated impairment attributable to diagnosis (b). If any pathology, symptoms, and/or associated impairment are not distinctly attributable to either diagnosis (a) or diagnosis (b), please identify the diagnosis to which such is/are more readily attributable. (b) Please review the November 2008 and December 2009 VA examination reports as well as the VA treatment records associated with the claims file. For any pathology, symptoms, and/or impairment of function shown in those records, and not found on the current examination conducted, please attribute each to diagnosis (a) or diagnosis (b), as specified above. The examiner must fully explain the rationale for all opinions given. 5. The RO should arrange for any further development necessary, and then adjudicate the service connection claim for IBS claim. If that benefit is denied, the Veteran should be so advised, and also advised of his appellate rights and that the matter will not be before the Board unless he initiates (and perfects) an appeal in the matter. 6. The RO should then re-adjudicate the matters on appeal. If any claim on appeal remains denied, the RO should issue an appropriate supplemental statement of the case and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further review. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). ______________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs