Citation Nr: 1321786 Decision Date: 07/08/13 Archive Date: 07/18/13 DOCKET NO. 09-44 569 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for depression, to include as secondary to service-connected post-operative fistula-in-ano. 2. Entitlement to a compensable disability rating for post-operative fistula-in-ano. REPRESENTATION Appellant represented by: Oklahoma Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD E. D. Anderson, Counsel INTRODUCTION The Veteran served on active duty from December 1979 to July 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In July 2012, a videoconference hearing was held before the undersigned Veterans Law Judge (VLJ), and a transcript of this hearing is of record. In April 2012, the Board remanded this matter to the RO via the Appeals Management Center (AMC) in Washington, D.C. to afford the Veteran a videoconference hearing before a member of the Board. In October 2012, the case was again remanded to obtain records from the Social Security Administration (SSA). The action specified in the April and October 2012 Remands completed, the matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. The Veteran's depression is not related to a disease or injury in service and was not caused or permanently aggravated by service connected post-operative fistula-in-ano. 2. The Veteran's post-operative fistula-in-ano was not characterized by constant slight impairment of sphincter control, or occasional moderate leakage. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for depression, to include as secondary to service connected post-operative fistula-in-ano, have not been met. 38 U.S.C.A. §§ 1101, 1110, 1131 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2012). 2. The criteria for entitlement to a compensable disability evaluation for post-operative fistula-in-ano have not been met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.321(b), 4.1, 4.2, 4.7, 4.114, Diagnostic Codes 7332, 7335 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has reviewed all of the evidence in the claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to these claims. The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. Service Connection 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. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012). In general, service connection requires competent and credible evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third elements is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post- service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson v. West, 12 Vet. App. 247, 253 (lay evidence of in-service incurrence is sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). However, in Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), the Federal Circuit held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic by 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1337-39 (Fed. Cir. 2013). For disabilities that are not listed as chronic, under 38 C.F.R. § 3.303(b), the only avenue for service connection is by showing in-service incurrence or aggravation under 38 C.F.R. § 3.303(a), or by showing that a disease that was first diagnosed after service is related to service under 38 C.F.R. § 3.303(d). Psychoses are listed as a chronic condition under 38 C.F.R. § 3.309(a). Certain chronic diseases, including psychoses, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service. See 38 U.S.C.A. §§ 1101, 1112, (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309 (2012). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). The Veteran is seeking entitlement to service connection for depression, which he claims is secondary to his service connected post-operative fistula-in-ano. The Veteran has asserted that his service connected disability causes him pain and embarrassment, which in turn cause him to experience depression. The Veteran's service treatment records are negative for any complaints of or treatment for an acquired psychiatric disability and it does not appear that the Veteran has alleged otherwise. Post-service, VA outpatient treatment records reflect treatment for a lengthy history of polysubstance abuse, as well as for depression/mood disorder. See, e.g., VA Substance Use Disorder History and Physical (October 17, 2008). Records from the SSA show that the Veteran was awarded disability benefits for a back disorder and a secondary affective disorder. Significantly, the Board can find no evidence that the Veteran ever complained of symptoms of his fistula-in-ano during his SSA psychological evaluations-instead, his physical complaints related primarily to his non-service connected low back disability. See Psychological Report by Dr. R.K.G. (September 20, 2004); Psychological Report by Dr. K.J. (October 13, 2002). The Veteran was afforded a VA examination in January 2009. The Veteran was diagnosed with major depressive disorder, moderate and recurrent, without psychotic features. The examiner stated that she was unable to determine the etiology of the Veteran's depression without resorting to speculation. She noted that the Veteran was currently using drugs and recommended a reevaluation after one year of sobriety to determine if the Veteran's mood disorder was secondary to his substance abuse or some other cause, to include the Veteran's fistula-in-ano. In April 2013, the Veteran was afforded another VA examination. At that examination, the Veteran reported a history of substance abuse, but denied current use. The examiner noted that the Veteran minimized his history of substance abuse. He complained of symptoms such as depressed mood, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, and difficulty establishing and maintaining effective work and social relationships. The Veteran related that he was depressed because "I can't do the things I used to do." When specifically asked about his ano fistula, the Veteran reported "just a little depression." The examiner opined that it is less likely than not that the Veteran's depression is proximately due to or aggravated by the Veteran's service connected fistula-in-ano, noting that there is no evidence of record that the Veteran ever complained to a mental health treatment provider that the symptoms of his service connected disability were causing him psychological distress. The examiner also noted that the Veteran's VA examinations of his ano fistula during the period on appeal have been unremarkable. Instead, the examiner concluded that the Veteran medical records indicate that his mood disorder is secondary to his non-service connected back condition. Based on all the above evidence, the Board finds that entitlement to service connection for depression, to include as secondary to service connected post-operative fistula-in-ano, must be denied. There is no evidence of depression or any other acquired psychiatric disability in service, and there is no evidence of a psychosis within one year of service. Even after the Veteran began receiving treatment for depression, he never reported to any of his metal health treatment providers that his service connected disability was causing pain, embarrassment, or depression. The Veteran was afforded two VA examinations, with one examiner unable to render an opinion due to the Veteran's substance abuse and the other concluding that the Veteran's depression is less likely than not caused or aggravated by the Veteran's ano fistula. To the extent that the Veteran has offered his own opinion as to the etiology of his current acquired psychiatric disability, he has not demonstrated that he has any knowledge or training in determining the etiology of such conditions. In other words, he is a layman, not a medical expert. The Board recognizes that there is no bright line rule that laypersons are not competent to offer etiology opinions. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (rejecting the view that competent medical evidence is necessarily required when the determinative issue is medical diagnosis or etiology). Evidence, however, must be competent evidence in order to be weighed by the Board. Whether a layperson is competent to provide an opinion as to the etiology of a condition depends on the facts of the particular case. In Davidson, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) drew support from Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) for support for its holding. Id. In a footnote in Jandreau, the Federal Circuit addressed whether a layperson could provide evidence regarding a diagnosis of a condition and explained that "[s]ometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Although the Veteran seeks to offer etiology opinions rather than provide diagnoses, the reasoning expressed in Jandreau is applicable. The Board finds that the question of whether the Veteran currently has depression due to his service connected post-operative fistula-in-ano is too complex to be addressed by a layperson. This connection or etiology is not amenable to observation alone. Rather it is common knowledge that such relationships are the subject of extensive research by scientific and medical professionals. Hence, the Veteran's opinion of the etiology of his current disability is not competent evidence and is entitled to low probative weight. The Board has considered the Veteran's subjective complaints that his service connected disability causes him embarrassment and depression; however, the Veteran's lay statements are inconsistent with the objective medical records. These records reflect that the Veteran has not sought psychological treatment for distress secondary to the symptoms of his service connected disability. The Board finds that in this case, the objective medical evidence of record, including VA treatment records, SSA records, and VA examinations, is significantly more probative than the Veteran's testimony. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the veteran). For all the above reasons, entitlement to service connection for depression, to include as secondary to service connected post-operative fistula-in-ano, is denied. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2012). Increased Rating Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R., Part 4 (2012). Separate diagnostic codes identify the various disabilities. 38 C.F.R. § 4.1 requires that each disability be viewed in relation to its history and that there be emphasis upon the limitation of activity imposed by the disabling condition. 38 C.F.R. § 4.2 requires that medical reports be interpreted in light of the whole recorded history, and that each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.7 provides that, where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. An evaluation of the level of disability present also includes consideration of the functional impairment of the veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10 (2012). Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function, will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the veteran, as well as the entire history of the veteran's disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). In deciding the Veteran's increased evaluation claim, the Board has considered the determinations in Fenderson v. West, 12 Vet. App. 119 (1999) and Hart v. Mansfield, 22 Vet. App. 505 (2007), and whether the veteran is entitled to an increased evaluation for separate periods based on the facts found during the appeal period. In Fenderson, the U.S. Court of Appeals for Veterans Claims (Court) held that evidence to be considered in the appeal of an initial assignment of a rating disability was not limited to that reflecting the then current severity of the disorder. In that decision, the Court also discussed the concept of the "staging" of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Id. at 126. Hart appears to extend Fenderson to all increased rating claims. Here, the Veteran was granted service connection for post-operative fistula-in-ano and assigned an initial non-compensable disability rating under Diagnostic Code 7335, effective July 1982. In October 2008, he filed his current claim for an increased rating. Diagnostic Code 7335 provides that fistula-in-ano be rated as impairment of sphincter control under Diagnostic Code 7332, for impairment of sphincter control. Under Diagnostic Code 7332, constant slight impairment of sphincter control, or occasional moderate leakage, is rated 10 percent disabling. Occasional involuntary bowel movements, necessitating wearing of pad, are rated 30 percent disabling. Extensive leakage and fairly frequent involuntary bowel movements are rated 60 percent disabling. Complete loss of sphincter control is rated 100 percent disabling. 38 C.F.R. § 4.114, Diagnostic Codes 7332 and 7335. At a January 2008 physical examination, the Veteran reported occasional bright red blood with his bowel movements, but did not mention his fistula-in-ano or complain of fecal leakage. The Veteran was afforded a QTC examination in December 2008. At that time, he complained of anal itching, diarrhea, pain, and perianal discharge. He reported that the leakage occurred 1/3 to 2/3 of the day in extensive amounts, but then denied that a pad is needed. A rectal examination showed no evidence of ulceration, fissures, reduction, of lumen, rectal tonus, trauma, rectal bleeding, proctitis, infections, spinal chord injury, protrusions, or loss of sphincter control. External hemorrhoids were present. There was evidence of bleeding with no sign of significant anemia. Thrombosis was absent and there was no evidence of frequent recurrence, without excessive abundant tissue. Significantly, no rectum fistula was noted on examination. The examiner opined that the Veteran's hemorrhoids are less likely than not due to his service connected fistula-in-ano. In January 2011, the Veteran reported to his primary care provider that he had fecal leakage on a daily basis which is occasionally moderate enough to require a change of underwear. However, it does not appear that a rectal exam was conducted. VA Primary Care Note (January 11, 2011). In March 2011, the Veteran was afforded another VA examination. At that time, the Veteran claimed that he has constant fecal leakage and requires pads, which he needs to change twice a day. He denied hemorrhoids, bleeding, anal itching, burning, diarrhea, difficulty passing stool, pain, tenesmus, or swelling. On examination, there were no hemorrhoids, anorectal fistula, anal or rectal stricture, impaired sphincter, or rectal prolapse. Sphincter tone was normal. No blood or fecal leakage was observed. The examiner noted that the Veteran was wearing a pad, but that no blood or fecal matter were present. The examiner diagnosed the Veteran with status post intersphincteric perianal or rectal abscess in 1980/1981 with no residuals and normal sphincter tone. The examiner stated that after reviewing the Veteran's claims file and medical records and performing a physical examination of the Veteran, she could find no evidence of compromised sphincter tone that would cause any fecal leakage and that there are no residuals due to the Veteran's in-service surgery. At his July 2012 hearing, the Veteran reported that he had to wear pads and change them two or three times a day. In March 2013, the Veteran was afforded a third VA examination. On examination of the rectum, there were no obvious abnormalities, including no obvious fistula. The Veteran showed no objective evidence of discomfort during the examination. He was not wearing a pad and there was no blood on the exam glove. With respect to leakage, it was noted that it was not constant and slight or occasional and moderate or worse. Rather, it was noted that he had occasional minor discomfort when starting a bowel movement and sometimes experienced blood spotting or serous spotting and sometimes wears a pad and had to change it twice a day. He also reported occasional minor discomfort when starting a bowel movement. he Veteran had good sphincter strength and tone. There was no anal distortion or anatomic abnormality. There were no obvious anal scars. There was a surgical scar on the right buttock in the sacral region that was well-healed and stable. The examiner noted that the Veteran's condition would not impact his ability to work and would not prevent him from finding or maintaining gainful employment. At an April 2013 VA psychological examination, the Veteran reported that he has to wear a pad that he changes two or three times a day. Based on all the above evidence, the Board finds that entitlement to a compensable disability rating for the Veteran's service connected post-operative fistula-in-ano must be denied. The medical evidence establishes that the Veteran does not currently suffer from an ano fistula and that he has no impairment of sphincter control and there is no evidence of fecal leakage which is occasional and moderate. While the Board has considered the Veteran's subjective complaints that he suffers from significant fecal leakage which requires the use of multiple pads on a daily basis, his testimony is at odds with the findings of three VA examiners, who found no objective evidence of any disability that might explain the Veteran's reported symptoms. The Board is mindful that VA examinations reflect the Veteran's disability only at the time of examination and that disabilities can vary in their severity over time; nevertheless, the Veteran's subjective complaints are so inconsistent with the finding of multiple medical professionals over a period of many years that the Board must conclude that that the Veteran's statements are not credible. See Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995) ( Credibility can be generally evaluated by a showing of interest, bias, or inconsistent statements, and the demeanor of the witness, facial plausibility of the testimony, and the consistency of the witness testimony); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) (a pecuniary interest may affect the credibility of a claimant's testimony). In this case, the Board gives greater weight to the findings of the VA examiners, which uniformly show that the Veteran currently has no fistula-in-ano and support a non-compensable disability rating for the Veteran's service connected disability. The Board also finds that a higher disability rating cannot be awarded under any other diagnostic code. Additionally, the Board has considered whether the Veteran's disability warrants referral for extraschedular consideration. To accord justice in an exceptional case where the scheduler standards are found to be inadequate, the field station is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1) (2012). The criterion for such an award is a finding that the case presents an exceptional or unusual disability picture with related factors as marked interference with employment or frequent periods of hospitalization as to render impractical application of regular schedular standards. The Court has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance; however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996). The Court further held that the Board must address referral under 38 C.F.R. §3.321(b)(1) only where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). In a recent case, the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). The Court stated that the RO or the Board must first determine whether the schedular rating criteria reasonably describe the veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe the veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. Id. If the RO or the Board finds that the schedular evaluation does not contemplate the veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. The Board finds that the schedular rating criteria reasonably reflect the Veteran's disability levels and symptomatology. The Veteran's reported difficulties are not so exceptional or unusual a disability picture as to render impractical application of regular schedular standards. While the Veteran has complained of symptoms such as anal pain, itching, and bleeding that are not specifically contemplated by the schedular ratings, there is no evidence that these symptoms are related to the Veteran's service connected condition or even that the Veteran's accounts are credible. Therefore, no referral for extraschedular consideration is required and no further analysis is in order. Lastly, as there is no evidence that the Veteran's service connected post-operative fistula-in-ano prevents the Veteran from finding or maintaining substantially gainful employment. Accordingly, entitlement to a total disability rating due to individual unemployability (TDIU) will not be considered. For all the above reasons, entitlement to a compensable disability rating for post-operative fistula-in-ano is denied for the entire period on appeal. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2012). The Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and 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. This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Here, the VCAA duty to notify was satisfied by a letter sent to the Veteran in November 2008. This letter informed the Veteran of what evidence was required to substantiate his claims, as well as of VA and the Veteran's respective duties for obtaining evidence. The Veteran was also informed of how VA assigns disability ratings and effective dates. VA also has a duty to assist the veteran in the development of the claim. This duty includes assisting the veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained the Veteran's service treatment records, as well as VA treatment records and SSA records. The Veteran was provided an opportunity to set forth his contentions during the July 2012 hearing before the undersigned Veterans Law Judge. Relevant to this proceeding, in Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2012) requires that the VLJ who chairs a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the VLJ noted the basis of the prior determination and noted the elements of the claims that were lacking to substantiate the claims for benefits. In addition, the VLJ sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claims. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), or otherwise identified any prejudice in the conduct of the hearing. Rather, the hearing focused on the elements necessary to substantiate the claims. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that the Board can adjudicate the claims based on the current record. The appellant was also afforded VA medical examinations in December 2008, January 2009, March 2011, March 2013, and April 2013. These examinations are based upon review of the claims folder, and thoroughly discuss the nature and severity of the Veteran's disabilities as well as the functional impairments resulting therefrom. The examinations are adequate and probative for VA purposes because the examiners relied on sufficient facts and data, provided a rationale for the opinions rendered, and there is no reason to believe that the examiners did not reliably apply reliable scientific principles to the facts and data. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Significantly, neither the appellant nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER Entitlement to service connection for depression, to include as secondary to service connected post-operative fistula-in-ano, is denied. Entitlement to a compensable disability evaluation for post-operative fistula-in-ano is denied. ____________________________________________ K. Parakkal Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs