Citation Nr: 1325201 Decision Date: 08/08/13 Archive Date: 08/13/13 DOCKET NO. 09-30 030 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to service connection for hemorrhoids. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD McBrine, M., Counsel INTRODUCTION The Veteran had active military service in the United States Army from June 1981 to September 1992, January 2003 to January 2004, and November 2005 to August 2007. These matters are 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 Roanoke, Virginia. These issues were the subject of a prior Board remand in October 2012, and now return again before the Board. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that the Veteran has hypertension etiologically related to a disease, injury, or event in service. 2. The preponderance of the evidence is against a finding that the Veteran has hemorrhoids etiologically related to a disease, injury, or event in service. CONCLUSION OF LAW 1. Hypertension was not incurred in or aggravated by service, nor may it be presumed to be so incurred. 38 U.S.C.A. §§ 1101, 1110, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2012). 2. Hemorrhoids were not incurred in or aggravated by service, nor may they be presumed to be so incurred. 38 U.S.C.A. §§ 1101, 1110, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Stegall Considerations As noted above, the Board previously remanded this claim in October 2012 for further development, specifically for a VA examination with opinion to adequately address the etiology of the disabilities on appeal. The Veteran was scheduled for examinations in November 2012, but failed to report for those examinations. A report from VA personnel dated December 2012 stated that a VA employee called the Veteran and spoke with him after he failed to show for examinations in October. She also talked to the Veteran and mailed him a letter after he failed to show for an examination in early November, and that the Veteran failed to show for further scheduled appointments in November 2012. The Veteran's representative, in a July 2013 informal hearing presentation, acknowledged that the Veteran failed to show for appointments, but did not indicate that the Veteran was now willing to show for an appointment, nor did the representative suggest in any way that the Veteran should be rescheduled for those appointments. As such, while examinations were not conducted, the Board is satisfied that the RO gave the Veteran ample opportunity to report for those scheduled examinations, but neither the RO, nor the Board, can compel the Veteran to report for an examination. The Board therefore finds that the RO has undertaken reasonable efforts to conduct the remand requests, and any further attempts to schedule the Veteran for an examination would be fruitless. Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claims, VA has met all statutory and regulatory notice and duty to assist provisions. 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, 3.326(a) (2012). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the Veteran and his or her representative, if any, of any information and 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). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the Veteran is expected to provide; and (4) request that the Veteran provide any evidence in his or her possession that pertains to the claim. The requirement of requesting that the Veteran provide any evidence in his possession that pertains to the claim was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2008). Thus, any error related to this element is harmless. VCAA letters dated in February 2008, August 2009, and October 2012, and an October 2012 Board remand, satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b)(1) (2012). The Veteran was advised that it was ultimately his responsibility to give VA any evidence pertaining to the claims. These documents informed him that additional information or evidence was needed to support his claims, and asked him to send the information or evidence to VA. Furthermore, even if any notice deficiency is present in this case, the Board finds that any prejudice due to such error has been overcome in this case by the following: (1) based on the communications sent to the Veteran over the course of this appeal, the Veteran clearly has actual knowledge of the evidence the Veteran is required to submit in this case; and (2) based on the Veteran's contentions as well as the communications provided to the Veteran by VA, it is reasonable to expect that the Veteran understands what was needed to prevail. See Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served."). In order to ensure that no prejudice resulted from a notice error, "the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair." Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). The Board also concludes that VA's duty to assist has been satisfied. The Veteran's service treatment records and relevant VA medical records are in the file. All records identified by the Veteran as relating to the claims have been obtained, to the extent possible. The Board finds that the record contains sufficient evidence to make a decision on the claims. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4)(i) (2012). In this case, the Board notes that the Veteran was provided with VA examinations in April 2008. While the Board requested additional examinations, the Veteran failed to report for those examinations multiple times, without providing any reason, therefore, the Board finds that any further attempts to schedule the Veteran for an examination would be fruitless. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Service Connection Law The Veteran claims that he has both hypertension and hemorrhoids related to service. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). If certain diseases, such as hypertension, become manifest to a degree of 10 percent within one year of separation from active service, they are presumed to have been incurred during active service, even though there is no evidence of such disease during service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. An alternative method of establishing the second and third elements of service connection for those disabilities identified as a "chronic condition" under 38 C.F.R. § 3.309(a) is through a demonstration of continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). A claimant can establish continuity of symptomatology with competent evidence showing: (1) that a condition was "noted" during service; (2) post-service continuity of the same symptomatology; and (3) a nexus between a current disability and the post-service symptomatology. 38 C.F.R. § 3.303(b). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be established for disability which is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a). Further, a disability which is aggravated by a service-connected disability may be service-connected to the degree that the aggravation is shown. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C.A. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. The Board must determine the value of all evidence submitted, including lay and medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. See Barr v. Nicholson, 21 Vet.App. 303 at 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. 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). Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when 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); (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. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death). In ascertaining the competency of lay evidence, the courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge. In certain instances, however, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Jandreau v. Nicholson, supra (concerning a dislocated shoulder). Laypersons have also been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet.App. 456 (2007) (concerning rheumatic fever). Competent medical evidence is 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 include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. See Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b) (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Facts and Analysis Taking into account all relevant evidence of record, the Board finds that service connection is not warranted for hypertension. In this regard, the Board finds that the preponderance of the medical evidence of record does not show a diagnosis of hypertension. Regulations provide that hypertension for VA purposes means that the diastolic blood pressure is predominantly 90 or more or systolic blood pressure is predominantly 160 or more. Hypertension must be confirmed by readings taken two or more times on three different days. 38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1) (2012). Reviewing the evidence of record, the Veteran's service treatment records show that in April 1988, a work site blood pressure screening revealed that his blood pressure was 110/78. It was noted that he did not have a family history of hypertension. November 2004 service treatment records reflect that the Veteran had not been diagnosed with hypertension. However, service treatment records dated in December 2006 and April to July 2007, reflect that one of the Veteran's "problems" was noted to have been systemic hypertension. In June 2007, the Veteran's blood pressure was 129/90. Post-service treatment records include an April 2008 VA fee basis examination report. At that examination, the Veteran related that he had had hypertension for the previous three (3) years. He indicated that he did not have any current symptoms of hypertension and that he was not seeking any treatment for it. The Veteran's blood pressure readings during the April 2008 examination were: 134/90, 132/90 and 132/88. After a review of a series of blood pressure readings of the Veteran on two consecutive days in July 2008 that ranged from 112/82 to 234/90, the examining physician concluded that the Veteran did not have hypertension. A February 2010 VA QTC examination report for another disability reflects that the Veteran's blood pressure was 140/92 on three separate readings. However, the Veteran was not noted to have hypertension at that time. As noted above, the Veteran was scheduled for an additional examination to determine if he now had a diagnosis of hypertension, however, he failed to report for that examination. Therefore, the Board must rate this claim on the evidence of record. As such, while there is evidence of record which appears to show a reported history of hypertension, the Veteran's April 2008 VA examination found that the Veteran did not have a diagnosis of hypertension. Although the Board has considered the subsequent blood pressure readings obtained in February 2010, those readings do not satisfy the regulatory criteria for establishing a diagnosis of hypertension. 38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1) (2012). Incumbent on a grant of service connection is a findings that the Veteran has the disability for which service connection is claimed. As the bulk of the medical evidence of record indicates that the Veteran does not have a current diagnosis of hypertension, the Board finds that the preponderance of the evidence is against a grant of service connection for hypertension. Further, taking into account all relevant evidence, the Board finds that service connection is not warranted for hemorrhoids. Again, there is simply no medical evidence of record showing a current diagnosis of hemorrhoids. In this regard, the Veteran maintains that his hemorrhoids had their onset after he underwent a prostatectomy during military service in 2006, and that they have reoccurred on an intermittent basis since that time. The Veteran's service treatment records show that the Veteran underwent a prostatectomy in March 2006. He received treatment for hemorrhoids with complication bleeding in December 2006 and from April to July 2007. An April 2008 VA QTC examination report reflects that the Veteran reported that he had had hemorrhoids for the previous two (2) years and that they occasionally reoccurred. The Veteran related that he was not receiving any treatment for his hemorrhoids. After a physical evaluation of the Veteran, the examining physician concluded that the Veteran did not currently have hemorrhoids. (See April 2008 VA QTC examination report). In a January 2010 statement to VA, the Veteran indicated that he had hemorrhoids that were associated with anal fissures. In support of his statement, he submitted treatment reports, dated from August 2009 to January 2010, prepared by the Fairfax Colon and Rectal Center. These reports show that the Veteran had received treatment for rectal bleeding and anal fissures. The RO separately denied service connection for anal fissures in an unappealed May 2010 rating action. Thus, while the Veteran did have treatment for hemorrhoids one time in service, there is no indication in the medical evidence that the Veteran has a current diagnosis of hemorrhoids. It is again noted that the Veteran was scheduled for a VA examination for this disability, for which he failed to report, as such, the Board must rate this claim on the medical evidence of record, which does not show any current hemorrhoids diagnosis. The Veteran is certainly competent to testify, as he has, as to the nature of his symptoms and their approximate date of onset, such as itching on pain in the claimed area. However, the Board finds that the question of whether the Veteran's current symptoms are related to hemorrhoids or anal fissures, or another diagnosis, ultimately requires medical expertise outside the scope of the Veteran's medical knowledge. In summary, considering the medical evidence of record, the Veteran's statements, and all evidence of record, the Board finds that the preponderance of the evidence of record is against a grant of service connection for hemorrhoids, as well as hypertension. As the preponderance of the evidence is against both these claims, the benefit-of-the-doubt doctrine does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); See Gilbert, 1 Vet. App. 49. ORDER Entitlement to service connection for hypertension is denied. Entitlement to service connection for hemorrhoids is denied. ____________________________________________ Michael Lane Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs