Citation Nr: 1327761 Decision Date: 08/29/13 Archive Date: 09/05/13 DOCKET NO. 03-22 012A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to compensation benefits under the provisions of 38 U.S.C.A. § 1151 for adenocarcinoma of the colon. REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD A. Haddock, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1967 to February 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2001 rating decision by the St. Petersburg, Florida Department of Veterans Affairs (VA) Regional Office (RO). In June 2005 the Veteran appeared and provided testimony before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is associated with the claims file. In December 2007, the Board issued a decision which denied the Veteran's claim herein. Thereafter, the Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In July 2008, based on a Joint Motion for Remand (Joint Motion), the Court issued an Order remanding this case to the Board for compliance with the Joint Motion. According to the Joint Motion, the Board remanded the Veteran's claim in November 2008 and May 2009 for further development. In June 2010, after the required development was completed, the Board issued a decision which again denied the Veteran's claim herein. The Veteran appealed the Board's decision to the Court. In March 2012, the Court issued an order vacating the Board's June 2010 denial and remanded the Veteran's claim to the Board for further development. The Board remanded the Veteran's claim in August 2012 to complete the requested development and the issue has now returned to the Board for appellate review. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a complete review of the evidence. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The Veteran's adenocarcinoma of the colon was not the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing hospital care, medical or surgical treatment, or examination. Nor was the Veteran's adenocarcinoma of the colon the result of an event not reasonably foreseeable in VA's furnishing his medical treatment. CONCLUSION OF LAW The criteria for compensation under 38 U.S.C.A. § 1151 for adenocarcinoma of the colon have not been met. 38 U.S.C.A. § 1151, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.358, 3.361 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a) , 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request or tell the claimant to provide any evidence in the claimant's possession that pertains to the claim. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). The Board notes that 38 C.F.R. § 3.159 was revised, effective May 30, 2008. See 73 Fed. Reg. 23353 -56 (Apr. 30, 2008). The amendments apply to applications for benefits pending before VA on, or filed after, May 30, 2008. The amendments, among other things, removed the notice provision requiring VA to request the Veteran to provide any evidence in the Veteran's possession that pertains to the claim. See 38 C.F.R. § 3.159(b)(1). The RO's September 2005, May 2006, December 2008, July 2009, and August 2012 letters advised the Veteran of the foregoing elements of the notice requirements. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); see also Bernard v. Brown, 4 Vet. App. 384, 394 (1993); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (noting that a VCAA defect may be cured by issuance of a fully compliant notification followed by a re-adjudication of the claim). With respect to the Dingess requirements, the May 2006 letter provided the Veteran with notice of what type of information and evidence was needed to establish a disability rating, as well as notice of the type of evidence necessary to establish an effective date. With these letters, the RO effectively satisfied the notice requirements with respect to the issue on appeal. In addition, the duty to assist the Veteran has also been satisfied in this case. The Veteran's service treatment records as well as all identified and available VA and private medical records pertinent to the years after service are in the claims file and were reviewed by both the RO and the Board in connection with his claim. The Board notes that the Veteran has continually claimed that he sought treatment at the Key West and Key Largo VA Outpatient Clinics (VAOPC) on multiple occasions between 1997 and 1999, and that the records of this treatment are not associated with the claims files. The Board notes that of record are treatment notes from the Key Largo VAOPC from December 2, 1997, December 17, 1997, and February 3, 1998; however, the claims files indicated that he was also scheduled for treatment on November 19, 1997, November 25, 1997, April 22, 1998, September 8, 1998, October 21, 1998, and December 2, 1998. In accordance with an August 2012 Board remand, the Appeals Management Center requested copies of these missing VA treatment records from the Miami VAMC (which the Board notes encompasses both the Key West and Key Largo VAOPCs). In a May 2013 memorandum to the file, it was noted that the requested records were determined to be unavailable for review. It was noted that all procedures to obtain such records had been correctly followed, including three separate requests to the Miami VAMC, and that further attempts would be futile. [Of course, for many of these dates, the evidence of record shows only that appointments were scheduled; we do not know if the Veteran actually underwent treatment and that there are, in fact, missing records.] Under these circumstances, the Board finds that there has been substantial compliance with the August 2012 remand instructions, and an additional remand to comply with the Board's directives is not required. See D'Aries v. Peake, 22 Vet. App. 97, 104-106 (2008); Stegall v. West, 11 Vet. App. 268 (1998). The RO made appropriate efforts to obtain the records, but they are simply not available. The Veteran was properly informed via an April 2013 letter of this failure to obtain VA records and given an opportunity to submit further evidence. Additionally, the Veteran was afforded a VA examination in January 2009. The Board notes that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the January 2009 VA examination is adequate in that the examiner conducted a full review of the claims files, including the Veteran's VA and private treatment records. Further, the examiner provided an explanation of rationale for the opinion stated, relying on and citing to the records reviewed. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion regarding the issue on appeal has been met. 38 C.F.R. § 2.159(c)(4). The Board acknowledges that the Veteran has asserted that the undersigned VLJ failed to fulfill her duties at the Veteran's June 2005 Board hearing required under 38 C.F.R. § 3.103(c)(2), as outlined in Bryant v. Shinseki, 23 Vet. App. 488 (2010), including the duty to fully explain the issue on appeal and the duty to suggest the submission of evidence that may have been overlooked. Review of the hearing transcript indicates that the VLJ explained to the Veteran that the issue on appeal was entitlement to compensation under 38 U.S.C.A. § 1151 for colon cancer. Further, the VLJ agreed with the Veteran and his representative to hold the record open for an additional 45 days in order to provide them the opportunity to submit additional evidence and prior to closing the hearing, the VLJ reminded the Veteran and his representative that she would await the additional evidence. This strongly indicates that the Veteran and his representative were made aware by the VLJ that if additional evidence had been overlooked, it should be submitted. Regardless, as noted in the March 2012 memorandum decision by the Court, the Veteran indicated that even if the undersigned VLJ failed to fulfill her required duties at the Board hearing, he is now aware of the type of evidence necessary to substantiate his claim and the record indicates he has submitted evidence since the June 2005 Board hearing. Any error in notice at the hearing was, in a sense, cured by the numerous letters sent to the Veteran since that hearing informing him specifically of what evidence is needed to substantiate his claim and providing him numerous opportunities to submit such evidence. Therefore, the Board finds that any alleged failure of the VLJ at the June 2005 Board hearing was not prejudicial to the Veteran, as VA subsequently satisfied the core duty of explaining to the Veteran what evidence is necessary to substantiate his claim and allowing him an opportunity to submit evidence. Finally, neither the Veteran 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 Veteran is required to fulfill VA's duty to assist in the development of his 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). II. Legal Criteria and Analysis Under VA laws and regulations, when a Veteran suffers additional disability or death as a result of training, hospital care, medical or surgical treatment, or an examination furnished by the VA, disability compensation shall be awarded in the same manner as if such disability or death was service-connected. 38 U.S.C.A. § 1151; 38 C.F.R. §§ 3.358, 3.361. For claims filed after October 1, 1997, a claimant is required to show fault or negligence in medical treatment. For claims filed prior to October 1, 1997, a claimant is not required to show fault or negligence in medical treatment. See Brown v. Gardner, 115 S. Ct. 552 (1994) (language of statute was plain and did not require showing of fault). Since the Veteran filed his claim after that date, he must show some degree of fault, and more specifically, that the proximate cause of his disability was due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA in furnishing medical care or was an event not reasonably foreseeable. 38 U.S.C.A. § 1151(a)(1); 38 C.F.R. § 3.361 (2012). In determining that additional disability exists, VA compares the Veteran's condition immediately before the beginning of the hospital care, medical or surgical treatment, examination, training and rehabilitation services, or compensated work therapy program upon which the claim is based to the Veteran's condition after such care, treatment, examination, services, or program has stopped. 38 C.F.R. § 3.361(b). To establish causation, the evidence must show that the hospital care, medical or surgical treatment, or examination resulted in the Veteran's additional disability or death. Merely showing that a Veteran received care, treatment, or examination and that that the Veteran has an additional disability or died does not establish cause. 38 C.F.R. § 3.361(c)(1). Hospital care, medical or surgical treatment, or examination cannot cause the continuance or natural progress of a disease or injury for which the care, treatment, or examination was furnished unless VA's failure to timely diagnoses and properly treat the disease or injury proximately caused the continuance or natural progress. 38 C.F.R. § 3.361(c)(2). Additional disability or death caused by a Veteran's failure to follow properly given medical instructions is not caused by hospital care, medical or surgical treatment, or examination. 38 C.F.R. § 3.361(c)(3). To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing hospital care, medical or surgical treatment, or examination proximately caused a Veteran's additional disability or death, it must be shown that VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or, that VA furnished the hospital care, medical or surgical treatment, or examination without the Veteran's informed consent. 38 C.F.R. § 3.361(d)(1). Whether the proximate cause of a Veteran's additional disability or death was an event not reasonably foreseeable is in each claim to be determined based on what a reasonable health care provider would have foreseen. The event need not be completely unforeseeable or unimaginable but must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided. 38 C.F.R. § 3.361(d)(2). The Veteran contends that he is entitled to compensation under 38 U.S.C.A. § 1151 for his adenocarcinoma of the colon, due to the failure of the VA to provide appropriate treatment. Specifically, the Veteran contends that between 1997 and 2000 he complained on multiple occasions of rectal bleeding at the Key West and Key Largo VAOPCs, and that medical personnel were negligent in not providing appropriate medical testing, to include a colonoscopy, in order to adequately determine the cause of the rectal bleeding. He contends that this negligence led to the failure to timely diagnose his adenocarcinoma of the colon, which allowed it to increase in severity, resulting in additional disability. Of record is a June 1999 private treatment record that notes the Veteran reported to his private orthopedist, Dr. G.B., that he had experienced an unexplained 18 pound weight loss over the past three weeks. He denied any black and/or tarry bowel movements, and reported that his bowel movements were regular. He reported experiencing bright red blood per rectum on two occasions, but that it had resolved. He also reported undergoing a hemorrhoidectomy several years prior. The Board notes that the Veteran's representative has argued that the unexplained weight loss in June 1999 should have resulted in a colonoscopy request; however, the Board notes that the Veteran reported this weight loss to his private orthopedist, not to his VA treatment provider, and therefore VA would not have been responsible, or even able, to order any clinical testing deemed necessary by such a report. In an August 2001 letter, Dr. G.B. discussed his June 1999 treatment of the Veteran and related that he had requested lab work from the Veteran's VAMC physician and that he recalled that the Veteran had reported that he was being "worked up" at the VAMC for his reported rectal bleeding. The remainder of the Veteran's treatment records from Dr. G.B. are silent for complaints of rectal bleeding. A July 2000 VA treatment record from the Key West VAOPC shows that the Veteran was seen for complaints of left shoulder pain and migraines. At that time he was noted to have hematochezia and on rectal examination, the Veteran was noted to have a normal sphincter, but old tags were noted. The prostate was 1+ smooth, and guaiac was negative. The July 2000 treatment record notes that a request for a colonoscopy was made at that time. An October 2000 VA treatment record shows that he was afforded a colonoscopy. At that time, the Veteran reported that he had been experiencing bright red blood on the toilet tissue for three years. There was no history or evidence of weight loss noted and the Veteran did not report a family history of colonic cancer. Colonoscopic findings included a 3 centimeter by 1 and a half centimeter flat, ulcerated mass seen at 40 centimeters involving one third circumference of the wall of the colon. Multiple biopsies were done and sent for pathology. Additionally, a 2 millimeter ceacal sessile polyp was seen and removed. A provisional diagnosis of rule out sigmoid cancer was assessed. Subsequent VA treatment records show that after testing, pathology findings revealed the sigmoid mass found on colonoscopy to be adenocarcinoma. The cecal polyp was noted to be colonic mucosa with hyperplastic and borderline adenomatous features. The Veteran's representative has argued that the July 2000 treatment record noted a diagnosis of "recurrent" hematochezia. However, a review of this record shows that this argument is inaccurate, and the record simply notes an impression of "hematochezia." Further, while the October 2000 treatment record from the Veteran's colonoscopy notes his reports made at that time of a 3 year history of rectal bleeding, there is no documentation of such to support the Veteran's report, which is discussed in more detail below. The Board notes that prior VA treatment records are silent for any complaints of rectal bleeding or hematochezia. In this regard, the Board notes that of record is May 1999 doctor's order from the Veteran's primary care physician at the VAMC, requesting lab work be conducted. This order reflects that the Veteran's primary care physician requested the following labs: a complete blood count (CBC); a urinalysis; a chemical profile; and a prostate specific antigen (PSA); as well as a baseline radiology study as the Veteran had a history of tuberculosis. A subsequent treatment record shows the Veteran's preventative health care record and includes the dates of some of the above tests. This record shows that in June 1999 a test of the stool for occult blood was conducted. However, the Board notes that this test was not ordered on the May 1999 doctor's order with the lab work discussed above, and in an August 2001 lay statement the Veteran has specifically denied that it was ever conducted. Therefore, the Board concludes, that the notation of the June 1999 date for the occult blood test must have been inadvertant and can only be considered a clerical error. Additionally a July 1999 treatment record notes that the Veteran had lost weight, but did not note how much. Unlike the report made to his private orthopedist in June 1999, the Veteran did not report to his VA treatment provider that he had lost 18 pounds in three weeks. The July 1999 VA treatment record notes that the weight loss was possibly attributable to the Veteran's arthritis medication. In an October 2000 email, sent to the Veteran, a Dr. B.G. states that a reasonable approach to an adult patient complaining of rectal bleeding includes the following steps: (1) a digital rectal exam to rule out hemorrhoids; (2) a stool test for occult blood (hemoccult stool guaiac cards); (3) complete blood count to rule out anemia; (4) air contrast barium enema to rule out a tumor; and finally (5) gastrointestinal evaluation/colonoscopy to rule out tumor or polyp. The Board notes that there is no indication that Dr. B.G. ever treated the Veteran or reviewed his medical records or the claims files. Private treatment records from The University of Texas, M.D. Anderson Cancer Center (MDACC), show that the Veteran began receiving treatment at MDACC in November 2000 for his adenocarcinoma of the colon. A November 2000 treatment record notes that the Veteran had recently been diagnosed with adenocarcinoma of the colon and that there was no evidence of metastatic disease. It was noted that the Veteran was to undergo a resection of the sigmoid tumor. A December 2000 treatment record notes that the Veteran underwent a sigmoid colectomy with intraoperative lymphatic mapping and sentinel node biopsy. This treatment record also noted that the Veteran had a two year history of bleeding per rectum. The remainder of the treatment records from the MDACC show that the Veteran continued to receive treatment for his adenocarcinoma of the colon, including chemotherapy, at that facility. A December 2005 treatment record shows that at that time, the Veteran was without evidence of the disease; however, continued follow-up was recommended. Through a September 2001 letter, the St. Petersburg RO was contacted by a Congressman inquiring as to why the Veteran had been made to wait four months, from July 2000 to October 2000, to receive a colonoscopy. The Board notes that the Veteran had reached out to the Congressman and indicated that he had been suffering from rectal bleeding since 1999. In a December 2001 letter [the Board notes that this letter is dated December 2000; however, as the Congressman's letter is dated September 2001, it would appear that the date of December 2000 is a typographical error], the Director of the Miami VAMC, responded to the Congressman and informed him that the Veteran's VA treatment records were silent for any complaints of rectal bleeding until July 2000 and that an elective colonoscopy was scheduled for October 2000, which was the next available (non-emergent) open appointment. In April 2007, the Veteran's claims file was sent for review and a VA medical opinion as to whether the VA failed to exercise a reasonable degree of care when it did not provide a colonoscopy earlier than October 2000 and, if so, did the Veteran incur additional disability as a result. The examiner noted that he performed a complete review of the claims files, including the Veteran's electronic medical records. The examiner noted that the Veteran has alleged that he was experiencing blood in his stool for 2 to 3 years prior to the GI consult for colonoscopy in July 2000 and his claim that 1 to 2 years of clinic notes are missing from his claims files. Upon review of the record, the examiner noted that there was no treatment note stating the presence of hematochezia prior to the note from July 2000; however, there were a list of clinic visits to Miami clinics which the examiner added to the report. The examiner noted that the there were no clinic notes found in reference to some dated visits from November 1997 to June 1999. The Board notes that these treatment records are still not associated with the claims files, and as noted above, have been deemed unavailable. After review of the claims files, the April 2007 examiner determined that it would be speculative for him to comment as to whether the Veteran's claims of hematochezia for 2 to 3 years were not acted upon properly, as there were no records to review documenting that fact. The examiner noted that it did take from July 2000 to October 2000 for the Veteran to be afforded the colonoscopy; however, the records indicated that his primary care team was aware that it would take that long and there was no indication that emergent action was required. The examiner went on to state that it would be speculative to state whether the case was handled with a degree of care expected as he only had the Veteran's statements regarding the reports to VA about blood in his stool from 1997 to 1998. Further, he stated that it did not appear as though any additional disability had occurred as a result of the colonoscopy being conducted four months after his July 2000 complaints, but that again, this was speculative. In an August 2008 letter, Dr. R.W., the Veteran's treating physician at MDACC since November 2002, stated that upon review of the Veteran's MDACC treatment records, it was noted that the Veteran had reported in November 2000 that he had been experiencing blood per rectum and constipation since 1998, and had been diagnosed with internal hemorrhoids at that time. Dr. R.W. further noted that on or around November 2000 the Veteran underwent a colonoscopy, at which time a diagnosis of invasive moderately-to-poor differentiated adenocarcinoma was made. Dr. R.W. noted the Veteran's treatment for the adenocarcinoma, and stated that pathology conducted after surgery demonstrated infiltrating moderately differentiated adenocarcinoma of the sigmoid colon with invasion through the muscularis propria to involve the pericolonic fibroadipose tissue with metastatic adenocarcinoma present in 2 of 12 lymph nodes. After review of the MDACC treatment records, Dr. R.W. opined that based on the Veteran's reported complaints of rectal bleeding in 1998, it was reasonable to assume that he may have had an undiagnosed colon cancer at that time. Dr. R.W. explained that the progression of colon cancer, through its various stages, is by and large a temporal one, and that if diagnosed early, stage 0 and stage I cancers almost never recur. He further explained that it was estimated that it takes from 3 to 5 years for an early polyp to transform to an overt carcinoma. Therefore, Dr. R.W. opined, that it was likely that if more appropriate diagnostic studies had been performed in 1998, the Veteran may have been diagnosed with a colon cancer that was at an earlier stage of development (i.e. stage I or II), which would have had a more favorable prognosis than a stage III colon cancer. Dr. R.W. noted that the risk of relapse associated with stage III colon cancer is 60 percent, and only reduced to 40 percent when adjuvant chemotherapy is delivered. He noted that in the Veteran's case, chemotherapy was not available in 2000; however, such treatment is available now, and the Veteran's risk of relapse was about 35 percent. The Veteran was afforded a VA examination in January 2009. At that time he reported an onset of intermittent bright red blood per rectum and an 18 pound weight loss in 1998. He reported that he did not have a colonoscopy until November 2000 (the examiner noted the colonoscopy was performed in October 2000), which revealed abnormalities including cancer and a polyp. The Veteran reported that he chose to receive treatment for his colon cancer at MDACC in Texas, where he underwent a sigmoid resection and chemotherapy, and he continued to receive follow-up care and annual colonoscopies. He also reported that he suffered from memory issues since chemotherapy, which he referred to as "chemo brain." After review of the claims files and physical examination of the Veteran, the examiner diagnosed adenocarcinoma of the colon and opined that the diagnosis was not caused by or a result of medical treatment that was careless, negligent, indicative of lack of proper skill, or erroneous judgment. The examiner explained that upon review of the claims file, the first complaint of hematochezia/bright red blood per rectum that was made to the Key West VAOPC was on July 5, 2000. A digital rectal examination at that time revealed old tags, a 1+ smooth prostate and negative stool guaiac and an appropriate request was made for a colonoscopy to further evaluate the complaint. The examiner noted that prior to the July 2000 complaint of hematochezia, the Veteran had made four visits to the Key West VA outpatient clinic with complaints of various medical conditions, but never made a complaint of hematochezia. Further, the examiner noted that there was a June 1999 preventative health flow sheet indicating an evaluation of stool for occult blood, which appeared to be around the time the Veteran initially presented to the Key West outpatient clinic, as a May 1999 treatment record noted he was there to establish care and that he had no current complaints. Also of record is an undated concurrence and summary (C&S) sheet, VA Form 4265 that appears to have originated from the office of the Under Secretary of Health. The C&S sheet indicates that it was developed in order to provide information to the Under Secretary of Health regarding an inquiry made by Congressman Bob Filner regarding the Veteran's complaint of improper handling of his claims files. The C&S sheet noted the Veteran's contentions that he complained on multiple occasions of rectal bleeding between 1997 and 1999 at the Key Largo VAOPC, but that the records of such treatment had been mishandled and were missing. The C&S sheet also noted that the first documentation in the Veteran's VA treatment records of rectal bleeding was a July 2000 treatment note, at which time he was scheduled for an October 2000 colonoscopy. It was noted, that if the Veteran was stating the truth, and he had reported rectal bleeding to providers at the VAOPC prior to July 2000, then it was recommended that his claim be reconsidered. The Board notes that the C&S sheet referenced above was unsigned and only referred to a Ms. D.R. as a "name of contact" for the office where the document originated. There is no indication from the document that Ms. D.R. drafted the document based on her own personal knowledge of the Veteran's claim, or that the opinions expressed were her own. In this regard, the Board notes that in a January 2010 email from Ms. D.R., she expressly stated that the information contained in the C&S sheet was background information pertaining to the Veteran's claim provided by the Miami VA Medical Center. She stated that she was not a physician or any other kind of clinical provider and she pointed out that she did not sign the document; her name was only listed as a point of contact. Also of record are numerous lay statements from the Veteran in which he has alleged that he complained of rectal bleeding on multiple occasions between 1997 and 1999, and that he was repeatedly told he had an internal hemorrhoid. Additionally, of record is a November 2007 statement provided by Ms. C.B., the Veteran's spouse. In her statement, Ms. C.B., stated that the Veteran complained of rectal bleeding in the fall of 1997 and was told he had an internal hemorrhoid. She stated that the Veteran again complained of rectal bleeding, this time to his private orthopedist, in 1998. Upon review of the evidence of record, the Board finds that while the Veteran was diagnosed with adenocarcinoma of the colon, there is no evidence that it was the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault by a VAMC, or that this condition is the result of an event not reasonably foreseeable in VA's furnishing his medical treatment. At the outset, The Board notes that the Veteran is generally competent to report when he first experienced symptoms of rectal bleeding. However, once evidence is determined to be competent, the Board must determine whether such evidence is credible. Competency is a legal concept determining whether testimony may be heard and considered and credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Layno v. Brown, 6 Vet. App. 465 (1994). In weighing credibility, VA must consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial implausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 133 (Fed. Cir. 2006). The Board may not ignore a Veteran's testimony simply because he is an interested party and stands to gain monetary benefits. However, personal interest may affect the credibility of the evidence. Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991). The Board finds that the Veteran's statements that he reported experiencing symptoms of rectal bleeding on multiple occasions between 1997 and 1999 to his VA treatment providers are inconsistent with the other evidence of record. In this regard, the Board notes there is no evidence that the Veteran was treated for complaints of rectal bleeding by the VA at any point prior to July 2000. The Board acknowledges that it has been determined that there are potentially missing VA treatment records from on various dates in 1997 and 1998. However, the Veteran was treated by VA numerous times between 1997 and early 2000 - and there are dozens of VA medical records from this time period associated with the claims files, as well as many undated records. These records show that the Veteran sought treatment for a variety of medical conditions, including migraines, a left shoulder disability, a low back condition, a history of tuberculosis, and a fractured finger; yet there is absolutely no mention of rectal bleeding. It is reasonable to assume that if he had been experiencing recurrent rectal bleeding as he now claims, he would have stated such during at least some of these repeated visits to VA. Further, in a May 1999 VA treatment record to establish care, the Veteran stated that he had no current complaints. It is reasonable to assume, especially in a situation where a person is establishing care at a new medical facility, that he will provide a good medical history so he can receive appropriate treatment. The fact that he reported no complaints weighs against his claims now that he repeatedly told VA medical personnel about the rectal bleeding. As noted above, also of record is a preventative health care record that indicates a stool for occult blood test was conducted in June 1999. However, a May 1999 doctor's order for lab work contains no indication that such a test was ever ordered, the Veteran adamantly denies that any such test was ever performed, and there are no results of such a test associated with the record; therefore the Board has concluded that the notation on the preventative health care record was a clerical error. Additionally, the only treatment note showing the Veteran complained of rectal bleeding prior to July 2000, is a June 1999 treatment note from the Veteran's private orthopedist. That treatment note reflects that the Veteran reported experiencing bright red blood per rectum on two occasions, but that it had resolved, and he also reported that he had a history of a hemorrhoidectomy. His statements at that time are not consistent with his later statements - at that time he stated the bleeding had occurred twice and had resolved. Finally, the Board notes that the statement of the Veteran's own spouse contradicts his contentions that he made numerous complaints of rectal bleeding. In her November 2007 statement, the Veteran's spouse stated that the Veteran complained of rectal bleeding in the fall of 1997, at which time the Veteran was told he had an internal hemorrhoid and that he complained again of rectal bleeding to his private orthopedist in 1998 [the Board notes the record shows this complaint was made in June 1999]. Her statement, indicates the Veteran only complained of rectal bleeding on two occasions, rather than on multiple occasions as the Veteran contends. Therefore, as the Veteran's statements are inconsistent with the other evidence of record, particularly the absence of complaints of rectal bleeding from the dozens of VA treatment records dated between 1997 and 2000 and his report to his private doctor that he experienced rectal bleeding on two occasions but the symptoms resolved, the Board finds that they are not credible. The Board is not finding his competent lay statements not credible based on an absence of evidence to corroborate the Veteran's statements; but, rather, they are not credible because there is evidence that directly refutes his statements. Turning to a review of the various medical opinions of record, the Board is unable to assign any probative value to the opinions expressed in the C&S sheet discussed above. The Board notes that, while Ms. D.R. reported that the information in the C&S sheet was provided by the Miami VAMC, it is entirely unclear as to what evidence was used to formulate these opinions and to whom these opinions can be attributed. There is no indication that the entirety of the Veteran's claims files was reviewed when the information and opinions were provided. Ms. D.R., the point of contact named on the C&S sheet, has specifically stated that she was not the author of the information in the C&S sheet. Further, the opinion in the C&S sheet is based on the presumption that the Veteran's allegations that he complained on multiple occasions of rectal bleeding between 1997 and 1999 at the Key West or Key Largo VAOPCs were truthful. As the Board has found the Veteran's allegations to be not credible, the C&S sheet is not probative evidence in this matter. (Medical evaluation that is merely a recitation of veteran's self-reported and unsubstantiated history has no probative value. Sanchez-Benitez v. West, 13 Vet. App. 282 (1999); Swann v. Brown, 5 Vet. App. 229 (1993); Godfrey v. Brown, 8 Vet. App. 113 (1995)). Likewise, the August 2008 opinion provided by the Veteran's private physician at the MDACC, Dr. R.W., is based primarily on the Veteran's reports that he had been experiencing rectal bleeding since 1998. Dr. R.W. did not perform a review of the Veteran's claims files prior to providing his opinion; his opinion was based solely on a review of the Veteran's treatment records from MDACC, which date back to November 2000. While lack of claims file review does not automatically render a medical opinion less probative, where, as here, such a review would show the Veteran's history is not accurate, it is significant. Therefore, as Dr. R.W., based his opinion on the Veteran's reports, which have been found to not be credible, his opinion is also not probative evidence in this matter. Id. Further, the Board notes that the October 2000 email from Dr. G.B. simply outlines the suggested course of diagnostic testing for a patient with repeated complaints of rectal bleeding. There is absolutely no indication that Dr. G.B. ever treated the Veteran or even conducted a review of the Veteran's claims files or medical records. In this case, the evidence of record shows that the Veteran complained of rectal bleeding at the VAMC in July 2000 and he was afforded a colonoscopy in October 2000. According to the suggested treatment outlined in Dr. G.B.'s email, the Veteran was afforded the proper treatment. What is now left for consideration are the April 2007 and the January 2009 VA examinations and opinions. The April 2007 examiner noted that it would be speculative to comment as to whether the reported complaints of rectal bleeding in the 2 to 3 years prior to the July 2000 complaint were acted upon properly, as there was no documentation of any such complaints. The examiner further noted that it did not appear from the clinic notes of record that the four months between the July 2000 complaint of rectal bleeding and the October 2000 colonoscopy was inappropriate as the Veteran's primary care team did not indicate that emergent action was needed, and it did not appear as though any additional disability had occurred as a result, although this was speculative. The Board notes that as this opinion was based on speculation, without further clarification from the examiner, the Board affords it low probative value. Finally, the January 2009 VA examination report notes the examiner's opinion that the Veteran's adenocarcinoma of the colon was not caused by or a result of medical treatment that was careless, negligent, indicative of lack of proper skill, or erroneous judgment. The VA examiner reached this opinion based upon examination of the Veteran and a complete review of the claims files. Review of the file ensured the examiner had an accurate history on which to base an opinion. Moreover, the VA examiner supported his opinion by noting that the first documented complaint of hematochezia or bright red blood per rectum was made to the VA on July 5, 2000, at which time an appropriate request was made for a colonoscopy by VA, which was scheduled for October 2000. Additionally, the VA examiner noted that multiple VA treatment notes of record prior to the July 2000 complaint of hematochezia were silent for any complaints of rectal bleeding. The Board notes that the examiner did not comment as to whether the four months between the request for the colonoscopy and the performance of the test was inappropriate. As the January 2009 VA examiner performed a complete review of the Veteran's claims files, which included the December 2001 letter from the Director of the Miami VAMC indicating the October 2000 colonoscopy appointment was the earliest appointment available for a patient in the Veteran's circumstance; and the examiner indicated the request made in July 2000 was appropriate, it can reasonably be inferred that the examiner did not find additional harm caused by the four months between the July 2000 complaint of hematochezia and the October 2000 colonoscopy. Under these circumstances, the Board finds this opinion to be most probative in this matter. As the January 2009 opinion was predicated on a full reading of the claims file, including the Veteran's VA treatment records, physical examination of the Veteran, and an explanation of rationale for the opinion stated, it is most probative of the evidence herein. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran has called into question the authenticity of various handwritten VA treatment records associated with his claims files. Specifically, the Veteran and his representative have asserted that it is "convenient" that the first electronic VA treatment note of record from Dr. J M., whom the Veteran alleges he repeatedly made complaints to regarding rectal bleeding, is the July 2000 record noting hematochezia, particularly when other providers were entering electronic notes prior to that time. However, the Board finds that upon review of the claims files, the assertion is unfounded. The earliest electronic VA treatment note of record is a May 1999 treatment note showing that the Veteran was seen to establish care at the Key West OPC. As the Veteran's attorney has acknowledged, the late 1990s and into 2000 was a time period during which VA had not yet fully implemented electronic medical records. See 2011 Appellant's Brief at page 20. Here, there are several handwritten treatment notes dated both before and after May 1999 that appear to be drafted by various providers pertaining various medical conditions, but primarily to complaints of a left shoulder disability and a migraine disability. Additionally, there are numerous electronic VA treatment notes of record between that May 1999 note and the July 2000 treatment note discussed above, none of which note any complaints of rectal bleeding. Of record are four handwritten notes dated after May 1999. There are numerous handwritten and electronic VA treatment records, signed by a variety medical providers, prior to June 2000, none of which contain any complaints of rectal bleeding and the Board has no reason to believe that they were falsified or are not authentic treatment records. Further, the Veteran has offered no evidence to support his assertion that the records are falsified other than his lay statements of such. As the Board has already found that the Veteran is not credible regarding his allegations that he complained of rectal bleeding on multiple occasions prior to 1997 and 1999, the Board finds no reason to believe that the handwritten VA treatment notes of record ever contained information pertaining to rectal bleeding or that they have been falsified. Further, the Board acknowledges the argument made by the Veteran and his representative that the benefit of the doubt in this matter should be resolved in favor of the Veteran, and that the Board should assume that the unavailable treatment records would corroborate the Veteran's allegations regarding his reported complaints of rectal bleeding from 1997 to 1999. However, as noted in the Board's June 2010 decision, the representative misconstrues the extent of the benefit of the doubt theory. As the Board pointed out in June 2010, reasonable doubt is not used to resolve a conflict in the evidence. The fact here is that even without the unavailable VA treatment records, the VA and private treatment records dated in 1998 and 1999 currently associated with the claims files weigh heavily against the Veteran's allegations that he consistently complained of rectal bleeding to his medical providers. In other words, as discussed above, there is not just a mere absence of evidence to corroborate the Veteran's statements; there is evidence that directly refutes his statements. This is clearly not a situation contemplated by the benefit of the doubt doctrine. The Board notes that the statements of the Veteran and his spouse alone are not sufficient to prove that his currently diagnosed adenocarcinoma of the colon increased in disability as the result of VAMC carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault; nor are they sufficient to prove that any additional disability was caused by an event that was not reasonably foreseeable. Medical diagnosis and causation involve questions that are beyond the range of common experience and common knowledge and require the special knowledge and experience of a trained physician. As they are not physicians, the Veteran and his spouse are not competent to make a determination that his currently diagnosed adenocarcinoma of the colon increased in disability as the result of VAMC carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault; nor are they able to prove that any additional disability was caused by an event not reasonably foreseeable. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In sum, the Veteran's allegations that he complained of rectal bleeding on multiple occasions between 1997 and 1999 to his VA treatment have been found not credible. The January 2009 VA examiner competently opined that the Veteran's adenocarcinoma of the colon was not increased in disability as a result of VAMC carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault; nor was there any additional disability that was the result of an event not reasonably foreseeable in VA's furnishing his medical treatment. There is no evidence that the four months between the July 2000 discovery of hematochezia and the October 2000 colonoscopy resulted an unreasonable delay or that any additional harm was caused to the Veteran. Therefore, compensation under 38 U.S.C.A. § 1151 is not warranted. As noted above, the evidence in this case is not so evenly balanced so as to warrant application of the doctrine of reasonable doubt. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Compensation under 38 U.S.C.A. § 1151 for adenocarcinoma of the colon due to VA treatment is denied. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs