Citation Nr: 1336393 Decision Date: 11/07/13 Archive Date: 11/13/13 DOCKET NO. 05-35 501A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for a rectal disorder. REPRESENTATION Appellant represented by: Virginia A. Girard-Brady, Attorney at Law WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. D. Deane, Counsel INTRODUCTION The Veteran served on active duty from October 1981 to April 1983. This matter comes properly before the Board of Veterans' Appeals (Board) on appeal from a May 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office in Chicago, Illinois (RO). The Board denied the claim on appeal by a July 2007 decision. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). Based on a July 2008 Joint Motion for Remand (Joint Motion), the Court remanded this appeal in July 2008 for development in compliance with the Joint Motion. In a November 2008 decision, the Board vacated the July 2007 decision and remanded the claim for compliance with the July 2008 Joint Motion. In October 2009, the Board once again denied the claim on appeal. The Veteran appealed the October 2009 Board decision to the Court. The Court remanded this appeal in July 2010 for development in compliance with a July 2010 Joint Motion. In a July 2011 decision, the Board vacated the October 2009 decision and again denied the claim. The Veteran appealed the July 2011 Board decision to the Court, which again remanded the appeal to the Board in March 2012, based on a February 2012 Joint Motion. In an October 2012 decision, the Board vacated the July 2011 decision and again denied the claim. The Veteran appealed the October 2012 Board decision to the Court, which again remanded the appeal to the Board in August 2013, based on an August 2013 Joint Motion. The matter of entitlement to service connection for a rectal disorder is remanded to the RO. VACATUR VA regulations provide that an appellate decision may be vacated by the Board at any time upon the request of the Veteran or his representative, or on the Board's own motion when there has been a denial of due process. 38 C.F.R. § 20.904(a) (2013). Here, the Court remanded the claim on appeal, based on the August 2013 Joint Motion's finding that the Board's October 2012 decision failed to provide an adequate statement of reasons or bases for the determination that the Veteran's lay statements were not new and material evidence sufficient to reopen his claim. It was further indicated that the Board's assessment of the Veteran's lay statements amounted to an improper weighing of the lay evidence. Therefore, the August 2013 Joint Motion found that the Board decision issued on October 10, 2012, failed to provide the Veteran due process under the law. Accordingly, in order to prevent prejudice to the Veteran, the October 10, 2012, decision of the Board must be vacated, and a new decision will be entered as if the October 10, 2012, decision by the Board had never been issued in regards to the matter of whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for a rectal disorder. FINDINGS OF FACT 1. An April 1985 Board decision denied the Veteran's claim of entitlement to service connection for a rectal disorder. 2. New evidence associated with the claims file since the April 1985 Board decision, when considered by itself or in connection with evidence previously assembled, relates to an unestablished fact necessary to substantiate the claim of service connection for a rectal disorder, or raises a reasonable possibility of substantiating the claim of service connection for a rectal disorder. CONCLUSIONS OF LAW 1. The Board's April 1985 decision, which denied the Veteran's claim of entitlement to service connection for a rectal disorder is final. 38 U.S.C.A. § 7104 (West 2002 & Supp. 2013). 2. As evidence received since the Board's April 1985 denial is new and material, the criteria for reopening the Veteran's claim of entitlement to service connection for a rectal disorder are met. 38 U.S.C.A. § 5108 (West 2002 & Supp. 2013); 38 C.F.R. § 3.156(a) (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Without deciding whether notice and development requirements have been satisfied in the present case, the Board is not precluded from adjudicating the issue on appeal herein. See 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). This is so because the Board is taking action favorable to the Veteran by reopening the claim of entitlement to service connection for a rectal disorder at hand. As such, this decision poses no risk of prejudice to the Veteran. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); see also Pelegrini v. Principi, 17 Vet. App. 412 (2004); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992). Unappealed rating decisions by the Board are final with the exception that a claim may be reopened by submission of new and material evidence. 38 U.S.C.A. §§ 5108, 7104. When a claimant requests that a claim be reopened after an appellate decision has been promulgated and submits evidence in support thereof, a determination as to whether such evidence is new and material must be made and, if it is, as to whether it provides a basis for allowing the claim. 38 U.S.C.A. § 5108; Smith v. West, 12 Vet. App. 312 (1999). VA regulation defines "new" as not previously submitted and "material" as related to an unestablished fact necessary to substantiate the claim. If the evidence is new and material, the next question is whether the evidence raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). Historically, the Veteran originally filed a claim for service connection for a rectal disorder in April 1983, asserting that his condition was aggravated during service. In an April 1984 rating decision, notice of which was mailed to the Veteran that same month, the RO denied that claim, finding that the Veteran's rectal disorder, hemorrhoids or chronic fissure, existed prior to active service without service aggravation. The Veteran appealed the decision to the Board. An April 1985 Board decision denied the Veteran's claim of entitlement to service connection for a rectal disorder on the basis that a rectal disorder preexisted military service and was not aggravated thereby. The relevant evidence of record at the time of the April 1985 Board decision consisted of the Veteran's service treatment records, a December 1980 private medical record, a December 1983 VA medical examination report, and a transcript of an August 1984 hearing before the RO. The April 1985 Board decision is final based on the evidence then of record. 38 U.S.C.A. § 7104; 38 C.F.R. § 20.1100 (2013). Shortly thereafter, the Veteran filed another claim for service connection for a rectal disorder in May 1985. In a May 1985 letter, the RO simply indicated that the Veteran's recent claim for benefits was essentially duplicative of a claim he previously filed. It was noted that the evidence submitted was not new and material and that no change in the RO's previous decision was warranted. In November 2003, the Veteran sought to reopen the claim of entitlement to service connection for a rectal disorder. This appeal arises from the RO's May 2004 rating decision that found no new and material evidence had been submitted to reopen the Veteran's claim. It was indicated that there continued to be no evidence showing that his current condition was aggravated by military service. Regardless of the RO's actions, the Board must still determine whether new and material evidence has been submitted. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (reopening after a prior unappealed RO denial); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996) (reopening after a prior Board denial); Wakeford v. Brown, 8 Vet. App. 237 (1995) (finding that VA failed to comply with its own regulations by ignoring issue of whether any new and material evidence had been submitted to reopen the veteran's previously and finally denied claims). Evidence of record received since the April 1985 Board decision includes private medical records dated from May 1999 to July 1999, a January 2004 statement from the Veteran, a transcript of a January 2007 videoconference hearing before the Board, and an April 2011 statement from the Veteran. All of the evidence received since the April 1985 Board decision is "new" in that it was not of record at the time of the April 1985 Board decision. Private treatment records dated from May 1999 to July 1999 showed the Veteran had complaints of occasional bleeding, underwent a colonoscopy, and detailed findings of hypertrophic anal papilla. With respect to the January 2004 statement from the Veteran, the transcript of a January 2007 videoconference hearing before the Board, and the April 2011 statement from the Veteran, the Veteran repeatedly described his in-service and post-service symptomatology. In January 2004, the Veteran asserted that he should have been discharged with medical benefits for a chronic condition, which the military severely aggravated "leaving his rectum in a total discomfortable condition till this day". In his January 2007 hearing testimony before the Board, the Veteran stated that he had seen Dr. S. K. within three to four months after discharge and that the physician gave him medications. In the April 2011 statement, the Veteran also stated that after discharge he went to see the physician who performed his rectal surgery prior to service, Dr. S. K. The Veteran further asserted that Dr. S. K. had informed him at that time that his rectal disorder had become worse due to lack of proper care and treatment. Lay statements are competent evidence relating to symptoms or facts that the lay witness observed and is within the realm of his or her personal knowledge. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (noting that lay testimony may be competent to identify a particular medical condition). Lay evidence may also be competent to establish medical etiology or nexus. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). This evidence is "material", as it constitutes evidence which, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claims, i.e., a causal relationship between the present, claimed rectal disorder and a disease or injury incurred or aggravated during service. When presumed credible, such evidence and information raises a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for a rectal disorder. Shade v. Shinseki, 24 Vet. App. 110 (2010); Justus v. Principi, 3 Vet. App. 510 (1992). Under these circumstances, the Board concludes that the criteria for reopening the claim of entitlement to service connection for a rectal disorder are met. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. ORDER New and material evidence has been received, the appeal to reopen a claim of entitlement to service connection for a rectal disorder is granted, to that extent only. REMAND A longitudinal review of the record revealed that the Veteran essentially contends his current rectal disorder was aggravated during active service. Pre-service surgical treatment records dated in December 1980 showed the Veteran underwent a procto-sigmoidoscopy, anoscopy, lateral internal sphincterotomy, and hemorrhoidectomy prior to service. Operative diagnoses were listed as chronic fissure in posterior ano and internal and external hemorrhoids. A March 1981 medical record from South Suburban Hospital revealed complaints of sharp pain in rectum and noted that the Veteran's surgical incisions had healed. The Veteran's anus and rectum were marked as normal on clinical evaluation in the September 1981 service enlistment examination report. On a September 1981 Report of Medical History the Veteran marked that he had rectal disease. The examiner noted the Veteran's hemorrhoidectomy from 1980. Additional service treatment records dated from 1981 to 1983 reflected continued complaints of rectal pain, itching, seepage, and discomfort. In a November 1981 treatment record, he complained of rectal pain since entry into boot camp. Records showed findings of external hemorrhoid, rectal stricture, pruritus ani, and proctitis, with treatment including creams, suppositories, dietary changes, and sitz baths. The Veteran's anus and rectum were marked as normal on clinical evaluation in the March 1983 service separation examination report. On a March 1983 Report of Medical History the Veteran marked that he had rectal disease and used cream for perianal irritation. The examiner noted the Veteran had hemorrhoids excised in 1981 and had perianal irritation. An April 1983 VA examination report revealed that the Veteran refused protoscopy and claimed he pain in rectal area while walking. Digital examination of the area revealed no external hemorrhoids, normal anal sphincter muscle tone and control, no rectal masses, and pruritus ani. Post-service private treatment records dated in 1999 showed complaints of occasional bleeding, underwent a colonoscopy, and detailed findings of hypertrophic anal papilla. As noted above, in lay evidence in the form of a January 2004 statement from the Veteran, the transcript of a January 2007 videoconference hearing before the Board, and an April 2011 statement from the Veteran, the Veteran repeatedly described his in-service and post-service symptomatology. In January 2004, the Veteran asserted that he should have been discharged with medical benefits for a chronic condition, which the military severely aggravated "leaving his rectum in a total discomfortable condition till this day". In his January 2007 hearing testimony before the Board, the Veteran stated that he had seen Dr. S. K. within three to four months after discharge and that the physician gave him medications. In the April 2011 statement, the Veteran also stated that after discharge he went to see the physician who performed his rectal surgery prior to service, Dr. S. K. The Veteran further asserted that Dr. S. K. had informed him at that time that his rectal disorder had become worse due to lack of proper care and treatment. A review of the record reveals that further development on this matter is warranted. Pursuant to VA's duty to assist, VA will provide a medical examination or obtain a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide the claim. 38 C.F.R. § 3.159(c)(4)(i). In light of the cumulative record discussed above, the Board will afford the Veteran a VA examination in order to determine the nature and etiology of his claimed rectal disorder on appeal. McLendon v. Nicholson, 20 Vet. App. 79 (2006). An additional attempt to obtain records from private physicians, identified as Dr. S. K. and Dr. H. A., must also be made. 38 C.F.R. §§ 3.159(c)(1). Accordingly, the case is remanded for the following actions: 1. The RO must contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claim for entitlement to service connection for a rectal disorder. Regardless of the Veteran's response, the RO must obtain all outstanding records relevant to the claim being remanded, to include treatment records from private physicians, identified as Dr. S. K. and Dr. H. A. All attempts to secure this evidence must be documented in the claims file by the RO. When requesting records not in the custody of a Federal department or agency, such as private treatment records, the RO must make an initial request for the records and at least one follow-up request if the records are not received or a response that records do not exist is not received. If the RO is unable to secure any of the identified records, the RO must notify the Veteran and his attorney and (a) identify the information the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain that information; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that the Veteran is ultimately responsible for providing information. The Veteran and his attorney must then be given an opportunity to respond. 2. The Veteran must be afforded the appropriate VA examination to determine whether any rectal disorder found is related to events during his military service. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies must be accomplished. The claims file and all electronic records, to include on Virtual VA and VBMS, must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed. The examiner must specify the dates encompassed by the electronic records that were reviewed. Following a review of the pre-service, service, and post-service medical records, and the Veteran's lay statements, the examiner must state whether any currently diagnosed rectal disorder was incurred in or aggravated by service. If any rectal disorder is found to have pre-existed military service, the examiner must state the evidence upon which this conclusion was reached. The examiner must then state whether any such rectal disorder was permanently aggravated beyond its natural progression during the Veteran's military service. If any current rectal disorder is found not to have pre-existed military service, the examiner must state whether the currently diagnosed rectal disorder is related to the Veteran's military service. A complete rationale for all opinions must be provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. The report prepared must be typed. 3. The RO must notify the Veteran that it is his responsibility to report for any examination scheduled, and to cooperate in the development of the claim. The consequences for failure to report for any VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2013). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained and associated with the Veteran's claims file that shows that notice scheduling the examination was sent to his last known address. Documentation must also be obtained and associated with the Veteran's claims file demonstrating any notice that was sent was returned as undeliverable. 4. After the development requested has been completed, the RO must review any examination report to ensure that it is in complete compliance with the directives of this Remand. If any report is deficient in any manner, the RO must implement corrective procedures at once. 5. Once the above actions have been completed, and any other development as may be indicated by any response received as a consequence of the actions taken above, the RO must re-adjudicate the Veteran's claim on appeal. If the benefit remains denied, a supplemental statement of the case must be provided to the Veteran and his attorney. After they have had an adequate opportunity to respond, the appeal must be returned to the Board for further appellate review. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). ______________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs