Citation Nr: 1339260 Decision Date: 11/29/13 Archive Date: 12/13/13 DOCKET NO. 10-32 620 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a disability manifested by blood in the stool. 2. Entitlement to service connection for a right elbow disorder. 3. Entitlement to an initial evaluation in excess of 10 percent for right shoulder injury, status post repair. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Rebecca Feinberg, Counsel INTRODUCTION The Veteran had active service from January 2004 to January 2009. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. A review of the Veteran's Virtual VA claims file and Veterans Benefits Management System electronic file shows that they contain some relevant evidence not also contained in the paper claims file. That evidence was reviewed by the RO prior to issuing the December 2012 supplemental statement of the case and by the Board prior to this decision. The issues of entitlement to service connection for a right elbow disorder and entitlement to an initial evaluation in excess of 10 percent for the right shoulder disability are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT A disability manifested by rectal bleeding has not been identified, and hemorrhoids did not manifest during service and have not been shown to be casually related to the Veteran's service. CONCLUSION OF LAW A disability manifested by blood in the stool was not incurred in active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), 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) (2013). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In this case, regarding the duty to notify, the Veteran was sent a letter in January 2009, prior to the initial adjudication of the claim, that provided information as to what evidence was required to substantiate the claim being decided herein and of the division of responsibilities between VA and a claimant in developing an appeal. This letter also explained what type of information and evidence was needed to establish a disability rating and effective date. Accordingly, no further development is required with respect to the duty to notify. In addition, the duty to assist the Veteran has been satisfied in this case. The Veteran's service treatment records and all identified and available post-service medical records have been obtained or submitted and associated with the file, including VA treatment records. The Veteran has identified no other relevant evidence. The Board notes that, while the RO attempted to obtain Social Security Administration (SSA) records pertinent to the Veteran, he informed VA in a July 2009 written statement that no such records exist. Thus, it would appear that any further attempt would be futile. In October 2012, the Veteran was afforded a VA examination regarding the claim decided herein. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). 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). As discussed in more detail below, the Board finds that the October 2012 VA examination and opinion are adequate, as they are predicated on a review of the claims file, the pertinent and credible evidence of record, and current findings. In addition, the October 2012 examiner provided a thorough rationale for the conclusions reached that was based upon the credible evidence of record. The Board concludes the Veteran was provided the opportunity to meaningfully participate in the adjudication of his claim and did in fact participate. Washington v. Nicolson, 21 Vet. App. 191 (2007). For these reasons, the Board concludes that VA has fulfilled the duty to assist the Veteran in this case. Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal. Law and Analysis The Veteran contends that he is entitled to service connection for a disability manifested by blood in the stool, as he believes that the symptoms he experiences now are the same he experienced during service. Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also 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). Because the Veteran has not been found to have a disability manifested by blood in the stool that is a chronic disability, consideration under 38 C.F.R. §§ 3.303(b) is not warranted. See 38 C.F.R. § 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to service connection for a disability manifested by blood in the stool. A June 2006 service record indicates that the Veteran complained of intermittent blood streaks in his stool and on his toilet paper. He denied active bleeding, abdominal pain, tenesmus, change in stool consistency, nausea or vomiting, and fever or chills. He noted that he had a similar episode about one year earlier, which resolved with fiber supplementation. A rectal examination revealed a skin tag at the left anterior anal margin, but there was no active bleeding, hemorrhoids, fissures, or stool in the vault. He had normal tone. The assessment was anal skin tag with suspected blood from hard stool and rigorous wiping. The Veteran's December 2008 separation examination shows that his anus and rectum was not evaluated. At that time, the Veteran reported a history of rectal disease, hemorrhoids, or blood from the rectum. It was noted that he reported blood from his rectum multiple times. On his December 2008 original claim, the Veteran indicated that the blood in his stool began in 2004. In March 2009, the Veteran underwent a VA examination during which he reported rectal bleeding on and off since 2005. He indicated that it could be bright red blood or darker blood and occasionally had small clots. He had no abdominal pain or constipation, and his symptoms eased with regular dosing of Metamucil. The Veteran stated that he sought medical attention twice for this problem in service. He was told to take Metamucil, and on the second visit, he was told to eat a lot of fiber. He stated that he did not have hemorrhoids. On rectal examination, there were no hemorrhoids or rectal masses. There was a tiny skin tag to the left of the anus. The diagnosis was a history of rectal bleeding (streaking) and anal skin tag. In a March 2009 VA outpatient record, dated later on the same day as the VA examination, the Veteran reported having intermittent bright red blood in his stool about four years ago. He noted that the bleeding sometimes included clots in the bowl. The blood was sometimes only on the tissue and was not associated with orthostatic symptoms. He had a digital rectal examination in the past and was found to have a skin tag, but never had a flexible sigmoidoscopy or a colonoscopy. He noted less frequent bleeding when he ate "healthy foods." A complete gastrointestinal review of systems was conducted and was otherwise negative. The impression was rectal bleeding, etiology undetermined. It was noted that he had no hemorrhoidal symptoms or symptoms to suggest anal fissure. In a March 2009 rating decision, the RO granted service connection for an anal skin tag. A March 2009 VA outpatient record dated after the March 2009 VA examination, shows that the Veteran underwent a colonoscopy and was diagnosed as having an internal hemorrhoid. In October 2012, the Veteran underwent another VA examination, and the examiner noted the March 2009 diagnosis of hemorrhoids. He also observed the June 2006 service record, which he opined was an isolated, self-limited event. The Veteran reported that he had repeat, self-limited bright red rectal bleeding every few weeks, which was not always related to straining. He had mild or moderate hemorrhoids shown on the colonoscopy report of March 2009. On examination, the Veteran was normal, with no external hemorrhoids, anal fissures, or other abnormalities. Following examination and review of the record, the examiner opined that the Veteran had a self-limited event of rectal bleeding in service in 2006. Subsequent physical examinations in service note that this issue had resolved. The next recorded episode of bleeding was three years later in 2009. The colonoscopy showed no evidence of an etiology for active bleeding, with only small internal hemorrhoids noted. These represented two unrelated causes. Medical literature did not support that a skin tag was related to internal hemorrhoids. The Veteran's findings were not unexpected for his age and general good health status. With regard to entitlement to service connection under the provisions of 38 C.F.R. § 3.303(a), there are two opinions of record that address whether the Veteran has a disability manifested by blood in the stool that is related to service. The relevant opinions are those of the Veteran and the October 2012 VA examiner. For the reasons stated below, the Board finds that the opinion of the VA examiner is more probative. First, the Board notes that, to the extent that the Veteran was diagnosed on examination of having an anal skin tag, this disability was granted service connection in March 2009 and is not before the Board. The issue currently before the Board is whether the Veteran has a separate disability manifested by blood in the stool, and if so, whether that disability is related to service. The Veteran has made general assertions regarding his symptomatology. Reading the Veteran's contentions in the light most favorable to him, the Board interprets that he is concluding that he has a chronic disability that caused him to manifest intermittent blood in his stool during service and continues to cause such intermittent symptoms now. Although he did not state it specifically, it appears from his submission of a VA outpatient treatment record in May 2009 that he may believe that his bleeding is due to the finding of internal hemorrhoids shown in a March 2009 VA outpatient record. In contrast, the VA examiner concluded, following a review of the record and examination of the Veteran, that the Veteran's event of rectal bleeding in service was self-limited and resolved. In addition, the colonoscopy showed no evidence of an etiology for active bleeding. Instead, it showed only a small internal hemorrhoid, and the examiner concluded that the bleeding and the internal hemorrhoid represented two unrelated causes. The examiner has education, training, experience, and specialized knowledge that the Veteran, as a layperson, is not shown to have. In many circumstances, laypersons may provide competent medical opinions regarding such matters as etiology and diagnosis. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009). However, here, the Board finds that the opinion provided by the VA examiner is more probative. Moreover, the VA examiner provided a more definitive opinion than the Veteran. While the Veteran generally alleges that he has a disorder, he provides no specific opinion as to etiology or diagnosis. He merely alludes to symptomatology that he experienced both during and since service. While he submitted a VA outpatient record showing a diagnosis of internal hemorrhoid, he provided no particular opinion that this was the cause of his blood in the stool or that his hemorrhoids began during service. Therefore, on the question of whether the Veteran has a disability manifested by blood in the stool, the Board finds that the opinion provided by the VA examiner is more probative. The examiner concluded that the only finding on examination (other than the already service-connected anal skin tag) was an internal hemorrhoid that was not related to the blood in the stool. Furthermore, there is no medical or lay evidence suggesting that the Veteran manifested the internal hemorrhoids during service. In fact, an examination was negative for hemorrhoids in June 2006, and the Veteran denied a history of hemorrhoids as recently as his March 2009 VA examination. Therefore, there is no evidence that they began during service, and neither the Veteran nor the examiner has provided an opinion suggesting that is the case. In order for a Veteran to establish entitlement to service connection, he must provide the existence of a disability, and one that has resulted from a disease or injury that occurred in service. See Sanchez-Benitez v. Principi, 259 F.3d 1356, 1361-1362 (Fed. Cir. 2001). The manifestation shown is blood in the Veteran's stool. During service, this was attributed to the Veteran's hard stool and rigorous wiping and no other pathology. Post-service, the more probative evidence of record shows that blood in the stool has not been attributed to any pathology. Consequently, the claim of entitlement to service connection for a disability manifested by blood in the stool on a direct incurrence basis must be denied. While the Veteran did not raise the issue of whether hemorrhoids are secondary to the service-connected anal skin tag, the October 2012 VA examiner nevertheless provided a negative opinion, stating that medical literature did not support such a relationship. It is an adequate opinion supported by a rationale, and there is no opinion of record suggesting otherwise. Therefore, service connection on a secondary basis is not warranted. 38 C.F.R. § 3.310. It is the responsibility of the Board to assess the credibility and weight to be given the evidence. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). The probative value of medical evidence is based on the provider's knowledge and skill in analyzing the data, and the medical conclusion the provider reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). As noted above and for those reasons, the Board finds that the opinion of the October 2012 VA examiner is more probative than the one provided by the Veteran. The Board must be able to conclude that the medical expert has applied valid medical analysis to the significant facts of the particular case in order to reach the conclusion submitted in the medical opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). See also Bloom v. West, 12 Vet. App. 185, 187 (1999); Black v. Brown, 5 Vet. App. 177, 180 (1995); Knightly v. Brown, 6 Vet. App. 200 (1994); Miller v. West, 11 Vet. App. 345, 348 (1998). The October 2012 VA examiner has provided a valid analysis for the conclusion and opinion given that is consistent with the record. Thus, the most persuasive opinion on the question of whether there is a disability manifested by blood in the stool that is related to the Veteran's service is that of the October 2012 VA examiner, which weighs against the claim. Based on the foregoing, the Board finds that the Veteran does not have a disability manifested by blood in the stool that is related to service. Accordingly, the claim for service connection must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of- the-doubt doctrine. However, on these facts, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for a disability manifested by blood in the stool is denied. REMAND The Board finds that additional development is necessary prior to final adjudication of the claims remaining on appeal. With regard to the claim of entitlement to service connection for a right elbow disorder, the Board finds that the opinion obtained in March 2009 is inadequate. While the examiner first stated that the subjective statement by the Veteran of right elbow arthralgia was not a diagnosis, he also provided a diagnosis of irregularity of the radial head, as seen on x-ray. The examiner then indicated that the problem associated with the diagnosis was right elbow pain and weakness. It is unclear whether the examiner was attributing some of the right elbow pain and weakness to the irregularity of the radial head. Furthermore, no opinion was provided as to whether the irregularity of the radial head was related to service or the service-connected right shoulder disability. In addition, after the March 2009 VA examination was obtained, the Veteran submitted an April 2009 written statement from his in-service physician, who indicated that the Veteran had lacertus fibrosis syndrome (prontatory syndrome). While he underwent surgery for his shoulder during service, the elbow was not addressed in the surgery secondary to concerns about stiffness and differences in rehabilitation protocols. The March 2009 VA examiner was not able to consider this statement in rendering his opinion. Therefore, a remand is necessary to obtain an addendum. Regarding the claim of entitlement to an evaluation in excess of 10 percent for the right shoulder disability, the Board notes that the Veteran's representative contended in the November 2013 written brief presentation that it was not clear whether painful motion was properly considered on examination in March 2009. A review of the March 2009 VA examination report shows that objective evidence of pain on motion was noted. However, the examiner made no mention of where in the range of motion that pain occurred. Such information is necessary to ascertain the functional impairment demonstrated by the Veteran. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be afforded a VA examination to determine the nature and etiology of any right elbow disorder that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and statements. It should also be noted that the Veteran is considered competent to attest to factual matters of which he has first-hand knowledge. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should then state an opinion as to the likelihood (likely, unlikely, at least as likely as not) that the Veteran's currently diagnosed right elbow disorder, if there is one, is causally or etiologically related to his service. The examiner should also state an opinion as to the likelihood (likely, unlikely, at least as likely as not) that the Veteran's currently diagnosed right elbow disorder is caused by or permanently aggravated by his service-connected right shoulder disability. The examiner should note that aggravation is defined for legal purposes as a permanent worsening of the underlying condition beyond the natural progress of the disorder, versus a temporary flare-up of symptoms. If the examiner determines that any right elbow disorder was aggravated by the service-connected right shoulder disorder, the examiner should identify the level of disability caused by the right shoulder disorder, to the extent possible. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1 (2013), copies of all pertinent records in the appellant's claims file, to include the virtual file, or in the alternative, the claims file, must be made available to the examiner for review. 2. The Veteran should be afforded a VA examination to ascertain the current severity and manifestations of his service-connected right shoulder disability. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. It should also be noted that the Veteran is considered competent to attest to factual matters of which he has first-hand knowledge. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should report all signs and symptoms necessary for rating the Veteran's right shoulder disability under the rating criteria. In particular, the examiner should provide the range of motion in degrees and indicate whether there is any ankylosis or other impairment of the humerus, clavicle, or scapula. The presence of objective evidence of pain, excess fatigability, incoordination, and weakness should also be noted, as should any additional disability due to these factors. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Since it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1 (2013), copies of all pertinent records in the appellant's claims file, to include the virtual file, or in the alternative, the claims file, should be made available to the examiner for review. 3. After completing these actions, the RO/AMC should conduct any other development as may be indicated by a response received as a consequence of the actions taken in the preceding paragraphs. 4. Thereafter, the RO/AMC should consider all of the evidence of record and readjudicate the issues on appeal. If the benefit sought is not granted, the RO/AMC should issue a Supplemental Statement of the Case and allow the Veteran and his representative an opportunity to respond. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. No action is required of the Veteran until he is otherwise notified by VA. By this action, the Board intimates no opinion, legal or factual, as to any ultimate disposition warranted in this case. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ J.W. ZISSIMOS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs