Citation Nr: 1443225 Decision Date: 09/26/14 Archive Date: 10/06/14 DOCKET NO. 11-28 442 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Honolulu, Hawaii THE ISSUE Entitlement to service connection for a rectal prolapse with rectal bleeding. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD McBrine, M., Counsel INTRODUCTION The Veteran served on active duty from February 1978 to July 1990. This matter comes to the Board of Veterans' Appeals (Board) from a March 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Honolulu, Hawaii, which denied the claims on appeal. The Veteran received a videoconference hearing before the undersigned Acting Veterans Law Judge in February 2013. FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran's current disability of rectal prolapse with rectal bleeding is etiologically related to a disease, injury, or event in service. CONCLUSION OF LAW A rectal prolapse with rectal bleeding disability was not incurred in or aggravated by service, and may not be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1131, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claim, the Department of Veterans Affairs (VA) has met all statutory and regulatory notice and duty to assist provisions. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the Veteran and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VA must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the Veteran is expected to provide. VCAA letters dated in September 2010 and June 2011 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2013); 38 C.F.R. § 3.159(b)(1) (2013); Quartuccio, at 187. The Veteran was advised that it was ultimately his responsibility to give VA any evidence pertaining to the claims. The letters informed him that additional information or evidence was needed to support his claims, and asked him to send the information or evidence to VA. See Pelegrini II, at 120-121. The letters also explained to the Veteran how disability ratings and effective dates are determined. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Furthermore, even if any notice deficiency is present in this case, the Board finds that any prejudice due to such error has been overcome in this case by the following: (1) based on the communications sent to the Veteran over the course of this appeal, the Veteran clearly has actual knowledge of the evidence the Veteran is required to submit in this case; and (2) based on the Veteran's contentions as well as the communications provided to the Veteran by VA, it is reasonable to expect that the Veteran understands what was needed to prevail. See Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served."). In order for the United States Court of Appeals for Veterans Claims (Court) to be persuaded that no prejudice resulted from a notice error, "the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair." Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). In this case, the Veteran has been continuously represented by an experienced Veterans Service Organization and has submitted argument in support of his claims. These arguments have referenced the applicable law and regulations necessary for a grant of service connection. Thus, the Board finds that the Veteran has actual knowledge as to the information and evidence necessary for him to prevail on his claim and is not prejudiced by a decision in this case. As such, a remand for additional notice would serve no useful purpose and would in no way benefit the Veteran. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on the VA with no benefit flowing to the Veteran are to be avoided). The Board also concludes VA's duty to assist has been satisfied. The Veteran's VA medical records are in the file. All identified VA treatment records have been associated with the claims file. There is no indication that there are other outstanding relevant medical records that have not been associated with the Veteran's claims file. The Veteran has not indicated that there are any other relevant outstanding private or VA treatment records that should be associated with his claims file, though he was informed in his above noted letters to provide such information. While there may be outstanding records pertaining to the Veteran's post service surgery for rectal prolapse, the Veteran has not indicated that there are any relevant records outstanding that would be more probative than the records currently associated with the Veteran's claims file. Therefore, the Board finds that the duty to assist the Veteran has been satisfied. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. See 38 C.F.R. § 3.159(c)(4). In this case, the Veteran was afforded a VA examination in January 2011, which contained a thorough analysis of the Veteran's claims file. Based on the foregoing, the Board finds the examination reports to be thorough, complete, and sufficient upon which to base a decision with respect to the Veteran's claim for service connection. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). As such, the Board finds that the medical evidence of record is sufficient to adjudicate the Veteran's claims. A Veterans Law Judge (VLJ) who chairs a hearing must fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. 38 C.F.R. § 3.103(c)(2) (2013); Bryant v. Shinseki, 23 Vet. App. 488 (2010). Here, during the hearing, the Acting VLJ noted the issue on appeal and explained to the Veteran the evidence needed to succeed on that appeal. Therefore, not only were the issues "explained . . . in terms of the scope of the claim for benefits," but "the outstanding issues material to substantiating the claim," were also fully explained. See Bryant, 23 Vet. App. at 497. Moreover, the hearing discussions did not reveal any evidence that might be available that had not been submitted. Under these circumstances, nothing gave rise to the possibility that evidence had been overlooked with regard to the Veteran's claim. As such, the Board finds that, consistent with Bryant, the undersigned complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that the Board may proceed to adjudicate the claims based on the current record. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless, as to those claims being finally decided on this appeal. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1131 (West 2002 & Supp. 2013). 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) (2013). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). To establish a right to compensation for a present disability on a direct basis, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence. In certain circumstances lay evidence may be sufficient to establish a medical diagnosis or nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In addressing lay evidence and determining its probative value, if any, attention is directed to both competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). See Layno v. Brown, 6 Vet. App. 465, 469 (1994). In terms of competency, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot). That notwithstanding, a Veteran is not competent to provide evidence as to more complex medical questions and, specifically, is not competent to provide an opinion as to etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever). 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. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); but see Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim). The Veteran claims this disability primarily as related to a diagnosis of hemorrhoids in service. Taking into account all relevant evidence, the Board finds that service connection is not warranted for a rectal prolapse with rectal bleeding. In this regard, the Board notes that the preponderance of the evidence of record is against a finding that this disability was incurred in, or aggravated by, service. Initially, the Board points out that the Veteran's service treatment records show no complaints, or treatment for, rectal prolapse with rectal bleeding. However, a July 1990 report of separation examination did note external hemorrhoids at 5 and 7 o' clock, with no evidence of thrombosis or occult blood. No prolapse was noted. The hemorrhoids were noted to be well controlled with proper diet. A June 2009 report of private treatment indicates that the Veteran was seen for potential excision of a gluteal mass. On examination, a 2cm right gluteal mass was noted at the mid portion of the buttocks, with no erythema and no drainage. Excision was performed in July 2009. A May 2010 postoperative report noted that the Veteran was seen for a rectal prolapse as well as a screening colonoscopy, and underwent a complex hemorrhoidectomy, during which his prolapse was repaired. The Veteran received a VA examination in January 2011. At that time, the Veteran reported having rectal bleeding since 1978. The Veteran indicated that he was assaulted in service by having bottles thrown at him, and that he had surgery in 2010 to remove pieces of glass from his rectum as a result of that fight. However, the examiner noted that there was no evidence of a finding of glass pieces in the Veteran's surgical notes. Upon examination, there was no evidence of fecal leakage or involuntary bowel movements; however, the Veteran reported that he used folded paper towels when needed. He reported spotting that occurred two times a week, but no thrombosis. There were small flat hemorrhoids at the 6 o' clock position, sized .5 cm. There was no evidence of fissures or bleeding. The Veteran was diagnosed with hemorrhoids and rectal prolapse. The examiner noted that rectal prolapse is usually associated with the following conditions: advanced age, long term constipation, long term diarrhea, long term straining during defecation, previous surgery, cystic fibrosis, chronic obstructive pulmonary disease, whooping cough, multiple sclerosis, paralysis, certain parasitic infections, prior injury to the anus or pelvic area, malnutrition, and malabsorption. There is no noted association with hemorrhoids as a cause of rectal prolapse. Therefore, the examiner indicated that it was less likely as not that the Veteran's rectal prolapse was related to his hemorrhoids in service. The Board has considered the Veteran's statements, including his hearing testimony, indicating that he feels his rectal prolapse is related to service, including his in service hemorrhoids, and that he had bleeding in service for many years. However, as noted above, the VA examiner found that the Veteran's rectal prolapse was not related to service, even considering the Veteran's in service hemorrhoids, and the Board notes that there is otherwise no medical evidence of record linking the claimed disability to service. As noted, the examiner indicated that the rectal prolapse was not related to hemorrhoids. Further, there is no medical evidence showing a diagnosis of rectal prolapse until approximately 20 years after the Veteran's separation from service. While the Veteran is competent to testify to certain symptomatology, such as the bleeding he experienced in service, a finding of an etiological relationship between the Veteran's service, to include in service hemorrhoids, and the current claimed disability, is beyond the scope of a layperson's expertise. Therefore, the Board finds the medical opinion of record to be far more probative as to the question of whether the Veteran's current claimed disabilities are related to service, than the Veteran's lay statements regarding continuity of symptomatology. Therefore, considering all evidence of record, the Board concludes that the preponderance of the evidence of record is against the Veteran's claim for service connection for a rectal prolapse with rectal bleeding, and the benefit-of-the-doubt rule does not apply. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). As such, service connection is not warranted for this claimed disability. ORDER Entitlement to service connection for a rectal prolapse with rectal bleeding is denied. ____________________________________________ A. C. MACKENZIE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs