Citation Nr: 1617657	
Decision Date: 05/03/16    Archive Date: 05/13/16

DOCKET NO.  13-08 644	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia


THE ISSUES

1. Entitlement to service connection for hemorrhoids.

2. Entitlement to service connection for erectile dysfunction.


REPRESENTATION

Veteran represented by:	Virginia Department of Veterans Services


ATTORNEY FOR THE BOARD

A. Hemphill, Associate Counsel



INTRODUCTION

The Veteran served on active duty from May 1970 to December 1971.  His service medals and decorations include the Combat Infantry Badge.

This case comes before the Board of Veterans' Appeals (Board) on appeal from January 2010 and February 2010 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia.

The Board notes that in his March 2013 VA Form 9, the Veteran requested a hearing before a Veterans Law Judge (VLJ).  The Veteran withdrew his hearing request and the record does not reflect that he has made a further request to reschedule the canceled hearing.  See the March 2016 statement.

This appeal has been processed entirely electronically using the Veterans Benefits Management System (VBMS) and Virtual VA.

The issue of entitlement to service connection for erectile dysfunction is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).



FINDING OF FACT

Resolving all doubt in the Veteran's favor, his hemorrhoids are etiologically related to his period of active service.


CONCLUSION OF LAW

The criteria for service connection for hemorrhoids are met.  38 U.S.C.A. 		 §§ 1110, 1154, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2015).


REASONS AND BASES FOR FINDING AND CONCLUSION

Based on the Board's grant of service connection for hemorrhoids, there is no need to discuss VA duties to notify or assist in this appeal, or any other due process concerns.  This decision represents a full grant of the benefit sought.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014).

Service connection may be granted for any current disability that is the result of a disease contracted or an injury sustained while on active duty service. 38 U.S.C.A. § 1110, 1131 (West 2014); 38 C.F.R § 3.303(a) (2015).  Service connection may also be granted for a disease diagnosed after discharge, where all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d) (2015).

In each case where service connection for any disability is being sought, due consideration shall be given to the places, types, and circumstances of such Veteran's service as shown by such Veteran's service record, the official history of each organization in which such Veteran served, such Veteran's medical records, and all pertinent medical and lay evidence.  38 U.S.C.A. § 1154(a).

In the case of any Veteran who has engaged in combat with the enemy in active service during a period of war, satisfactory lay or other evidence that an injury or disease was incurred or aggravated in combat will be accepted as sufficient proof of service connection if the evidence is consistent with the circumstances, condition or hardships of such service, even though there is no official record of such incurrence or aggravation.  See 38 U.S.C.A. § 1154(b) (West 2014); 38 C.F.R. § 3.304(d) (2015).  

When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant.  See 38 U.S.C.A. § 5107 (West 2014); 	 38 C.F.R. §§ 3.102, 4.3 (2015).  A claim will be granted upon an approximate balance of positive and negative evidence.  See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  For a claim to be denied on the merits, a preponderance of the evidence must be against the claim.  See Alemany v. Brown, 9 Vet. App. 518, 519 (1996).

The Veteran contends that his hemorrhoids are related to service.  The Veteran has been diagnosed with hemorrhoids; therefore, he has a current disability and the first element of service connection has been met. 

The second element, an in-service incurrence of a disease or injury, is also met.  The Veteran's service treatment records are negative for any complaints, diagnosis or treatment for hemorrhoids; however, the Veteran states that while he was in Vietnam, he experienced bleeding in the rectal area, which continued throughout service.  See the January 2011 statement in support of claim.  He also indicates that during his separation examination, he complained of the rectal bleeding; however, the examiner did not confirm the complaint because it was internal. Id.  The Veteran contends that his hemorrhoids resulted from riding metal tanks all day while in Vietnam.  See the February 2016 Veteran statement in support of claim; August 2013 private treatment record.  The Veteran's DD 214 record establishes his military specialty as an Armor Reconnaissance Specialist.

The Veteran's military service, as credibly described by the Veteran, is consistent with riding metal tanks.  See 38 U.S.C.A § 1154 (West 2014).  In addition, the Veteran is competent to report obvious symptoms that he has experienced, such as rectal bleeding during bowel movements.  See 38 C.F.R. § 3.159(a)(2) (2015); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (holding that lay evidence does not lack credibility merely because it is unaccompanied by contemporaneous medical evidence).

The Veteran's receipt of the Combat Infantry Badge establishes that he engaged in combat with the enemy in active service during a period of war.  Therefore, 38 U.S.C.A. § 1154(b) and 38 C.F.R. § 3.304(d) apply with respect to the Veteran's contention that he rode on metal tanks during service.  The Board considers his statements regarding the in-service tank riding to be credible and consistent with his combat military service.

The analysis next turns to the third element concerning a nexus between an in-service injury and a current disability.  The Board finds that the weight of the competent and probative evidence of record establishes that the Veteran's current hemorrhoids are related to his military service.

Evidence shows that the Veteran initially had surgery for his hemorrhoids in 1972, approximately six months after separation of service.  See the March 2016 private treatment record; November 2011 private treatment record.  Although the Veteran reported that the doctors who performed the 1972 hemorrhoids surgery are deceased and the records are unavailable, the Board finds that the notation of the surgery in subsequent medical records is sufficient to establish that the surgery occurred. 

The evidence also shows that the Veteran underwent a hemorrhoidectomy in 1977 and a right anterior hemorrhoidectomy in March 1992.  See the August 2013 private treatment record; October 1989 through March 2004 private treatment records.  He continues to complain of pain and he occasionally has flare-ups with pain, bleeding and local irritation.  See the August 2013 record.  In lay and medical records, the Veteran has consistently reported having symptoms of hemorrhoids that started in service and continued since that time.

The Veteran is competent to report the nature and timing of his symptoms of hemorrhoids, including pain and bleeding, as well as the date of onset.  Further, resolving doubt in the Veteran's favor, the medical evidence shows a diagnosis of hemorrhoids, which the Veteran's competent and credible lay evidence has established as being persistent and recurrent since service.  Therefore, service connection is warranted for hemorrhoids.  38 C.F.R. §§ 3.102, 3.303.


ORDER

Service connection for hemorrhoids is granted.


REMAND

Remand is required to obtain a VA medical addendum opinion because the November 2009 and August 2012 VA medical opinions are inadequate.  The November 2009 VA examiner noted that erectile dysfunction was not worsened or increased by the Veteran's type II diabetes; however a rational was not provided.  The August 2012 examiner indicated that erectile dysfunction was not secondary to the Veteran's service-connected type II diabetes; however she did not address whether erectile dysfunction was worsened or increased by the Veteran's diabetes.  As such, there remain questions as to whether the Veteran's erectile dysfunction was proximately caused or aggravated by his service-connected type II diabetes. 

Additionally, additional evidence, to include private treatment records have been added to the record since the August 2012 VA examination.  In this regard, a new VA examination and opinion is warranted for consideration of these records.  Further, the Board acknowledges the representative's concern regarding the August 2012 examination.

Accordingly, the case is REMANDED for the following action:

1.  Schedule the Veteran for a VA examination to be conducted by a qualified examiner other than the examiner who conducted the August 2012 examination.  The Veteran's claims file, including a copy of this remand, must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated.

The examiner must provide an opinion as to whether the Veteran's erectile dysfunction was caused by his service-connected type II diabetes mellitus.  

The examiner must also provide an opinion as to whether the Veteran's erectile dysfunction was aggravated by his service-connected type II diabetes mellitus.

The examiner is requested to provide a fully reasoned explanation for his or her opinions, based on his or her clinical experience, medical expertise, and established medical principles.  All examination findings, along with the complete rationale for all opinions expressed, must be set forth in the examination report.

The Veteran is competent to attest to matters of which she has first-hand knowledge, including observable symptoms.  If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation.

2.  Review the examination report to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the AOJ must implement corrective procedures.

3.  Conduct any other appropriate development deemed necessary. Thereafter, readjudicate the claims, considering all evidence of record. If either benefit sought remains denied, the Veteran and his representative must be provided a supplemental statement of the case (SSOC). An appropriate period of time must be allowed for a response.


The Veteran 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 2014).



______________________________________________
Nathaniel J. Doan
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs