Citation Nr: 1752315 Decision Date: 11/15/17 Archive Date: 11/22/17 DOCKET NO. 12-13 554 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a sinus disorder. 2. Entitlement to service connection for a headache disorder. 3. Entitlement to service connection for constipation, to include as secondary to service-connected residuals of peptic ulcer disease. 4. Entitlement to service connection for hemorrhoids, to include as secondary to service-connected residuals of peptic ulcer disease. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Matthew Miller, Associate Counsel INTRODUCTION The Veteran had active duty service from January 1975 to March 1977. This matter initially came before the Board of Veterans' Appeals (Board) on an appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In October 2015, the Veteran appeared at a hearing held at the RO before the undersigned Veterans Law Judge. A transcript of that hearing is of record. In August 2016, the Board remanded the Veteran's appeal for additional evidentiary development. It has since returned to the Board for further consideration. This appeal was processed using the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing systems. Any future consideration of this appellant's case should take into account the existence of these records. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that the Veteran has a continuing chronic sinus disorder. 2. The preponderance of the evidence is against a finding that the Veteran has a continuing chronic headache disorder. 3. The preponderance of the evidence is against a finding that the Veteran's constipation had an onset in service, or is otherwise related to active service or to a service-connected disability. 4. The preponderance of the evidence is against a finding that the Veteran's hemorrhoids had an onset in service, or are otherwise related to active service or to a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a sinus disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). 2. The criteria for entitlement to service connection for a headache disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. 3. The criteria for entitlement to service connection for constipation, to include as secondary to service-connected disabilities, have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2017). 4. The criteria for entitlement to service connection for hemorrhoids, to include as secondary to service-connected disabilities, have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C. §§ 5100, 5102, 5103A, 5107, 5126 (2012) sets forth VA's duties to notify and assist a claimant with the evidentiary development of a claim for compensation or other benefits. See also 38 C.F.R. §§ 3.102, 3.159 and 3.326 (2017). VCAA notice must, upon receipt of a complete or substantially complete application for benefits, inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is expected to provide; and (3) that VA will obtain on his behalf. The Veteran has been provided satisfactory and timely VCAA notice in advance of the rating decision on appeal. VA has also fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate his claim, and, as warranted by law, affording VA examinations. Currently, there is no evidence that additional records have yet to be requested, or that additional examinations are in order. Moreover, there is currently no error or issue which precludes the Board from addressing the merits of the Veteran's appeal. The Veteran's statements in support of the claim are of record, including testimony provided at the hearing before the undersigned Veterans Law Judge. The Board hearing focused on the elements necessary to substantiate his claim and the Veteran has demonstrated that he had actual knowledge of the elements necessary to substantiate the claim for benefits. Thus, the material issues on appeal were fully developed in accordance with 38 C.F.R. § 3.103(c) (2017). Pursuant to the Board's August 2016 remand, the AOJ scheduled the Veteran for VA examinations which were responsive to the questions asked of the examiners. The AOJ then issued a supplemental statement of the case in October 2016. Based on the foregoing actions, the Board finds that there has been substantial compliance with the Board's prior remand. Stegall v. West, 11 Vet. App. 268 (1998). Finally, in reaching this determination, the Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the Veteran's claim, and what the evidence in the claims file shows, or fails to show, with respect to this claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Legal Principles Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(b); Allen v. Brown, 7 Vet. App. 439 (1995). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Sinus Disorder The Veteran seeks entitlement to service connection for a sinus disorder. The Veteran's service treatment records are silent as to any sinus problems, except for a single notation of "sinus pain" in October 1975. Post-service medical records show that the Veteran has been treated for several issues, including problems with his sinuses. At his October 2015 hearing, the Veteran testified that his sinuses become inflamed, which also causes him to suffer from headaches. Pursuant to the Board's August 2016 remand, the Veteran was afforded a VA examination in September 2016. Upon examination, the examiner was unable to render a diagnosis of a sinus, nose, throat, larynx, or pharynx condition. As noted above, service connection requires a showing of a current disability. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). A current disability is shown if the claimed condition is demonstrated at the time of the claim or while the claim is pending. McClain v. Nicholson, 21 Vet. App. 319 (2007). The Veteran is competent to report his symptoms of sinus problems. However, an underlying disability related to a sinus condition has never been identified during the current appeal period. There is no other competent medical evidence of record, VA or private, of a chronic sinus disorder during the applicable appeal period. In essence, the evidence of a current diagnosis of a chronic sinus disorder is limited to statements from the Veteran and his general complaints. The Board finds that diagnosing a disability related to the sinuses requires medical expertise and knowledge because such a diagnosis involves clinical testing and evidence which is beyond the scope of observable symptoms. Thus, while the Veteran is competent to report his experience and symptoms in service and thereafter, his reports are not competent evidence of a diagnosis of chronic sinus disorder. 38 C.F.R. § 3.159(a)(1), (2). In light of the absence of any competent evidence of a chronic sinus disorder, the claim must be denied. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. 38 U.S.C. § 5107. Headache Disorder The Veteran seeks entitlement to service connection for a headache disorder. The Veteran's service treatment records reveal that the Veteran complained of and was treated for a headache associated with a fall and head injury. Post-service medical records show that the Veteran has been treated for complaints of migraines and headaches. Pursuant to the Board's August 2016 remand, the Veteran was provided a VA examination in September 2016. The Veteran reported that he used to get stress headaches, but he is now retired. The Veteran stated that he saw a neurologist, who found nothing wrong with him. The Veteran also indicated that his headaches are not an issue anymore. Upon examination, there was no diagnosis provided. The examiner stated that per the International Classification of Headache Disorders, there is no evidence of a primary or secondary headache disorder. The examiner noted that the current headache is a symptom, not considered disabling (NCD) and with no functional limitations. Again, the Board emphasizes that service connection requires a showing of a current disability. Here, a VA examiner has determined that there is no evidence of primary or secondary headache disorder. Instead, the examiner explained that any headaches that the Veteran suffers from are merely a symptom, NCD, and cause no functional impairment. Moreover, the Veteran has suggested that his headaches are no longer a problem for him anymore. The Veteran is competent to report his symptoms of headache problems. In essence, the evidence of a current diagnosis of a chronic headache disorder is limited to statements from the Veteran and his general complaints. The Board finds that diagnosing a disability related to his headaches requires medical expertise and knowledge because such a diagnosis involves clinical testing and evidence which is beyond the scope of observable symptoms. Thus, while the Veteran is competent to report his experience and symptoms in service and thereafter, his reports are not competent evidence of a diagnosis of chronic headache disorder. 38 C.F.R. § 3.159(a)(1), (2). In light of the absence of any competent evidence of a chronic headache disorder, the claim must be denied. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. 38 U.S.C. § 5107. Constipation, to include as Secondary to Service-Connected Disabilities The Veteran seeks entitlement to service connection for constipation, to include as secondary to service-connected residuals of peptic ulcer disease. The Veteran's service treatment records do not show treatment for constipation. Treatment reports from 1977 through 1978 show a complaint of constipation almost two months after discharge from service. A diagnosis of peptic ulcer disease was noted. Additional reports show ongoing treatment for chronic hemorrhoids. The Board observes that the Veteran was later awarded service connection for peptic ulcer disease. A March 2009 correspondence from the Veteran's spouse stated that the Veteran suffered from stomach problems two weeks after discharge and that his constipation led to his problems with hemorrhoids. At the Veteran's October 2015 hearing, he testified that he thought his digestive problems could be related to the medications he used to treat peptic ulcer disease because they cause him to become constipated, and in turn, result in hemorrhoids. Pursuant to the Board's August 2016 remand, the Veteran was afforded a VA examination in October 2016. The Veteran stated that he has alternating episodes of constipation and loose stools. After a complete and thorough review of the electronic claims file, the examiner commented that "regardless of whether the constipation is or is not chronic, the evidence does not support constipation, diarrhea or other gastrointestinal condition" to include as a result of his scarred duodenal bulb and residuals of peptic ulcer disease. The examiner explained that although the Veteran was treated for peptic ulcer disease, his condition resolved by 1978 and he had no further gastrointestinal issues. The examiner also noted that the Veteran has not been prescribed any medication for constipation. Medical opinions are regarded as more probative when they include clear conclusions and supporting data with a reasoned analysis connecting the data and the conclusions. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The September 2016 VA examiner's opinion clearly detailed the Veteran's complaints and provided a thorough rationale explaining her opinion that the Veteran's constipation was not incurred in service or caused by a service-connected disability, including residuals of peptic ulcer disease. The Board finds this VA opinion both credible and probative. The Board must also consider the Veteran's own opinion that his constipation was either caused by or aggravated by his service-connected residuals of peptic ulcer disease, to include any prescribed medications. In this case, the Board does not find him competent to provide an opinion regarding his claim for secondary service connection as this question is of the type that the courts have found to be beyond the competence of lay witnesses. Lay statements may be competent to support a claim for service connection by supporting the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Some medical issues, however, require specialized training for a determination as to diagnosis and causation, and such issues are, therefore, not susceptible of lay opinions on etiology, and the statements of the Veteran therein cannot be accepted as competent medical evidence. For the above reasons, the Veteran's claim of entitlement to service connection for constipation, to include as secondary to service-connected residuals of peptic ulcer disease is denied. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. 38 U.S.C. § 5107. Hemorrhoids, to include as Secondary to Service-Connected Disabilities The Veteran seeks entitlement to service connection for constipation, to include as secondary to service-connected residuals of peptic ulcer disease. Essentially, he contends that his digestive problems are intertwined, and that medication he uses to treat his peptic ulcer disease causes him to suffer from constipation and have hemorrhoids. The Veteran's service treatment records do not show treatment for hemorrhoids. As discussed above, the Veteran's post-service medical records show treatment for peptic ulcer disease, as well as ongoing treatment for chronic hemorrhoids. Pursuant to the Board's August 2016 remand, the Veteran was provided a VA examination in September 2016. After a complete and thorough review of the electronic claims file, the examiner rendered a diagnosis of internal or external hemorrhoids, dated 1992. The examiner determined that the Veteran's hemorrhoids, per colonoscopy, are less likely as not incurred in, caused by, or aggravated by active service, nor are they secondary to his service-connected residuals of peptic ulcer disease. The examiner explained that the Veteran was treated for a duodenal ulcer in 1977, but the condition resolved by 1978. Additional and subsequent reports revealed no evidence of a duodenal ulcer, and therefore, the condition had resolved. Further, the examiner noted that the Veteran is not prescribed any medication for his condition. The Board acknowledges the lay statements from the Veteran and his spouse, but they cannot be accepted as competent medical evidence. Instead, the Board affords the VA examiner's negative etiological opinion substantial probative weight, as the examiner listed the Veteran's treatment history and provided a detailed rationale supporting her conclusions. Importantly, it does not appear that the Veteran uses prescription medication, and only occasionally uses antacids when suffering from indigestion. For the above reasons, the Veteran's claim of entitlement to service connection for hemorrhoids, to include as secondary to service-connected residuals of peptic ulcer disease is denied. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. 38 U.S.C. § 5107. (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for a sinus disorder is denied. Entitlement to service connection for a headache disorder is denied. Entitlement to service connection for constipation, to include as secondary to service-connected residuals of peptic ulcer disease is denied. Entitlement to service connection for hemorrhoids, to include as secondary to service-connected residuals of peptic ulcer disease is denied. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs