Citation Nr: 1754033 Decision Date: 11/27/17 Archive Date: 12/07/17 DOCKET NO. 10-28 165 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for hemorrhoids. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD E. Miller, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1980 to February 1981 and from January 2005 to April 2006. The Veteran served with the Army National Guard from 1983 to 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. In January 2013, the Veteran testified at a videoconference hearing at the RO before the undersigned Veterans Law Judge (VLJ). The transcript has been associated with the claims file. This matter was previously before the Board in March 2013 and October 2013 when the Board remanded this matter for further development to the RO. The RO has completed the requested development and returned the case to the Board for appellate review. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (West 2014). FINDING OF FACT The Veteran's hemorrhoid condition developed between periods of active service and is not related to active service or to an injury from inactive duty for training. CONCLUSION OF LAW The criteria for entitlement to service connection for hemorrhoids have not been met. 38 U.S.C. §§ 1110, 1131, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.6, 3.102, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The Board finds that the Agency of Original Jurisdiction (AOJ) has substantially complied with the Board's October 2013 remand directives to obtain additional medical treatment records and provide the Veteran with additional VA examinations. See Stegall v. West, 11 Vet. App. 268 (1998). II. Service Connection The Veteran contends that he has a hemorrhoid condition which is related to active service and to a period of inactive duty for training. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). A veteran who served during peacetime is presumed to have been in sound condition when examined, accepted and enrolled in service, except for defects noted at the time of entrance, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1132; see VAOPGCPREC 3-2003 (July 16, 2003) (holding that, to rebut this presumption of soundness, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service). According to 38 C.F.R. § 3.304(b), the term "noted" denotes only such conditions that are recorded in examination reports. A history of pre-service existence of conditions recorded at the time of examination does not constitute a notation of such conditions but will be considered together with all other material evidence in determinations as to inception. 38 C.F.R. § 3.304(b)(1); Crowe v. Brown, 7 Vet. App. 238 (1994). A pre-existing disease will be presumed to have been aggravated by military service when there has been an increase in the disability during service beyond its natural progress. 38 C.F.R. § 3.306(a). This presumption can only be rebutted by clear and unmistakable evidence that the increase in severity was due to the natural progression of the disease. In the absence of such evidence, service connection may be granted. 38 C.F.R. § 3.306(b). Mere temporary or intermittent flare-ups of a preexisting injury or disease are not sufficient to be considered aggravation unless the underlying condition, as contrasted to symptoms, is worsened. Jensen v. Brown, 4 Vet. App. 304, 306-07 (1993); Hunt v. Derwinski, 1 Vet. App. 292 (1991). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Additionally, service connection may be granted for disability resulting from disease or injury incurred in or aggravated while performing active duty training (ACDUTRA), or for injury incurred in or aggravated in the line of duty while performing inactive duty training (INACDUTRA). 38 U.S.C. §§ 101 (24), 106 (West 2014); 38 C.F.R. § 3.6 (2017). ACDUTRA, among other things, is full-time duty in the Armed Forces performed by Reserves for training purposes or by members of the National Guard of any state. 38 U.S.C. § 101 (22); 38 C.F.R. § 3.6(c)(1). It usually covers the two weeks of training done during each summer ("summer camp"), whereas INACDUTRA generally encompasses the one weekend of training done each month ("weekend warrior" training). When a claim is based on a period of INACDUTRA, there must be evidence that the individual concerned died or became disabled as a result of an injury incurred or aggravated in the line of duty (unless the claim involves myocardial infarction, cardiac arrest, or cerebrovascular accident which occurred during such training, which are not at issue in this appeal). In the absence of such evidence, the period of INACDUTRA would not qualify as "active military, naval, or air service." Certain evidentiary presumptions, such as the presumption of sound condition at entrance to service, the presumption of aggravation during service of preexisting diseases or injuries which undergo an increase in severity during service, and the presumption of service incurrence for certain diseases which manifest themselves to a degree of disability of 10 percent or more within a specified time after separation from service - which are provided by law to assist Veterans in establishing service connection for a disability or disabilities - are not applicable where a claim is based on a period of active duty for training or inactive duty for training. 38 U.S.C. §§ 1111, 1112; 38 C.F.R. §§ 3.304 (b), 3.306, 3.307, 3.309. Paulson v. Brown, 7 Vet. App. 466, 470-71 (1995) (noting that the Board did not err in not applying presumptions of sound condition and aggravation to appellant's claim where he served only on ACDUTRA and had not established any service-connected disabilities from that period); McManaway v. West, 13 Vet. App. 60, 67 (citing Paulson, 7 Vet. App. at 469-70, for the proposition that, "if a claim relates to period of [ACDUTRA], a disability must have manifested itself during that period; otherwise, the period does not qualify as active military service and [the claimant] does not achieve Veteran status for purposes of that claim."); Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). Lay evidence can be competent and sufficient to establish the elements of service connection when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In short, when considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent on the issues of diagnosis and medical causation. Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). For instance, a layperson is competent to identify such disorders as varicose veins, tinnitus, and flat feet. 38 C.F.R. § 3.159(a)(2); Barr v. Nicholson, 21 Vet. App. 303, 310 (2007); Charles v. Principi, 16 Vet. App. 370, 374 (2002); Falzone v. Brown, 8 Vet. App. 398, 405 (1995). In contrast, a layperson is not competent to identify medical conditions that require scientific, technical, or other specialized knowledge, such as in identifying bronchial asthma. 38 C.F.R. § 3.159(a)(1); Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board must assess the competence and credibility of lay statements. Barr, 21 Vet. App. at 308. The Federal Circuit has held that the Board can favor competent medical evidence over lay statements offered by the Veteran, as long as the Board neither deems lay evidence categorically incompetent nor improperly requires a medical opinion as the sole way to prove causation. King v. Shinseki, 700 F.3d 1339, 1344 (2012). In determining whether statements submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board is not required to accept an appellant's uncorroborated account of his active service experiences. Wood v. Derwinski, 1 Vet. App. 190 (1991). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). If the evidence is credible, the Board, as fact finder, must determine the probative value or weight of the admissible evidence, that is, does the evidence tend to prove a material fact. Washington v. Nicholson, 19 Vet. App. 362, 369 (2005). If the evidence is not credible, the evidence has no probative value. In determining whether service connection is warranted, the Board shall consider the benefit-of-the-doubt doctrine. 38 U.S.C. 5107(b); 38 C.F.R. § 3.102; Alemany v. Brown, 9 Vet. App. 518 (1996); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Upon review of the evidence of record, the Board finds that the Veteran is not entitled to service connection for hemorrhoids. The Veteran's service treatment records (STRs) from his first period of active service from 1980 to 1981 do not show relevant treatment for hemorrhoids. A subsequent June 1998 medical evaluation showed the Veteran had a normal digital rectal examination. Private treatment records show surgery for removal of anal fistula in April 2003. A February 2005 pre-deployment medical examination was normal. The Veteran's second set of active service STRs for the period of service from January 2005 to April 2006 do not show treatment for or complaints related to hemorrhoids. Significantly, a September 2006 VA general medical evaluation, after the Veteran had returned from Afghanistan deployment, showed normal anus and rectal wall, no hemorrhoids, and no fistula. An August 2007 VA treatment record shows the Veteran reported a flare-up of hemorrhoids but the Veteran refused a rectal examination. The Board observes temporary or intermittent flare-ups of a preexisting condition are not considered sufficient to be aggravated by service. Jensen v. Brown, 4 Vet. App. 304, 306-07 (1993); Hunt v. Derwinski, 1 Vet. App. 292 (1991). The Veteran was afforded a VA examination in July 2013, but the Board deemed this examination inadequate in its October 2013 remand. The Veteran was afforded a new VA examination and a related opinion was generated in May 2017. The examiner noted that the main issue of anal fistula was diagnosed in 2000, which was 19 years after the first period of active service, and 5 years before the second period of active service. In April 2003, the Veteran underwent surgery to remove the anal fistula. The examiner opined that the Veteran's hemorrhoids were not directly related to active service because they first developed between periods of active service. Upon examination, the examiner noted no findings, signs, or symptoms attributable to the prior diagnoses of internal/external hemorrhoids, or perirectal abscess with fistula of anal sphincter and external hemorrhoid with repair; that is, the Veteran did not have a current diagnosis of hemorrhoids at the time of examination in May 2017. The examiner opined that the Veteran's hemorrhoid condition was not aggravated by active service. The Board has not overlooked the Veteran's lay statements with respect to the Veteran's claim. The Veteran agrees that his hemorrhoid condition developed prior to his second period of active service in 2005-2006. However, the Veteran contended in the January 2013 hearing that he first developed a need for treatment for anal fistula, related to his hemorrhoid condition claim, while on INACDUTRA around March 2003, which he testified was when he had the fistula removed by surgery, and that he left drill weekend to "go to the hospital." The Veteran stated he had never had that condition before that weekend of INACDUTRA. The medical records show that the Veteran underwent surgery for removal of a fistula on April 7, 2003, a Monday. Records pertaining to the surgery show that the Veteran signed consent forms and related documents during the prior week on April 2 and April 4, 2003, indicating the surgery had been planned ahead of time and was not the result of an emergency trip to the hospital. In the medical history section of the surgery documents, one section cites "anal fistula since 1999," and another cites a "several year history of perianal drainage and fistula tract." A May 2000 physical profile was granted to exempt the Veteran from the Army physical fitness test for an anal fistula and fissure. A February 16, 2001 document shows that medical treatment provider Dr. E.T. noted the Veteran had a fistula which was draining and stated, "This fistula in no way should interfere with his duties in the National Guard." On a January 2003 report of medical history, the Veteran checked the box pertaining to history of "rectal disease, hemorrhoids, or blood from the rectum." As the medical evidence of record shows the Veteran's testimony regarding the development of his hemorrhoid condition is not credible, the Board finds this aspect of his testimony has no probative value. Washington v. Nicholson, 19 Vet. App. 362, 369 (2005). The Veteran also testified at the January 2013 hearing that he thought he had developed hemorrhoids again during deployment to Afghanistan in 2005 and was told by the medical personnel to use over the counter medication. However, the existence of hemorrhoids during this period of service is outweighed by the contemporaneous treatment records that do not show that he had a chronic hemorrhoid disability. On the contrary, a February 2005 pre-deployment medical examination was normal. Likewise, the Veteran's second set of active service STRs related to his period of service from January 2005 to April 2006 do not show treatment for or complaints related to hemorrhoids and a September 2006 VA general medical evaluation, after the Veteran had returned from Afghanistan deployment, showed normal anus and rectal wall, no hemorrhoids, and no fistula. While the Veteran is competent to describe symptoms related to hemorrhoids, whether the Veteran's hemorrhoids or anal fissures relate to his service is a medically complex determination that cannot be based on lay observation alone. See Jandreau v. Nicholson, 492 F.3d 1372, n.4 (Fed. Cir. 2007); see also Barr, 21 Vet. App. at 309. Such a determination must be made by a medical professional with appropriate expertise. Id. Because the Veteran's statements are not based on medical training and/or experience, his assertions that his hemorrhoid condition relates to service do not constitute competent evidence and are therefore outweighed by the VA examiner's opinion, which was rendered by a medical expert and is based on the Veteran's medical history. See Layno, 6 Vet. App. at 470-71. This opinion is considered probative as it was based upon a review of the medical records, included a discussion that was consistent with the medical evidence, and provided an informed rationale as to the unfavorable opinion rendered. See Bloom v. West, 12 Vet. App. 185, 187 (1999) (the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion."). In summary, the Veteran has not alleged, and the evidence does not support, that he was disabled due to an injury incurred or aggravated in the line of duty during INACDUTRA. 38 U.S.C. §§ 101 (2), (24); 38 C.F.R. § 3.6. Although the Veteran's service records show that his anal fistula condition existed during times he may have been required to serve on INACDUTRA, the evidence does not show that his claimed condition was a result of an injury incurred or aggravated during INACDUTRA. The Veteran did not have a diagnosis of a hemorrhoid condition at his most recent VA examination in May 2017, although medical records show he has reported hemorrhoid flare-ups after discharge from active service. The weight of the medical evidence of record shows that the Veteran's hemorrhoid condition pre-existed and was not aggravated during a period of active service, and was not a result of an injury incurred or aggravated during INACDUTRA. As the preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt doctrine is not applicable, and the claim must be denied. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for hemorrhoids is denied. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs