Citation Nr: 1803538 Decision Date: 01/19/18 Archive Date: 01/29/18 DOCKET NO. 11-33 779 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for status post cholecystectomy (claimed as gallbladder removal), to include as secondary to irritable bowel syndrome (IBS). 2. Entitlement to service connection for hemorrhoids (claimed as hemorrhoids and fissures), to include as secondary to IBS. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD M. Salazar, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1985 to January 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from October 2009 and July 2010 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, which denied service connection for status post cholecystectomy and hemorrhoids. Jurisdiction has transferred to the RO in Cleveland, Ohio. See, e.g., June 2017 Form VA 8. As stated above, the October 2009 rating decision denied entitlement to service connection for hemorrhoids. In March 2010, the Veteran submitted a statement to have her claim for hemorrhoids "reopened due to a clear and unmistakable error (CUE)." However, the October 2009 rating decision had not yet become final. See 38 U.S.C. § 7105 (2012). In July 2010, the RO denied service connection for hemorrhoids based on CUE. In September 2010, a year before the first rating decision became final, the Veteran submitted a statement that she was "also appealing the decision that the VA made in reference to my claim for hemorrhoids and fissures." VA interpreted this statement as a notice of disagreement (NOD) and adjudicated the Veteran's claim for service connection for hemorrhoids in a November 2011 statement of the case (SOC) and April 2017 supplemental statement of the case (SSOC). Therefore, the Veteran's CUE claim is a nullity as the October 2009 rating decision was not final as of the September 2010 NOD and VA adjudicated the claim as a service connection claim in November 2011 and April 2017. Hence, for clarification purposes, the Veteran's September 2010 NOD appeals the RO's October 2009 rating decision and the issue has been recharacterized as such on the title page. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required on her part. REMAND The Board sincerely regrets the additional delay, but finds that further development is required prior to final adjudication of the Veteran's claims. As to the gallbladder claim, the Veteran obtained an ultrasound that showed gallstones in April 2009. See April 2009 medical treatment record. She had her gallbladder removed three months later. See July 2010 VA examination. The VA examiner also noted "x-rays documented cholelithiasis while she was in service in September 2004. After she left service she continued having abdominal pain. A repeat testing showed persistent gallstones without signs of inflammation." See July 2010 VA examination. Hence, he opined that it is more likely as not that the Veteran's 2009 gallbladder surgery is related to the diagnosed cholelithiasis in September 2004. However, the examiner's opinion is inconsistent with the evidentiary record and clarification is required before adjudicating the claim. Specifically, the Veteran sought medical treatment in service for her chronic constipation; a medical examiner determined she had chronic constipation and needed to rule out IBS and cholelithiasis. See September 2004 service treatment record. As a result of her pain and office visit that day, the Veteran obtained a right upper quadrant ultrasound in September 2004. The ultrasound revealed that the gallbladder appeared to be of normal size, shape, and configuration. There were no obvious filling defects or acoustic shadowing that would indicate gallstones. See September 2004 ultrasound. Importantly, the Veteran had a "normal right upper abdominal survey emphasis gallbladder." Id. Therefore, remand is necessary to clarify whether the Veteran had a gallbladder disability in service. As to the hemorrhoids claim, a colonoscopy revealed that the Veteran had "moderate" internal hemorrhoids at least eighteen months after service. See July 2006 medical treatment record. A colonoscopy was performed because the Veteran suffered from gastrointestinal bleeding and complained of such in service. Id. However, a few months before hand, she sought medical treatment for blood in her stool; the physician stated "no hemorrhoids were seen." See March 2006 medical treatment record. At her retirement physical, the Veteran self-reported rectal disease, hemorrhoids, or blood from the rectum and chronic abdominal pain. See October 2004 report of medical history. Further, her retirement physical examiner stated she had "chronic IBS-constipation." See October 2004 report of medical examination. Therefore, a VA examination is necessary to determine if the Veteran's moderate internal hemorrhoids were caused by or attributable to her time on active service or whether they are related to her service-connected IBS. See McClendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Accordingly, the case is REMANDED for the following action: 1. Obtain any outstanding VA treatment records, to include treatment records from VA Tennessee Valley Healthcare System from March 2017 to present. All obtained records should be associated with the evidentiary record. The AOJ must perform all necessary follow-up indicated. If the records are not available, or a negative response is received, the AOJ should make a formal finding of unavailability, advise the Veteran and her representative of the status of her records, and give the Veteran the opportunity to obtain the records on her own. 2. Arrange for the Veteran to undergo a VA examination, by an appropriate healthcare professional, to determine the etiology of her hemorrhoids. In addition, obtain an addendum opinion from an appropriate healthcare professional to determine the nature and etiology of the Veteran's gallbladder disability. The Veteran's claims file, to include a copy of this Remand, should be made available to and reviewed by the examiner. The examination report and addendum opinion should reflect that such review was accomplished. It is up to the discretion of the examiner as to whether a new examination is necessary to provide an adequate opinion. All tests and studies deemed appropriate should be performed, and all clinical findings reported in detail. After the record review and examination of the Veteran (if an examination is deemed necessary by the examiner assessing the gallbladder removal issue), the VA examiner is asked to respond to the following inquiries: A. Is it as least as likely as not that the Veteran's hemorrhoids were caused or aggravated by her service-connected IBS or any other service-connected disability? The examiner cannot improperly discount the Veteran's lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. In providing the opinion, the physician must discuss the Veteran's service treatment records stating that she had IBS and chronic constipation in service. "Aggravation" means any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease, and not due to the natural progress of the nonservice-connected disease. If aggravation is found, the examiner should attempt to quantify the extent of additional disability resulting from the aggravation. B. Is it as least as likely as not that the Veteran's hemorrhoids were either incurred in, or otherwise related to, the Veteran's active military service? In rendering this opinion, the examiner is advised that the Veteran is competent to report her symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the medical professional rejects the Veteran's reports, he or she must provide an explanation for such rejection. The examiner is not to improperly discount the Veteran's lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. The examiner is to address the July 2006 colonoscopy report showing internal hemorrhoids and state whether the March 2006 medical treatment record showing no hemorrhoids meant that she could not have internal hemorrhoids at that time. The examiner is also to address the Veteran's chronic constipation and blood in stool issues. C. Is it as least as likely as not that the Veteran's gallbladder disability was caused or aggravated by her service-connected IBS or any other service-connected disability? The examiner cannot improperly discount the Veteran's lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. In providing the opinion, the physician must discuss the Veteran's service treatment records stating that she had IBS and chronic constipation and service. "Aggravation" means any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease, and not due to the natural progress of the nonservice-connected disease. If aggravation is found, the examiner should attempt to quantify the extent of additional disability resulting from the aggravation. D. Is it as least as likely as not that the Veteran's gallbladder disability was either incurred in, or otherwise related to, the Veteran's active military service? In rendering this opinion, the examiner is advised that the Veteran is competent to report her symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the medical professional rejects the Veteran's reports, he or she must provide an explanation for such rejection. The examiner is not to improperly discount the Veteran's lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. The examiner is to address the July 2010 VA examiner's opinion and discuss the Veteran's September 2004 ultrasound as well as her reported symptoms throughout her 20 years of service. 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 certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. The complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the medical professional cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the medical professional shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 3. The AOJ should conduct any other development deemed appropriate, and ensure that the VA examination reports and opinions comply with the Board's remand instructions. 4. After the above has been completed to the extent possible, readjudicate the claims. If any benefit sought remains denied, provide the Veteran and her representative with a supplemental statement of the case (SSOC), and return the case to the Board. The Veteran and her representative have 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). These claims 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. §§ 5109B, 7112 (2012). _________________________________________________ G. A. WASIK Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017).