Citation Nr: 18140725 Decision Date: 10/05/18 Archive Date: 10/05/18 DOCKET NO. 13-28 788 DATE: October 5, 2018 ORDER Entitlement to service connection for gastrointestinal (GI) tract disability due to service-connected hemorrhoidectomy is denied. Entitlement to service connection for the cause of the Veteran’s death is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The Veteran’s gastrointestinal (GI) tract disability, to include diarrhea and impairment of rectal sphincter control is not related to or caused by service, to include as secondary service-connected hemorrhoidectomy. 2. The Veteran’s service-connected GERD was listed as a comorbid cause of his death. 3. Service-connected disability did not meet the schedular criteria for TDIU; competent evidence does not reflect that the Veteran was unable to work due to service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for gastrointestinal (GI) tract disability, to include diarrhea and impairment of rectal sphincter control, due to service connected hemorrhoidectomy have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303. 2. The Veteran’s service connected GERD contributed substantially and materially to the cause of the Veteran’s death. 38 U.S.C. §§ 1310, 5107; 38 C.F.R. §§ 3.102, 3.312. 3. Entitlement to TDIU is denied. 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1953 to April 1955 and from January 1968 to January 1969. Unfortunately, the Veteran died in August 2011 while part of this appeal was pending. The Appellant is his surviving spouse and she has been substituted for the purposes of adjudicating all pending claims. In June 2016, the Appellant was afforded a Board hearing before the undersigned Veterans Law Judge. The transcript is of record. In August 2018, the Appellant indicated that she wished to change her representative from DAV to TVC. The Appellant submitted a VA Form 21-22. The Board honors the change in representation. 1. Entitlement to service connection for gastrointestinal (GI) tract disability, to include diarrhea and impairment of rectal sphincter control, due to service-connected hemorrhoidectomy Initially, the Board notes that service-connection for GERD has already been established. Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). In a January 1985 correspondence, the Veteran expressed that his diarrhea started in 1958. The Veteran expressed that there were limited kinds of food or drinks that did not cause his stomach to hurt or evolve in diarrhea. The Veteran expressed that he could not control his bowel movements due to a rectal operation performed in 1957. The Appellant testified that the Veteran had a problem with his leakage since the 1980s. See Board hearing transcript at 4. The Veteran’s service treatment records show that in a July 1966 periodic Reserve examination, the Veteran was noted to have been treated for duodenal ulcer by Brooke General Hospital from November 1962 to December 1962 and was released, not serious. The Veteran was also noted to have a nervous condition due to stomach situation. The Veteran’s service treatment records show that in June 1968, the Veteran reported abdomen cramping, pain, and some diarrhea. The Veteran was diagnosed with acute gastroenteritis. In an April 1984 private medical treatment note, the Veteran was diagnosed with diarrhea, multifactorial. The physician noted hyperacidity of active duodenal ulcer with chronic scarring, lactose intolerance, bile acid malabsorption, and cecal diverticulosis, subacute diverticulitis advanced. In a December 2017 VA opinion, the examiner expressed that it is less likely than not that the partial sphincter loss with chronic diarrhea was proximately due to or a result of the Veteran’s hemorrhoids and surgical removal of the same. The examiner noted that the one report that talked about the anal sphincter had contradictory information, with one stating the tone of the sphincter was normal and one saying it was abnormal. The examiner stated that there was no other documentation relative to the tone of the sphincter documented to be abnormal anywhere else. The examiner noted that the records indicated that the Veteran had an uncomplicated postoperative course of hemorrhoidectomy without residuals. The examiner expressed that if there would have been any sphincter dysfunction, it would have been noted in the immediate postoperative time frame. The examiner stated that the fact that the Veteran had normal rectal examinations following the hemorrhoidectomy, supports a lack of causation between the sphincter issue with chronic diarrhea and the Veteran’s hemorrhoids. Furthermore, the examiner opined that the Veteran’s hemorrhoids did not cause diarrhea. The examiner noted that hemorrhoids may cause anal leakage if the hemorrhoids are severe, however, in this case, the examiner noted that the hemorrhoids were not severe. In addition, the examiner expressed that the sphincter issue and diarrhea were noted many years after the hemorrhoid surgery and with many intervening normal rectal exams. The examiner concluded that there is no nexus between the hemorrhoidectomy and any GI symptoms. In a June 2018 VA medical opinion, the examiner reviewed the available records and expressed that the Veteran’s GI tract disability was less likely than not incurred in or caused by service. The examiner expressed that the Veteran had a history of duodenal ulcers that appeared unrelated to military service in that they were pre-existing and did not occur during active duty. The examiner noted that the Veteran had one episode in June 1968 of abdominal pain which was diagnosed with acute gastroenteritis and in which was resolved. The examiner expressed that he agreed with the October 2014 VA examiner’s opinion. The examiner noted that there is no evidence that bile acid malabsorption or lactose intolerance were present during service as there is no record of ongoing diarrhea on the Veteran’s separation evaluation. Therefore, the examiner opined that there is no evidence that the Veteran’s GI tract disabilities at his death were related to active military service. The examiner also expressed that the Veteran’s diarrhea was not due to or aggravated by his history of duodenal ulcers or by his hemorrhoidectomy. The examiner noted that the January 2011 VA examination noted that the Veteran had fecal incontinence. The examiner expressed that decreased rectal tone was noted on the January 2011 exam but it was not clear what caused the decreased tone. The examiner however, stated that based on the January 2011 examiner’s description, it does not appear to be secondary to the Veteran’s hemorrhoidectomy in 1957. The examiner noted that one would have expected that the Veteran would have reported fecal leakage long before his 2011 examination if the Veteran’s hemorrhoidectomy damaged his rectal tone. Upon review of the evidence, the Board finds that the preponderance of the evidence is against the claim for service connection for gastrointestinal (GI) tract disability, to include diarrhea and impairment of rectal sphincter control, due to service-connected hemorrhoidectomy. The Board notes that while the Veteran was competent to report symptoms such as diarrhea and leakage, as a layperson without the appropriate medical training and expertise, the Veteran was not competent to provide a probative opinion on a complex medical matter involving an internal medical process which extends beyond an immediately observable cause-and-effect relationship such as an etiological relationship between his GI tract disability to include diarrhea and impairment of rectal sphincter control and his active military service. Jandreau, 492 F.3d at 1377. Thus, the Veteran’s statements as to the etiology of his GI tract disability to include diarrhea and impairment of rectal sphincter control were not competent. Next, the December 2017 and June 2018 VA examiners found that the Veteran’s GI tract disabilities were less likely than not due to the Veteran’s military service or caused or aggravated by the Veteran’s service connected hemorrhoidectomy. As the examiners explained the reasons for the conclusions based on the evidence of record, the opinion is entitled to substantial probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). The weight of the medical evidence is thus against the claim. Moreover, to the extent that the Veteran’s lay statements were competent, the Board finds the specific, reasoned opinions of the trained health care professionals who provided the opinions in December 2017 and June 2018 are of greater probative weight than the Veteran’s lay assertions. For the foregoing reasons, the preponderance of the evidence is against claim for service connection for gastrointestinal (GI) tract disability, to include diarrhea and impairment of rectal sphincter control, due to service-connected hemorrhoidectomy. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application and the claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Entitlement to service connection for the cause of the Veteran’s death To warrant service connection for the cause of the Veteran’s death, the evidence must show that a service-connected disability was either a principal or a contributory cause of death. A disability will be considered the principal cause of death when such disability, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. A disability will be considered a contributory cause of death when it contributed substantially or materially to death, combined to cause death, or aided or lent assistance to the production of death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. When there is an approximate balance of positive and negative evidence regarding any material issue, all reasonable doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. After a review of the record, the Board finds that the criteria for service connection for the cause of the Veteran’s death have been met. 38 C.F.R. §§ 3.303, 3.312. The record shows that the Veteran’s service-connected GERD was listed as a comorbid cause of his death. The Veteran was granted service connection for GERD in the July 2018 rating decision. His death certificate showed his cause of death as Parkinson’s Disease. It then reads that other comorbid diseases included GERD and dysphagia. In August 2018, a VA medical opinion indicated the Veteran’s GERD was less likely than not a contributory cause to the Veteran’s unfortunate death. However, the service-connected GERD is listed on the death certificate as a comorbid cause of death. The Board finds this is key evidence that GERD substantially and materially contributed to the Veteran’s death. Therefore, the Board finds that resolving reasonable doubt, service connection for the cause of the Veteran’s death is granted. 38 C.F.R. §§ 3.303, 3.312. 3. TDIU Based on the Appellant raising the issue, the Board previously directed that the issue of TDIU be developed. The record reflects substantial compliance with these directives. VA will grant TDIU when the evidence shows that a veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. TDIU is granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. If there is only one such disability, it must be rated at least 60 percent disabling to qualify for benefits based on individual unemployability. 38 C.F.R. § 4.16(a). If there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). However, even when the percentage requirements are not met, entitlement to a total rating, on an extraschedular basis, may nonetheless be granted, in exceptional cases, when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). The Board may not assign an extraschedular rating in the first instance because the authority for doing so is vested in VA’s Director of Compensation Service. The Board may, however, consider whether remand to the RO for referral to the Director of Compensation Service is warranted. 38 C.F.R. § 4.16(b). Here, the Veteran was service-connected for the following: hemorrhoids, postoperative at 10 percent from November 5, 2010; scar, appendectomy, noncompensable; right hernioplasty with scar, noncompensable; and GERD, noncompensable. As of November 5, 2010, the Veteran’s combined evaluation was 10 percent. Therefore, the Veteran did not meet the criteria for a schedular TDIU, but extraschedular TDIU must still be considered. The Appellant reported that the Veteran was last employed as a supply analyst from June 1979 to April 1984. The Appellant testified that the Veteran had problems with leakages for his hemorrhoids and had to retire. See Board hearing transcript at 4.   In this decision, the Board determined that a GI tract disability, to include diarrhea and impairment of rectal sphincter control, was not related to service. Further, the Board has carefully considered the testimony of record and the contents of the VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability. The medical evidence of record, however, does not reflect that these disabilities caused employability. Evidence other than the Appellant’s contention, does not support a determination that the service-connected disability, rated as 10 percent disabling, prevented substantially gainful employment and the Board finds, therefore, that the criteria for referral of the TDIU are not met. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M.D., Associate Counsel