Citation Nr: 18144308 Decision Date: 10/25/18 Archive Date: 10/24/18 DOCKET NO. 16-36 266 DATE: October 25, 2018 ORDER New and material evidence having been received, the claim of entitlement to service connection for hemorrhoids is considered reopened, and service connection for hemorrhoids is denied. New and material evidence having been received, the claim of entitlement to service connection for an acquired psychiatric disorder claimed as stress, anxiety, and depression is considered reopened, and the appeal is granted to this extent only. Entitlement to service connection for a stomach disorder is denied. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include stress, anxiety, and depression is remanded. FINDINGS OF FACT 1. An August 2010 rating decision denied the Veteran’s claim of service connection for hemorrhoids; this decision was not appealed and became final. 2. An August 2011 rating decision denied the Veteran’s claims of service connection for anxiety and depression, claimed as a mental condition and posttraumatic stress disorder (PTSD); this decision was not appealed and became final. 3. Evidence that relates to an unestablished fact necessary to substantiate the claims and raises a reasonable possibility of substantiating the claims of service connection for hemorrhoids and an acquired psychiatric disorder has been received since the August 2010 and August 2011 rating decisions, respectively, and as such, the claims are reopened. 4. The preponderance of the evidence is against finding that the Veteran has hemorrhoids due to a disease or injury in service, to include a specific in-service event, injury, or disease. 5. The preponderance of the evidence is against finding that the Veteran has a stomach disorder to include pain, nausea, vomiting, tenderness, cramps, gastritis, and gastrointestinal pain due to a disease or injury in service, to include a specific in-service event, injury, or disease. CONCLUSIONS OF LAW 1. The August 2010 rating decision which denied service connection for hemorrhoids is final. 38 U.S.C. § 7105. 2. The August 2011 rating decision which denied service connection for anxiety and depression, claimed as a mental condition and PTSD is final. 38 U.S.C. § 7105. 3. New and material evidence has been received since the August 2010 and August 2011 rating decisions and the claims of entitlement to service connection for hemorrhoids and an acquired psychiatric disorder are reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 4. The criteria for service connection for hemorrhoids have not been met. 38 U.S.C. §§ 1131, 1111, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 5. The criteria for service connection for a stomach disorder to include pain, nausea, vomiting, tenderness, cramps, gastritis, and gastrointestinal pain have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.306. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1975 to October 1976. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2013 rating decision from the Department of Veteran’s Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. The Veteran testified at a videoconference hearing in November 2016 before the undersigned Veterans Law Judge. A transcript of the hearing has been included in the record. Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, the tinnitus (ringing in the ears), etc.), (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, 1377 (Fed. Cir. 2007). 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 claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for hemorrhoids. 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for an acquired psychiatric disorder, to include stress, anxiety, and depression. Generally, if a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108. “New” evidence is defined as existing evidence not previously submitted to agency decisionmakers. “Material” evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative, nor redundant of the evidence previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). The threshold to reopen a claim is low. Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Historically, the Board notes that the Veteran’s claim of entitlement to service connection for hemorrhoids was initially denied in a May 1997 rating decision. The Veteran did not appeal this determination. More than one year later, additional relevant evidence was received. In a June 1999 rating decision, the agency of original jurisdiction (AOJ) continued the prior denial, noting that the Veteran’s August 1976 discharge examination was negative for hemorrhoids and that the Veteran was first treated and diagnosed with a thrombosed external hemorrhoid after service in June 1977. The AOJ concluded that the evidence did not establish that hemorrhoids were incurred in or caused by miliary service. The claim for service connection was again denied in a July 2008 rating decision; the AOJ found that new and material evidence had not been submitted to reopen the previously denied and unappealed claim. Finally, the claim for service connection for hemorrhoids was again denied in an August 2010 RO decision. The Veteran’s claim for hemorrhoids was denied at that time because the evidence did not show that his condition was related to his military service. The Veteran did not appeal the August 2010 rating decision. The Veteran’s claim of entitlement to service connection for anxiety and depression, claimed as a mental condition and PTSD were originally denied by an August 2011 RO decision. The Veteran’s claim was denied at that time because the evidence did not show the condition was occurred in or was caused by service and the evidence was insufficient to confirm a link between the Veteran’s current symptoms and an in-service stressor for PTSD. Subsequently, in a statement dated April 24, 2013, the Veteran requested that his claims for service connection for hemorrhoids and an acquired psychiatric disorder be reopened. In the August 2013 rating decision that is the subject of this appeal, the RO denied reopening the claims finding no new and material evidence that the Veteran currently has a disability that began in or was caused by his military service. Notwithstanding the determination of the RO regarding reopening or not reopening the claims, the preliminary question of whether a previously denied claim should be reopened is a jurisdictional matter that must be addressed before the Board may consider the underlying claims on the merits. Barnett v. Brown, 8 Vet. App. 1, 4, (1995), aff’d, Barnett v. Brown, 83 F.3d 130 (Fed. Cir. 1996). The evidence of record at the time of the most recent prior final rating decisions in August 2010 and August 2011 consisted of service treatment records, post-service VA treatment records, VA examinations, private treatment records, and the Veteran’s statements. After reviewing the evidence, the RO found that there was no medical nexus linking the Veteran’s hemorrhoids and acquired psychiatric disorder to active service or any incident of service. Thus, the claims were denied. Evidence received since the August 2010 and August 2011 rating decisions includes a VA hearing transcript, private treatment records, lay statements, and VA treatment records. In the hearing testimony, the Veteran testified that he complained of hemorrhoids and rectal bleeding in service. The Veteran testified of having problems adjusting to military life and becoming angry when feeling “mistreated.” The Veteran also provided additional private treatment records at the hearing that were added to the record. The evidence received since the August 2010 and August 2011 prior denials is material to the claims. Therefore, such evidence is new and material, and the claims for service connection for hemorrhoids and an acquired psychiatric disorder claimed as stress, anxiety, and depression are reopened. Having reopened the claims of service connection for hemorrhoids and an acquired psychiatric disorder on the basis of this new and material evidence, the Board must next determine whether the Veteran would be unduly prejudiced by the Board immediately proceeding with the readjudication of the claims on the underlying merits. See Hickson v. Shinseki, 23 Vet. App. 394, 399-400 (2010) (noting that where the Board reopens a claim, but the AOJ did not, the claim must be remanded for RO consideration unless there is a waiver from the appellant or no prejudice would result from the readjudication of the claim); Bernard v. Brown, 4 Vet. App. 384, 393-94 (1993) (noting that the Board must consider whether a veteran is prejudiced by a lack of AOJ consideration of the merits of a claim). The Board finds that adjudication of the reopened hemorrhoids claim on a de novo basis is appropriate at this juncture. A review of the June 2016 statement of the case reflects that the RO, although addressing new and material evidence, found that the Veterans hemorrhoids were not incurred in or aggravated by service, and explained why. The Veteran was provided with the laws and regulations applicable to service connection in the June 2016 document and has submitted argument on the underlying claims. Thus, the Board’s proceeding with the service connection for hemorrhoids issue, without a remand to the AOJ, will not prejudice the Veteran. The Board notes that the issue of entitlement to service connection for an acquired psychiatric disorder is considered reopened and remanded to the AOJ for further development, as noted below. 3. Entitlement to service connection for a stomach disorder. The Veteran contends that he should receive service connection for a stomach disorder to include pain, nausea, vomiting, tenderness and cramps, gastritis, and gastrointestinal pain. STRs show that the Veteran was seen in May 1976 for a recent history of abdominal cramping and vomiting with a diagnosis of mild gastritis. The Veteran had a gastroenterology consultation in June 1976 with a diagnosis of possible hiatal hernia or peptic ulcer disease. A UGI was scheduled for August 1976 for further evaluation, however, the Veteran did not report for this procedure. Post-service treatment records indicated no ongoing treatment for chronic gastrointestinal complaints immediately after service. The Veteran submitted a private treatment record from Lutheran Health Physicians dated November 2016, which indicated the Veteran had current gastrointestinal problems with abdominal pain. The Veteran underwent a VA examination in June 2013. The examiner provided a diagnosis of gastritis. The examiner opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner provided that the Veteran did not have a chronic stomach or intestinal condition in military service. His discharge physical is negative for a stomach or intestinal condition. The Veteran is not currently being treated for a stomach condition per his VA medical records. He has not required EGD to determine the source of his pain. His intermittent gastritis and intestinal pain is at least as likely as not (50 percent or greater probability) related to his history of alcohol abuse and substance abuse. The Veteran underwent a VA examination in December 2015. The examination report indicated a history of gastritis in 1976. The examiner opined that no current gastrointestinal condition is related to the gastrointestinal complaints treated in service. The examiner provided there was a lack of evidence of a chronic gastrointestinal condition in service and a lack of care for ongoing gastrointestinal complaints following service. The examiner concluded that the Veteran’s current symptoms were more likely related to a documented history of alcohol and substance dependence. The Board has considered the Veteran’s contentions and the additional lay statements, however, the evidence of record, specifically the December 2015 VA examination indicated that there was no nexus between the Veteran’s claimed symptoms and his military service, and in fact, was more likely related to nonservice-connected alcohol and substance dependence. The VA opinion is probative evidence against a finding that the Veteran’s current stomach condition was caused in service or any incident therein. The opinion was formed after a thorough review of the Veteran’s service and post-service treatment records and was supported by a thorough rationale. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). As noted, the Board has considered the Veteran’s lay statements. He is competent to describe observable symptoms, i.e., pain, nausea, cramping, etc. His descriptions of symptoms are also credible. The specific issue in this case, whether his stomach condition is etiologically related to service or an incident therein, falls outside the realm of common knowledge of the Veteran. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428 (2011). Determining whether the Veteran’s stomach condition is etiologically related to service requires medical inquiry into biological processes, anatomical relationships, and physiological functioning. Such internal physical processes are not readily observable and are not within the competence of the Veteran who, in this case, has not been shown by the evidence of record to have the training, experience, or skills needed to determine the etiology of his stomach condition. Based on the foregoing, the Board finds that the competent and credible evidence of record establishes that the Veteran has a current diagnosis of gastritis, but there is no nexus between his current diagnosis and military service. The December 2015 examiner opined it was less likely than not (less than 50 percent probability) that the Veteran’s claimed condition was incurred in or caused by the claimed in-service injury, event or illness. There is no probative evidence to the contrary. Thus, entitlement to service connection for a stomach disorder to include pain, nausea, vomiting, tenderness and cramps, gastritis, and gastrointestinal pain is not warranted. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 4. Entitlement to service connection for hemorrhoids. The Veteran contends that he should be granted service connection for his current hemorrhoid condition. Service treatment records (STRs) showed evaluation for abdominal cramping and vomiting in May 1976 and June 1976 but no complaints, findings, or treatment for hemorrhoids or rectal bleeding. During both evaluations, examination showed the rectum to be within normal limits (no hemorrhoids noted). On his August 1976 separation examination, the Veteran reported “no” for history of piles or rectal disease. Lay statements from E.W., B.L., and C.N. indicated the Veteran came home from service with rectal bleeding. As noted above, post-service, an April 1977 VA record showed complaints of pain in the rectal area with normal bowel movements and no blood. Examination revealed a thrombosed external hemorrhoid. The Veteran underwent a VA examination in June 2013. The examiner indicated mild external hemorrhoids without thrombosis. On examination, the examiner noted small or moderate external hemorrhoids. In his hearing testimony, the Veteran indicated that he had rectal bleeding in service and had to change his clothes on occasion due to rectal bleeding. The Board has considered the Veteran’s contentions and the additional lay statements, however, the contemporaneous medical evidence of record, specifically the STRs and separation examination demonstrates that there is no nexus between the Veteran’s claimed symptoms and his military service. The Veteran specifically denied the presence of, or a history of, hemorrhoids on separation from service. Examination in the months prior revealed a normal rectal examination. Therefore, his reports of rectal bleeding in service are not supported, and in fact, are contradicted, by the contemporaneous record. Further to the extent that the Veteran has submitted other lay evidence recalling that he had rectal bleeding after he returned home after discharge, the Board also finds these statements competent and credible as to their recollections, but not probative of the issue in this case. In this regard, the record is clear that the Veteran was seen several months after service for hemorrhoids. However, the Board notes that even when the Veteran was seen in 1977 within several months of his discharge for hemorrhoids, he denied the presence of bleeding. And, as noted above, STRs including the Veteran’s separation examination are negative for a history of piles or rectal disease, thus, again, lessening the probative weight of the lay evidence. Based on the foregoing, the Board finds that the competent and credible evidence of record establishes that the Veteran has a current diagnosis of hemorrhoids, but there is no probative evidence of a nexus between his current diagnosis and military service. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disorder, to include stress, anxiety, and depression is remanded. The Veteran contends that his mental health issues are related to his military service. VA treatment records dated July 2013 and May 2015 indicate that the Veteran has diagnoses of anxiety disorder, depressive disorder, cocaine dependence episodic use, depression NOS, and cocaine-use mood disorder. A review of the Veteran’s service treatment records does not show complaints or treatment of any mental health signs or symptoms. A September 1976 mental status examination showed no mental health concerns or diagnosis. The Veteran reported during his August 1976 separation examination that he had no history of depression, excessive worry, nervous trouble of any sort, or frequent trouble sleeping. Service personnel records show, however, that the Veteran was counseled and disciplined on numerous occasions for being absent without leave, failing to obey orders, being disrespectful to superiors, and having a generally poor attitude and performance. He was discharged due to unsuitability/personality disorders. In his hearing testimony, the Veteran testified that he had symptoms of stress, anxiety, and depression immediately after service. The Veteran has also submitted lay statements from his mother and sisters reporting their observations of the Veteran’s behavior following his discharge from service. Post-service, the Veteran has been afforded psychiatric evaluation by VA including in 2008 and 2009 as an outpatient and in 2013. The 2008 examiner found it difficult to tell if the Veteran’s psychosocial impairments were primarily due to current stressors, to include unemployment and physical pain, or to events reported by the Veteran that occurred in AIT. The 2013 examiner noted that the focus since the Veteran first sought mental health treatment at VA in 2008 had been on depression and anxiety associated with situational stressors such as perceived racism, interpersonal conflicts and financial stressors. VA’s duty to assist includes providing a medical examination when it is necessary to make a decision on a claim. 38 U.S.C. § 5103A (d) (2012); 38 C.F.R. § 3.159 (2017). Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or symptoms of disability, (2) establishes that the Veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159 (c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). The threshold for finding a link between current disability and service so as to require medical examination is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon, 20 Vet. App. at 83. In the present case, the Veteran has a current diagnosis of a psychiatric disability. The Veteran indicated that this disability is related to service and it is also not clear whether the 2008 examiner was suggesting a link between post-service psychosocial impairment and the Veteran’s military service. Given the low bar of McLendon, and providing the Veteran the benefit of the doubt, the Veteran should be afforded a VA psychiatric examination to determine the nexus of any of the Veteran’s acquired psychiatric disabilities. The matters are REMANDED for the following action: 1. Obtain any outstanding relevant VA medical records and associate them with the claims file. 2. Schedule the Veteran for a VA psychiatric examination to determine the etiology of the Veteran’s psychiatric disorder with an appropriate examiner. All indicated tests and studies should be conducted. The electronic claims file must be made available to the examiner, and the examination report must reflect that it has been reviewed. At the conclusion of the examination and record review, address the following questions: (a). Identify any current psychiatric disabilities, to include anxiety and depression. (b). For each identified psychiatric disability, the examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that such disability had its onset during military service or is otherwise etiologically related to service. (c). If the diagnostic criteria to support a diagnosis of posttraumatic stress disorder have been satisfied, the examiner should then comment upon the link between the current symptomatology and any verified in-service stressor. (d). The examiner must provide a detailed rationale for all opinions and reconcile it with all pertinent evidence of record. If an opinion cannot be rendered without resorting to pure speculation, the examiner should explain why. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N.M. Floore, Associate Counsel