Citation Nr: 18145210 Decision Date: 10/26/18 Archive Date: 10/26/18 DOCKET NO. 16-00 220 DATE: October 26, 2018 ORDER Entitlement to service connection for a chronic disability of the rectum is denied. REMANDED Entitlement to an initial rating in excess of 30 percent for service-connected posttraumatic stress disorder is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service connected disability is remanded. FINDING OF FACT The preponderance of the evidence is against finding that a chronic disability of the rectum began during active service, or is otherwise related to an in-service injury, event, or disease. CONCLUSION OF LAW The criteria for service connection for a chronic disability of the rectum are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably on active duty in the United States Marine Corps from July 1961 to July 1969, including combat service in the Republic of Vietnam from December 1966 to November 1967. The Veteran’s appeal come before the Board of Veterans’ Appeals (Board) on appeal from October 2012 and November 2013 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. Thereafter, the Veteran submitted two timely notices of disagreement, and VA issued a statement of the case in November 2015. The Veteran perfected a timely substantive appeal, through counsel, via VA Form 9 in December 2015 and requested a Board hearing. In September 2018, the Veteran, again through counsel, waived his right to testify before the Board. The Board notes that the Veteran filed two notices of disagreement: one in February 2018 regarding a July 2017 rating decision; and the second in September 2018 regarding a June 2018 rating decision. As the RO acknowledged both notices of disagreement in separate letters, respectively dated February 2018 and October 2018, and has proceeded to take initial action in accordance with the provisions of 38 C.F.R § 19.26(a) (2017), any action by the Board pursuant to the Court’s ruling in Manlincon v. West, 12 Vet. App. 238 (1999) would be premature at this time. Accordingly, the Board will not further address the matter herein. 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 the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). 1. Chronic Disability of the Rectum The Veteran contends that the constipation he experienced during his active military service during combat situations when circumstances did not allow for regular bathroom breaks, resulted in his current, chronic disabilities of his rectum, namely anal fissures, anal tags, anal canal abnormalities, and anal spasms. As an initial matter, while the Veteran has not raised any deficiencies as to VA’s duty to assist, the Board conducted further analysis on whether the duty to assist was met with regard to the Veteran’s claim of service connection for a chronic disease of the rectum. Where there is competent evidence of a current disability or persistent or recurrent symptoms of a disability, evidence establishing that an event, injury, or disease occurred in service, and an indication that the disability or persistent symptoms of a disability may be associated with service or another service-connected disability, but there is insufficient competent medical evidence to make a decision on the claim, the Veteran must be afforded a VA examination. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board finds that the duty to assist in obtaining an examination was not triggered in this instance. While the Veteran does have a diagnosed chronic disease of the rectum, and there is evidence establishing that an event occurred in service, and therefore the first and second elements of the McLendon test are met, the only evidence of record relating the Veteran's claimed disability to service is his own general conclusory statements, which do not meet the low threshold of an indication that the claimed disability is due to service. See Waters v. Shinseki, 601 F.3d 1274, 1278-79 (Fed. Cir. 2010) (distinguishing cases where only a conclusory generalized statement is provided by the veteran and rejecting the theory that medical examinations are to be routinely and virtually automatically provided to all veterans in disability cases involving nexus issues). Thus, the Board finds that the third element of the McLendon test is not met. Consequently, VA is under no duty to provide a VA examination. Nonetheless, service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or was aggravated by active service, even if the disability was initially diagnosed after service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires (1) evidence of a current disability, (2) evidence of in-service incurrence or aggravation of a disease or injury, and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. See Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). In the case of a Veteran who engaged in combat with the enemy during active service, satisfactory lay evidence that an injury or disease was incurred or aggravated in combat will be accepted as sufficient proof of service connection if the evidence is consistent with the circumstances, conditions, or hardships of such service, even though there is no official record of such incurrence or aggravation, and to that end, every reasonable doubt shall be resolved in favor of the Veteran. 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(d). Satisfactory lay or other evidence under section 1154(b) has been defined as “credible evidence.” See Collette v. Brown, 82 F.3d 389, 393 (Fed. Cir.1996). However, these provisions deal with the question of whether a particular disease or injury occurred in service; that is, what happened then, and not the question of either current disability or nexus to service, for both of which competent evidence is generally required. In other words, these provisions do not presumptively establish service connection for a combat Veteran; rather, they relax the evidentiary requirements for noting what happened in service. See Brock v. Brown, 10 Vet. App. 155, 162 (1997); Libertine v. Brown, 6 Vet. App. 521, 524 (1996). Lay evidence can be competent and sufficient to establish a diagnosis when a layperson: (1) is competent to identify the medical condition, (2) is reporting a contemporaneous medical diagnosis; or, (3) describes symptoms at the time which supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Although a lay person is competent in certain situations to provide a diagnosis of a simple condition, a lay person is not competent to provide evidence as to more complex medical questions. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Likewise, mere conclusory or generalized lay statements that a service event or illness caused a current disability are insufficient. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). Turning to the evidence of record, post-service private medical records indicate the Veteran was evaluated for rectal pain in June 2013 and subsequently underwent surgery to treat anal fissures, tags, anal canal abnormalities, and spasms. Therefore, the current disability element is met. As to the second element, the in-service incurrence, the Veteran’s service treatment records, specifically a July 1969 discharge examination, note that the anus and rectum were normal at the date of separation, nor were there any subjective reports of any symptomatology related to rectal pain. However, the absence of in-service evidence of rectal pain during service is not fatal to the Veteran’s service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). As noted above, veterans who engaged in combat with the enemy during service may provide competent and credible lay evidence to establish the in-service incurrence element. Here, the Veteran’s DD-214 and service personnel records reflect that he received the Combat Action Ribbon while serving in Republic of Vietnam. Therefore, the Veteran is entitled to consideration under 38 U.S.C. § 1154(b) to establish an in-service incurrence. To support his claim, the Veteran submitted two statements. Specifically, in the November 2012 statement in support of claim, construed as a notice of disagreement, the Veteran asserted that he served in Vietnam at Camp Carroll “and this is where the condition began. The condition has worsened and [he] was told there is no cure,” and in the Veteran’s May 2012 statement in support of claim he stated that “I have ruptured blood vessel in my rectum. In combat you don’t defecate that often. And when you do, it causes you to strain, and this [is] what my conditions were caused by.” The Veteran’s contention is credible and is deemed to be consistent with the circumstances, conditions, and hardships of combat service. Therefore, the in-service incurrence element is met. There, however, is no probative persuasive evidence that shows that the current disability is related to the in-service event. The Veteran has not specifically stated that he experienced symptoms in service and ever since service. Indeed, as noted above, the Veteran’s July 1969 discharge examination was negative for any relevant complaints or findings. Post-service reserve records show the Veteran complained of a rash from being in the field in July 1970 but he had no other relevant complaints. The June 1971 annual Report of Medical Examination showed no relevant findings. The June 1971 annual Report of Medical History showed the Veteran complained of eye trouble and blood pressure problems but denied any complaints referable to the rectum. VA treatment records show that the Veteran established care with VA in April 2000. On review of systems, the Veteran had no complaints referable to the rectum, and the physical examination did not reveal any pertinent findings. He was given three stool cards. Thereafter, an April 2000 record noted that the Veteran had one of three-hemoccult cards heme positive. It was noted that the Veteran did have a history of hemorrhoids but should nevertheless be screened to rule out any malignancies. Thereafter, an October 2010 Agent Orange Registry Exam showed the Veteran complained of kidney problems since approximately the early 1970s and problems with the skin on his feet since being in Vietnam but no complaints referable to the rectum. Thus, the lay and medical evidence does not credibly and persuasively show relevant symptoms ever since service. Rather, the Veteran’s contention is based on speculation that his current symptoms are a continuing disease process of symptoms experienced in service as opposed to separate and distinct responses to post-service events. Lay evidence may be competent on a variety of matters concerning the nature and cause of disability. Jandreau v. Shinseki, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The Veteran’s lay contention, however, is not competent to relate his current rectum disability to any in-service complaints. Although the Veteran observed symptoms similar in location and sensation to that which he experienced in service, the causes of rectal problems, including anal fissures, are not within the ordinary knowledge of a lay person. The similarities between his current symptoms and those he experienced in service may be relevant to an expert considering potential causes of the Veteran’s current condition. Lay observation of these similarities alone, however, is not competent evidence of causation. Consequently, the Board concludes that the preponderance of the evidence is against the Veteran’s claim of entitlement to service connection for a chronic disability of the rectum. REASONS FOR REMAND 1. Increased Evaluation for Posttraumatic Stress Disorder The Veteran seeks an initial rating higher than 30 percent for his PTSD. The Veteran was service-connected for PTSD in a November 2013 rating decision at 10 percent with an effective date of November 28, 2012. He filed a timely notice of disagreement; thereafter, VA issued another rating decision in November 2015 increasing his initial rating to 30 percent disabling, with an effective date of November 28, 2012. The record reflects that the Veteran’s most recent VA examination for his PTSD was conducted in November 2013, which is nearly five years ago. Thus, an updated VA examination is needed to fully and fairly evaluate the Veteran’s claim for an increased disability rating. See Allday v. Brown, 7 Vet. App. 517, 526 (1995) (where the record does not adequately reveal current state of claimant’s disability, fulfillment of statutory duty to assist requires a contemporaneous medical examination). 2. TDIU In the February 2014 notice of disagreement, submitted through counsel, the Veteran asked for consideration of entitlement to a TDIU. The Board notes that in Rice v. Shinseki, the Court held that entitlement to a TDIU may be considered part and parcel of an increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board, however, finds that additional development must be conducted and the issue considered by the RO in the first instance. These matters are REMANDED for the following action: 1. Send the Veteran the appropriate VCAA notice that advises him about the information and evidence needed to substantiate a claim of entitlement to a TDIU. In addition, ask the Veteran to fully complete a Veteran’s Application for Increased Compensation Based on Unemployability (VA Form 21-8940). 2. Obtain the Veteran’s VA treatment records for the period from May 2016 to present. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected PTSD. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms. To the extent possible, the examiner should identify any symptoms and social and occupational impairment due to PTSD alone. 4. Following completion of the above, readjudicate the appeal, including the claim of entitlement to a TDIU. If any benefit sought on appeal remains denied, issue the Veteran and his accredited representative a supplemental statement of the case and return the case to the Board for further adjudication. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Ohlstein, Law Clerk