Citation Nr: 18156397 Decision Date: 12/11/18 Archive Date: 12/07/18 DOCKET NO. 14-41 713 DATE: December 11, 2018 ORDER New and material evidence having been submitted, the entitlement to reopen the claim for service connection for a low back disability is granted. Entitlement to service connection for low a back disability is denied. Entitlement to a rating in excess of 10 percent for hemorrhoids is denied. Entitlement to total disability based on individual unemployability is denied. FINDINGS OF FACT 1. The Board’s August 2005 decision, in which the Board denied entitlement to service connection for a back disorder, is final. 2. Since August 2005, evidence has been received that is new, not cumulative, relates to a previously unestablished fact necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim for service connection for a back disorder. 3. The Veteran’s low back disability first manifested greater than one year after service and the weight of competent evidence is that it was not caused by any aspect of service. 4. The Veteran’s hemorrhoids have been manifested with recurrent bleeding but not with secondary anemia, or with fissures. 5. The Veteran has one service connected disability, hemorrhoids, rated as 10 percent disabling. 6. The Veteran is not precluded from securing or following all forms of substantially gainful employment because of his service-connected disability. CONCLUSIONS OF LAW 1. The criteria to reopen a claim based upon submission of new and material evidence for entitlement to service connection for low back pain have been met. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156(a) (2017). 2. The criteria for entitlement to service connection for a low back disability have not been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). 3. The criteria for a rating higher than 10 percent for hemorrhoids have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.304, 4.1, 4.2, 4.3, 4.6, 4.7, 4.21, 4.114, Diagnostic Code 7336 (2017). 4. The criteria for a TDIU are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.18 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Marine Corps from August 1977 to August 1980. The Veteran’s service records reflect that he was a mortar man for two years and six months during his service. These matters are before the Board of Veterans’ Appeals (Board) on appeal from the March 2008 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) that declined to reopen a final August 2005 Board decision that denied service connection for a low back disability and denied the Veteran’s claim a rating in excess of 10 percent for service connected hemorrhoids, and from a September 2009 rating decision that denied a TDIU. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ) in February 2018. A transcript of the hearing is associated with the electronic claims file. In a December 2014 correspondence, the Veteran’s representative appears to be raising a revision or reversal of a rating decision on the basis of clear and unmistakable error (CUE), but fails to identify the decision. The RO has not addressed the issue. Therefore, this matter is referred back to the RO and is not currently before the Board. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C. § 7107(a)(2) (2017). Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2017). In light of the fully favorable decision as to the issue of entitlement to service connection for a low back disability, no further discussion of compliance with VA’s duty to notify and assist as to those issues are necessary. Mlechick v. Mansfield, 503 F.3d 1340 (Fed. Cir. 2007). 1. New and material evidence to reopen the claim for service connection for a low back disability Once a decision becomes final, absent submission of new and material evidence, a claim may not thereafter be reopened or readjudicated by VA. 38 U.S.C. § 5108, 7105; 38 C.F.R. § 3.156(a); Suttman v. Brown, 5 Vet. App. 127, 135 (1993). New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing 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 of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). Moreover, if it is determined that new and material evidence has been submitted, the claim must be reopened and considered on the merits. Elkins v. West, 12 Vet. App. 209 (1999). In determining whether evidence is new and material, the credibility of the new evidence is, preliminarily, to be presumed. If the additional evidence presents a reasonable possibility that the claim could be allowed, the claim is accordingly reopened and the ultimate credibility or weight that is accorded such evidence is ascertained as a question of fact. 38 C.F.R. 3.156; Justus v. Principi, 3 Vet. App. 510 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. When evaluating the materiality of newly submitted evidence, the focus must not be solely on whether the evidence remedies the principal reason for denial in the last prior decision; rather the determination of materiality should focus on whether the evidence, taken together, could at least trigger the duty to assist or consideration of a new theory of entitlement. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In August 2005, the Board considered the service treatment records, post-service treatment records, the Veteran’s testimony at a June 2003 Board hearing, and the results of a May 2004 VA examination. In August 2018, the Veteran’s representative submitted a July 2018 letter written by Dr. F. G. In the letter, Dr. G. noted that after reviewing the Veteran’s medical records, it was more likely than not that the Veteran “suffered from chronic low back pain while on active duty.” The medical evidence is new because it was not previously submitted. The evidence is material because by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. The new and material medical evidence competent and presumed credible. It is neither cumulative nor redundant of the evidence of record at the time of March 2008 rating decision. Therefore, entitlement to the reopening of the claim for service connection for a low back disability is granted. 2. Entitlement to service connection for low back disability When the Board reopens a claim after the RO has denied reopening that same claim, the matter generally must be returned to the RO for consideration of the merits.” Hickson v. Shinseki, 23 Vet. App. 394, 399 (2010). “This is because the RO generally does not assess the credibility of the evidence or determine the need for a medical examination or opinion when reopening is denied.” Id. at 403 (internal citations omitted). “Thus, if the Board initially reopens a claim when the RO has not considered the need for a medical examination or opinion, or assessed the credibility of the evidence, the Board would be considering law that the RO had not already considered, possibly implicating § 20.903(b).” Id. In addition, the “RO should, in the first instance, consider that new evidence and decide the matter so as to preserve for that claimant the one review on appeal as provided by [38 U.S.C. § 7104 (West 2002)].” Id. at 399. “The Board, however, may proceed to decide the merits of the claim if the Board first secures a waiver from a claimant or the Board determines that the claimant would not be prejudiced by proceeding to a decision on the merits.” Id. at 399-400. Here, in an August 2018 letter that forwarded the new evidence noted above, the representative waived consideration of the evidence by the agency of original jurisdiction. Therefore, the Board may proceed with a decision on the merits. Generally, to establish service connection a Veteran 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 incurred or aggravated during service.” Davidson v. Shinseki, 581 F.3d 1313, 1315–16 (Fed. Cir. 2009). In each case where a Veteran is seeking service-connection for any disability due consideration shall be given to the places, types, and circumstances of such Veteran’s service as shown by such Veteran’s service record, the official history of each organization in which such Veteran served, such Veteran’s medical records, and all pertinent medical and lay evidence. 38 U.S.C. § 1154(a)(1). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159 (2017). Lay testimony is competent, however, to establish the presence of observable symptomatology and “may provide sufficient support for a claim of service connection.” Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). During the June 2003 Board hearing, the Veteran testified that he experienced an episode of back pain in 1977 and that he was reassigned duties from the infantry to those of an artillery spotter so that he did not have to carry heavy loads in the field. He testified that he started treatment with a private physician in early 1981 and transferred treatment to VA in about 1987. During a February 2018 Board hearing, the Veteran testified that during boot camp he fell during a rope climb and was authorized two days rest but no other treatment. Later after performing rigorous mountain climbing and digging, he continued to experience back pain, underwent an X-ray, but had no further treatment. He again testified that he sought private treatment after service. Service treatment records show that the Veteran sought treatment in September 1977 for low back pain that he had experienced for the past two days. A clinician determined that it was probably caused by a urinary tract infection and prescribed anti-biotic medication and restriction from physical training for 24 hours. There was no mention of trauma from a fall. Although there are legible records of occasional treatment for medical complaints such as plantar warts, inflamed tonsils, ingrown toe nail, hemorrhoids, and shoulder injury, there is no record of any further treatment for the back including the results of an X-ray. The shoulder injury occurred in 1980 while playing football. The Veteran has a current diagnosis of intervertebral disk displacement. In a May 2004 lay statement provided to a VA examiner the Veteran reported that “he started having back pain after PT while in the service, described as muscle tightness of the lower back, that he continued to have off and on pain in the lower back throughout the remaining period of his service as well as subsequent to the service increasing in intensity over the years.” The Veteran is competent to report pain and discomfort. The Veteran’s military service records show that the Veteran served as a mortar man in Marine Corps. Although, the Veteran’s service treatment records note that he was seen in September 1977 for low back pain, in which the provider noted that it was probably secondary to a urinary tract infection, the Board finds that the lay testimony of rigorous mountain climbing and digging is credible due to the nature and circumstances of the Veteran’s military occupation. Post-service the Veteran had been diagnosed with chronic low back pain probably secondary to myofascial spasm, degenerative arthritis, and a herniated nucleus pulpous of the lumbar discs with radiculopathy. However, these conditions have been determined not be caused by the Veteran’s active duty. In May 2004, a VA physician noted a review of the file and the Veteran’s report of experiencing muscle tightness of the lower back after physical training in service and subsequently having intermitted pain throughout the remainder of service. The Veteran reported receiving private care including injections between 1983 and 1989 and was told that he had a disc deficit in 1990. The current examination including X-rays showed degenerative disc disease of L4-5 and S1. The examining physician noted, “there is a sufficient enough objective information in the service records to support a clinical diagnosis of the pathology in the lower back while in the service though [sic] history obtained from the Veteran as well as some documented history in the records of the VA indicate that he has had increasing symptoms of pain in the lower back to the extent now that he wears a TENS unit 24 hours a day with limited activity.” The examiner goes on to note: To state that there is an association between his present back problems and the one recorded incidence of complaint of back pain in service would require resorting to sheer speculation. There is no documented one-time trauma in the service to the back, which would be more consistent with the finding of a ruptured disc, which the Veteran has been told he has. In the absence of such documented trauma, it would be difficult to state that there is an association between the present back condition and that recorded while in the service. In August 2018, the Veteran’s representative submitted a July 2018 letter written by Dr. F.G. with the waiver of consideration by the RO. In the letter, Dr. G. noted that he reviewed medical records and summarized many post-service treatment encounters starting in 1999 that confirmed the existence of a current low back disability. With respect to the service records, the physician noted, “Review of clinical notes 1977-1980. Most of these notes are handwritten and are illegible even as to the date. Some can be read as early as 1977.” However, the physician did not comment on those that could be read including the September 1977 encounter noted above other than to note, “There are several references to the presence of low back pain during his period of active duty in the typewritten section of his medical record of 868 pages. There is reference to a spinal condition contemporaneous with military service increasing in intensity subsequent to service.” He further noted that after reviewing the Veteran’s medical records, it is more likely than not that the Veteran “experienced recurrent episodes of lumbosacral pain during active duty and that subsequent to his discharge from service, his condition progressed with surgery performed and with further complications of his surgery.” The Board acknowledges that the Veteran is competent to report that he had occasional low back pain during service. His report of a traumatic fall warrants much less probative weight because it is not consistent with the record of care for a urinary tract infection. The record does show that the Veteran was able to perform his duties as a Marine infantryman for three years including the ability to play football in 1980. While the Veteran testified before the Board that a low back disorder was present in active service and related thereto, he is not competent to offer a medical opinion. Espiritu v Derwinski, 2 Vet. App. 492, 494-495 (1992). In addition to the VA examiner’s opinion in this case, the long gap between separation from service in 1980 and the diagnosis of degenerative disc disease in 2004 is itself evidence unfavorable to the Veteran’s claim for service connection. The absence of evidence of any back disorder for such a long period of time constitutes negative evidence tending to disprove the claim that the Veteran had an injury in service which resulted in chronic disability or persistent symptoms thereafter. See Forshey v West, 12 Vet. App. 71 74 (1998). A prolonged period without medical complaint can be considered, along with other factors concerning a claimant’s health and medical treatment during and after military service as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability See Maxson v. Gober, 230 F 3d 1330, 1333 (2000). The May 2004 VA examiner concluded that the Veteran did experience at least one episode of back pain that he and the Veteran described as muscle tightness but that the clinician in service diagnosed and treated as a urinary tract infection. He noted no incidence of trauma to the back and found that the current disorder was not the same as that experienced during service. The Board places greater probative weight on the May 2004 opinion. Although the physician used the word “speculation,” the context of the opinion is that the physician could not provide a positive finding of causation without speculating, and thus the opinion was a clear negative finding. The August 2018 private examiner also concluded that the Veteran had recurrent back pain based on the Veteran’s reports that were cited many times in the record when the Veteran repeated those reports to clinicians. The Board places less probative weight on his finding of a medical link between the low back pain reported while in service and the Veteran’s current low back disability because he did not address the September 1977 visit regarding the back pain being probably secondary to a urinary tract infection, did not provide a rationale, nor did he discuss the fact that the Veteran went on to complete three years of service without reporting any complaints, treatments, or diagnosis of a low back condition. The examiner cited multiple episodes of back pain in service but the service records show only one episode associated with a urinary tract infection. The examiner offered no citation or rationale for his finding that there was reference to a spinal condition in service when none was shown in the records. Furthermore, the private examiner did not discuss the absence of any documented symptoms for many years after the Veteran’s military service. The Board finds that this opinion was based substantially on the recitation of the Veteran’s reported history. The mere recitation of a Veteran’s self-reported lay history does not constitute competent medical evidence of diagnosis or causality. See LeShore v. Brown, 8 Vet. App. 406 (1996). In addition, medical opinions premised upon an unsubstantiated account of a claimant are of no probative value. See, e.g., Swann v. Brown, 5 Vet. App. 229, 233 (1993) (generally observing that a medical opinion premised upon an unsubstantiated account is of no probative value, and does not serve to verify the occurrences described); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (the Board is not bound to accept a physician’s opinion when it is based exclusively on the recitations of a claimant). Thus, the medical opinion of the private examiner is entitled to no probative value in support of the Veteran’s service connection claims. As there is no competent positive nexus opinion underlying the claim for a low back disability, service connection is not warranted. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55–57 (1990); 38 C.F.R. § 3.102. For these reasons, the claim is denied. 3. Entitlement to a rating in excess of 10 percent for hemorrhoids Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1 (2017). The Veteran’s service-connected hemorrhoids are rated under the criteria contained in 38 C.F.R. § 4.114, Diagnostic Code 7336 for hemorrhoids. Pursuant to Diagnostic Code 7336, a noncompensable, zero percent rating is warranted where the hemorrhoids are found to be mild or moderate in nature. A 10 percent rating is warranted where the hemorrhoids are large or thrombotic, irreducible, with excessive redundant tissue, evidencing frequent recurrences. A 20 percent rating, the highest rating available pursuant to Diagnostic Code 7336, is warranted for hemorrhoids with persistent bleeding with secondary anemia, or with fissures. The evidence of record reflects the Veteran underwent a VA examination in May 2011. During the examination, the examiner noted, “the patient has a history of alcoholism and cirrhosis of the liver. He has a low platelet count considered related to liver disease, alcoholism and hypersplenism. He is mildly anemic, felt related to these chronic diseases. His lab data do not suggest an iron deficiency anemia as would be expected with anemia related to recurrent hemorrhoidal bleeding.” The evidence of record also reflects that the Veteran underwent another VA examination in June 2016. During that examination, the examiner noted that there were no anal fissures. During the February 2018 Board hearing, the Veteran testified that he experiences rectal bleeding up to two to three times per week requiring the use of absorbent garments. He also attributed back pain and difficulty lifting to the hemorrhoids. The Board finds that a rating in excess of 10 percent under Diagnostic Code 7336 is not warranted for the Veteran’s hemorrhoids at any point during the period on appeal. The Veteran did testify that he has recurrent episodes of bleeding but the evidence does not show secondary anemia, or with fissure. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). 4. Entitlement to total disability based on individual unemployability A total disability rating for compensation may be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more. If there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and the combined rating must be 70 percent or more. 38 C.F.R. § 4.16. In a related provision, 38 C.F.R. § 4.16 (b) allows for a Veteran who does not meet the threshold requirements for the assignment of a total rating based on individual unemployability, but who is otherwise deemed by the Director of Compensation & Pension Services to be unable to secure and follow a substantially gainful occupation by reason of a service-connected disability or disabilities, to be rated totally disabled. In an August 2007 lay statement, the Veteran stated that he receives Social Security Administration benefits (SSI) for his back. In a July 2018 statement, a private provider opined that Veteran “is in fact totally disabled. He has left his employment as a mechanic because of his spinal symptoms and general health issues. He is 100% impaired in terms of employability.” Currently, the only service-connected disorder is hemorrhoids, rated as 10 percent disabling. Although the Veteran identified the receipt of SSI and although a physician found the Veteran unemployable because of his back disability, it is not service-connected. Referring to the evidence and analysis above addressing the severity of the hemorrhoid disability, the Board finds that this disability has not been shown to be so severe as to preclude the performance of daily occupational activity. In a July 2009 claim, the Veteran reported education through two years of college work in the area of clean air controls and experience as a mechanic. The May 2004 back examiner noted the Veteran’s report of working as a mechanic until 1999 when he ceased work because of his back disorder. Although the Veteran reported occasional episodes of bleeding requiring absorbent garments, the June 2016 hemorrhoid examiner noted that the disorder did not impair the Veteran’s ability to work. The Board finds that the weight of competent evidence is that the Veteran is not precluded from securing or following all forms of substantially gainful employment solely because of his hemorrhoid disability. The Veteran does not meet the statutory criteria and the record does not show that the Veteran is precluded from all forms of employment because of the hemorrhoids. The record showed that the Veteran may be unemployable because of back pain and resultant immobility and restrictions on lifting and carrying that would preclude pursuit of his occupation as a mechanic. However, the back disability is not service-connected. Therefore, the entitlement to total disability based on individual unemployability is denied. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. NeSmith, Associate Counsel