Citation Nr: 18157934 Decision Date: 12/13/18 Archive Date: 12/13/18 DOCKET NO. 17-37 732 DATE: December 13, 2018 ORDER New and material evidence has been received to reopen the claim for service connection for a lower back injury and, to that extent only, the appeal is granted. New and material evidence has been received to reopen the claim for service connection for a hemorrhoid disability and, to that extent only, the appeal is granted. Entitlement to service connection for a hemorrhoid disability is denied. REMANDED Entitlement to service connection for a low back injury on the merits is remanded. FINDINGS OF FACT 1. A June 2003 rating decision denied the Veteran’s claims for service connection for a low back disability and a hemorrhoid disability; the Veteran did not appeal that decision or submit new and material evidence during the appeal period and that decision is final. 2. Some of the evidence received since the June 2003 final denial is new and relates to an unestablished fact necessary to substantiate the claims for service connection for the low back disability and hemorrhoid disability. 3. The most probative evidence is against a finding that a current hemorrhoid disability is related to service. CONCLUSIONS OF LAW 1. The criteria to reopen the claim for service connection for a low back disability have been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). 2. The criteria to reopen the claim for service connection for a hemorrhoid disability have been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). 3. The criteria for establishing service connection for a hemorrhoid disability have not been met. 38 U.S.C. §§ 1131, 5107 (2012). 38 C.F.R. § 3.303(2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1977 to December 1980. This appeal comes before the Board of Veterans’ Appeals (Board) from a July 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c) (2018). 38 U.S.C. § 7107(a)(2) (2012). NEW AND MATERIAL EVIDENCE 1. Whether new and material evidence has been received to reopen the claim for service connection for a lower back injury 2. Whether new and material evidence has been received to reopen the claim for service connection for a hemorrhoid disability 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 (2018). New evidence means existing evidence not previously submitted to VA. 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. 38 C.F.R. § 3.156(a) (2018). 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. Id. The threshold to reopen a claim is low. See 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). The RO denied the Veteran’s claims of service connection for a low back injury and hemorrhoids in a June 2003 rating decision, finding that the claimed conditions neither occurred in nor were caused by service. The Veteran did not appeal that decision or submit new and material evidence within the appeal period. Thus, the decision is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156(b), 20.302, 20.1103 (2018); see also, Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). Evidence added to the record since the 2003 denial includes the Veteran’s report of being hit by a car in Germany and of sexual assault trauma during service. This evidence contributes to a more complete picture of the circumstances surrounding the origin of the Veteran’s claimed disabilities, and must be presumed credible solely for the purposes of reopening the claim. See Justus, supra. As the threshold to reopen claims is low, the Board finds that new and material evidence has been submitted, and the claims are reopened. See Shade, 24 Vet. App. 110, 118 (2010). SERVICE CONNECTION The Veteran contends that his hemorrhoids began in 1978 in service after a sexual assault. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). The Board concludes that, while the Veteran has a current diagnosis of hemorrhoids, the preponderance of the evidence weighs against finding that his current hemorrhoid disability is related to service. In this regard, while the RO has conceded an in-service military sexual trauma and service treatment records note he experienced rectal bleeding in service following removal of an anal warts, the June 2017 VA examiner concluded the Veteran’s current hemorrhoids were less likely than not related to service. The examiner noted that following the anal wart removal, there was no mention of hemorrhoids then or throughout the years during and after service to establish continuity and chronicity. VA treatment records dating since 1999 do not reveal chronic problems with hemorrhoids. While the Veteran contends he has suffered from hemorrhoids since 1978, the Board finds the service treatment records and post-service treatment records to be more probative as to the presence of hemorrhoids than the Veteran’s assertions. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (VA cannot ignore a veteran’s testimony simply because the veteran is an interested party; personal interest may, however, affect the credibility of the evidence). In summary, service treatment records and post-service treatment records do not reflect a chronic hemorrhoid problem, and the only medical opinion of record addressing whether the Veteran’s current hemorrhoids are related to service is against the claim. Accordingly, the preponderance of the evidence is against the claim, and service connection is denied. REASONS FOR REMAND 1. Entitlement to service connection for low back injury The Veteran contends that his lower back disability is related to injuries in service. The Board finds that a new examination and opinion are needed to address the claim on the merits. Hence, the Board finds that an additional opinion is necessary. Updated treatment records should also be requested. The matters are REMANDED for the following actions: 1. Obtain updated VA treatment records and associate them with the claims file. 2. Schedule the Veteran for a VA low back examination to determine the current nature of his lower back disability and to obtain an opinion as to whether such is related to service. The claims file must be reviewed in conjunction with the examination. All indicated tests should be conducted and the results be reported. Following review of the claims file and examination of the Veteran, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the current lower back disability is related to service or is a maturation/post-traumatic residual of the Veteran’s in-service back complaints, including as a result of falling down the stairs in 1978. The examiner should explain why or why not. K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Asare, Associate Counsel