Citation Nr: 21003706 Decision Date: 01/22/21 Archive Date: 01/22/21 DOCKET NO. 14-19 028 DATE: January 22, 2021 ORDER Service connection for residuals of a rectal injury is denied. Service connection for a kidney condition is denied. REMANDED Entitlement to an increased rating in excess of 10 percent for contact dermatitis is remanded. Entitlement to a total disability rating on the basis of individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran does not have any residuals, including hemorrhoids or colon polyps, as a result of his in-service rectal injury. 2. The Veteran does not have a kidney disability that onset in service or is causally related to service or the Veteran’s service-connected diabetes mellitus. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for residuals of a rectal injury have not been met. 38 U.S.C. §§ 1110, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.303, 3.304. 2. The criteria for entitlement to service connection for a kidney condition, to include as secondary to service-connected diabetes mellitus, have not been met. 38 U.S.C. §§ 1110, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from March 1969 to February 1971. This appeal comes to the Board of Veterans’ Appeals (Board) from April 2011 and June 2014 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. The Veteran provided sworn testimony in support of his appeal during a hearing before the undersigned Veterans Law Judge in October 2017; the hearing transcript has been associated with the file and has been reviewed. In February 2018, the Board remanded the Veteran’s claims for further development. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Additionally, service connection may be granted, on a secondary basis, for a disability which is proximately due to or the result of an established service-connected disorder. 38 C.F.R. § 3.310. 1. Entitlement to service connection for residuals of a rectal injury The Veteran contends that he has a current disability due to a rectal injury he incurred in service. He has stated that in service he was injured when a stick punctured his anus, in approximately 1972 he had anal fissure surgery, and he has since had hemorrhoids, bleeding, colon polyps, and removal of part of his colon, all resulting from the in-service injury. The Veteran’s service treatment records reflect that in July 1970 he incurred a one millimeter deep puncture wound to the anus, for which he was treated with stitches and antibiotics. Subsequent service treatment records include no indication of treatment for residuals due to the injury, and his February 1971 separation examination was noted to be normal. Post-service treatment records include a private medical treatment record from August 1996 reflecting that the Veteran underwent a hemorrhoidectomy and was diagnosed with internal and external hemorrhoids and a posterior ulcer. After complaining of chronic anal fissure, a private treatment record reflects that in December 1999 he underwent a hemorrhoidectomy and sphincterotomy. Subsequent treatment records reflect continuing complaints of hemorrhoids. A December 2017 colonoscopy showed non-thrombosed external hemorrhoids, low rectal tone, diverticulosis, and colon polyps. At his October 2017 Board hearing, the Veteran testified that within six months of his separation from service he saw a doctor for rectal bleeding and pain and underwent surgery in 1974. The Board notes that private medical records identified by the Veteran from the two decades after service have been determined to be unavailable. At an April 2010 VA examination, the examiner stated that there is no documented or physical evidence available that the Veteran has had a colon resection, although the evidence does reflect that he has had polyps removed as part of a colonoscopy with polypectomy. The examiner stated that polyps are the result of abnormal growth, not trauma, concluding that the Veteran’s in-service anal puncture wound did not cause his current colonic polyps. The examiner noted the Veteran has hemorrhoids but did not offer an etiology opinion. In March 2014, the Veteran underwent a VA examination at which the examiner opined that the Veteran’s anal puncture wound in service caused an anal fissure and resultant surgery. The examiner noted the Veteran currently has hemorrhoids with intermittent bleeding but did not offer an etiology opinion. The Veteran was afforded another VA examination in November 2018. The examiner opined that it is less likely than not that the Veteran has residuals of his in-service rectal injury. The examiner explained that any complications of healing of the Veteran’s in-service wound would have presented early based on the location of the wound and heightened risk of contamination. The examiner further opined that the Veteran’s hemorrhoids are most likely due to advancing age, body habitus, and toileting habits. The Board finds that although the evidence supports that the Veteran had an in-service rectal injury, a preponderance of the evidence is against finding that the Veteran currently has residuals of that injury. The Board notes that the fact that an injury occurred in service is not enough for a grant of compensation benefits. There must also be disability resulting from that condition or injury. In the absence of proof of a present disability, there can be no valid claim or the grant of the benefit. Rabideau v. Derwinski, 2 Vet. App. 141 (1992). The Board acknowledges that the record does reflect that the Veteran has had during the period on appeal both hemorrhoids and colon polyps, which involve a similar anatomical area as his in-service injury. However, the Board finds that a preponderance of the evidence is against finding that either of those conditions are causally related to the Veteran’s in-service injury or that the Veteran has any other current disability causally related to his in-service injury. Specifically, the April 2010 VA examiner considered the Veteran’s colon polyps but opined that they are less likely than not causally related to his in-service injury as trauma does not cause colon polyps. The November 2018 VA examiner considered the Veteran’s hemorrhoids but opined that they are less likely than not causally related to his in-service injury. The November 2018 VA examiner also opined that it is less likely than not that the Veteran has any residuals of the in-service injury. The Board acknowledges the Veteran’s own opinion that his current hemorrhoid and colon issues are related to his in-service injury. While the Veteran, as a lay person, is competent to report readily observable symptoms such as pain and blood, the issue of the etiology of the Veteran’s hemorrhoids and colon polyps is a complex medical question not capable of lay observation and is not the type of medical issue for which a lay opinion may be accepted as competent evidence. As a lay person, the Veteran does not have the education, training and experience to offer a medical diagnosis or an opinion as to the onset or etiology of this condition. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). Accordingly, the Veteran’s lay statements in this regard are not competent or probative evidence supporting his claim. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board finds the most probative etiology opinions are those of the VA examiners. Thus, based on the forgoing, the Board finds that a preponderance of the evidence is against service connection for residuals of his in-service rectal injury, to include hemorrhoids and colon polyps. 2. Entitlement to service connection for a kidney condition The Veteran contends that he has a kidney condition secondary to his service-connected diabetes mellitus. Service treatment records do not reflect any complaint or treatment related to the Veteran’s kidneys during service. Imaging conducted in 1999 prompted by the Veteran’s refractory hypertension diagnosis showed normal sized kidneys. Medical records note findings of right renal cysts on imaging and hospitalization in 2015 and 2017 for acute renal insufficiency. In September 2013 the Veteran underwent a VA examination of his diabetes. The examiner indicated that the Veteran did not have a renal condition caused or aggravated by diabetes but did note that the Veteran had a low glomerular filtration rate of unknown etiology. The examiner stated that it is possible it is related to the Veteran’s diabetes but noted that the Veteran had reported being on medication for his diabetes only since 2012. The Veteran was afforded a VA examination in November 2018 to obtain an etiology opinion on his kidney conditions. The examiner opined that the Veteran’s renal insufficiency is less likely than not causally related to the Veteran’s service-connected diabetes and more likely related to the Veteran’s nonservice-connected hypertension and body habitus. The examiner explained that the earliest record of elevated glucose in the Veteran’s medical record is in 2006. His earliest documented history of renal insufficiency is in lab results from 2007 to 2008. The examiner explained that medical literature supports that diabetic renal damage occurs over a period of 10 to 15 years of elevated blood sugars, and the Veteran had only two to three years of elevated glucose before his first indications of renal disease. The examiner noted that the record does support that the Veteran has a history of essential hypertension with poor control diagnosed 10 to 11 years prior to his first indicators of decreased renal function. The Board acknowledges the argument of the Veteran’s representative that scientific evidence establishes that diabetes may lead to kidney disease but finds that the most probative etiology opinion as to whether this Veteran’s diabetes led to his kidney condition in this specific case is the opinion of the November 2018 VA examiner. The Board further acknowledges the Veteran’s own opinion that there is a causal relationship between his kidney condition and his service-connected diabetes, the Board finds that as a lay person the Veteran does not have the education, training, or experience to competently opine as to the etiology of such a complicated, internal condition. The Board notes that the Veteran has reported that he was told by a doctor there was a relationship between the conditions; however, a review of the record does not show a medical opinion supporting that there is a relationship. Further, the evidence does not support, and the Veteran has not claimed, that his kidney condition onset in or is otherwise causally related to his service. Based on the forgoing, the Board finds that a preponderance of the evidence is against service connection for a kidney condition, and the claim must be denied. REASONS FOR REMAND 1. Entitlement to an increased rating in excess of 10 percent for contact dermatitis In February 2018, the Board remanded the Veteran’s claim for an increased rating for his service-connected skin condition to afford the Veteran a new VA examination to assess the current nature and severity of his condition. He underwent a VA examination in November 2018. However, the examiner stated that at the time of the examination the Veteran was in a latent period with no lesions noted to his head, neck, or face. The examiner indicated that at the time of the examination, the Veteran’s skin condition affected between five and less than 20 percent of his total body and exposed areas. Unfortunately, no estimate was provided for the total body and exposed areas affected during a flare-up of the condition. On remand, the Veteran should be afforded an examination during a flare-up of his skin condition, or if not possible, a VA examiner should provide an opinion on the total area and exposed areas affected during a flare-up of the condition and a description of the frequency and duration of flare-ups. 2. Entitlement to a total disability rating on the basis of individual unemployability due to service-connected disabilities (TDIU) is remanded. In a March 2018 correspondence, the Veteran’s attorney argued that the Veteran is unable to sustain gainful employment as a result of his service-connected disabilities. When evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for a TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Here, the Agency of Original Jurisdiction (AOJ) has not developed or adjudicated a claim for TDIU; therefore, a remand is necessary for the AOJ to consider the issue in the first instance. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA skin examination during a flare-up of his condition, or if not possible, obtain a VA opinion as to the total area and exposed areas affected during a flare-up of the condition and a description of the frequency and duration of flare-ups. 2. Provide the Veteran appropriate Veterans Claims Assistance Act notice with respect to the claim for TDIU and a VA Form 21-8940 to enable him to file a formal application for TDIU. Allow the Veteran an opportunity to furnish any additional information and/or evidence pertinent to the claim for TDIU and develop the claim as appropriate. (If the Veteran does not wish to file such a claim, he may withdraw the claim in writing.) H. SEESEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Christensen The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.