Citation Nr: 21062184 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 10-36 169 DATE: October 6, 2021 ORDER Entitlement to service connection for hemorrhoids, claimed as secondary to service-connected disabilities is denied. Entitlement to service connection for diverticular disease, to include diverticulitis and diverticulosis with right-sided abdominal pain and chronic constipation, to include as secondary to service-connected disabilities, is denied. FINDINGS OF FACT 1. The Veteran's hemorrhoids are not caused or aggravated by his service-connected disabilities. 2. The Veteran's diverticular disease is not caused by, incurred in, or otherwise due to his active-duty service. 3. The Veteran's diverticular disease is not caused or aggravated by his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for service connection for hemorrhoids, to include as secondary to service-connected disabilities, are not met. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.310. 2. The criteria for service connection for diverticular disease, to include diverticulitis and diverticulosis with right-sided abdominal pain and chronic constipation, to include as secondary to service-connected disabilities, are not met. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1963 to July 1965. Additionally, the Veteran served in the United States Navy Reserve from 1962 to 1963 with various periods of active duty for training (ACDUTRA) and inactive duty training (INACDUTRA). This appeal comes to the Board of Veterans' Appeals (Board) from a Department of Veterans Affairs (VA) May 2010 rating decision of the Agency of Original Jurisdiction (AOJ). The Veteran appeared before the undersigned Veterans Law Judge at a June 2014 Board hearing. A transcript of that hearing has been reviewed by the Board, and has been associated with the claims file. In August 2015, the Board, in pertinent part, denied the Veteran's claims. The August 2015 Board decision was appealed to the U.S. Court of Appeals for Veterans Claims (Court) which vacated the Board's decision and remanded the matters to the Board for action consistent with the Court's May 2017 Memorandum Decision. The Board thereafter, remanded the case to the AOJ for additional development in January 2018. In March 2020 the Board denied the Veteran's claim for service connection for his hemorrhoid disability and remanded the claim for service connection for diverticulitis. In September 2020, the Board again remanded the claim for service connection for diverticular disease to the AOJ for additional development. The Veteran appealed the Board's March 2020 decision as to the issue of service connection for hemorrhoids to the Court. In January 2021 the Court, pursuant to a Joint Motion for Partial Remand (JMPR), remanded the issue of service connection for hemorrhoids back to the Board for further action consistent with the terms of the JMPR. In May 2021 the Board, pursuant to the JMPR, remanded the Veteran's claims for additional development. A Board remand confers upon the appellant the right to compliance with that order. Stegall v. West, 11 Vet. App. 268, 271 (1998). Substantial compliance, rather than strict compliance, is required. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). After a review of the evidence added to the record in the time since remand, the Board finds that the AOJ conducted additional development as directed, and that there has been substantial compliance with the remand directives. Service Connection Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1131, 1153; 38 C.F.R. §§ 3.303, 3.304, 3.306. Service connection may also be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310 (a). Secondary service connection may also be established for a disorder which is aggravated by a service-connected disability; compensation may be provided for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310 (b); Allen v. Brown, 8 Vet. App. 374 (1995). In order to prevail on the issue of secondary service connection, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). 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, 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. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). After careful consideration of all evidence available in a given case, any reasonable doubt, meaning a point where there is an approximate balance of positive and negative evidence regarding any issue material to the determination, VA will resolve that doubt in the Veteran's favor. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to service connection for hemorrhoids, to include as secondary to service-connected disabilities The Veteran claims that his hemorrhoids are caused by, or otherwise aggravated by, his service-connected posttraumatic stress disorder (PTSD), and/or his status post cholecystectomy, and/or his postcholecystectomy syndrome (PCS) with hepatomegaly and dilated common bile duct, status post cholecystectomy with gastroesophageal disease (GERD), and/or his service-connected diabetes. The Veteran has a current diagnosis of hemorrhoids, which satisfies the first Shedden requirement necessary to establish direct service connection. However, there is no evidence that shows the Veteran complained of, was diagnosed with, or sought treatment for hemorrhoids while on active duty. In an August 2020 letter to the Board the Veteran claims that his hemorrhoids "developed ... before [his] separation from the Navy." The Veteran does not provide any other evidence to support his claim. In fact, in his same letter, the Veteran states that "there is no evidence or mention of my treatment [for hemorrhoids] from my enlistment date in 1962 to my separation physical completed July 1975." The Board notes that his separation examination was in June 1965. The Veteran's service treatment records (STRs) show frequent visits to sick call, but at no time were hemorrhoids noted. The Veteran denied having hemorrhoids at his February 1962 enlistment examination, and none were found at his June 1965 separation examination. The Board finds that the second Shedden element necessary to establish service connection has not been met. As such, entitlement to service connection on a direct basis for hemorrhoids is not warranted. As noted above, the Veteran has a current diagnosis of hemorrhoids, which satisfies the first Wallin element necessary to establish secondary service connection. Additionally, the Veteran has several conditions that have been determined to be service-connected. Therefore, the second Wallin element necessary to establish secondary service connection has been met. What is left for the Board to determine is whether there is a link, or nexus, between the Veteran's hemorrhoids and his service-connected disabilities. Per the January 2021 JMPR, new VA examinations were necessary to address whether the Veteran's hemorrhoid condition is secondary to his other service-connected disabilities. The Court found that the prior VA examinations and opinions March 2010, August 2013, September 2014, February 2018, and April 2018 inadequately addressed whether the Veteran's condition is secondary to his other service-connected disabilities. In May 2021 the Board, pursuant to the January 2021 JMPR, remanded the Veteran's claims for additional VA examinations. Specifically, the Board was to determine whether the Veteran hemorrhoids "are secondary to [the Veteran's] service-connected [gastroesophageal reflux disease (GERD)]." The Veteran was seen for a VA examination in June 2021 in accordance with the January 2021 JMPR and May 2021 Board remand directives. According to the examiner, it was found that "it is less likely than not" that the Veteran's hemorrhoids are "proximately due to, or the result of," his service-connected disabilities. This is based on the fact that, based on medical evidence, "there is no mechanism of action" for which the Veteran's service-connected conditions, to include PTSD, PCS with GERD, diabetes, and/or tinnitus "to have caused the development" of his hemorrhoids. With regards to whether or not the Veteran's service-connected disabilities aggravated his hemorrhoids, the examiner found that, as the hemorrhoids are topical and his other conditions are internal, it is less likely than not that his hemorrhoids are aggravated by his service-connected disabilities. The Board notes that the Veteran has not produced any competent and probative medical evidence that shows it is as least as likely as not that the Veteran's hemorrhoids are caused by, due to, or aggravated by, his other service-connected disabilities. As such, the weight of the probative, competent, and credible medical evidence of record shows that the Veteran's hemorrhoids are not caused by, due to, or otherwise aggravated by his other service-connected disabilities. As such, the third Wallin element necessary to establish secondary service connection has not been met. Based on the above, the Board finds that the preponderance of evidence is against the Veteran's claim for entitlement to service connection hemorrhoids, claimed as secondary to service-connected disabilities. As the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt doctrine does not apply. Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). Therefore, the Veteran's claim is denied. 2. Entitlement to service connection for diverticular disease, to include diverticulitis and diverticulosis with right-sided abdominal pain and chronic constipation, to include as secondary to service-connected disabilities In a May 2017 memorandum decision, the Court remanded the Veteran's diverticulitis claim for additional development by the Board. Pursuant to the May 2017 Court decision, in January 2018 the Board remanded the Veteran's claim for additional development. Specifically, the Board requested that additional medical opinions were obtained to address whether or not the Veteran's diverticular disease was directly caused by his active duty service, or whether it was secondary to his other service-connected disabilities. In May 2021 the Board once again remanded the Veteran's claim in order to determine whether the Veteran's diverticular conditions were aggravated by his PSC and/or GERD. The Veteran has been diagnosed with diverticulitis and diverticulosis, collectively referenced as diverticular disease, and as noted above has several conditions found to be service connected, including but not limited to PTSD, PCS with GERD, and diabetes. As such, the first Shedden element necessary to establish direct service connection has been met. The Veteran's STRs show treatment for gastrointestinal issues while in service. For example, in February 1963 it was determined he had a "spasmatic paloric valve," while in September 1963 he was diagnosed with a "peptic ulcer" that was the cause of "epigastric pain." The Board finds that the Veteran complained of, and was treated for, abdominal digestive issues while in service, and therefore the second Shedden element necessary to establish direct service connection has been met. Furthermore, the first two Wallin elements necessary to establish service connection on a secondary basis have been met. In July 2010 the Veteran submitted a statement from Dr. E., a non- VA physician treating the Veteran. Dr. E. noted that prior to the Veteran's 1962 in-service accident, the Veteran had no gastroenterological or abdominal conditions. However, after the accident, the Veteran did develop abdominal issues and required an emergency gallbladder removal. Based on the symptoms the Veteran experienced, Dr. E. found that "it raises suspicion" that the "problems that have precipitate[sic] to this current date ... are directly related" to the in-service accident. The Board notes that Dr. E.'s opinion makes no mention of diverticular disease specifically, but rather combines all of the Veteran's various abdominal conditions and complaints into one element. Dr. E. also does not address the residual effects experienced after having one's gallbladder removed, and how they differ from diverticular disease. Finally, the Board finds that the language used by Dr. E., specifically that the Veteran's accident "raises suspicion" of a theoretical (and implied) link between diverticular disease, does not rise to the required level of certainty needed to establish a causal relationship for service-connection purposes. A September 2014 VA examination found that the Veteran's diverticular conditions were "less likely as not" due to his active duty military service. This is based on the fact that the Veteran's STRs "do not contain any documentation of diverticulitis or chronic constipation at all." The examiner noted that the Veteran sought frequent treatment for other abdominal and/or stomach issues, but did not raise diverticular issues. An April 2018 VA examination noted that a "diagnosis of in service[sic] diverticular disease cannot be provided" without resorting to speculation. Continuing, the examiner opined that "in regard to the likelihood or probability ... it is less likely than not that this [Veteran's] in-service abdominal pain was secondary to diverticulitis." The examiner based their opinion on the fact that "another diagnosis ultimately became apparent," which was the Veteran's cholecystitis that "was proven to be the cause of his abdominal pain." As such, there is "no objective medical evidence to support an in-service diagnosis of diverticulitis," and that "it would be very unusual to have two different conditions (cholecystitis and diverticulitis) simultaneously causing the same symptoms." In sum, the examiner concluded that "it is unlikely that this veteran had diverticulitis in service." The Board finds that the competent and probative medical evidence on record establishes that it is less likely than not that the Veteran's diverticular disease is caused by, incurred in, or otherwise due to, his active duty service. As such, the third Shedden element necessary to establish direct service connection has not been fulfilled. The Board finds that the September 2014 and April 2018 VA examinations have significantly more probative value than the July 2010 statement from Dr. E., as the VA examiners provided well-supported rationale along with language of the requisite level of certainty. With regard to the theory of secondary service connection, the Board notes that, per the JMPR, the medical evidence shows that there is a causal relationship between the Veteran's hemorrhoids and his diverticulitis. However, as established above, the Veteran's hemorrhoids are not service connected. Therefore, the Board's analysis regarding secondary service connection will only address the claimed relationship, if any, between the Veteran's diverticulitis and his service-connected disabilities only. A December 2020 VA examiner found that "it is less likely than not" that the Veteran's diverticular disease is related to the Veteran's service-connected conditions. While essentially conclusory and thus, arguably insufficient for adjudication purposes, the examiner's opinion is based on the fact that "PCS is not a known cause of, or risk factor for the development of diverticulosis." In June 2021, pursuant to the Board's May 2021 remand, the Veteran was seen for a VA examination to determine the etiology of his diverticular disease. The examiner found that the Veteran's diverticular disease is not caused by, due to, or otherwise aggravated beyond the natural progression of the disease by his other service-connected disabilities. This is based on the fact that "there is no mechanism of action" of the Veteran's other conditions "to have aggravated diverticular disease." The examiner explained how the Veteran's conditions, such as PCS, could cause symptoms due to altered bile flow. The examiner then noted that the Veteran had several risk factors, unrelated to service, that were more plausible causes for his diverticulitis. Specifically, his use of medications such as NSAIDs, his gender, and his obesity. The Board notes that the Veteran has not produced any competent and probative medical evidence that shows it is as least as likely as not that the Veteran's diverticular disease is caused by, due to, or aggravated by, his other service-connected disabilities. As such, the weight of the probative, competent, and credible medical evidence of record shows that the Veteran's diverticular disease is not caused by, due to, or otherwise aggravated by his other service-connected disabilities. As such, the third Wallin element necessary to establish secondary service connection has not been met. Based on the above, the Board finds that the preponderance of evidence is against the Veteran's claim for entitlement to service connection diverticular disease, to include as secondary to service-connected disabilities. As the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt doctrine does not apply. Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). Therefore, the Veteran's claim is denied. S. L. Kennedy Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Neville, Associate Counsel 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.