Citation Nr: 21063875 Decision Date: 10/18/21 Archive Date: 10/18/21 DOCKET NO. 18-45 124 DATE: October 18, 2021 ORDER New and material evidence having been received, the previously denied claim of entitlement to service connection for hemorrhoids is reopened; the appeal is granted to this extent only. REMANDED Entitlement to service connection for hemorrhoids is remanded. Entitlement to service connection for bursitis is remanded. Entitlement to a compensable initial rating for residual scar, umbilical hernia repair, is remanded. FINDINGS OF FACT 1. In an unappealed June 2003 rating decision, the VA Regional Office (RO) denied service connection for hemorrhoids, finding no evidence showing that the Veteran's current hemorrhoids are related to service or that treatment began within one year after service. 2. Additional evidence received since the RO's June 2003 rating decision is not cumulative or redundant of the evidence of record at the time of that decision, relates to unestablished facts necessary to substantiate the claim for service connection concerning hemorrhoids, and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The RO's June 2003 rating decision that denied service connection for hemorrhoids is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103. 2. New and material evidence has been received to reopen the Veteran's claim of service connection for hemorrhoids. 38 U.S.C. §§ 1110, 5108; 38 C.F.R. §§ 3.303, 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1983 to December 1987. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2015 rating decision issued by a VA Regional Office (RO) that, in pertinent part, denied reopening the claim of service connection for hemorrhoids, finding that no new and material evidence had been submitted, denied service connection for bursitis, and granted service connection for residual scar, umbilical hernia repair (claimed as hernia) with a noncompensable (zero percent) rating, effective January 14, 2015. The RO's decision not to reopen the hemorrhoids claim is not binding on the Board and, consequently, the Board is obligated to consider the issue of new and material evidence and make an independent determination. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). At a January 2021 Board hearing, the Veteran testified before the undersigned Veterans Law Judge. A transcript of the proceeding has been associated with the claims file. 1. New and material evidence having been received, the previously denied claim of entitlement to service connection for hemorrhoids is reopened. In a June 2003 rating decision, the RO denied service connection for hemorrhoids, finding no evidence showing that the Veteran's current hemorrhoids are related to service or that treatment began within one year after service. The RO notified the Veteran of the June 2003 decision in a letter dated June 13, 2003, which informed the Veteran that he had one year from the date of the letter to appeal the decision. The Veteran did not appeal the decision and, therefore, it became final. Accordingly, the claim may now be considered on the merits only if new and material evidence has been received since the time of the prior adjudication. Evidence is considered "new" if it was not previously submitted to agency decision makers. "Material" evidence is 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. § 3.156(a). In determining whether evidence is new and material, the "credibility of the evidence is to be presumed." Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Court of Appeals for Veterans Claims (Court) has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold and has viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." Shade v. Shinseki, 24 Vet. App. 110, 121 (2010). The regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." Id. In determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary's duty to assist or through consideration of an alternative theory of entitlement. See Shade, 24 Vet. App. at 118. At the time of the June 2003 decision, the record included the Veteran's service treatment records, which were silent as to any complaints, treatment, or diagnoses related to hemorrhoids, and post-service VA outpatient treatment records from 1990 to 2003, which included treatment for complaints of bleeding hemorrhoids of two weeks in February 2003, over 15 years after service. Additionally, the VA treatment records include a March 21, 2003, record showing that the Veteran complained of having hemorrhoidal symptoms since 1986. New evidence received includes ongoing treatment records for the hemorrhoids and lay statements, to include his testimony received at the January 2021 Board hearing. In a statement received with his July 2015 notice of disagreement, the Veteran asserted his belief that he developed "an irritable stomach and bowel conditions due to being stationed at Camp Lejeune, N.C." and that the irritable bowel condition has furthered his hemorrhoid condition. At the January 2021 Board hearing, the Veteran made several contentions. He contended that he was discouraged from going to sick call for hemorrhoids but was feeling pain and discomfort during service. Further, he testified that he has experienced occasional bleeding when going to the bathroom and that his hemorrhoids have worsened to the point of growing to the size of a golf ball that would protrude out of his rectum. He also testified to self-medicating his hemorrhoids, buying his own hemorrhoid cream because it is so expensive at Kaiser Permanente. This evidence, presumed credible for purposes of reopening, was not before adjudicators when the Veteran's claim was last finally denied, and it is not cumulative or redundant of the evidence of record at the time of that decision. The new evidence relates to unestablished facts necessary to substantiate the claim of service connection for hemorrhoids and raises a reasonable possibility of substantiating the claim. Accordingly, the claim is reopened. REASONS FOR REMAND 1. Entitlement to service connection for hemorrhoids is remanded. A medical examination or opinion is necessary "if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim" and (1) the record contains competent evidence of a currently diagnosed disability or persistent or recurrent symptoms of disease; (2) the evidence establishes that the Veteran suffered an in-service event, injury, or disease; and (3) the evidence indicates that the claimed disability or symptoms may be associated with the established in-service event, injury, or disease or with another service-connected disability. See 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79, 85-86 (2006). As discussed above, at the January 2021 Board hearing, the Veteran testified that that he has experienced occasional bleeding when going to the bathroom and that his hemorrhoids have worsened to the point of growing to the size of a golf ball that would protrude out of his rectum. VA treatment records since service show that he has been treated for hemorrhoids, to include surgery. See, e.g., August 4, 2011, VA Treatment Record (showing EUA (examination under anesthesia) hemorrhoidectomy for internal hemorrhoids). He also testified to self-medicating his hemorrhoids, buying his own hemorrhoid cream because it is so expensive at Kaiser Permanente. Additionally, he asserted his hemorrhoids caused discomfort in the military, but he was discouraged from going to sick call. The Veteran submitted a statement from his sister, received in March 2021, asserting that the Veteran told her about his ordeal in the military, to include developing hemorrhoids during a field operation. Therefore, because VA has not yet afforded the Veteran an examination, remand is warranted for an opinion, and examination if deemed necessary, that addresses the Veteran's contentions regarding having hemorrhoids that are related to service. See McLendon v. Nicholson, 20 Vet. App. V79, 85-86 (2006). Also, while on remand, the Board finds that reasonable efforts should be made to obtain the identified Kaiser Permanente records. See Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016). 2. Entitlement to service connection for bursitis is remanded. At the January 2021 Board hearing, the Veteran testified to experiencing bursitis in both elbows and shoulders, which he related to carrying 50-pound packs and going on marches in service. Similar to the hemorrhoids issue, the Veteran asserted that he was discouraged from going to sick call even though he experienced pain and discomfort during service. The evidence, to include the Veteran's service treatment records, does not show treatment or diagnoses for bursitis. Since the Board hearing, the Veteran submitted lay statements from his sister and a colleague received in March 2021. These statements generally assert that the Veteran has bursitis, described as his arms going numb/limp and/or aching. The Veteran also testified to going to his Kaiser Permanente provider for the bursitis issue. The Board notes that the record was held open in order to give the Veteran the opportunity to submit the Kaiser Permanente records. To date, no such records have been received. Given that the Board is remanding the hemorrhoids issue, to include obtaining Kaiser Permanente records, the bursitis issue will also be remanded for such records. See Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016). 3. Entitlement to a compensable initial rating for residual scar, umbilical hernia repair, is remanded. At the January 2021 Board hearing, the Veteran asserted that his umbilical scar has worsened, that it is sensitive to touch, and that, at times, he experiences sharp pain when performing his job involving VA grounds maintenance. The Veteran was last afforded a VA examination for scars in May 2015, and the examiner noted the Veteran's umbilical hernia repair scar and reported that it was not painful or unstable. At the Board hearing, the Veteran asserted that he has sought private treatment at Kaiser Permanente once for the scar issue. As there is evidence of a possible worsening of his service-connected umbilical scar since the award of the noncompensable rating in the June 2015 rating decision, the Board finds that the Veteran should be afforded a new VA examination to determine the severity of the scar. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Additionally, reasonable efforts should be made to obtain any private treatment records, to include from Kaiser Permanente. The matters are REMANDED for the following action: 1. Obtain any additional VA treatment records not already associated with the claims file, to include VA treatment records from September 2015 to the present. 2. After securing any necessary authorization, obtain any private treatment records, to include from Kaiser Permanente specifically, that the Veteran may identify as relevant to his claims. If the Veteran provides a signed authorization form, make two requests for the authorized records unless it is clear after the first request that a second request would be futile. 3. After outstanding records are obtained to the extent possible, ask the appropriate examiner (for hemorrhoids) to review the Veteran's file. The necessity of an in-person examination and any appropriate testing is left to the examiner's discretion. The examiner should opine regarding whether the Veteran's hemorrhoids noted in the post-service treatment records at least as likely as not: (a) had an onset in service or (b) are otherwise related to service. The examiner should consider all medical and lay evidence of record, to include consideration of the Veteran's contentions that his hemorrhoid symptoms started in service and continued since service and that he was discouraged from seeking treatment for hemorrhoids while in service. The examiner should provide a complete rationale for any opinions rendered. If the Veteran's reports are discounted, the examiner should provide a rationale for doing so (e.g., whether there is any medical reason to accept or reject his contentions). 4. Ask the appropriate examiner (for scars) to review the Veteran's file. The necessity of an in-person examination with any appropriate testing is left to the examiner's discretion. The examiner should describe the severity of the Veteran's service-connected umbilical hernia repair scar, to include consideration of the Veteran's contentions that his umbilical scar has worsened since the May 2015 VA examination, that it is sensitive to touch, and that, at times, he experiences sharp pain when performing his job involving grounds maintenance. The examiner should provide a complete rationale for any opinions rendered. (Continued on the next page) If the Veteran's reports are discounted, the examiner should provide a rationale for doing so (e.g., whether there is any medical reason to accept or reject his contentions). 5. After the above development and any other development deemed necessary is completed, readjudicate the claims. SHEREEN M. MARCUS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Santiago, 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.