Citation Nr: 21008220 Decision Date: 02/12/21 Archive Date: 02/12/21 DOCKET NO. 17-07 111 DATE: February 12, 2021 ORDER Entitlement to service connection for a gastrointestinal disability (other than irritable bowel syndrome), to include gastroesophageal reflux disease (GERD), is denied. Entitlement to service connection for anal fistula, to include as secondary to service-connected disability, is denied. A rating in excess of 10 percent for hemorrhoids is denied. REMANDED Entitlement to service connection for hypertension, as secondary to service-connected disability, is remanded. FINDINGS OF FACT 1. The preponderance of the evidence of record is against finding that the Veteran has had GERD, or any gastrointestinal disability other than IBS, at any time during or approximate to the pendency of the claim. 2. The preponderance of the evidence of record is against finding that the Veteran has had an anal fistula at any time during or approximate to the pendency of the claim. 3. The Veteran’s hemorrhoid disability was not more nearly manifested by persistent bleeding and with secondary anemia, or with fissures. CONCLUSIONS OF LAW 1. The criteria for service connection for GERD are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 2. The preponderance of the evidence of record is against finding that the Veteran has had an anal fistula at any time during or approximate to the pendency of the claim. 3. The criteria for a disability rating in excess of 10 percent for hemorrhoids are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.114, Diagnostic Code 7336. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1975 to July 1996. These matters come before the Board of Veterans’ Appeals (Board) on appeal from rating decisions issued by Department of Veterans Affairs (VA) Regional Offices (RO). An April 2019 Board decision denied the claims of entitlement to an earlier effective date for the award of service connection for irritable bowel syndrome (IBS), service connection for hypertension, obstructive sleep apnea, heart condition, erectile dysfunction, and an acquired psychiatric disorder, and remanded the claims of entitlement to an increased rating for hemorrhoids and service connection for anal fistula and impairment of sphincter control (claimed as rectal prolapse with poor sphincter). The Board finds that there has been substantial compliance with the remand directives as VA treatment records were obtained and the Veteran was provided with VA examinations. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The Veteran appealed the Board’s denial of entitlement to service connection for hypertension to the United States Court of Appeals for Veterans Claims (Court); the remaining denials have been abandoned. In a July 2020 joint motion for remand, the Court vacated and remanded the Board decision for additional development. During remand status, the RO granted service connection for impairment of sphincter control (awarded as bowel incontinence). See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (noting that a grant of service connection extinguishes appeals before the Board). 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. Service connection may also be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. VA will not concede aggravation unless there is medical evidence showing the baseline level of the disability before its aggravation by the service-connected disability. 38 C.F.R. § 3.310(b). 1. Entitlement to service connection for a gastrointestinal disability, to include GERD. The Veteran contends that he has GERD and that it was caused by “taking all the medicine.” See February 2017 NOD. As the Veteran’s claim is based on a secondary theory of service connection, the question for the Board is whether the Veteran has a current disability that is at least as likely as not proximately due to, or aggravated by, a service-connected disability. In April 2019, the Board remanded the claim. The Board noted that the Veteran’s VA medical records reflected complaints of upset stomach treated with TUMS, noting that a formal diagnosis of a gastrointestinal disability other than IBS had not been made. The Board also reported that a July 2016 VA examiner described IBS as a common disorder of the intestines that leads to abdominal pain, bloating, and changes in bowel habits. The Board requested a medical opinion to determine whether the Veteran manifests a gastrointestinal disability other than IBS which is caused or aggravated by a service-connected disability, including medications taken for a service-connected disability. The Board concludes that the preponderance of the evidence is against the claim as it shows that the Veteran does not have a current diagnosis of a gastrointestinal disability (other than IBS), to include GERD and has not had one at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310; Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Here, the January 2020 VA examiner evaluated the Veteran’s records and determined that there is no evidence of another gastrointestinal condition, besides the Veteran’s service-connected irritable bowel syndrome (IBS). Additionally, VA treatment records do not contain a diagnosis of GERD, and show that the Veteran denied abdominal pain, nausea, vomiting, bowel changes, constipation, or diarrhea during the appeal period. Although the Veteran reported “some reflux” during VA treatment in November 2005, see CAPRI (July 2019), federal statutes only “allow payment for disability existing on and after the date of application.” Degmetich v. Brown, 104 F.3d 1328, 1332 (1997). Here, the claim on appeal on was received in May 2017. While the Veteran believes he has a current diagnosis of GERD, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education and the knowledge of the interaction between multiple organ systems in the body. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Additionally, the Veteran’s February 2017 contention that he has GERD, without a description of the symptoms he experienced during the appeal period, provides no indication that he has a disability of the digestive system, other than his service-connected IBS. Further, the intestinal conditions disability benefits questionnaire completed by the Veteran’s private clinician in July 2016 shows a diagnosis of IBS, but not GERD. Notably, the Veteran’s symptoms of abdominal distress and alternating diarrhea and constipation are contemplated under his current 30 percent rating for IBS, and the evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. The Board has considered the contentions of the Veteran’s representative that another opinion is necessary to determine whether the Veteran manifests a gastrointestinal disability other than IBS. However, as noted above, treating VA and private clinicians have only diagnosed IBS for which the Veteran is currently service connected. Consequently, the Board gives more probative weight to the competent VA and private medical evidence, which shows IBS but no current diagnosis of GERD or related findings at any time during the pendency of the claim or recent to the filing of the claim. It is noted that the existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. §§ 1110, 1131; Degmetich v. Brown, 104 F. 3d 1328 (1997). In the absence of proof of a present disability due to disease or injury, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Accordingly, the claim is denied. There is no doubt to resolve. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 2. Entitlement to service connection for anal fistula, to include as secondary to service-connected disability. The Veteran contends that service connection is warranted as he was told that his fistula is related to his hemorrhoids. See August 2017 NOD. The Veteran has also stated that his problem was caused by service, but that he was too prideful to go to the doctor or to sick call. See October 2017 NOD. The Veteran’s representative contends that another VA opinion is necessary to determine whether the Veteran’s anal fistula is caused or aggravated by service-connected IBS. See Appellate Brief (October 2020). The Board concludes that the preponderance of the evidence is against the claim as it shows that the Veteran does not have a current diagnosis of anal fistula and has not had one at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310; Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Here, the evidence shows that the Veteran underwent a fistulotomy with hemorrhoidectomy in April 2015. On May 17, 2017, over two years later, VA received the Veteran’s claim for service connection. A report of VA examination dated in June 2017 shows that the Veteran reported that he was “unaware of any recurrence of the fistula.” See C&P Exam (June 2017). The examiner noted that “a fistula is not seen on exam due to the surgical repair in 2015.” Id. In April 2019, the Board remanded the claim. In the remand directives, the Board specifically requested that an examiner provide an opinion regarding the nature and potential service-connected etiology of anal fistula. More specifically, the Board inquired whether it was at least as likely as not that the Veteran’s anal fistula in April 2015 was caused or aggravated beyond the natural progress of the disorder by service-connected hemorrhoids and/or IBS. The examiner was to also identify the potential causes of anal fistula and explain any possible causal relationship between the Veteran’s anal fistula in April 2015 and his service-connected hemorrhoids and/or IBS. An examiner did not note a diagnosis of an anal/perianal fistula in a November 2019 C&P exam; only a diagnosis of internal and external hemorrhoids was reported. The examiner also opined that it was less likely than not that the Veteran’s anal fistula was aggravated beyond its natural progress by a service-connected disability. The examiner rationed that nearly all anal fistulae are a result of an anorectal abscess and that an anorectal abscess begins with infection in one of the anal glands, and that there was no causal relationship between IBS/hemorrhoids and an anal fistula. A report of VA examination dated in January 2020 shows that the Veteran again reported that he was “unaware of any recurrence of the fistula.” See C&P Exam (January 2020). The examination report provided no indication of the presence of an anal fistula. Id. Although the Veteran’s surgical removal of an anal fistula two years prior to the filing of his service connection claim is relevant evidence that the Board is required to discuss, Romanowsky, supra, federal statutes only “allow payment for disability existing on and after the date of application.” Degmetich, 104 F.3d at 1332. Consequently, the preponderance of the evidence is against the claim as it shows that the Veteran’s anal fistula was surgically removed in April 2015, with no recurrence or evidence of anal fistula as of the claim’s application date. It is noted that the existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. §§ 1110, 1131; Degmetich, supra. In the absence of proof of a present disability due to disease or injury, there can be no valid claim. Brammer, supra. Further, the Veteran’s symptoms of rectal pain and bleeding are contemplated under his current 10 percent rating for hemorrhoids, and his uncontrollable bowel movements are contemplated under his current 30 percent rating for impairment of sphincter control (awarded as bowel incontinence); the evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. Accordingly, the claim is denied. There is no doubt to resolve. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. Increased Rating Disability ratings are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule). 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 their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Any reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 4.3. If two ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Entitlement to a rating in excess of 10 percent for hemorrhoids. The Veteran seeks a higher rating for hemorrhoids, but he has not set out any specific contentions as to why he believes a higher rating is warranted. The Veteran’s representative contends that a 20 percent rating is warranted for hemorrhoids, external or internal with persistent bleeding and with secondary anemia, or with fissures. See Appellate Brief (October 2020). The question for the Board is whether the Veteran’s associated symptoms cause the level of impairment required for a disability rating of 20 percent or higher. The Board concludes that the preponderance of the evidence is against finding that the criteria for a rating in excess of 10 percent for hemorrhoids are met as the disability is not shown by the more persuasive evidence to more nearly manifested by persistent bleeding and with secondary anemia, or with fissures. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.114, Diagnostic Code 7336. The Veteran’s hemorrhoid disability is rated under 38 C.F.R. § 4.114, Diagnostic Code 7336, which provides as follows: A noncompensable rating for mild or moderate hemorrhoids; a 10 percent rating for large or thrombotic, irreducible, hemorrhoids with excessive redundant tissue, evidencing frequent recurrences; a 20 percent rating for hemorrhoids with persistent bleeding and with secondary anemia, or with fissures. 38 C.F.R. § 4.114, Diagnostic Code 7336. Here, a June 2017 report of VA examination shows that the examiner noted that the Veteran’s hemorrhoids are mild or moderate and cause intermittent itching and blood on toilet paper following bowel movements. The examiner noted no anemia or fissures. See C&P Exam (June 2017). A January 2020 report of VA examination shows that the Veteran reported current symptoms of pain and uncontrolled bowel movements which require him to wear adult diapers. The examiner noted that the Veteran’s disability was manifested by mild hemorrhoids with persistent bleeding, but fissures were not noted. Diagnostic test results from November 2019 show hemoglobin levels of 16 and hematocrit levels of 46, see C&P Exam (January 2020), and thus, anemia was not indicated. See https://www. https://www.mayoclinic.org/diseases-conditions/iron-deficiency-anemia/diagnosis-treatment/drc-20355040#:~:text=Hemoglobin.,g%2FdL%20for%20women (last accessed Jan. 12, 2021) (normal hemoglobin range is generally 13 to 16, and normal hematocrit range is generally 38 to 48). The examiner opined that there is no evidence of exacerbations of the Veteran’s rectal condition. See C&P Exam (January 2020). The Board has considered the contentions of the Veteran’s representative. The Veteran’s representative contends that a new VA examination is required as the medical opinion of record does not sufficiently answer the question as to whether the surgical procedure in April 2015 involving hemorrhoidectomy resulted in the current complaints of stool leakage. See Appellate Brief (October 2020). However, the January 2020 VA examiner explicitly opined that the Veteran’s stool leakage was aggravated by his April 2015 hemorrhoidectomy. Additionally, the July 2020 rating decision granted service connection for impairment of sphincter control (awarded as bowel incontinence) based on the disability’s aggravation by service-connected hemorrhoid disability. The Veteran’s representative also contends that a 20 percent rating is warranted for hemorrhoids, external or internal with persistent bleeding and with secondary an emia, or with fissures. Id. However, as discussed above, the evidence shows no anemia or fissures as required by a 20 percent rating. Additionally, the Veteran’s representative has identified no evidence which satisfies the criteria for a higher rating. Unfortunately, upon reviewing the Veteran’s entire claims file, a disability rating in excess of 10 percent for hemorrhoid disability is not warranted as the record shows no evidence of secondary anemia or fissures. Whether a disability meets the schedular criteria for the assignment of a higher evaluation is a factual determination by the Board based on the complaints coupled with the medical evidence. Here, although the Veteran and his representative believe that the Veteran meets the criteria for a higher disability rating, his complaints and the medical findings do not meet the schedular requirements for the higher rating, as explained and discussed above. Both the lay and the medical evidence are probative here. However, it does not more nearly reflect the criteria for a higher rating under the assigned diagnostic code or any other potentially relevant code, or entitlement to a separate evaluation. Notably, the Veteran is already service connected for IBS and impairment of sphincter control (awarded as bowel incontinence). Also, there is no basis to stage the rating as the evidence shows no distinct period where the disability exhibited symptoms that would warrant different ratings than assigned. See Hart v. Mansfield, 21 Vet. App. 505 (2007) (staged ratings are appropriate when the factual findings show distinct period where the service-connected disability exhibits symptoms that would warrant different ratings); see also Fenderson v. West, 12 Vet. App. 119, 126 (2001). Therefore, the preponderance of the evidence is against finding that the Veteran’s hemorrhoid disability has been manifested by the criteria required for a rating in excess of 10 percent at any point during the appeal period. Accordingly, the claim is denied. There is no doubt to resolve. See 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3; Gilbert, supra. REASONS FOR REMAND 1. Entitlement to service connection for hypertension, as secondary to service-connected disability. The Veteran contends that his hypertension is due to his lack of physical training and inability to walk long distances, as a result of his service-connected knee and back disabilities. See Correspondence (February 2017); Form 9 (May 2017); VA 21-4138 Statement in Support of Claim (June 2018). In July 2020, the Court remanded the claim for the Board to adequately address the Veteran’s assertion that his hypertension was caused or aggravated by physical inactivity due to his service-connected disabilities. Additionally, the Court remanded the claim for the Board to consider whether the Veteran’s obesity constitutes an intermediate step in demonstrating service connection on a secondary basis for hypertension, consistent with Walsh v. Wilkie, 32 Vet. App. 300 (2020) (analyzing VA’s Office of the General Counsel Precedent Opinion 1-2017). Here, the evidence shows that the Veteran has been in receipt of service-connection benefits since August 1996. The Veteran’s relevant service-connected disabilities and ratings include: degenerative arthritis of the lumbar spine with intervertebral disc syndrome (IVDS), rated 20 percent disabling from August 1996; right elbow pronation and supination, rated noncompensable from August 1996 and 20 percent disabling from September 2016; right knee strain with Osgood Schlatter’s Disease, rated noncompensable from August 1996 and 10 percent disabling from July 2014; radiculopathy, right lower extremity (sciatic), rated10 percent disabling from September 2016; and radiculopathy, left lower extremity (sciatic), rated10 percent disabling from September 2016. The Veteran’s treatment records show that his weight has increased 40 pounds since his separation from service. Service treatment records show that the Veteran weighed 173 pounds at separation from service in July 1996. VA treatment records show that the Veteran’s weight increased from 182 pounds in January 1999 to 212 pounds in November 2019, with his heaviest weight of record being 218 pounds in December 2016. VA treatment records also show that the Veteran was diagnosed with hypertension in July 2013; notably, 17 years after his separation from service. The Board finds that the evidence tends to suggest that the Veteran’s weight has increased in conjunction with his level of disability. However, the Board must rely on independent medical evidence, and not its own judgment, when the rating criteria involve a medical assessment. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (concluding Board may consider only independent medical evidence to support findings and may not rely on its own medical judgment). In a claim for service connection, evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits still triggers the duty to assist if it indicates that the Veteran’s condition may be associated with service or with a service-connected disability. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Therefore, to ensure that VA has met its duty to assist, remand is required. 38 C.F.R. § 3.159(c)(4). The matter is REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician on the etiology of the Veteran’s hypertension. Ensure that the clinician is provided a copy of this remand to avoid the inadequacies noted herein. The clinician must provide an opinion to the following questions with consideration of the Veteran’s statements, relevant treatment records, relevant medical literature, and clinical history to include weight and weight changes prior to and after the diagnosis/treatment of service-connected disabilities discussed herein, and the claimed disability, hypertension: As to Intermediate Causation (a.) Is it at least as likely not (50 percent or greater probability) that the Veteran’s service-connected disabilities caused the Veteran to become obese? (b.) If so, was the resulting obesity a substantial factor in causing the Veteran’s hypertension? (c.) If yes, but for the Veteran’s obesity, would the Veteran have developed hypertension? As to Aggravation (d.) Is it at least as likely as not that hypertension is aggravated beyond its normal progression by the Veteran’s service-connected disabilities? Note that separate findings and rationales are required for the causation versus the aggravation prong of this question. 2. Ensure that the VA medical opinion obtained includes a complete rationale for the conclusions reached. The medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 3. Readjudicate the matter. TIFFANY N. HANSON Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Thaddaeus J. Cox, 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.