Citation Nr: 21024341 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 13-13 649 DATE: April 22, 2021 ORDER Entitlement to service connection for hemorrhoids is granted. REMANDED Entitlement to service connection for a right ankle disability is remanded. Entitlement to service connection for an acquired psychiatric disability is remanded. FINDING OF FACT The Veteran’s hemorrhoids had their onset in service. CONCLUSION OF LAW The criteria for entitlement to service connection for hemorrhoids are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from July 1974 to February 1983. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2011 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned in October 2015. In February 2016 and April 2020, the Board remanded the appeal. 1. Entitlement to service connection for hemorrhoids is granted. The Veteran asserts that that his hemorrhoids started in service. See October 2015 Board Hearing Transcript at 12. The Board agrees. Generally, to establish service connection the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). VA shall consider all information and lay and medical evidence of record. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). However, where the preponderance of the evidence is against the claim, the claim for benefits must be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). Regarding the first element of service connection, the Veteran has been diagnosed with hemorrhoids. See May 2017 VA examination; June 2017 VA examination. Regarding the second element of service connection, in-service injury, there is a January 1977 notation of pain and burning in the rectum and a chafing rectal area. In affording the Veteran the benefit of the doubt, the Board will concede and in-service injury. Additionally, the Veteran competently and credibly testified that he did not want to report to VA that he was having rectal issues, nor did he report having hemorrhoids at separation because those were things people did not discuss, which the Board finds credible. See October 2015 Board Hearing Transcript at 12; see Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). As such, the Board finds that element two of service connection is met. For the third element, medical nexus, there are three VA opinions against the claim. The Board previously found the May 2017 and June 2017 VA opinions to be inadequate, as neither opinion took the Veteran’s statements into account that his hemorrhoids had their initial onset in service and instead relied on a lack of documented hemorrhoids during service, or until 2010. Additionally, the May 2017 VA examiner relied on the Veteran’s denial of the presence of hemorrhoids in 2015 during a request for a colonoscopy. In the instant decision, the Board finds the most recent November 2020 VA opinion somewhat confusing and contradictory, in that the examiner considers the Veteran’s reports of onset during service, but ultimately finds no nexus based on a lack of documented treatment. See November 2020 VA examination. However, and perhaps critically, the examiner notes that the Veteran’s “history suggests that he has had external hemorrhoids since service,” which is supportive of a nexus. Moreover, the Board refuses to further attempt to develop this claim, given the Veteran’s competent and credible reports. Thus, the final element and therefore all elements to establish service connection for hemorrhoids are met, and the benefit sought on appeal is hereby granted. REASONS FOR REMAND 2. Entitlement to service connection for a right ankle disability is remanded. The Board regrets further delay, but another remand is needed, as the Veteran’s lay statements were not adequately considered by the November 2020 VA examiner, who relied on a lack of in-service treatment to support a negative medical opinion. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (holding that a VA examination is inadequate if it does not consider all the relevant evidence of record, including lay statements). In this regard, the Board emphasizes that it is the responsibility of the fact-finder to assess someone’s credibility, as opposed to a medical examiner. To that end, the Board finds the Veteran credible and competent to report his in-service ankle pain. As such, the examiner must also concede this in-service report and provide an opinion based on the Veteran’s statements of in-service right ankle pain, despite the lack of objective documentation. See Barr v. Nicholson, 21 Vet. App. 303, 310-11 (2007). 3. Entitlement to service connection for an acquired psychiatric disability is remanded. The Board regrets further delay but another remand is needed. Specifically, the Defense Personnel Records Information Retrieval System (DPRIS) indicated in an October 2016 response that it was “unable to locate any unit records pertaining to the 1st Battalion, 38th Field Artillery, for the calendar year 1976” in response to the RO’s request for confirmation of the Veteran’s reported stressors. On remand, the RO should exhaust all efforts to retrieve these unit records, and if any stressor is confirmed, the RO should also obtain an addendum opinion. Updated treatment records should also be secured. The matters are REMANDED for the following action: 1. Obtain all outstanding VA treatment records. 2. With any necessary assistance from the Veteran, obtain any outstanding relevant private treatment records. 3. Using the Veteran’s November 2015 lay statement and VA Form 21-0781, attempt to verify all reported stressors, including locating all unit records pertaining to the 1st Battalion, 38th Field Artillery from June 1976 through December 1976. See October 2016 DPRIS Response. Please note that the requirement of a 60-day window for research purposes is in violation of the duty to assist, and therefore the period from June 1976 to December 1976 should be broken up into multiple inquiries. See Gagne v. McDonald, 27 Vet. App. 397 (2015). 4. Obtain an addendum opinion to determine the etiology of the Veteran’s current right ankle disability, to include gout and right ankle strain with bone spur. No additional examination is needed unless the examiner determines otherwise. The examiner should review the claims file and address the following. (a.) Is it at least as likely as not (50 percent probability or more) that the Veteran’s current right ankle strain had its onset during service, or is otherwise the result of a disease or injury in service? Please do not rely on the absence of documented treatment. The examiner must address and accept as true the Veteran’s report of a right ankle injury in service and seeking treatment for a right ankle condition within one year of separation from service, even in the absence of objective medical documentation, and determine whether a nexus to service is “medically plausible” based on the same. (b.) Is it at least as likely as not (50 percent probability or more) that the current gout had its onset during service, or is otherwise the result of a disease or injury in service? Please do not rely on the absence of documented treatment. The examiner must address and accept as true the Veteran’s report of a right ankle injury in service and seeking treatment for an ankle condition within one year of separation, even in the absence of objective medical documentation, and determine whether a nexus to service is “medically plausible” based on the same. 5. If and only if a claimed stressor is verified in response to item (3) above, obtain an addendum opinion with an examiner other than the June 2017 and November 2020 VA examiners to determine the nature and etiology of any acquired psychiatric disorder. No additional examination is needed unless the examiner determines otherwise. The examiner should review the claims file and address the following. Is it at least as likely as not (50 percent probability or more) that the Veteran’s unspecified depressive disorder had its onset during service, is related to the Veteran’s reported symptoms in service, or is otherwise the result of a disease or injury in service, to include any conceded stressor therein? In addressing this question, please do not rely on the absence of documented treatment, and please discus the Veteran’s reported stressors and psychiatric symptoms in service, as well as his reports of psychiatric symptoms in the years since service. S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. J. Rogers, 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.