Citation Nr: 21026569 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 13-02 858 DATE: May 3, 2021 ORDER Entitlement to service connection for hemorrhoids is denied. REMANDED Entitlement to service connection for sleep apnea is remanded. Entitlement to a total disability evaluation due to individual unemployability (TDIU) is remanded. FINDING OF FACT The most probative evidence of record shows that hemorrhoids did not manifest in service or within a year of separation therefrom, is not etiologically related to any aspect of active duty service, and has not been caused or aggravated by any service connected disability. CONCLUSION OF LAW The criteria for entitlement to service connection for hemorrhoids have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1969 to September 1971. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). These matters were previously before the Board in December 2018, at which time they were remanded for development. They now return to the Board for appellate review. The claimant has not raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). 1. Entitlement to service connection for hemorrhoids Service connection may be granted for a disability resulting from disease or injury incurred coincident with or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). To establish a right to compensation for a present disability, a Veteran 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 (nexus) between the present disability and the disease or injury incurred or aggravated during service. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F. 3d 1163, 1167 (Fed. Cir. 2004)). The absence of any one element will result in denial of service connection. Coburn v. Nicholson, 19 Vet. App. 247, 431 (2006). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including other organic diseases of the nervous system (which includes sensorineural hearing loss and tinnitus), are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. §§ 3.303 (b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Secondary service connection may be granted for a disability that is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310 (2018). In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). The Veteran appeals for service connection for hemorrhoids. He claimed the condition is related to active duty service, or in the alternative, that it has been caused or aggravated by service-connected disability and/or treatment therefor, including prostate cancer and diabetes mellitus, type II. As an initial matter, the Board observes that the Veteran had active service in the Republic of Vietnam during the Vietnam War, and while exposure to herbicide agents is thus presumed in his case, hemorrhoids are not among those conditions presumptively associated with such exposure. VA treatment records from 2015 and 2016 consistently characterize the Veteran's hemorrhoids as "stable," noting he had not experienced a flareup of the condition in years. However, the diagnosis of hemorrhoids is preserved throughout VA treatment records during the period herein on appeal. The VA examiner with whom the Veteran met in May 2015 explicitly stated, "[i]f [the Veteran] is implying his hemorrhoids are related to [treatment] for prostate cancer, they are not," and that "hemorrhoids are not presumptively related to Agent Orange exposure," or "caused by diabetes mellitus." The examiner further noted that treatment records were silent for complaints of hemorrhoids, there was no notation of hemorrhoids on the separation examination report, and initial VA treatment notation of hemorrhoids was several years after separation. A second VA examination was conducted in December 2020. The VA examiner indicated that no hemorrhoids were apparent on examination, although skin tags were observed. With respect to etiology, the examiner explained that hemorrhoids and diabetes are not medically related, nor are hemorrhoids and prostate cancer. "the hemorrhoid is a separate entity entirely from the Diabetes and prostate cancer and unrelated to it. A thorough review of medical literature failed to demonstrate a causal relationship." In any event, the examiner indicated no diagnosis of hemorrhoids was warranted. A February 2021 VA addendum opinion clarifies that hemorrhoids are not caused or aggravated by diabetes or prostate cancer, as no relationship between the conditions is shown in medical literature. Further, the examiner notes that the Veteran's hemorrhoids appear to have appeared prior to diagnosis and treatment of prostate cancer. Finally, the examiner explained that the Veteran's prostate cancer was treated with targeted cryoablation of the prostate, and that hemorrhoids are not known to be a side effect of that treatment. A review of the evidence reveals no indication that the Veteran's hemorrhoids are related to active duty service on a direct basis, or to any service connected disability or treatment therefor. The Veteran has not submitted any such evidence and no link has been suggested by any treating or examining provider. The record shows that hemorrhoids were not present at separation from active duty service or for many years thereafter, they appeared prior to diagnosis and treatment of prostate cancer, there is no evidence they were aggravated by that treatment or by the underlying condition, and there is no evidence of any etiological relationship to diabetes or any other service connected condition. While the Board has considered with sympathy the Veteran's lay statements, it cannot afford probative weight to his assertions with respect to the etiology of his hemorrhoids in this case. While he is competent to report his experiences and symptoms since service, the Veteran is not competent to provide a nexus opinion regarding the nature and etiology of his condition. Jandreau v. Nicholson, 492 F. 3d 1372 (2007); Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006). The Veteran's reports of his symptoms are relevant, competent, and credible; however, the question of the presence and etiology of hemorrhoids is limited to the purview of someone with medical knowledge and training, such as the VA medical examiners in this case. In sum, the evidence does not show that it is at least as likely as not that hemorrhoids are related to active service, or that they have been caused or aggravated beyond the normal course of progression by any service-connected disability or treatment therefor. The probative value of the Veteran's assertions is outweighed by the probative value of the thorough and reasoned opinion of the VA medical experts. As the preponderance of the evidence is against the claim, service connection for hemorrhoids must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for sleep apnea is remanded. Additional development must be completed before the Veteran's claim for service connection for sleep apnea can be finally adjudicated. The Veteran has averred that sleep apnea may be related to other service-connected disability, including diabetes mellitus, prostate cancer, hypertension, or peripheral neuropathies of the lower extremities. The VA examiner with whom the Veteran met in October 2019 opined that there was no causative or aggravating relationship between these conditions and sleep apnea, explaining that "the Veteran's obstructive sleep apnea...is due to his supermorbid obesity; he has a BMI of over 45," and that "[t]here is no anatomical, hormonal, pathophysiological or neurological causal correlation between either diabetes or prostate cancer and the development of [sleep apnea]." However, the record does not reflect that the Veteran was obese at separation; rather, it appears his obesity developed concomitant to his service-connected conditions, including diabetes mellitus and prostate cancer. Accordingly, the Board finds an expert VA medical opinion as to whether obesity, identified by the October 2019 VA examiner as directly causative of sleep apnea in the Veteran's case, constitutes an intercurrent disorder related to any service-connected condition individually, or to service-connected disabilities in concert. On remand, a new VA examination must be conducted and this theory of entitlement, raised by the record, must be explored by a VA medical expert. 2. Entitlement to a TDIU is remanded. Because a decision on the issue of entitlement to service connection for sleep apnea could significantly impact a decision on the TDIU issue, the issues are inextricably intertwined. Henderson v. West, 12 Vet.App. 11, 20 (1998) (quoting Harris v. Derwinski, 1 Vet.App. 180, 183 (1991)) (Two claims are inextricably intertwined "where a decision on one issue would have a 'significant impact' upon another, and that impact in turn 'could render any review by this Court of the decision [on the other claim] meaningless and a waste of judicial resources.'"). A remand of the TDIU claim is required. The matters are REMANDED for the following action: (Continued on the next page) 1. After obtaining the necessary authorization, update the file with any VA or private treatment records relevant to the Veteran's claims. If any requested records are unavailable, the Veteran should be notified to that effect. 2. Then, schedule the Veteran for a VA examination to explore the etiology of his diagnosed sleep apnea. All indicated tests and studies should be conducted and all clinical findings reported in detail. The entire claims file should be made available to and be reviewed by the examiner in conjunction with this request. The examiner should state whether it is at least as likely as not (e.g. at least a 50 percent probability or greater) that sleep apnea began in service or is otherwise related to service. If it is determined that sleep apnea is not directly related to service, the examiner should state whether, on an at least as likely as not basis, sleep apnea has been caused or aggravated beyond its normal progression by any service-connected disability. In so doing, the examiner should state whether it is at least as likely as not (50 percent probability or greater) that any of the above service-connected disabilities, including diabetes mellitus and/or prostate cancer, caused him to become obese or gain weight; or aggravated his obesity. If so, the examiner should provide an opinion as to whether the obesity was a substantial factor in causing the Veteran's sleep apnea. He or she should also provide an opinion as to whether the Veteran's sleep apnes would not have occurred or worsened but for the weight gain/obesity caused or aggravated by his service-connected disability. 3. Review the opinion and any examination report to ensure that it is in complete compliance with the directives of this remand. 4. If the benefit sought on appeal is not granted, the Veteran and his representative must be furnished a supplemental statement of the case. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Z. Sahraie, 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.