Citation Nr: 21039682 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 17-47 481 DATE: July 1, 2021 ORDER Entitlement to compensation pursuant to 38 U.S.C. § 1151 for an additional disability of bowel/fecal incontinence secondary to an August 9, 2020, hemorrhoidectomy is denied. FINDING OF FACT The Veteran did not incur an additional disability of fecal incontinence and urgency due to VA care and treatment and a hemorrhoidectomy performed on August 9, 2000, and his current symptoms are not the result of carelessness, negligence, lack of proper skill, error in judgment or other instance of fault on the part of VA, nor are they due to an event not reasonably foreseeable. CONCLUSION OF LAW The criteria for entitlement to compensation under 38 U.S.C. § 1151 for bowel/fecal incontinence and urgency due to an August 9, 2000 hemorrhoidectomy have not been met. 38 U.S.C. §§ 1151, 5107 (2012); 38 C.F.R. §§ 3.102, 3.361 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty for training in the U.S. Army from August 1973 to December 1973 and on active duty from January 1975 to August 1976. This matter comes before the Board of Veterans' Appeals (Board) from an April 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans' Law Judge at a Board video conference in February 2020. A transcript of the hearing has been associated with the claims file. Previously, the claim was most recently before the Board in February 2021 and was remanded for additional development. There has been substantial compliance with the prior remand directives, and the claim is again before the Board. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 1151 Eligibility The Veteran contends that his symptoms of fecal incontinence and urgency are a result of VA care and treatment. The Veteran contends that his symptoms of fecal incontinence and urgency and his associated disability arose from and worsened as a result of VA care and treatment from an August 9, 2000 hemorrhoidectomy. In pertinent part, section 38 U.S.C. § 1151 provides for compensation for a qualifying additional disability in the same manner as if such additional disability were service-connected. A disability or death is a qualifying additional disability if the disability or death was not the result of the Veteran's willful misconduct and (1) the disability or death was caused by hospital care, medical or surgical treatment, or examination furnished to the Veteran under any law administered by the Secretary, and (2) the proximate cause of the disability or death was (A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the hospital care, medical or surgical treatment, or examination; or (B) an event not reasonably foreseeable. 38 U.S.C. § 1151. In determining whether an additional disability exists, the physical condition immediately prior to the disease or injury upon which the claim for compensation is based will be compared with the subsequent physical condition resulting from the disease or injury. Compensation will not be payable for the continuance or natural progress of diseases or injuries for which the hospitalization or treatment was authorized. 38 C.F.R. § 3.361(b). To establish causation, evidence must show that the hospital care, medical or surgical treatment, or examination resulted in the Veteran's additional disability or death. Merely showing that a veteran received care, treatment, or examination and that the Veteran has an additional disability or died does not establish cause. 38 C.F.R. § 3.361I(1). Hospital care, medical or surgical treatment, or examination cannot cause the continuance or natural progress of a disease or injury for which the care, treatment, or examination was furnished unless VA's failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progress. 38 C.F.R. § 3.361I(2). Additional disability or death caused by a veteran's failure to follow properly given medical instructions is not caused by hospital care, medical or surgical treatment, or examination. 38 C.F.R. § 3.361I(3). The proximate cause of disability or death is the action or event that directly caused the disability or death, as distinguished from a remote contributing cause. To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing hospital care, medical or surgical treatment, or examination proximately caused a veteran's additional disability or death, it must be shown that the hospital care, medical or surgical treatment, or examination caused the Veteran's additional disability or death (as explained in paragraph I of this section); and (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or (ii) VA furnished the hospital care, medical or surgical treatment, or examination without the Veteran's or, in appropriate cases, the Veteran's representative's informed consent. To determine whether there was informed consent, VA will consider whether the health care providers substantially complied with the requirements of § 17.32 of this chapter. Minor deviations from the requirements of § 17.32 of this chapter that are immaterial under the circumstances of a case will not defeat a finding of informed consent. Consent may be express (i.e., given orally or in writing) or implied under the circumstances specified in § 17.32(b) of this chapter, as in emergency situations. Whether the proximate cause of a veteran's additional disability or death was an event not reasonably foreseeable is in each claim to be determined based on what a reasonable health care provider would have foreseen. The event need not be completely unforeseeable or unimaginable but must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided. 38 C.F.R. § 3.361(d). In determining whether an event was reasonably foreseeable, VA will consider whether the risk of that event was the type of risk that a reasonable health care provider would have disclosed in connection with the informed consent procedures of § 17.32 of this chapter. The Veteran contends that his current symptoms of fecal urgency and incontinence are the result of VA care and treatment. The Veteran and his wife testified in February 2020 that he has had issues with loose stools when he urinates and passing gas due to his August 2000 hemorrhoidectomy. The Veteran testified that after the surgery he had some initial pain during healing, and he was having no issues until several years later he experienced being unable to control passing gas or having a bowel movement while urinating. The Veteran and his wife testified that he began experiencing symptoms maybe as early as 2003, several years after his operation. Additionally, the Veteran testified to experiencing pain and hemorrhoid like itching at times, that began in 2006. The Veteran testified that he had previously been told that the doctor who performed his hemorrhoid surgery had cut his sphincter. The Veteran and his wife testified that this ongoing symptomology impacts his quality of life in that he always has to have a bathroom nearby and does not like to travel now. The Veteran and his wife are competent to describe his symptoms, and occurrence of ongoing worsening symptoms since treatment, and to this extent, these statements are credible. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The question for the Board is whether the Board has an additional fecal incontinence or urgency disability proximately caused by VA treatment; and if the proximate cause of the additional disability was some element of fault on the part of VA or was an event not reasonably foreseeable. VA treatment records have been associated with the claims file. VA treatment records note on August 9, 2000 the Veteran underwent a hemorrhoidectomy. The operative report notes that the Veteran was seen for prolapsing internal hemorrhoids and underwent a hemorrhoidectomy. The operative report notes that exploration revealed the presence of two large internal hemorrhoids on the right side and one on the left side that were removed by high ligation with 2-0 Vicryl suture and excision. The wounds were covered with Vaseline gauze and it was noted the Veteran tolerated the procedure well. Treatment records note that the Veteran was discharged from the hospital on August 14,2000. The Veteran's discharge summary notes that at admission his diagnosis was internal hemorrhoids and he was being discharge status post hemorrhoidectomy. The Veteran presented with hemorrhoids he had been experiencing for two to three years with prolapsed bowel movements and ongoing pain. The Veteran was admitted to the hospital following a hemorrhoidectomy that was performed without complications. Post operatively the Veteran reported pain with bowel movements and blood which was to be expected and he developed a slight perianal rash post operation which resolved without problems. The Veteran's pain resolved, and he was ambulating well and tolerating his diet. Discomfort with bowel movements was resolving and the Veteran was discharged 5 days after admission in stable condition with oral pain control and instructions to continue sitz bath treatment. An August 22, 2000 post-operative follow up note reported that the Veteran was seen free of pain and without complaints of discomfort. A September 2000 follow up appointment noted that the Veteran's wounds were healed, and his anal canal was a little tight. The Veteran denied pain or any complaints of discomfort. Ongoing sitz baths were recommended. VA primary care treatment records in June 2016 note that the Veteran reported he is concerned that he did not have control of his sphincter since his August 2000 hemorrhoid surgery. The Veteran reported that he is fearful he will lose stool when he urinates or passing gas and that this has been ongoing since after his August 2000 hemorrhoidectomy. The VA treatment provider noted normal physical examination and diet and exercise were discussed. The Veteran was afforded a VA examination in August 2017. The examiner noted that the Veteran did not seek care and treatment for his symptoms until many years after the August 2000 procedure and did not report any ongoing symptoms at follow up visits. The examiner found that VA did not fail to timely diagnose or properly treat the condition as it was not reported until 2016. The examiner found that it is less likely than not that the Veteran's current condition of hemorrhoidectomy complications is due to hospital care, medical or surgical problem. The examiner noted that the Veteran underwent a hemorrhoidectomy at VA on August 9, 2000, and there was no evidence of a chronic problem including no reports of constipation or rectal pain or bleeding or pain on defecation until July 2000. In July 2000 the Veteran was referred to a surgeon for evaluation due to prolapse of his hemorrhoids and a large internal hemorrhoid was found. The Veteran underwent surgery in August 2000, which was uneventful with no complications. Post-surgery treatment records note that the Veteran was tolerating diet, reported having less discomfort with bowel moments and reported no other complaints. A follow up in September 2000 noted that the Veteran's wound was headed, and his anal canal was a little tight and daily nightly sitz baths were recommended. Primary care treatment records in January 2001, April 2001, May 2002, August 2002 and November 2002 all noted no reports of incontinence of stools, problems with bowel movements or any other bowel concerns. In a June 2016 primary care note the Veteran reported that he does not have control of his sphincter which has been ongoing since his hemorrhoid surgery and he is worried about lose stool when urinating and passing gas. A physical examination was unremarkable. A review of the medical literature regarding complications of hemorrhoidectomy post-operatively noted that complications associated with hemorrhoidectomy are rare and include anal fistula or fissure, constipation, excessive bleeding, excessive discharge of fluid from rectum, fever of 101 degrees or higher, inability to urinate or have bowel movements, painful bowel movements, severe redness and/or swelling and side effects of anesthesia. A review of the medical literature noted that the traditional hemorrhoidectomy is a safe procedure for patients with normal fecal continence, and that removing anal cushions does not obviously impair the fecal continence in patients with a proper indication for the operation, and therefore is a safe procedure. Then the Veteran was afforded a VA examination in September 2020. The Veteran reported that he experiences rectal pain with bowel movements, and he was found to have internal hemorrhoids and he underwent a hemorrhoidectomy at VA in August 2000. The Veteran reported no problems after surgery until 2006 when he states that he began experiencing fecal incontinence and urgency with stool. The examiner noted internal or external hemorrhoids diagnosed in August 2000. The examiner noted that current physical examination noted no findings, signs or symptoms attributable to a diagnosis and physical examination was normal with no external hemorrhoids, no anal fissures or other abnormalities. No additional pertinent physical findings, complications, signs or symptoms were noted. The examiner noted that the Veteran's rectum or anus condition impacts his ability to work in that he needs to be near a restroom at all times and is unable to travel. The examiner noted that the Veteran's reports of anal itching and bowel urgency are based solely on the Veteran's reports and complaints, and such does not constitute a diagnosis. The examiner noted that a diagnosis of bowel urgency and bowel incontinence was not rendered due to no objective evidence to support the Veteran's statements. The VA examiner found that the Veteran did not incur an additional disability of bowel urgency and incontinence proximately caused by the August 2000 hemorrhoidectomy performed by VA. The VA examiner noted that in August 2000 large internal hemorrhoids were identified and the Veteran underwent a hemorrhoidectomy. After surgery the VA reported, and treatment records note no problems or issue with bowel urgency and/or incontinence. The Veteran reports that rectal pain began in 2006, 6 years post hemorrhoidectomy, and he started experiencing urgency and incontinence around 2008. The examiner found that symptoms of bowel urgency and incontinence would have been seen shortly after surgery and would not have taken 8 years to manifest, if they were attributed to his August 2000 hemorrhoidectomy. At post-operative follow up and primary care treatment visits the Veteran did not report complications or problems and records show no complications relating to the August 2000 surgery. The examiner noted that the current condition of the Veteran's reported hemorrhoidectomy complications is not due to hospital care or surgical treatment. After the August 2000 hemorrhoidectomy, the Veteran reported less discomfort with bowel movements and no additional complications. A September 2000 follow up noted the wounds were healed and the Veteran' s anal canal was tight and a sitz bath nightly was recommended. Primary care treatment at various points in 2001 and 2002 note no problems with bowel movements, no incontinency of stools or additional ongoing symptomology. In June 2016, primary care treatment records note that the Veteran reported concern with control of his sphincter and that he is fearful of lose stool and passing gas which has been ongoing since his 2000 surgery. A review of the medical literature regarding complications of hemorrhoidectomy surgery notes that complications mostly occur immediately after surgery or a short time thereafter. The VA examiner found that any additional disability was not proximately caused by carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault on the part of VA in furnishing hospital care, medical or surgical treatment. Further, the examiner found that any additional disability was not proximately caused by VA treatment or an event not reasonably foreseeable. A private opinion from December 2020 has been associated with the claims file. The Veteran's private treatment provider noted fecal incontinence and reported no other obvious cause for his incontinence and that it is certainly possible that his hemorrhoidectomy resulted in some weakening of the sphincter mechanism. The private treatment provider noted that the Veteran has been recommended to again consider a rectal manometry to assess his fecal incontinence, however he does not wish to do this. The private treatment provider recommended probiotics and fiber. The Board finds the private opinion is entitled to less probative weight as the private opinion failed to provide a thorough and reasoned rationale for the conclusions reached. Additionally, the opinion did not rise to the necessary standard for compensation under 38 U.S.C. § 1151. The Board has considered the December 2020 opinion but finds such is entitled to less probative weight. In addition, the Veteran was afforded a VA examination in February 2021. The examiner noted a thorough review of the claims file including the prior opinions of record, treatment records and the Veteran's contentions. The VA examiner found that the Veteran did not incur an additional disability of bowel urgency and incontinence proximately caused by the hemorrhoidectomy performed by VA on August 9, 2000. The Veteran reported that prior to his August 2000 hemorrhoidectomy he was told he had large internal hemorrhoids and underwent surgery. After surgery the Veteran reported that there were no problems with bowel urgency and incontinence. In 2006, 6 years post hemorrhoidectomy the Veteran has reported he started having rectal pain and began experiencing urgency and incontinence around 2008. The examiner noted that the Veteran's symptoms of bowel urgency and incontinence would have been seen shortly after surgery and would not have taken 8 years to manifest. Post-operatively the Veteran did not report any complications or problems and records note no complications with surgery. A post-operative follow-up in September 2000 noted that the Veteran's wounds were well healed, and his anal canal was a little tight and nightly sitz bath were recommended. The VA examiner noted that this post-surgery examination noted that the anal canal was slightly tight and not with any evidence of any laxity of muscles. The examiner noted a thorough review of the evidence of record including the conflicting evidence regarding the Veteran's contentions as to reports of ongoing bowel urgency and incontinence. The examiner noted that a review of the pertinent records including VA treatment records note no evidence of a chronic problem of constipation or rectal bleeding or pain on defecation until July 2000, when he was referred to surgery due to evaluation of prolapsed hemorrhoids. Evaluation noted large internal hemorrhoids and surgery was performed on August 9, 2000. The Veteran's hemorrhoidectomy surgery was uneventful, and no complications were rendered. Post-hemorrhoidectomy the Veteran stayed in the hospital until August 14, 2000. Post-surgery treatment records note that the Veteran was tolerating diet, having less discomfort with bowel movements and no other complaints before his discharge home. A follow up in September 2000, noted that the Veteran's wound was well healed, and his anal canal was a little tight and nightly sitz bath were recommended. Primary care clinic treatment records in January 2001, April 2001, May 2002, August 2002 and November 2002 have been associated with the claims file and no visits refer to any problems with bowel movements, no incontinency of stools or other bowel concerns. A June 2016 primary care treatment notes that the Veteran reports a loss of control of his sphincter since his hemorrhoidectomy surgery and he is fearful that he will lose stool when urinating or passing gas and reports this has been ongoing since his hemorrhoidectomy. Additionally, the examiner noted review of the December 2020 private opinion from Dr. S. Based on a review of all the evidence of record the examiner noted that the Veteran's surgery was done in August 2000 and incontinence was not mentioned in any visit until 2016 although he has been seen multiple times prior to this. Initially, after surgery the surgeon noted that the Veteran's canal was in fact "tight". Symptoms of bowel urgency and incontinence would have been seen shortly after surgery and would not have taken 8 years to manifest. As the Veteran reported symptoms began around 2008. Although the Veteran was been seen by an outside provider who stated that the surgery could have caused this issue and that he found no other reason, this private opinion was not from his initial surgeon and he could not say without a doubt that the Veteran's hemorrhoid surgery caused his incontinence symptoms. The private treatment provider noted that testing was recommended which could give further evidence of cause and the Veteran has refused to undergo such testing. Additionally, the VA examiner noted that if incontinence was a problem post hemorrhoidectomy and attributed to the hemorrhoidectomy then it would seem that incontinence would have been exhibited from 2000 to 2008, and the Veteran would have made mention of such during documented primary care visits in 2001 and 2002, which is directly after his hemorrhoidectomy. These primary care treatment records noted no problems with bowel movements, no incontinency of stools or other bowel concerns. It was noted until June 2016 that the Veteran reported these symptoms and a fear of incontinence and passing gas. The VA examiner found that incontinence would have been noted shortly after surgery and would not have taken 8 or more years to become problematic, thus supporting the conclusion that the Veteran's August 2000 hemorrhoidectomy did not influence the development of fecal incontinence and urgency. Further, the examiner noted that a thorough review of the medical literature noted that complications of a hemorrhoidectomy mostly occurs immediately after the surgery date or shortly after. A review of the medical literature notes complications associated with hemorrhoidectomy are rare and include anal fistula or fissures, constipation, excessive bleeding, excessive discharge of fluid from the rectum, fever of 101 degrees or higher, inability to urinate or have a bowel movement, severe pain, especially when having a bowel movements, severe redness and/or swelling in the rectal area and side effects of anesthesia. Further, the examiner noted as previously discussed that a traditional hemorrhoidectomy and removing anal cushions does not obviously impair the fecal continence in patients with proper indication for the operation and is a safe procedure. Which is the case herein. The examiner found that no further disability is found that was proximately caused by the hemorrhoidectomy performed by VA on August 9, 2000. The examiner noted that it was not until 2006 was there any mention of incontinence, or associated symptomology, and that evaluations done post hemorrhoidectomy in 2001 and 2002 noted no complaints of incontinence and if present would most likely have been manifested by this time. These symptoms were not reported until 2006, by the Veteran's own account, further in any mention of incontinence the Veteran states that he is fearful that he will lose stool when he urinates or passes gas but does not clearly state that he does have this problem. The VA examiner noted that the Veteran has reported that he does not have control of his sphincter since his hemorrhoidectomy and that he has a fear of incontinence. However, there is no clear evidence that the Veteran has been experiencing incontinence, since his August 2000 surgery. Treatment records in 2016 noted that dietary changes were recommended and there has been no further follow up. The examiner noted that symptoms should have been present earlier and of concern prior to 16 years after surgery, and such leads to raise the issue of other factors that could have caused the incontinence after 16 years. Private treatment records noted that it was recommended that the Veteran undergo a manometry, but the Veteran was unwilling to undergo such testing. As such based on the entirety of the evidence of record the examiner found no additional disability that was proximately caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing hospital care, medical or surgical treatment or examination. Treatment records noted no problems with the surgery and his post-operative care and follow up was normal. Additionally, the examiner found that the Veteran's claimed condition was not caused by nor became worse as a result of VA treatment. In addition, the examiner noted that it is reasonable to assume that any possible complication with surgery would have been discussed prior to surgery and the Veteran would have carefully determined if the risks outweighed the benefits related to surgery. The examiner noted that any additional disability is not related to the Veteran's hemorrhoidectomy and records do not note that any additional disability resulted from an event that could have been reasonably foreseen by a reasonable healthcare provider. The Board has considered the Veteran's representative's contentions and correspondence in October 2020 that entitlement to compensation is warranted. The Board notes that the representative is not a competent authority to determine what information may be found probative to a competent examiner. The Board has considered the Veteran's and his representative contentions however, VA benefits may not be granted based on speculative opinions. Rather, opinions must be made by competent professionals and be based on a rationale that is clear to the Board. The Veteran's representative is not competent to provide a medical opinion. The benefit of the doubt rule is for application when the evidence is in equipoise, which occurs only when there is an approximate balance between the positive and negative evidence. 38 C.F.R. § 3.102. That evidence must be both competent and credible. Here, there is no such balance of evidence. In addition, the Board notes that the Veteran's representative in October 2020 correspondence raised the issue seeking to challenge the competency and qualifications of the September 2020 VA examiner. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that a Veteran is required to raise a specific challenge to the competency of a VA examiner before VA is required to respond with information about the qualifications of the examiner. See Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011), and Francway v. Wilkie, 930 F.3d 1377 (Fed. Cir. Oct. 15, 2019) (finding that a Veteran is required to challenge a VA examiner's competence in the first instance). The Veteran and his representative were provided with the necessary requested educational and professional background information in February 2021 regarding the curriculum vitae and credentialing documents for the September 2020 VA examination. Neither the Veteran nor his representative has raised a specific challenge to the professional medical competence or qualifications of the most recent February 2021 VA examiner. Further, the Board notes that the Veteran's representative's contentions surrounded whether there was a diagnosis of bowel incontinence. As discussed above, the evidence of record indicates a diagnosis of bowel incontinence. It is presumed that VA follows a regular process that ordinarily results in the selection of a competent medical professional. Parks v. Shinseki, 716 F.3d 581, 585 (Fed. Cir. 2013) (citing Sickels v. Shinseki, 643 F.3d 1362, 1366 (Fed. Cir. 2011)). Accordingly, and as the Federal Circuit explained in Francway, if the Veteran does not meet the requirement to challenge a VA examiner's competence in the first instance, then VA is not required to prove any examiner's competence before relying on medical evidence obtained from the examiner in adjudicating this appeal. See Francway, supra. After consideration of all the evidence of record the Board finds that the weight of the evidence is against finding that entitlement to compensation under the provisions of 38 U.S.C. § 1151 is warranted. As an initial matter, and noted above, the Board must determine whether the Veteran has an additional fecal incontinence or urgency disability proximately caused by VA care and treatment in August 2000. The Board notes that there is conflicting evidence of record regarding whether the Veteran has an additional fecal urgency or incontinence disability proximately caused by VA care in treatment in August 2000. The Board has thoroughly considered the Veteran's lay contentions and testimony, in particular his reports that his symptoms of fecal urgency and incontinence is due to VA care and treatment. The Veteran contends that VA care and treatment resulted in his current symptoms. The Board notes that the Veteran's reports of when his symptoms of fecal incontinence and urgency began varies greatly and the Veteran has provided inconsistent statements reporting onset in 2003, onset of rectal pain in 2006 and onset of symptoms in 2008, 2016 and at times reporting onset in 2000. The Board finds in light of the inconsistency of the Veteran's statements regarding the onset of his symptoms the credibility of these statements is called into question and finds these are outweighed by the contemporaneous medical evidence. Further, while the Veteran and his wife testified and he reports his fecal urgency and incontinence is a result of VA care and treatment, the record does not reflect that they have the requisite training or expertise to link a medical complication or disability to address medically known complications establishing a nexus and as such the Veteran is not competent to provide a nexus opinion in this case. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The Board finds that the medical evidence is more probative and is entitled to significant weight. In particular, the Board finds the February 2021 VA opinion is competent and credible and entitled to significant probative weight. As such the Board finds that the Veteran does not have fecal urgency and incontinence disability due to his August 9, 2000 hemorrhoidectomy. The February 2021 VA examiner found that the Veteran did not incur an additional disability of bowel urgency and incontinence proximately caused by the hemorrhoidectomy performed by VA on August 9, 2000. The Veteran's symptoms of bowel urgency and incontinence would have been seen shortly after surgery and would not have taken 8 years to manifest. Even, in consideration of the Veteran's testimony that symptoms of fecal urgency and incontinence began in approximately 2003 or pain in 2006, such was more than 3 years after his 2000 surgery. Post-operatively the Veteran did not report any complications or problems and records note no complications with surgery. A post-operative follow-up in September 2000 noted that the Veteran's wounds were well healed, and his anal canal was a little tight and a nightly sitz bath was recommended. The VA examiner noted that this post-surgery examination noted that the anal canal was slightly tight and not with any evidence of any laxity of his muscles. Based on a review of all the evidence of record the examiner noted that the Veteran's surgery was done in August 2000 and incontinence was not mentioned in any visit until 2016 although he has been seen multiple times prior to this. Initially, after surgery the surgeon noted that the Veteran's canal was in fact "tight". Symptoms of bowel urgency and incontinence would have been seen shortly after surgery and would not have taken 8 years to manifest. As the Veteran reported symptoms began around 2008. The examiner found that incontinence would have been noted shortly after surgery and would have taken 8 or more years to become problematic, thus supporting the conclusion that the Veteran's August 2000 hemorrhoidectomy did not influence the development of incontinence. Further, the examiner noted that a review of the medical literature noted that complications of a hemorrhoidectomy mostly occurs immediately after the surgery date or shortly after. A review of the medical literature notes complications associated with hemorrhoidectomy are rare and include anal fistula or fissures, constipation, excessive bleeding, excessive discharge of fluid from the rectum, fever of 101 degrees or higher, inability to urinate or have a bowel movement, severe pain, especially when having a bowel movements, severe redness and/or swelling in the rectal area and side effects of anesthesia. Further, the examiner noted as previously discussed that a traditional hemorrhoidectomy and removing anal cushions does not obviously impair the fecal continence in patients with proper indication for the operation and is a safe procedure. The examiner found that no further disability is found that was proximately caused by the hemorrhoidectomy performed on August 9, 2000. The examiner noted that it was not until 2006, or later in 2008, was there any mention of incontinence, and that evaluations done post hemorrhoidectomy in 2001 and 2002 noted no complaints of incontinence and if present would most possibly have been manifested by this time. These symptoms were not reported until 2006, and in any mention of incontinence the Veteran states that he is fearful that he will lose stool when he urinates or passes gas but does not clearly state that he does have this problem. The examiner noted that the Veteran has reported that he does not have control of his sphincter since his hemorrhoidectomy and that he has a fear of incontinence. However, the examiner noted that afear of incontinence is not the same thing as incontinence itself As such based on the entirety of the evidence of record the examiner found no additional disability that was proximately caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing hospital care, medical or surgical treatment or examination. Treatment records noted no problems with the surgery and post-operative care and follow up was normal. Additionally, the examiner found that the Veteran's claimed condition was not caused by or became worse as a result of VA treatment. The Board finds that the medical evidence is more probative and entitled to significant weight. As noted above, the Veteran and the associated lay statements have provided conflicting evidence regarding the onset of his symptoms of fecal urgency and incontinence. However, testimony and VA examinations note the Veteran reported onset between 2003 and 2008. Consideration of onset of the Veteran's symptoms during this period of time does not impact the findings of the probative evidence of record. The Board finds the February 2021 VA opinion is entitled to significant probative weight. The Board will next address whether the causation requirements for a valid claim have been met. The Board finds that the Veteran's fecal incontinence and urgency was not caused by VA care or treatment. There is no evidence VA failed to exercise the degree of care that would be expected of a reasonable health care provider and the Board concludes that there is no evidence of carelessness, negligence, lack of skill or similar incidence of fault on the part of VA personnel. Neither the Veteran nor his representative has raised a contention regarding informed consent relating to the August 2000 hemorrhoidectomy. The February 2021 VA examiner noted that it is reasonable to assume that any possible complication with surgery would have been discussed prior to surgery and the Veteran would have carefully determined if risk outweighed the benefits related to surgery. The examiner noted that any additional disability is not related to the Veteran's hemorrhoidectomy and records do not note that any additional disability resulted from an event that could have been reasonably foreseen by a reasonable healthcare provider. The February 2021 examiner noted a thorough review of the medical literature and known surgical complications relating to a hemorrhoidectomy. With respect to whether the Veteran was fully informed as to the risks of VA treatment, the Veteran has not advanced such an argument. Further, as discussed above, the Veteran's claimed symptoms have not been medically attributed to his VA treatment in August 9, 2000 or otherwise to his treatment with VA. The Board has thoroughly considered the Veteran's contentions and is sympathetic to his frustration that his symptoms of fecal incontinence was caused by VA care and treatment in August 9, 2000. However, the Board finds the preponderance of the probative evidence is against his contentions as the Veteran does not have an additional fecal urgency or incontinence disability that was due to carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault in furnishing care or treatment by VA medical professionals, and were not reasonably foreseeable risks of treatment, or that he was not fully informed as to the nature of the treatment, potential risks and alternatives. As such the criteria for entitlement to compensation under 38 U.S.C. § 1151 for an additional fecal urgency or incontinence disability have not been met. Accordingly, as the weight of competent and credible evidence is against the claim for benefits pursuant to 38 U.S.C. § 1151, the benefit of the doubt rule does not apply, and the claim must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K.R. Kardian, 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.