Citation Nr: 22040120 Decision Date: 07/13/22 Archive Date: 07/13/22 DOCKET NO. 19-23 451A DATE: July 13, 2022 ORDER New and material evidence having been received, the petition to reopen the previously denied claim for entitlement to service connection for hemorrhoids is granted. Entitlement to service connection for hemorrhoids is denied. FINDINGS OF FACT 1. An unappealed May 1974 rating decision denied entitlement to service connection for hemorrhoids. 2. Evidence added to the record since the May 1974 rating decision is not duplicative of evidence previously submitted and considered on the merits, and the evidence, by itself or when considered with the previous evidence of record, relates to unestablished facts necessary to substantiate the claim of entitlement to service connection for hemorrhoids. 3. The presence of hemorrhoids was noted on the Veteran's pre-enlistment examination. 4. The Veteran's preexisting hemorrhoids were not worsened beyond their natural progression during service. CONCLUSIONS OF LAW 1. The May 1974 rating decision denying entitlement to service connection for hemorrhoids is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. The previously denied claim for entitlement to service connection for hemorrhoids is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. The criteria for entitlement to service connection for hemorrhoids have not been met. 38 U.S.C. §§ 1131, 1153, 5107(b); 38 C.F.R. §§ 3.102, 3.304, 3.306. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Air Force from July 1962 to August 1964. This appeal comes to the Board of Veterans' Appeals (the Board) from a May 2018 rating decision in which the Agency of Original Jurisdiction (AOJ) continued its prior denial of entitlement to service connection for hemorrhoids, which was initially denied in May 1974. 1. The Appeal to Reopen a Previously Denied Claim for Entitlement to Service Connection for Hemorrhoids Irrespective of the AOJ's actions, it is the Board's responsibility to consider whether it is proper for a claim to be reopened. Barnett v. Brown, 8 Vet. App. 1, 4 (1995). Generally, an unappealed rating decision is final with the exception that a claim may be reopened by the submission of new and material evidence. When a veteran seeks to reopen a claim based on new and material evidence, the Department of Veterans Affairs (VA) must first determine whether the additional evidence is "new and material." Second, if VA determines that new and material evidence has been added to the record, the claim is reopened and VA must then evaluate the merits of the veteran's claim in light of all the evidence, both new and old. Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). In determining whether the evidence presented since the prior final disallowance of the claim is new and material, the credibility of the evidence is generally presumed. Cox v. Brown, 5 Vet. App. 95, 98 (1993). "New" evidence refers to evidence that was not previously submitted to VA decisionmakers. Evidence is "material" if it, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Cumulative or redundant evidence is not new and material. 38 C.F.R. § 3.156(a). In order to reopen a claim, the new and material evidence must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). This is a low threshold that is meant to enable, rather than preclude, reopening. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In a May 1974 rating decision, the AOJ denied entitlement to service connection for hemorrhoids, determining that hemorrhoids were noted on the Veteran's enlistment examination and that they were not aggravated by his active service. The Veteran did not file an appeal as to the issue of entitlement to service connection for hemorrhoids. There was also no new, relevant evidence received within one year of the May 1974 rating decision. The Veteran does not argue the contrary. Accordingly, the May 1974 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. Since the May 1974 rating decision, VA has received the following evidence: (1) various VA and private treatment records showing diagnosis and treatment of hemorrhoids, (2) a December 2016 lay statement from the Veteran indicating that he has had thrombose hemorrhoids for many years, (3) a June 2017 VA examination, (4) an April 2018 VA examination and etiological opinion, (5) an August 2017 statement from the Veteran that he has suffered from hemorrhoids since his active service and that he did not seek treatment to avoid being judged by others, and (6) a brief from the Veteran's representative arguing that the Veteran has shown continuous symptoms since service. This evidence is new, as it was not previously before VA at the time of the AOJ's May 1974 denial. Moreover, this evidence, particularly the Veteran's lay statements, is material. These statements contend that the Veteran's hemorrhoids were aggravated by active service. As such, this evidence raises a reasonable possibility of substantiating the Veteran's claim for entitlement to service connection for hemorrhoids. Accordingly, the previously denied claim for entitlement to service connection for hemorrhoids is reopened. 2. Entitlement to Service Connection for Hemorrhoids Having determined that the Veteran's claim for entitlement to service connection for hemorrhoids, the Board will next address whether service connection for hemorrhoids is warranted. The Veteran contends that he is entitled to service connection for hemorrhoids because he experienced this condition during service. He also asserts that he has experienced continuous severe pain and bleeding consistently since his separation from service. Veterans shall be considered to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304; Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). Cases in which the condition is noted upon entry into service are governed by the presumption of aggravation of a preexisting disability contained in 38 U.S.C. § 1153 (as opposed to the presumption of soundness applicable under 38 U.S.C. § 1111, where the complained-of condition was not noted upon entry into service). This statute provides that a preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless clear and unmistakable evidence shows that the increase in disability is due to the natural progression of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. In order to trigger the application of the presumption of aggravation, the preponderance of the evidence must show that there was an increase in disability during service. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Where the preexisting disability underwent an increase in severity during service, the burden is on VA to rebut the presumption of aggravation by clear and unmistakable evidence. 38 C.F.R. § 3.306(b). This includes medical facts and principles which may be considered to determine whether the increase is due to the natural progression of the condition. 38 C.F.R. § 3.306(b). Under these circumstances, the initial burden falls on the Veteran to establish an increase in the severity of the preexisting disability. See Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). VA may show a lack of aggravation by establishing with clear and unmistakable evidence that there was no increase in disability during service or that any increase in disability was due to the natural progression of the preexisting condition. Wagner, 370 F.3d at 1096; see also Horn v. Shinseki, 25 Vet. App. 231, 235 (2012). Temporary or intermittent flare-ups of a preexisting injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition itself, as contrasted with mere symptoms, has worsened. See Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). The Veteran's July 1962 pre-enlistment examination clearly notes the presence of external hemorrhoids. Accordingly, the Veteran cannot be presumed to have been in sound condition with respect to hemorrhoids upon his entry into service. See 38 U.S.C. § 1111. As the Veteran is not presumed to have been in sound condition as to hemorrhoids upon his entry into service, the question for the Board is whether his preexisting hemorrhoids increased in severity during service. For the reasons to follow, the preponderance of the evidence does not demonstrate that the Veteran's hemorrhoids worsened during his period of active service. The Veteran's service treatment records show that he sought treatment for hemorrhoids once during service in April 1963. There are no other records documenting complaints or treatment of hemorrhoids during service, and the Veteran's July 1964 separation examination does not note the presence of hemorrhoids. Moreover, the April 2018 VA examiner opined that the Veteran's hemorrhoids, which clearly and unmistakably existed prior to service, were clearly and unmistakably not aggravated beyond their natural progression by an in-service injury, event, or illness. His rationale was that the Veteran's singular, isolated visit for hemorrhoids during active service did not suggest that his hemorrhoid condition was aggravated. He added that the Veteran's hemorrhoid condition would not have been expected to take a different clinical course but for his active service. Ultimately, the examiner concluded that though the Veteran has had chronic hemorrhoids after service, such was not demonstrated during service and therefore aggravation of a preexisting condition was not established. This opinion is probative because it is based on a full review of the Appellant's medical history and statements and provides an explanation that contains clear conclusions and supporting data. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board acknowledges the Veteran's lay statements contending that he has had continuous pain and bleeding due to hemorrhoids since service and that he did not seek treatment during service to avoid being judged by his peers. While the Veteran is competent to speak to the presence of observable symptoms, he is not competent to opine as to whether such symptoms constituted a worsening of his underlying hemorrhoid condition rather than a temporary or intermittent flare-up of its symptoms. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Further, as discussed above, the VA examiner determined that there was no evidence showing a worsening of the Veteran's hemorrhoids during service. Such was based on consideration of the Veteran's lay reports, along with service and post-service medical records. The Veteran's assertion of having a chronic hemorrhoid condition is also undermined by the record. Notably, when he filed an initial claim for VA compensation in October 1964, which was shortly after service discharge, he made no mention of hemorrhoids. There is also a November 1964 hospital discharge report that makes no mention or findings of hemorrhoids on physical examination. Further, when he filed his 1974 claim for service connection for hemorrhoids, the Veteran only noted one instance of treatment for hemorrhoids in service and made no indication that the condition had been chronic or that it had worsened during his active service. In short, his report of an increase (worsening) of his hemorrhoid condition in service and in the years following service is not credible. As the most competent and credible evidence of record does not show an increase in the severity of the Veteran's hemorrhoids during his active service, the presumption of aggravation does not attach. A discussion of clear and unmistakable evidence to rebut the presumption of aggravation is thereby not required. Accordingly, entitlement to service connection for hemorrhoids must be denied. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R.M. Sachs, 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.