93 Decision Citation: BVA 93-02961 Y93 BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 DOCKET NO. 90-51 212 ) DATE ) ) ) THE ISSUES 1. Increased (compensable) evaluation for hemorrhoids. 2. Service connection for a back disorder. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD William L. Pine, Associate Counsel INTRODUCTION The veteran served on active duty from March 1948 to February 1950 and from May 1952 to June 1960. This matter came before the Board of Veterans' Appeals (Board) on appeal from a rating decision of April 1990, from the Montgomery, Alabama, Regional Office (VARO). VARO notified the appellant of the decision and in his appellate rights by a letter dated May 11, 1990. The notice of disagreement was received on June 25, 1990. The statement of the case was issued on August 21, 1990. The substantive appeal was received on October 1, 1990. The appeal was received at the Board on November 29, 1990. The appellant's representative in this matter, Paralyzed Veterans of America (PVA), provided a brief on April 2, 1991. The Board remanded the case on May 1, 1991, for further development of evidence. There was another rating decision on November 8, 1991. A supplemental statement of the case was issued November 19, 1991. The appeal was received again at the Board on February 10, 1992. PVA provided another brief on March 9, 1992. The Board again remanded the case in April 1992, to assist the appellant in obtaining additional service records. VARO issued a SSOC in September 1992 and returned the appeal to the Board, where it was received October 14, 1992. PVA again provided a brief on November 19, 1992. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends that he is compensably disabled by service-connected hemorrhoids and that he suffers from a back disorder caused by an injury to his back sustained on board ship in 1959. He claims he was hospitalized for a month and was treated for his back at the same time that he was treated for hemorrhoids. He avers that there were records of his treatment aboard the U.S.S. ORISKANY, and at the dispensaries at U.S. Naval Station Subic Bay, Naval Air Station Cubi Point, Naval Air Station Moffett Field and at Oakknoll Naval Hospital. DECISION OF THE BOARD In accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), the Board has reviewed and considered all relevant evidence and material of record in the veteran's claims file and, for the following reasons and bases, it is the decision of the Board that his hemorrhoids are compensably disabling and that service connection for a back disorder is not warranted. FINDINGS OF FACT 1. The appellant has skin tags and hemorrhoidal tissue around the rectal area, with tenderness in the rectal area. 2. The appellant does not have a back disorder originating in service or attributable to an injury sustained in service. CONCLUSIONS OF LAW 1. The schedular criteria for a 10 percent disability evaluation for hemorrhoids are met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.114, diagnostic code 7336 (1991). 2. A back disorder was not incurred in or aggravated by service, nor may the incurrence of arthritis of the back in service be presumed. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (West 1991); 38 C.F.R. 3.303(b), 3.307, 3.309 (1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant's claims are well grounded. 38 U.S.C.A. § 5107(a) (West 1991). The appellant has made numerous allegations regarding the existence of service and private medical records supportive of his claims. VA has made multiple attempts to obtain records that would be under government control if extant, Jolley v. Derwinski, 1 Vet.App. 37 (1990), and the appellant has failed to provide information prerequisite to rendering assistance in obtaining private medical records in support of his claim. Gobber v. Derwinski, 2 Vet.App. 470 (1992); Wood v. Derwinski, 1 Vet.App. 190 (1991). As to treatment records from military dispensaries, these records would have been retired to the National Records Center. M21-1, Part III, 4.02. We conclude that VA has satisfied its duty to assist the appellant, 38 U.S.C.A. § 5107(a) (West 1991), and that the record is adequately developed for appellate review. 1. Compensable Evaluation for Hemorrhoids In our review of claims for increased ratings, the Board considers all of the medical evidence of record, including the appellant's relevant medical history. Peyton v. Derwinski, 1 Vet.App. 282, 285 (1991); Schafrath v. Derwinski, 1 Vet.App. 589, 595 (1991). The medical findings are compared to the criteria in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4 (1991). We attempt to determine the extent to which a service-connected disability adversely affects the ability of the body to function under the ordinary conditions of daily life, including employment. 38 C.F.R. §§ 4.2, 4.10 (1991). In so doing, we must weigh the evidence before us, giving the appellant the benefit of the doubt if the evidence for and against the claim is in equipoise. Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990); 38 U.S.C.A. § 5107(b) (West 1991). The service medical record reveals that the appellant was treated in October 1959 for prolapsed, thrombosed hemorrhoids. There were positive findings on external perianal examination only. The appellant avers that he has taken medication for hemorrhoids and has seen private physicians for them since separation from the service in 1960. He has provided no information to support further search for additional records. The appellant underwent VA examination in June 1991. However, the examination was not by a proctologist, as ordered by the the Board in May 1991, nor was the proctology examination with sigmoidoscopy, recommended by the June 1991 examiner, performed. At the examination the veteran complained of recurrent swelling of hemorrhoids and pain which he treats with sitz baths. The examiner found several skin tags and small hemorrhoidal tissue around the rectal area without any engorgement or pain at that time. Hemoccult was negative. There was some tenderness in the rectal area on rectal examination. The diagnosis was chronic recurrent hemorrhoidal problems with periodic exacerbation. A noncompensable evaluation for hemorrhoids is warranted for mild or moderate external or internal hemorrhoids. A 10 percent evaluation requires large or thrombotic, irreducible hemorrhoids with excessive redundant tissue evidencing frequent recurrences. 38 C.F.R. § 4.114, diagnostic code 7336 (1991). In the absence of medical findings with respect to internal hemorrhoids, if any, we find the evidence for and against the claim for compensable evaluation for hemorrhoids to be in equipoise as to whether the more nearly approximates 10 percent disablement than a noncompensable disablement. 38 C.F.R. § 4.7 (1991). Thus, we give the appellant the benefit of the doubt, 38 U.S.C.A. § 5107(b) (West 1991), and grant a 10 percent disability evaluation. 2. Service Connection for a Back Disorder The appellant avers that he injured his back aboard the U.S.S. ORISKANY while working under an elevator moving heavy boxes in 1959. He avers that he was treated at multiple service medical facilities, including aboard the ORISKANY and at the dispensaries at U.S. Naval Station Subic Bay, Naval Air Station Cubi Point, Naval Air Station Moffett Field and at Oaknoll Naval Hospital. We note that the appellant's VA claims folder was misplaced or lost in about 1987. While we concede the possibility that the appellant's claims folder may not be complete, the evidence makes it unlikely that any service or other medical records were lost. The appellant submitted his original claim for disability or pension benefits in 1987. No medical records had been submitted to VA prior to that time and no service medical records were obtained by VA prior to February 1990. Therefore, any records that VA may have lost would not have been medical records and therefore not relevant to the claims which are the subject of the veteran's appeal. Service medical records are regularly retired to the National Personnel Records Center (NPRC) after a veteran is separated from service. There is nothing in the record to suggest any variance from this practice in this case. The NPRC provided VA with all available service medical records in February 1990. It confirmed that all records had been previously provided when queried again by VA in July 1992. The NPRC has not indicated that the appellant had "fire related service" and therefore it is the Board's opinion that NPRC has forwarded all extant records pertaining to the veteran that were in its possession. In addition to requests for records to the NPRC, VA made a direct inquiry to the Oakknoll Naval Hospital, at which the appellant alleges he was treated for one month in 1959. The hospital stated in October 1991 that a search of its files produced no records. The failure to find records is consistent with the regular practice of retiring records to the NPRC. We also note that the U.S. Naval bases at Subic Bay and at Cubi Point, Philippines, are closed and direct inquiry for records to those facilities is impossible. The service medical records provided by the NPRC in February 1990 contain a hospital report from Oakknoll Naval Hospital from October 1959. The service medical records also contain records from U.S. Naval Air Station, Moffett Field, California, and Sick Call treatment records from the U.S.S. ORISKANY from 1953 to 1958. There are records from both periods of service. It seems unlikely that service medical records are missing. The summary of treatment of record from Oakknoll Naval Hospital addresses only treatment for hemorrhoids. It seems unlikely that the summary would be silent as to treatment administered for any other significant condition. The several accounts provided by the appellant, and one by the appellant's ex-wife, give the distinct impression that the alleged back injury was a substantial part of the reason for hospital admission. The appellant has stated that he was hospitalized at the Oakknoll Naval Hospital for 31 days for damage to his back and also for a related hemorrhoid problem. The record from Oakknoll reports only treatment for hemorrhoids, for 15 days. The contemporaneous medical evidence does not support the statements of the appellant and his ex-wife. We find the contemporaneous medical record more credible than the recollections made more than 30 years after the fact, because it was made in the normal course of the business and related directly to medical care. We find no reason to conclude that the treatment summary from Oakknoll Naval Hospital is incomplete. We accord the contemporaneous medical records greater probative value regarding the conditions then treated than we do current recollections as to what transpired so many years ago. The service medical record contains only a brief reference to the back. On February 10 and 11, 1953, the appellant was seen at sick call for complaints of a sore back, claimed to be of six years duration. Examination produced negative results. His separation examination of February 1950 had been negative regarding any complaint or finding regarding the appellant's back, as had been his original entrance examination in March 1948. The separation examination report of June 1960 is silent regarding the back. There is no medical record regarding complaints referable to the appellant's back from the time of separation from service until March 1987, when he was admitted to Phoebe Putney Memorial Hospital with severe low back pain of six days duration. Subsequent hospitalization at Southeast Alabama Medical Center from March to May 1987 resulted in a diagnosis of probable lumbar epidural abscess and peripheral neuropathy, possibly secondary to alcohol abuse. The appellant underwent numerous diagnostic procedures and consultations prior to the diagnosis being entered. These included bone scans, MRI, CT, spinal tap, biopsy and numerous other laboratory studies. The appellant was hospitalized in a VA facility from September to November 1987. He underwent multiple tests, after which a diagnosis of moderate to severe osteoarthritis of the lumbar spine and osteoarthritis of the cervical spine was entered. The appellant has been followed at VA outpatient clinics subsequent to those diagnoses. The VA examination of June 1991 found slight limitation of the range of motion of the cervical spine and motion of the lumbar spine was limited to 70 degrees of flexion and 20 degrees each for extension and lateral bending. Reflexes were normal. The diagnosis was chronic back pain with question of arthritis. Considering the evidence of record, including the possibility of lost records, we can concede no more than that the appellant had a sore back in service. The negative clinical finding in service weighs against the inception of a chronic back disorder during service with disabling residuals. The appellant has averred that he was treated for his back condition shortly after separation from service. The only treating physician and the facility he has named have not responded to inquiries from VA. Without evidence that the appellant was 10 percent disabled by a claimed disability, service connection cannot be granted on a presumptive basis. 38 C.F.R. §§ 3.307, 3.309 (1991). We do not find, on the evidence of record, that the veteran's cervical or lumbar osteoarthritis is traumatic in nature and attributable to service. When there is direct trauma to a joint, "the changes due to developing osteoarthritis gradually appear over many months and to a greater degree in a similar process that may affect other joints." S. L. Turek, Orthopaedics 451 (4th ed. 1984) (emphasis added). Since the medical evidence does not show the presence of arthritis until many years after service, it must be concluded that currently diagnosed arthritis is not the result of any traumatic event in service. The dispositive factor in this case is the length of time that intervened between the back complaints during service and the detection and reporting of arthritic changes and other relevant symptomatology. While we cannot precisely identify the cause of the existing arthritis, the objective evidence does not indicate that the etiology is related to military service. The record available in this case clearly fails to show continuity of symptomatology of any back disorder from service to 1987. 38 C.F.R. § 3.303(b) (1991). Moreover, the statements of the appellant and of his ex-wife are not competent to establish a medical diagnosis and lack probative value to establish continuity. See Espiritu v. Derwinski, 2 Vet.App. 492 (1992) (competence of lay statement to establish medical diagnoses). In sum, the clear preponderance of the evidence is against granting service connection for any back disorder. ORDER Entitlement to a 10 percent disability evaluation for hemorrhoids is granted, subject to the regulations governing payment of monetary benefits. Service connection for a back disorder is denied. BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 * (Member temporarily absent) MATTHEW J. GORMLEY, III KENNETH R. ANDREWS, JR. *38 U.S.C.A. § 7102(a)(2)(A) (West 1991) permits a Board of Veterans' Appeals Section, upon direction of the Chairman of the Board, to proceed with the transaction of business without awaiting assignment of an additional Member to the Section when the Section is composed of fewer than three Members due to absence of a Member, vacancy on the Board or inability of the Member assigned to the Section to serve on the panel. The Chairman has directed that the Section proceed with the transaction of business, including the issuance of decisions, without awaiting the assignment of a third Member. (CONTINUED ON NEXT PAGE) NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988 (see sec. 402 of the Veterans' Judicial Review Act (Pub. L. 100-687)). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.