Citation Nr: 0733621 Decision Date: 10/25/07 Archive Date: 11/02/07 DOCKET NO. 04-07 460 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for a fistula disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. Connolly Jevtich, Counsel INTRODUCTION The veteran served on active duty from April 1969 to November 1970. This matter comes before the Board of Veterans' Appeals Board) on appeal from an April 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. In June 2006, the Board remanded this case. As noted in the prior remand decision, the matters of service connection for chronic vasomotor rhinitis with associated septal deviation and obstruction, and bilateral tinnitus are referred to the RO for appropriate action. FINDING OF FACT A fistula disorder to include perianal abscesses is not attributable to service. CONCLUSION OF LAW A fistula disorder to include perianal abscesses was not incurred or aggravated in active service. 38 U.S.C.A. §§ 1101, 1110 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.303, 3.304 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) With respect to the claimant's claim, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. Prior to the initial adjudication of the claimant's claim, VCAA letters were issued in December 2002 and February 2003. Thereafter, additional VCAA notification was sent in June 2006 and November 2006. Cumulatively, the VCAA letters fully satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The claimant was aware that it was ultimately the claimant's responsibility to give VA any evidence pertaining to the claim. The VCAA letters told the claimant to provide any relevant evidence in the claimant's possession. See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). ). In particular, the VCAA notification: (1) informed the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) informed the claimant about the information and evidence that VA will seek to provide; (3) informed the claimant about the information and evidence that the claimant is expected to provide; and (4) requested that the claimant provide any evidence in his possession that pertains to the claims, or something to the effect that the claimant should "give us everything you've got pertaining to your claim." See Pelegrini II. The United States Court of Appeals for the Federal Circuit (Federal Circuit) recently held that a statement of the case (SOC) or supplemental statement of the case (SSOC) can constitute a "readjudication decision" that complies with all applicable due process and notification requirements if adequate VCAA notice is provided prior to the SOC or SSOC. See Mayfield v. Nicholson, No. 2007-7130 (Fed. Cir. Sept 17, 2007) (Mayfield III). As a matter of law, the provision of adequate VCAA notice prior to a readjudication "cures" any timing problem associated with inadequate notice or the lack of notice prior to an initial adjudication. See Mayfield III, (citing Mayfield v. Nicholson, 444 F.3d at 1328, 1333- 34). In any event, the Board finds that any deficiency in the notice to the claimant or the timing of these notices is harmless error. See Overton v. Nicholson, 20 Vet. App. 427, 435 (2006) (in finding that the Board erred by relying on various post-decisional documents to conclude that adequate 38 U.S.C.A. § 5103(a) notice had been provided to the claimant, the United States Court of Appeals for Veterans Claims (Court) found that the evidence established that the claimant was afforded a meaningful opportunity to participate in the adjudication of the claim, and found that the error was harmless, as the Board has done in this case.) If any notice deficiency is present, the Board finds that the presumption of prejudice on VA's part has been rebutted in this case by the following: (1) based on the communications sent to the veteran over the course of this appeal, the claimant clearly has actual knowledge of the evidence he is required to submit in this case; and (2) based on the claimant's contentions as well as the communications provided to the claimant by VA, it is reasonable to expect that the claimant understands what was needed to prevail. See also Simmons v. Nicholson, 487 F. 3d 892 (2007); see also Sanders v. Nicholson, 487 F. 3d 881 (2007). VA also fulfilled its duty to obtain all relevant evidence with respect to the issue on appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The claimant's service medical records, VA medical treatment records, and identified private medical records have been obtained, to the extent available. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Pursuant to the Board's June 2006 remand, the veteran was contacted with regard to additional private medical evidence; however, no further evidence was indicated to be obtainable. Thus, there is no indication in the record that any additional evidence, relevant to the issue decided herein, is available and not part of the claims file. The claimant was also afforded a VA examination May 2007. 38 C.F.R. § 3.159(c)(4). The records satisfy 38 C.F.R. § 3.326. Since the Board has concluded that the preponderance of the evidence is against the claim of service connection, any questions as to the appropriate disability rating or effective date to be assigned are rendered moot, and no further notice is needed. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.304. Further, VA regulation provides that, with chronic disease shown as such in service (or within an applicable presumptive period under section 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 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, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of an evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). In addition, service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). A claim for service connection generally requires competent evidence of a current disability; proof as to incurrence or aggravation of a disease or injury in service, as provided by either lay or medical evidence, as the situation dictates; and competent evidence as to a nexus between the inservice injury or disease and the current disability. Cohen v. Brown, 10 Vet. App. 128, 137 (1997); Layno v. Brown, 6 Vet. App. 465 (1994). The Court has consistently held that, under the law cited above, "[a] determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service." Watson v. Brown, 4 Vet. App. 309, 314 (1993). This principle has been repeatedly reaffirmed by the Federal Circuit, which has stated, "a veteran seeking disability benefits must establish . . . the existence of a disability [and] a connection between the veteran's service and the disability." Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To do so, the Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the appellant. See Masors v. Derwinski, 2 Vet. App. 181 (1992). The service medical records reveal that the veteran was treated for an external hemorrhoid in October 1969. He was given ointment and Dulcolax. On his November 1970 separation examination, his anus and rectum examination was normal. The veteran was never diagnosed as having any anal fistula during service. Following the veteran's separation from service, there were no complaints, findings, treatment, or diagnosis of a rectal disorder for over 25 years. On July 1, 1996, private medical records reflect that the veteran was treated for complaints of rectal pain. Physical examination revealed a possible abscess. In September 2001, the veteran was seen for complaints of tenderness in the perianal area. The veteran was diagnosed as having a high anterior perirectal abscess for which he underwent incision and drainage. It was noted that in 1996, the veteran was hospitalized for the purpose of having a perirectal abscess drained. A November 2001 magnetic resonance imaging (MRI) of the pelvis revealed perirectal abscesses. In July 2002, it was noted that the veteran had a fistula in ano with chronic recurrent perineal cellulitus. The veteran underwent a fistulotomy and placement of seton. Due to tenderness, pain and low grade fever, the veteran was readmitted to the hospital for re-exploration of the surgical wound, shortening of the seton, debridement of the abscess cavity and packing in August 2002. Thereafter, he underwent two additional fistulotomies in November 2002 and January 2003. In order to determine if the veteran's post-service fistula disorder is related to the inservice hemorrhoid treatment and diagnosis, the veteran was afforded a VA examination in May 2007. The veteran reviewed the claims file, recorded the veteran's history and current complaints, and performed a physical examination. The physical examination resulted in a diagnosis of status post surgical perianal fistula repair, although currently the veteran did not have a perianal fistula. The examiner stated that there was no evidence of a perianal fistula or perianal abscess during service. It was the examiner's medical opinion that the previously treated fistula and perianal abscesses were not present during service, but instead developed in 1996 and there was no relationship to the previously treated hemorrhoids which were noted in 1969. The veteran contends that there is an etiological relationship between his post-service fistula disorder and service. The veteran can attest to factual matters of which he had first-hand knowledge, e.g., experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, the veteran as a lay person has not been shown to be capable of making medical conclusions, thus, his statements regarding causation are not competent. Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). Thus, while the veteran is competent to report what comes to him through his senses, he does not have medical expertise. See Layno. Therefore, he cannot provide a competent opinion regarding diagnosis and causation. However, the Federal Circuit has held that lay evidence is one type of evidence that must be considered and competent lay evidence can be sufficient in and of itself. The Board, however, retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). This would include weighing the absence of contemporary medical evidence against lay statements. In Barr v. Nicholson, 21 Vet App 303 (2007), the Court indicated that varicose veins was a condition involving "veins that are unnaturally distended or abnormally swollen and tortuous." Such symptomatology, the Court concluded, was observable and identifiable by lay people. Because varicose veins "may be diagnosed by their unique and readily identifiable features, the presence of varicose veins was not a determination 'medical in nature' and was capable of lay observation." Thus, the veteran's lay testimony regarding varicose vein symptomatology in service represented competent evidence. In Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007), the Federal Circuit determined that lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition (noting that sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. The relevance of lay evidence is not limited to the third situation, but extends to the first two as well. Whether lay evidence is competent and sufficient in a particular case is a fact issue. Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). See Barr. The veteran is competent to report that he had hemorrhoids in service. This fact is also supported in the record. However, the fistula disorder is not a simple diagnosis and he is not competent to provide a medical assessment regarding an etiological relationship between post-service fistula disorder and service. Thus, the veteran's lay assertions in that regard are not competent or sufficient. There is no competent medical evidence of any link between his current diagnosis and service. As noted, the veteran is not competent to make this causal link or to state the etiology of the post-service fistula disorder. The competent medical evidence shows that the post-service fistula disorder to include the perianal abscesses is not related to service. The Board attaches significant probative value to this opinion, as it is well reasoned, detailed, consistent with other evidence of record, and included review of the claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (Factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion.). The Board therefore finds that the May 2007 VA medical opinion is the most probative evidence of record. The Board may not base a decision on its own unsubstantiated medical conclusions but, rather, may reach a medical conclusion only on the basis of independent medical evidence in the record. Hensley v. Brown, 5 Vet. App. 155 (1993). Neither the Board nor the veteran is competent to supplement the record with unsubstantiated medical conclusions. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Conversely, health professionals are experts and are presumed to know the requirements applicable to their practice and to have taken them into account in providing a diagnosis. Cohen v. Brown, 10 Vet. App. 128 (1997). Thus, as the most probative evidence of record establishes that the post-service fistula disorder to include the perianal abscesses is not attributable to service, service connection is not warranted. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The preponderance is against the veteran's claim, and it must be denied. ORDER Service connection for a fistula disorder to include perianal abscesses is denied. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs