Citation Nr: 20021756 Decision Date: 03/26/20 Archive Date: 03/26/20 DOCKET NO. 10-14 755 DATE: March 26, 2020 ORDER Entitlement to service connection for a left eye scar is granted. Entitlement to service connection for hemorrhoids is granted. FINDINGS OF FACT 1. It is at least as likely as not that the Veteran suffers from a scar below his left eye that was caused by a left eye injury in service. 2. The Veteran’s hemorrhoid disability had its onset in service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a left eye scar have been met. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). 2. The criteria for entitlement to service connection for hemorrhoids have been met. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from August 1983to August 1987, and from October 2001 to October 2002. Further, the record reflects he had additional service in the Ohio Air National Guard, including periods of Active Duty for Training. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions from the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran presented sworn testimony at a hearing before the undersigned in February 2017. When this matter was previously before the Board in October 2018, the Board denied service connection for a left eye scar and hemorrhoids. The Veteran appealed the Board’s October 2018 decision to the United States Court of Appeals for Veterans Claims (Court), which vacated the Board decision as to these issues and remanded them pursuant to a September 2019 Joint Motion for Partial Remand. Service Connection 1. Entitlement to service connection for a left eye scar The Veteran seeks service connection for a scar under his left eye that he contends was incurred when he suffered trauma to his left eye in service. Service connection may be granted for a disability or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. In order to establish service connection for a present disability the claimant must show the existence of a present disability, an in-service incurrence or aggravation of a disease or injury, and a causal relationship or “nexus” between the present disability and the in-service injury or disease. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). During this February 2017 hearing before the Board, the Veteran testified that he currently suffers from a painful scar below his left eye, and that this scar was caused by a trauma to the left eye in service. He is competent to offer testimony concerning the events and symptoms he experiences, and the Board finds his reports credible. See Layno v. Brown, 6 Vet. App. 465 (1994). His service treatment records confirm that he suffered an injury to his left eye during service, and the Veteran is already service connected for left eye visual symptoms that are due to this incident. Although there is no medical opinion of record that a nexus exists between the Veteran’s left eye injury in service and his current scar, such evidence is not necessary in light of the lay evidence of record concerning the onset of his scar. King v. Shinseki, 700 F.3d 1339, 1344-45 (Fed. Cir. 2012); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The Board notes that an August 2017 VA examiner found no scar on examination; however, it appears that this examination did not address whether the Veteran had a scar below his eye, but instead focused on whether he had a scar of the eye itself or his eye lid. Moreover, the VA examiner who examined the Veteran in connection with his skin conditions did not address scars either. As all three elements of service connection have been met, the Veteran’s claim is granted. 2. Entitlement to service connection for hemorrhoids The Board further finds that service connection for hemorrhoids is warranted because the competent and credible evidence of record shows that hemorrhoids were incurred in the line of duty during a period of Active Duty for Training (ACDUTRA) and have been recurrent ever since. To have basic eligibility for veterans benefits based on a period of duty as a member of a state National Guard, a National Guardsman must have been ordered into Federal service by the President of the United States, or must have performed “full-time duty” under the provisions of 32 U.S.C. §§ 316, 502, 503, 504, or 505. See 38 U.S.C. §§ 101 (21), (22)(C); see also 32 U.S.C. §§ 316 (providing for detailing of regular members of the U.S. Army and Air Force to duty with the Army or Air National Guard of each State); 502(a)(2) (stating that “each company, battery, squadron, and detachment of the National Guard... shall... participate in training at encampments, maneuvers, outdoor target practice, or other exercises, at least 15 days each year”); 503 (providing for participation in field exercises); 504 (dealing with National Guard Schools and small arms competitions); 505 (dealing with U.S. Army and Air Force schools and field exercises); see also Allen v. Nicholson, 21 Vet. App. 54, 56-58 (2007). The Board notes that only service department records can establish if and when a person was serving on active duty or ACDUTRA. See Cahall v. Brown, 7 Vet. App. 232, 237 (1994). In this case, all of the elements of service connection for hemorrhoids are met by the competent and credible lay and medical evidence of record. During the appeal period, the Veteran was noted to have hemorrhoids at various times. See September 2013 and April 2014 VA Treatment Records. Although the August 2017 VA examiner stated that the Veteran did not have hemorrhoids, this report was based on VA treatment records from May 2017 showing that the Veteran had a rectal examination with no notation of the presence of hemorrhoids. The August 2017 VA examination report shows that no rectal examination was completed at that time. See August 2017 VA Examination Report. Thus, the Board finds that the Veteran has had hemorrhoids during the appeal period and thus the first element of service connection has been met. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (holding that the current disability requirement is satisfied when a claimant has a disability at any point during the pendency of the claim, even if it later resolves). The Veteran was diagnosed with hemorrhoids in February 1992, while serving on ACDUTRA. He was lifting dry wall and developed hemorrhoids shortly thereafter. It was also noted that he suffered an abrasion of the glutaral crease secondary to running heavy equipment. A Line of Duty determination shows that the Veteran’s hemorrhoids were incurred in the line of duty during a period of ACDUTRA He was seen for follow up a few days later, when it was noted that the Veteran did not have a prior history of hemorrhoids. The Veteran complained of constant pain with no constipation. He was advised to treat with sitz bath and cream. He was treated again for these hemorrhoids in July 1992. During his February 2017 hearing before the Board, the Veteran testified that his hemorrhoid symptoms have been present since their onset in 1992. He noted that they would waxed and waned more frequently during his second period of service and that they have stayed more frequent since that time. See February 2017 Hr’g Tr. at 11-12. As noted in the September 2019 JMPR, the August 2017 VA examiner’s negative nexus opinion is inadequate as it did not consider the Veteran’s service treatment records or his lay reports concerning the onset and recurrence of his hemorrhoids. Therefore, the Board finds that the credible and probative evidence supports a finding that hemorrhoids began during a period of ACDUTRA and have been recurrent since that time and, as such, service connection for hemorrhoids is warranted. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T.N.W. 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.