Citation Nr: 21010872 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 17-26 181 DATE: February 25, 2021 ORDER Entitlement to service connection for hemorrhoids is granted. REMANDED Entitlement to service connection for obstructive sleep apnea is remanded. FINDING OF FACT Resolving all reasonable doubt in the Veteran’s favor, his hemorrhoids are related to active duty service. CONCLUSION OF LAW The criteria for entitlement to service connection for hemorrhoids are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303(b). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty service from January 1986 to January 2006. This appeal is before the Board of Veterans’ Appeals (Board) from an October 2016 rating decision from a Department of Veterans Affairs (VA) Regional Office. In July 2020, the Veteran appeared and provided testimony before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is associated with the claims file. The Veteran seeks entitlement to service connection for hemorrhoids which he alleges began during active duty service. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303(a). Service connection requires: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In rendering a decision on appeal, the Board must analyze the credibility and probative value of all medical and lay evidence of record, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. 38 U.S.C. § 1154(a); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (“although interest may affect the credibility of testimony, it does not affect competency to testify”). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board must resolve reasonable doubt in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Turning to the evidence of record, service treatment records (STRs) indicate that in February 2005 he received treatment for hemorrhoids. A December 2008 VA treatment record indicates he “has a history of hemorrhoids” and he received treatment for hemorrhoids. During his July 2020 Board hearing, he reported that he received treatment for hemorrhoids while stationed in Mildenhall, England in 1999 and that he has continued to experience hemorrhoids ever since. After a review of the claims file in conjunction with the applicable laws and regulations, the Board finds that after granting all reasonable doubt to the Veteran, his hemorrhoid disability is related to active duty service. The Board recognizes that the Veteran received treatment for hemorrhoids in-service and has a current diagnosis of hemorrhoids. Thus, the first and second elements of service connection are established. See Shedden, 381 F.3d at 1167. As to a medical nexus, the Board finds the Veteran is competent and credible to report continued treatment for hemorrhoids ever since service. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Moreover, a February 2005 diagnosis of hemorrhoids so close to his end of service and his 2008 treatment for hemorrhoids fairly soon after active duty service indicate his hemorrhoids cannot be reasonably disassociated from his 20-year period of active service. As such, considering his 20 years of active duty service and affording all reasonable doubt in the Veteran's favor, the Board finds his hemorrhoids are the result of active service. See Shedden, 381 F.3d at 1167. Hence the benefit of the doubt rule applies. Gilbert, 1 Vet. App. 49; 38 U.S.C. § 5107(b). As such, the Veteran’s claim of entitlement to service connection for hemorrhoids is granted. REASONS FOR REMAND The Veteran seeks entitlement to service connection for obstructive sleep apnea which he alleges began in-service. The VA has a duty to assist the Veteran obtain relevant records to support his claim. See Murincsak v. Derwinski, 2 Vet. App. 363, 370 (1992) (finding that VA’s duty to assist specifically includes requesting information from other Federal departments); see also 38 C.F.R. § 3.159(c)(2). To assist in the procurement of service personnel records, VA will make as many requests as necessary to obtain the records from a Federal department or agency. Id. Moreover, in cases where records are lost or presumed lost, a heightened duty is imposed on the Board to consider the applicability of the benefit of the doubt doctrine, to assist the claimant in developing the claim, and to explain its decision when the Veteran's medical records are not available. See Russo v. Brown, 9 Vet. App. 46 (1996). Turning to the evidence of record, the service personnel record indicates the Veteran served in Mildenhall, England from roughly 1999 to 2003 and the STRs, which contain sparse records from that time, indicate he received treatment at the 48th Medical Group RAF in Lakenheath, England. In October 2016, private medical records indicate the Veteran was diagnosed with obstructive sleep apnea. During his July 2020 Board hearing, the Veteran and his spouse alleged that during active duty service in England he experienced the symptoms of obstructive sleep apnea, was diagnosed with the disorder, and was assigned a CPAP machine. Furthermore, he alleged that multiple requests for his medical records while in England have proved fruitless and he believes his records “got lost when I transferred from England to Utah.” As such, considering the testimony from the Veteran and his spouse and the heightened duty of the Board to assist the Veteran due to the possibility of lost service treatment records, a remand is required to further assist the Veteran in the development of his claim prior to adjudication by the Board. This matter is remanded for the following actions: 1. Attempt to acquire any outstanding Service Treatment Records that were created between 1999 and 2003 while the Veteran was stationed in Mildenhall, England to include medical records at the 48th Medical Group RAF in Lakenheath, England. 2. After the above is completed, conduct any further development deemed necessary, to include acquiring a VA medical opinion as to the etiology of the Veteran’s obstructive sleep apnea; and readjudicate the Veteran’s claim. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Law Clerk, Tyler R. Masters 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.