Citation Nr: 21029082 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 19-33 207 DATE: May 12, 2021 ORDER Service connection for hemorrhoids is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, his hemorrhoids began during active service. CONCLUSION OF LAW The criteria for service connection for hemorrhoids are met. 38 U.S.C. §§ 1110, 1131, 1154 (b), 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION This case comes to the Board of Veterans' Appeals (Board) on appeal from decisions of the Agency of Original Jurisdiction (AOJ). The Board notes that service connection for hemorrhoids was originally denied in a May 2016 rating decision. Notice was sent to the Veteran on May 26, 2016. The Veteran then requested reconsideration of the decision, and the AOJ denied the claim again in a March 2017 rating decision. In a statement received by VA on May 10, 2017, the Veteran reported that he had constant hemorrhoid symptoms of pain and bleeding since stress-induced sphincter tightening while straining out stool in a combat environment in service. In the June 2017 rating decision, the AOJ informed the Veteran that the claim was reopened, and adjudicated the claim on the merits. The Board finds that the May 2017 statement is both new and material evidence. 38 C.F.R. §§ 3.156 (b) provides that new and material evidence received prior to the expiration of the appeal period will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. Thus, the May 2016 decision as to hemorrhoids did not become final, and the issue is properly characterized as a claim for service connection. Since the AOJ has adjudicated the claim for service connection on the merits, there is no prejudice to the Veteran in proceeding with adjudication of this claim. The Veteran appeared before the undersigned Veterans Law Judge at a Board hearing in May 2021. A transcript of the hearing will be associated with the claims file. 1. Service connection for hemorrhoids The Veteran contends that his hemorrhoids began during service in Korea, and that he had constant hemorrhoid symptoms of pain and bleeding since stress-induced sphincter tightening while straining to defecate in a combat environment in service. See his May 2017 statement, May 2018 notice of disagreement, and October 2019 substantive appeal. The Veteran had active service from August 1949 to October 1952, and his decorations include the Korean Service Medal and the Combat Infantry Badge. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three elements required to establish service connection are: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). A December 2015 private treatment record and the June 2017 VA examination show that the Veteran has a current diagnosis of hemorrhoids. Thus, the question becomes whether the current disability is related to service. The Board concludes that the Veteran has a current disability that began during active service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). The Board notes that most of the Veteran's service treatment records are not available. Only a single service treatment record is on file, and it pertains to another condition. The record shows that the AOJ made multiple attempts to obtain additional service treatment records from all potential sources, including the National Personnel Records Center (NPRC). In February 2016, the AOJ notified the Veteran of a July 1973 fire at the National Archives and Records Administration (NARA) and that, if his service records were stored there on that date, they may have been destroyed in the fire. In April 2016 and March 2017, the NPRC indicated that the Veteran's service treatment records are fire-related and there are no other available service treatment records or SGO records. The Board acknowledges its heightened duty "to consider the applicability of the benefit of the doubt rule, to assist the claimant in developing the claim, and to explain its decision" when service treatment records are lost or missing. See Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005) (citing Russo v. Brown, 9 Vet. App. 46, 51 (1996)); see also Cuevas v. Principi, 3 Vet. App. 542, 548 (1992) and O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). However, no presumption, either in favor of the claimant or against VA arises when there are lost or missing service records. See Cromer, 19 Vet. App. at 217-18 (2005) (Court declined to apply an "adverse presumption" against VA where records had been lost or destroyed while in Government control because bad faith or negligent destruction of the documents had not been shown). The Veteran has asserted that he suffered from hemorrhoids during his combat service in Korea. As his Combat Infantry Badge corroborates his combat service, the Board will accept his lay statements as evidence that he experienced hemorrhoids in service. 38 U.S.C. § 1154 (b); 38 C.F.R. § 3.304 (d). The Veteran has also provided sworn testimony to that fact at the May 2021 Board hearing. The earliest medical evidence of hemorrhoids on file is a February 2011 private report of a colonoscopy although the Veteran has provided testimony that he treated the condition himself including with over-the-counter aids after service and for many years. The evidence against the claim includes a June 2017 VA examination, in which the examiner provided a negative nexus opinion. The rationale was that there was no objective evidence of treatment for hemorrhoids on active duty, or since service, until the diagnosis of this condition on colonoscopy many decades after military service. The examiner opined that the evidence did not show that hemorrhoids were incurred in or caused by tightening of the sphincter due to stress in combat over 60 years earlier (before 1953). The examiner stated that hemorrhoids are a common condition in the general population, and noted that he was hit by an automobile in 2008, and subsequently placed on opioids/opioid-like medications which have a common side effect of constipation, which, with straining, can cause hemorrhoids. The evidence in favor of the claim includes the Veteran's competent and credible lay statements of continuous symptoms of hemorrhoids, bleeding, and pain since straining with defecation during combat service in Korea, and lay statements from his brother, former spouse, and spouse, which are collectively to the effect that he had continuous symptoms of rectal bleeding and hemorrhoids since service. The Veteran has also submitted a letter from his private physician, Dr. H., to the effect that he had been on Hysingla since May 2016 and had no side effects from the medication. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran's current hemorrhoids arose in service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for hemorrhoids is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. S. L. Kennedy Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. L. Wasser, 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.