Citation Nr: 21029296 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 12-01 646 DATE: May 13, 2021 ORDER Entitlement to service connection for an anal abscess is granted. FINDING OF FACT The evidence of record is in equipoise as to whether the Veteran's anal abscess is related to his service-connected disability. CONCLUSION OF LAW Resolving the benefit of the doubt in the Veteran's favor, the criteria for service connection for anal abscess have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from June 1964 to September 1968, including service in the Republic of Vietnam and Camp Lejeune, North Carolina. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2011 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO) in Roanoke, Virginia (Agency of Original Jurisdiction (AOJ)), which denied the Veteran's service connection claim on appeal. Most recently, this issue was before the Board in November 2020. At that time, the appeal also included the issue of entitlement to service connection for a respiratory disability. At that time, the Board remanded the claim in its entirety for additional evidentiary development. Upon completion of development, the AOJ granted service connection for asbestos induced pulmonary fibrosis. See Rating Decision dated March 2021. As that decision represents a full grant of benefits sought, that issue is no longer in appellate posture. As for the claim for service connection for anal abscess, the Board remanded the claim for a secondary service connection nexus opinion. As will be discussed in more detail below, the Board finds that there has been substantial compliance with the remand directives from September 2020 regarding the claim for service connection for anal abscess. See Stegall v. West, 11 Vet. Appl 268, 271 (1998) (holding when a remand is issued, the Veteran is entitled, as a matter of law, the right to compliance with the remanded order). Service Connection for Anal Abscess The Veteran is seeking service connection for his anal abscess and has presented two theories of entitlement in support of his claim. First, the Veteran contends that he developed an anal abscess secondary to his various exposures during services. Alternatively, the record suggests that the Veteran's anal abscess disability may have been aggravated by his service-connected diabetes. In general, service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted for disability shown after service, when all the evidence, including that pertinent to service, shows that it was incurred or aggravated in service. 38 C.F.R. § 3.303(d). To establish service connection, a claimant must show: "(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). Service connection may also be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (the Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54). Turning to the present case, the record reflects that the Veteran currently has a diagnosis of anal abscess. Early in the appeal period, the Veteran submitted private treatment records showing consistent treatment for anal abscess in 2010 and 2011. Accordingly, element (1) of Shedden is satisfied. In regard to a nexus, there are two opinion of record. The May 2019 VA examiner found that the Veteran's anal abscess was less likely than not caused by or etiologically related to his exposures. However, the examiner noted that diabetes increased the risk of developing anal abscesses. At the September 2020 VA examination, the examiner opined that the Veteran's disability was at least as likely as not aggravated beyond its natural progression by diabetes. In so finding, the examiner noted that medical literature established that diabetics formed anal abscesses more frequently than the population at large. In light of the above, the Board finds that the evidence for and against the claim is at least in equipoise as to whether the Veteran's anal abscess is attributable to his service-connected disabilities. When the evidence for and against a claim is in relative equipoise, by law, the Board resolves all reasonable doubt in the Veteran's favor. The Board emphasizes that this standard of proof is "unique" to the VA adjudicatory process in light of the fact that the nation, 'in recognition of our debt to our veterans,' has 'taken upon itself the risk of error' in awarding such benefits. Wise v. Shinseki, 26 Vet. App. 517, 531 (2014). See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 55. Therefore, the benefit of the doubt is resolved in favor of the Veteran and entitlement to service connection for anal abscess is granted. T. MAINELLI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Orie, 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.