Citation Nr: 0313411 Decision Date: 06/20/03 Archive Date: 06/24/03 DOCKET NO. 90-41 996 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for herpes simplex. 2. Entitlement to service connection for right inguinal hernia (claimed as right groin injury) as secondary to medications for service connected hypertension. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Mainelli, Counsel INTRODUCTION The veteran had active duty from April 1952 to April 1956, and from July to August 1957, and from November 1957 to August 1974. This case comes before the Board of Veterans Affairs (Board) on appeal from an August 1999 decision by the North Little Rock, Arkansas Regional Office (RO) of the Department of Veterans Affairs (VA) which denied service connection for herpes simplex (claimed as cold sores and blisters of the lip). The case was previously before the Board in May 2002 at which time adjudication of the claim was deferred pending additional development pursuant to 38 C.F.R. § 19.9(a)(2). The Board notes that, as addressed in the remand below, the veteran has initiated an appeal on the issue of service connection for service connection for right inguinal hernia (claimed as right groin injury) as secondary to medications for service connected hypertension. This issue is listed on the title page for procedural purposes only. FINDING OF FACT The veteran's herpes simplex was first manifested in service. CONCLUSION OF LAW Herpes simplex was incurred during active service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303(b), 3.304(b) (2002). REASONS AND BASES FOR FINDING AND CONCLUSION The veteran seeks service connection for recurrent cold sores and blisters of the lip which he claims was first manifested and treated in service. According to his statements and testimony of record, this condition has co-existed with periodic enlargements of his service connected thyroglossal duct cyst. He has had recurrent episodes of cold sore outbreak following his separation from service which he initially self-treated with over-the-counter medications. This condition, which is currently diagnosed as herpes simplex, is currently controlled with a prescription of Acyclovir (Zovirac) ointment. The veteran's service medical records are negative for a diagnosis of herpes simplex. His induction and separation examinations for his periods of active service do not note a history of recurrent cold sores or diagnosis of herpes simplex. However, clinical records in 1969 do reflect a history of "cold sores" and/or "infection of the lip." In pertinent part, a March 1969 Ear, Nose and Throat (ENT) consultation recorded the following history: There is a very small, movable 2 x 2 cm. firm mass just above the [t]hy[r]oid to the left of the midline that questionably moves with swelling. This may represent a thyroglossal duct cyst, but with the history of enlargement with infection of the lip this well represent a lymph node. Post-service, the veteran's medical records are largely silent for treatment of cold sores and/or herpes simplex. A January 1983 VA clinical record does record his report of occasional enlargement of his thyroglossal duct cyst "assoc. c cold sores." A similar history was recorded in March 1983. Thereafter, his VA clinical records reflect treatment for herpes lesions of the lips in the late 1990's treated with Acyclovir (Zovirac) ointment. VA examinations in July 1999 and September 2002 provided a diagnosis of herpes simplex. In September 2002, the VA examiner noted that herpes simplex was a latent disease that can manifest itself many years after being acquired, but provided no opinion as to the actual onset of the disease. Service connection is established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during periods of active military service. 38 U.S.C.A. § 1110, 1131 (West 2002). The claimant bears the burden to present and support a claim of benefits. 38 U.S.C.A. § 5107(a) (West 2002). In evaluating service connection claims, the Board shall consider all information and lay and medical evidence of record. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b) (West Supp. 2002). A veteran will be considered to have been in sound condition when examined, accepted and enrolled in service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto. 38 C.F.R. § 3.304(b) (2002). Subsequent manifestations of the same chronic disease following service, however, remote, are service connected unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (2002). VA has defined competency of evidence as follows: (1) Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It would also include statements contained in authoritative writings such as medical and scientific articles and research reports or analyses. (2) Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. §3.159(a) (2002). The record reflects that the veteran entered his periods of active service absent a notation of herpes simplex. Therefore, he is presumed to have entered his periods of service in sound condition. 38 C.F.R. § 3.304(b) (2002). His service medical records do reflect in-service report of "cold sores" and/or "infection of the lip." A diagnosis of this condition, however, is not reflected in the service medical records. The veteran has provided competent evidence of continuity of symptomatology since service. 38 C.F.R. § 3.303(b) (2002). See Arms v. West, 12 Vet. App. 188, 198 (1999) (laypersons may provide probative evidence regarding conditions capable of observation or within the realm of lay knowledge). He currently holds a diagnosis of herpes simplex which is treated with Acyclovir (Zovirac) ointment. In September 2002, a VA examiner essentially provided opinion that the onset, as opposed to the manifestation, of herpes simplex was speculative. Pursuant to the provisions of 38 C.F.R. § 3.303(b) and application of the benefit of the doubt rule, the Board holds that the veteran's herpes simplex was first manifested in service. 38 U.S.C.A. § 5107(b) (West 2002). Therefore, the Board grants service connection for herpes simplex as incurred during active service. ORDER Service connection for herpes simplex in granted. REMAND In a rating decision dated in November 2000, the RO denied a claim for service connection for right inguinal hernia (claimed as right groin injury) as secondary to medications for service connected hypertension. By means of a VA Form 21-4138 filing received later that month, the veteran submitted a timely Notice of Disagreement (NOD) with this RO decision, but a Statement of the Case (SOC) has yet to be issued. This issue is remanded to the RO for issuance of an SOC in order to afford the veteran the opportunity to perfect his appeal, if he so desires. See Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, this case is REMANDED for the following action: The RO should furnish the veteran and his accredited representative an SOC which advises him of the Reasons and Bases for denying his claim for service connection for right inguinal hernia (claimed as right groin injury) as secondary to medications for service connected hypertension. The veteran should be afforded the opportunity to respond to the SOC, and advised of the requirements necessary to perfect his appeal. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if appropriate. The veteran may furnish additional evidence and argument while the case is in remand status. Kutscherousky v. West, 12 Vet. App. 369 (1999). The purpose of this REMAND is to ensure due process of law. No inference should be drawn regarding the final disposition of the claim as a result of this action. This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West 2002) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. ______________________________________________ C.W. Symanski Veterans Law Judge, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.