Citation Nr: 1016240 Decision Date: 05/03/10 Archive Date: 05/13/10 DOCKET NO. 08-15 898 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho THE ISSUES 1. Entitlement to service connection for headaches claimed as secondary to medication taken for the treatment of service-connected herpes simplex. 2. Entitlement to service connection for depression and anxiety. 3. Entitlement to service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Kedem, Counsel INTRODUCTION The Veteran served on active duty from July 1971 to August 1978. This matter comes to the Board of Veterans' Appeals (Board) from an October 2007 rating decision by which the RO denied entitlement to the benefit sought herein. Via June 1998 rating decision, the RO denied entitlement to service connection for depression and anxiety as well as for PTSD. In August 1998, the Veteran sent his congressional representative a letter expressing dissatisfaction and indeed disagreement with the rating decision. That letter was received at the RO later that month. As explained below, that letter is construed as a timely fined notice of disagreement. The RO, however, did not issue a statement of the case regarding these issues. As a statement of the case has not yet been issued on these matters, additional action by the RO is required as set forth below in the REMAND portion of this decision. Manlincon v. West, 12 Vet. App. 238 (1999). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required on his part. REMAND The Veteran maintains that he suffers from headaches as a result of medications he takes to treat outbreaks of herpes simplex. Apparently, acyclovir caused severe headaches. As a result, valacyclovir (Valtrex) was prescribed. Valacyclovir also causes headaches, according to the Veteran, but to a lesser degree. The Veteran's contentions regarding the cause of his headaches have been confirmed by a private physician. A review of the record, however, reflects that headaches have also been attributed to other causes such as sinusitis. In order for the Board to determine the etiology of the Veteran's claimed headaches, a VA medical examination must be conducted on an occasion when the Veteran is taking valacyclovir during an outbreak of herpes simplex. See Ardison v. Brown, 6 Vet. App. 405, 408 (1994) (recognizing the need for a medical examination during the active stage of a condition). The examiner should elicit information from the Veteran regarding the frequency of outbreaks, the regularity of valacyclovir consumption during outbreaks, and the frequency and severity of headaches during occasions in which the Veteran is both taking valacyclovir and suffering from a herpes simplex outbreak. See Bowers v. Derwinski, 2 Vet. App. 675 (1992) (noting that an adequate examination requires that the examiner address the "frequency and duration" of the appellant's service-connected herpes "when the infection is in its active stage"). Then, the examiner should opine regarding whether headaches stem from the Veteran's herpes simplex medications. The Board acknowledges the RO's arguments set forth regarding the reason to not obtain a VA examination. However, given the Veteran's appellate assertions and the contradictory evidence of record, a VA examination is needed. Lay evidence is competent when it regards the readily observable features or symptoms of injury or illness and may provide sufficient support for a claim of service connection. Additionally, the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). Rather, the Board must rely on independent medical evidence to support its findings and must not refute medical evidence in the record with its own unsubstantiated medical conclusions. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Amended notice of the Veterans Claims Assistance Act of 2000 (VCAA) is necessary as well. In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. The VCAA letter provided in October 2007 did not provide the type of information mandated by the Court in Dingess. The new VCAA notice must advise the Veteran in accordance the Court's decision in that case. By a June 1998 rating decision, the RO denied entitlement to service connection for depression and anxiety as well as for PTSD. In August 1998, the Veteran sent his congressional representative a letter expressing dissatisfaction and indeed disagreement with the rating decision. That letter was received at the RO later that month. That letter can reasonably be construed as a timely filed notice of disagreement, as it expresses disagreement with the June 1998 rating decision and arrived at the RO in a timely fashion. 38 C.F.R. §§ 20.201, 20.300, 20.302 (2009). The Board acknowledges that a notice of disagreement must be timely filed with the RO that issued the relevant rating decision and not with non-VA entities such as congressional offices. 38 C.F.R. § 20.300; see also 38 C.F.R. § 20.302 (addressing the time limitations for filing, in pertinent part, notices of disagreement). Because, however, a statement conforming to the requirements of a notice of disagreement was received by the RO within the statutory timeframe, and considering the pro-Veteran, nonadversarial, and paternalistic nature of the veterans' benefits system, the Board finds that a timely notice of disagreement was filed. See Jaquay v. Principi, 304 F.3d 1276 (Fed. Cir. 2002); Nolen v. Gober, 222 F.3d 1356 (Fed. Cir. 2000); Hensley v. West, 212 F.3d 1255 (Fed. Cir. 2000). When there has been an initial RO adjudication of a claim and a notice of disagreement as to its denial, the claimant is entitled to a statement of the case, and the RO's failure to issue same is a procedural defect. Manlincon, supra; Godfrey v. Brown, 7 Vet. App. 398, 408-410 (1995). Pursuant to 38 C.F.R. § 19.9(a) (2009), if further evidence or clarification of the evidence or correction of a procedural defect is essential for a proper appellate decision, the Board is required to remand the case to the RO for necessary action. Thus, the Board must remand the issues of entitlement to service connection for depression and anxiety and entitlement to service connection for PTSD for the preparation of a statement of the case. See VAOPGCPREC 16-92 (July 24, 1992). Accordingly, the case is REMANDED to the RO via the AMC for the following action: 1. Send the Veteran an amended VCAA notice that includes the type of information mandated by the Court in Dingess. 2. Schedule a VA medical examination during a herpes simplex outbreak during which the Veteran is also taking valacyclovir (Valtrex). Specifically, the Veteran should be instructed to appear for an examination when two conditions are met: (1) he is in the midst of a herpes simplex outbreak) and (2) he is taking valacyclovir (Valtrex). After reviewing pertinent documents in the claims file, examining the Veteran, and eliciting information regarding the frequency of herpes simplex outbreaks, compliance with medication during such occasions, and headache manifestations during such times the examiner is asked to opine regarding whether it is as least as likely as not (50 percent or greater likelihood) that medication used to treat herpes simplex outbreaks causes headaches. A rationale for all opinions and conclusions should be stated, and the examination report should indicate whether the requested review of the record took place. 3. Then, readjudicate the issue of entitlement to service connection for headaches claimed as secondary to medication taken for the treatment of service-connected herpes simplex. If the benefit sought on appeal remains denied, the Veteran and his representative should be provided a supplemental statement of the case and afforded the appropriate opportunity to respond thereto. 4. Issue a statement of the case concerning the issues of entitlement to service connection for depression and anxiety and entitlement to service connection for PTSD. The Veteran should be advised of the time period within which to perfect his appeals. 38 C.F.R. § 20.302(b) (2009). The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). _________________________________________________ C. CRAWFORD Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2009).