Citation Nr: 1028335 Decision Date: 07/29/10 Archive Date: 08/10/10 DOCKET NO. 08-27 570 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for lattice degeneration. 2. Entitlement to service connection for herpes simplex virus I (HSV1) and herpes simplex virus II (HSV2). 3. Entitlement to service connection for sleep apnea/upper airway resistance syndrome. REPRESENTATION Appellant represented by: Pennsylvania Department of Military and Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. S. Kelly, Counsel INTRODUCTION The Veteran had active service from November 1987 to December 1991 and from May 1997 to December 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2006 rating determination of the Department of Veterans Affairs (VA) Regional Office (RO) located in Philadelphia, Pennsylvania. The Veteran appeared at a Videoconference hearing before the undersigned Veterans Law Judge in June 2010. A transcript of the hearing is of record. The issue of entitlement to service connection for sleep apnea/upper airway resistance syndrome, 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. FINDINGS OF FACT 1. Lattice degeneration in both eyes with atrophic holes in the left eye is attributable to service. 2. The competent and probative evidence of record is at least in approximate balance as to whether the Veteran contracted the HSV1 and HSV2 in service. CONCLUSION OF LAW 1. Lattice degeneration in both eyes with atrophic holes in the left eye was incurred in active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.303 (2009). 2. Giving the benefit of the doubt to the Veteran, HSV1 and HSV2 were incurred in military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.102. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection Service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (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). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober 10 Vet. App. 488, 494- 97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post- service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson v. West, 12 Vet. App. 247, 253 (1999) (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). Lay persons are not competent to opine as to medical etiology or render medical opinions. see Grover v. West, 12 Vet. App. 109, 112 (1999); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Lay testimony is competent, however, to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (lay person competent to testify to pain and visible flatness of his feet); Espiritu, 2 Vet. App. at 494- 95 (lay person may provide eyewitness account of medical symptoms). The Board may not reject the credibility of the veteran's lay testimony simply because it is not corroborated by contemporaneous medical records. Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 3.102. Lattice Degeneration A review of the Veteran's service treatment records reveals that he was diagnosed as having left lattice degeneration with a small retina hole at the time of a November 2005 eye examination. At the time of a November 11, 2005 follow-up ophthalmologic examination, the Veteran was diagnosed as having lattice degeneration, floaters, and two atrophic holes. They were noted to not be affecting his vision. The Veteran was afforded a VA examination in May 2006. The examiner indicated that the claims folder was not available for review. The examiner noted that while serving on active duty, the Veteran was discovered to have retinal holes in the left eye. This was noted to have been on examination in November 2005. The examiner indicated that the Veteran brought a copy of the examination of that date. The Veteran currently had a small floater in his left eye but reported no visual complaints. He denied any flashes or diplopia. He received no treatment for the retinal hole. He used no ocular medications and had sustained no ocular injuries. He had also had not had ocular surgery. Family history was negative for blindness. Corrected vision for the left and right eye was 20/20. Examination revealed bilateral lattice degeneration with atrophic changes within the lattice. A diagnosis of bilateral lattice degeneration was rendered. The examiner noted that this condition was diagnosed while the Veteran was on active duty. In this case, the evidence shows the Veteran had lattice degeneration in both eyes during service. On VA examination in May 2006, the examiner identified lattice degeneration in both eyes. He specifically indicated that the condition was diagnosed in service. The Board is unable to disassociate the lattice degeneration identified in service from the lattice degeneration shown on VA examination in May 2006. Consequently, the Board finds service connection for lattice degeneration, bilaterally, with atrophic holes on the left, is warranted. HSV1/HSV2 The Veteran maintains that he is entitled to service connection for HSV1/HSV2. He asserts that symptomatology initially manifested during service, was diagnosed in service, and has been chronically, but periodically problematic since that time, requiring treatment with Valtrex. A review of the treatment records during the Veteran's period of active service reveals that the Veteran was seen with complaints of dysuria in February 1999. Laboratory tests performed at that time revealed positive findings for HSV1 and negative findings for HSV2. Laboratory testing performed in June 2004 revealed positive findings of HSV2. At the time of an April 2006 VA examination, the examiner indicated that the claims folder was not available for review. He noted that the Veteran did bring along a copy of his own military medical records for review. The examiner stated that the Veteran developed burning in the urethra on urination and then continuous burning in the urethra in 1999. Various tests were performed and it was eventually concluded that he was having these symptoms because of HSV1 in the urethra. This was concluded not on the basis of any lesion being seen by a urologist or on the basis of any culture being done from a lesion but on doing a blood test which showed that he had anti-bodies to the HSV1 virus. The examiner noted that despite the lack of viral culture, the Veteran had been treating himself with Valtrex, daily for a few days, each time these symptoms occurred. The Valtrex seemed to help and the symptoms ceased after a few days. The Veteran stated that if he did not take the Valtrex the symptoms would continue indefinitely. He noted that he would get the pills from his girlfriend who also had problems with HSV. The Veteran reported that in 2004 he had an outbreak in the inguinal areas. He stated that he had a repeat blood study done which showed he also had HSV2. There were no cultures of active lesions performed at that time. He noted that the inguinal problems recurred twice per year and that he had to take 500 mg of Valtrex daily for one month. The Veteran also reported having had a facial breakout in 2005 after sustaining a bad sunburn. The examiner noted that the Veteran reported that in every instance on the skin, which included the groin and the left facial area, there was stinging and burning when the eruption was present. The examiner indicated that the findings of HSV1/HSV2 were made through blood tests and not by cultures or biopsies of the lesions. Physical examination revealed no outbreak on the groin or face. The Veteran also denied any urethral pain. No pictures were ordered as there was nothing to photograph. The examiner noted that tests for HSV1 and 2 did include search for antibodies, which had already been done. However, he stated that the definitive diagnosis should probably be made on the basis of culture and/or biopsy of an active lesion which was impossible to do at that time. The rash occupied 0 percent of the Veteran's skin. The examiner rendered a diagnosis of HSV 1 and 2 involving the urethra, inguinal area, and left facial cheek, diagnosis made on the basis of clinical information and blood studies indicating that the Veteran had serum antibodies for HSV1 and 2, with no definitive cultures or biopsies having been performed. He indicated that the outbreaks in all locations were strongly symptomatic and that those on the face and neck were presumably disfiguring. The examiner stated that the severity of the outbreaks was impossible to delineate. In an August 2006 treatment record, the Veteran was noted to have HSV1 and 2. He was ordered to take Valtrex, two tablets three times daily, beginning on August 17, 2006. At the time of his June 2010 hearing, the Veteran testified that he was not given any blood tests for his HSV at the time of the VA examination. The Veteran indicated that his herpes was initially diagnosed in February 1999. He stated that he used Valtrex as needed and that he would get sores on his chin, lip, and inside his urethra. In this case, there has been no evidence presented which in any way suggests that the Veteran had HSV1 or 2 prior to service and the clinical evidence reflects that his HSV 1 condition initially manifested in 1999 and the HSV2 condition first manifested in 2004. The Board further observes that the Veteran was prescribed Valtrex for HSV in August 2006. The Board notes that although the Veteran's HSV was apparently inactive or dormant at the time of his April 2006 VA examination, HSV, in and of itself, is a chronic condition regardless of whether it is active or inactive, and as such it can neither be characterized as acute or resolved. As is clear from the Veteran's medical history and his own statements, the nature of this condition is such that it is periodic or sporadic in nature in terms of physical symptomatology; that matter goes to the downstream issue of the rating to be assigned rather then the issue of service connection and need not be further discussed at this point. Accordingly, with resolution of reasonable doubt in the Veteran's favor, service connection for the HSV1 and HSV2 is granted. Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) and that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). For claims pending before VA on or after May 30, 2008, 38 C.F.R. § 3.159 has been amended to eliminate the requirement that VA request that a claimant submit any evidence in his or her possession that might substantiate the claim. 73 Fed. Reg. 23,353 (Apr. 30, 2008). As it relates to the issues of service connection for lattice degeneration and HSV1/HSV2, the VCAA is not applicable where further assistance would not aid the appellant in substantiating his claim. Wensch v. Principi, 15 Vet App 362 (2001); see 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); see also VAOPGCPREC 5- 2004; 69 Fed. Reg. 59989 (2004) (holding that the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). In view of the Board's favorable decisions on this claim, further assistance is not required to substantiate that element of the claim. ORDER Service connection for bilateral lattice degeneration with atrophic holes in the left eye is granted. Service connection for HSV1 and HSV2 is granted. REMAND With regard to the claim of service connection for sleep apnea, the Board notes that in October 2005, the Veteran underwent testing to determine if he had sleep apnea. A sleep polysomnogram performed at that time revealed mild to moderate obstructive sleep apnea. A November 2005 follow-up study revealed that the Veteran had excellent response to nasal CPAP at 6 cm with a sleep net mask. Nightly use of nasal CPAP at 6 cm was recommended. The Veteran was afforded a VA examination in May 2006. The examiner noted the findings on the October 2005 and November 2005 tests. He also reported the findings at the time of an April 2006 pulmonary function test. The examiner stated that the Veteran did not have obstructive sleep apnea per se, but he had upper airway resistance syndrome. He indicated that the diagnosis of upper airway syndrome was made when the AHI was normal but the asleep efficiency was poor due to O2 desaturation, which wakes the patient up making him sleep deficient. The examiner also indicated that the Veteran had very minimal obstructive lung disease due to smoking. The examiner again noted that the Veteran did not have obstructive or central sleep apnea per se but that he had an upper airway resistance syndrome. The examiner did not indicate whether the Veteran's newly diagnosed airway resistance syndrome had its origins in service. Where the Board makes a decision based on an examination report that does not contain sufficient detail, remand is required "for compliance with the duty to assist by conducting a thorough and contemporaneous medical examination." Goss v. Brown, 9 Vet. App. 109, 114 (1996); Stanton v. Brown, 5 Vet. App. 563, 569 (1993). At his June 2010 hearing, the Veteran testified that he used a CPAP machine on a nightly basis. He also reported that he was not given any tests to determine whether he had sleep apnea at the time of the May 2006 VA examination. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the nature and etiology of any sleep apnea/upper airway resistance syndrome. All indicated tests and studies, including a polysomnogram, should be performed, and all findings should be reported in detail. The examiner should offer an opinion on the following question: Is it at least as likely as not (50 percent probability or greater) that any sleep apnea/upper airway resistance syndrome, if found, had its origin in service or is otherwise related to the Veteran's period of active service? The examiner should provide detailed rationale for this opinion. 2. The Veteran should be advised in writing that it is his responsibility to report for the VA examination(s), to cooperate with the development of his claim, and that the consequences for failure to report for a VA examination without good cause include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2009). In the event that the Veteran does not report for any ordered examination, documentation must be obtained that shows that notice scheduling the examination was sent to his last known address prior to the date of the examination. It should also be indicated whether any notice that was sent was returned as undeliverable. 3. To help avoid future remand, the RO must ensure the required actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, corrective action should be undertaken before the claims file is returned to the Board. See Stegall v. West, 11 Vet. App. 268 (1998). 4. After undertaking any other development deemed appropriate, the RO should readjudicate the remaining issue on appeal. If any benefit sought is not granted, the Veteran and his representative should be furnished with a supplemental statement of the case containing all pertinent laws and regulations and afforded an opportunity to respond before the record is returned to the Board for future review. The appellant has the right to submit additional evidence and argument on the matter or matters 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 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 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). ______________________________________________ MARY GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs