Citation Nr: 1122919 Decision Date: 06/15/11 Archive Date: 06/28/11 DOCKET NO. 07-37 794 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for herpes simplex B. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. Havelka, Counsel INTRODUCTION The Veteran's active military service extended from October 1954 to April 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Veteran claims entitlement to service connection for "herpes simplex B." The Veteran essentially contends that he incurred herpes during active service. He claims that he developed a skin rash, or skin lesions, during active service in Korea. He further contends that he has had recurrence of these symptoms periodically after service. 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)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Accordingly, the Veteran is competent to report symptoms of skin rash, lesions, or sores which are consistent with the symptoms of herpes. However, the Veteran's assertions have been very nonspecific as to the dates of outbreaks of his alleged herpes symptoms. He has provided medical release forms for post-service private medical records which have resulted in the retrieval of little, if any, evidence to support his claim. The objective medical evidence of record is scant and does not generally support the Veteran's claim. Service treatment records have been obtained and they do not indicate any complaints of, treatment for, or diagnosis of, any herpes disorder during service. The post-service treatment records which have been obtained under the Veteran's authorization have resulted in only two records which provide any useful information. A December 2003 private medical record notes a medical history of "shingles," a herpes disorder. A September 2006 private medical record notes a medical history of eczema, not herpes, as a skin disorder. However, this record does note the Veteran is prescribed "Valtrex" as a current medication. The Board notes that Valtrex is a prescription medication used to treat both shingles and genital herpes. In a September 2007 letter, the Veteran claims that he is being prescribed Valtrex to treat his herpes and that the prescription is being filled by Defense Department medical facilities. The Board notes that the Veteran retired from military service. Accordingly, he was entitled to medical care at Defense Department medical facilities as a retiree subsequent to service. Review of the record does not indicate that any service department medical records for the Veteran's post-service treatment as a retiree have been obtained. VA's duty to assist is heightened when records are in the control of a government agency. Gobber v. Derwinski, 2 Vet. App. 470 (1992). It appears that a VA Compensation and Pension examination is warranted based on the Veteran's report of symptoms dating back to service. When the medical evidence is inadequate, VA must supplement the record by seeking an advisory opinion or ordering another medical examination. Colvin v. Derwinski, 1 Vet. App. 171 (1991) and Hatlestad v. Derwinski, 3 Vet. App. 213 (1992). Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to identify the names of all health care professionals and/or facilities (private and governmental) where he has been treated for his claimed herpes symptoms, since his separation from active duty in April 1975. Request that the Veteran provide: * An account of the specific herpes symptoms he is claiming he has. Is he claiming service connection for herpes zoster (shingles) or genital herpes (herpes simplex)? * Specific dates and locations of treatment for herpes symptoms during service and at service department medical facilities as a retiree. Subsequently, and after securing the proper authorizations where necessary, obtain all the available records from all the sources listed by the Veteran which are not already on file. Specifically obtain copies of the Veteran's post-service medical treatment at service department medical facilities as a military retiree. 2. Schedule the Veteran for the appropriate examination for herpes. The examination report should include a detailed account of all herpes pathology found to be present. All necessary tests should be conducted and the examiner should review the results of any testing prior to completion of the report. The examiner should review the evidence of record with special attention to the service treatment records showing no diagnosis of herpes during service, and subsequent medical records showing some treatment for herpes with Valtrex at a period of time decades after service. The examiner should then indicate: * Whether there a diagnosis or any current herpes disability. * Whether it is at least as likely as not (50 percent or greater probability) that any current herpes disability was incurred during active service or was caused by active service. The report of examination must include a complete rationale for all opinions expressed. The entire claims folder and a copy of this remand must be made available to and reviewed by the examiner in conjunction with the examination. 3. Then, review the claims folder and ensure that all of the foregoing development has been completed in full. If any development is incomplete, appropriate corrective action is to be implemented. If any of the medical examination reports do not include adequate information to adjudicate the issues on appeal, they must be returned for corrective action. 38 C.F.R. § 4.2; Ardison v. Brown, 6 Vet. App. 405, 407 (1994). 4. Following the above, readjudicate the Veteran's claim. If any of the benefits sought on appeal remain denied, a Supplemental Statement of the Case should be issued, and the Veteran and his representative should be afforded an opportunity to respond. Then, the case should be returned to the Board for appellate review. The appellant 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 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. 2010). _________________________________________________ ROBERT C. SCHARNBERGER 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) (2010).