Citation Nr: 1312656 Decision Date: 04/16/13 Archive Date: 05/02/13 DOCKET NO. 09-48 138 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to service connection for buttocks lesions, diagnosed as genital herpes, to include as due to exposure to herbicides. REPRESENTATION Appellant represented by: New Jersey Department of Military and Veterans' Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD L. Kirscher Strauss, Counsel INTRODUCTION The Veteran served on active duty from April 1966 to April 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. In June 2010, the Veteran testified at a hearing at the RO before the undersigned. A transcript of the hearing is of record. In November 2011 and October 2012, the Board remanded the claim for additional development. The development has been completed and the case is before the Board for final review. In June 2010 the Veteran submitted an informal claim for service connection for birth defects of a dependant, to include as due to a sexually transmitted disease and/or exposure to Agent Orange (herbicides). The Board referred the matter to the RO in November 2011. It appears that no action has been taken. Therefore, because the issue of service connection for birth defects of a dependant, to include as due to a sexually transmitted disease and/or exposure to herbicides, has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ), the Board does not have jurisdiction over it, and it is again referred to the AOJ for appropriate action. FINDINGS OF FACT 1. The Veteran served in Vietnam during the Vietnam era and is presumed to have been exposed to herbicides (to include Agent Orange) during service. 2. The Veteran's buttocks lesions, diagnosed as genital herpes, did not originate in service and are not otherwise related to active service, to include exposure to herbicides. CONCLUSION OF LAW The criteria for establishing service connection for buttocks lesions, diagnosed as genital herpes, to include as due to exposure to herbicides, have not been met. 38 C.F.R. §§ 1110, 1116, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VCAA The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). The notice requirements of the VCAA require VA to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. 38 C.F.R. § 3.159(b). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO, to include the AMC). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. See Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (holding that VCAA notice errors are reviewed under a prejudicial error rule). In this case, in an April 2008 letter the RO provided notice to the Veteran regarding what information and evidence was needed to substantiate his claim for service connection, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The letter also provided notice of the information and evidence needed to substantiate a claim for service connection for a disability claimed as due to Agent Orange exposure. Finally, the letter also advised him of how disability evaluations and effective dates are assigned and the type of evidence that impacts those determinations. The case was last adjudicated in February 2013. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran, including his service treatment records, post-service private and VA treatment records, VA examination reports, and lay statements and hearing testimony. The Board also notes that actions requested in the prior remands have been undertaken. Here, the Veteran was provided with additional VA examinations in which the examining physicians rendered medical opinions supported by an articulated medical rationale regarding the etiology of his claimed genital herpes disability. Thus, the Board finds that the prior remand directives have been substantially complied with, and a decision on the merits can proceed. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). VA has considered and complied with the VCAA provisions discussed above. The Veteran was notified and aware of the evidence needed to substantiate the claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between the Veteran and VA in obtaining such evidence. The Veteran was an active participant in the claims process by submitting evidence and argument. Therefore, he was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the Veteran. Pelegrini, 18 Vet. App. at 121. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Conway, 353 F.3d at 1374, Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Criteria & Analysis Applicable law provides that 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; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also 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). A veteran is entitled to a presumption of service connection if he is diagnosed with certain enumerated diseases associated with exposure to certain herbicide agents if he served in the Republic of Vietnam during a prescribed period. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309. A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975 shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a). VA's Secretary has determined that a presumption of service connection based on exposure to herbicides used in the Republic of Vietnam during the Vietnam era is not warranted for any condition for which the Secretary has not specifically determined a presumption of service connection is warranted. See 67 Fed. Reg. 42600-42608 (2002); see also 75 Fed. Reg. 81332 (2010). The Federal Circuit has held that when a claimed disorder is not included as a presumptive disorder, direct service connection may nevertheless be established by evidence demonstrating that the disease was in fact "incurred" during service. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Veteran contends that his genital herpes disability involving the buttocks began during military service and is related to the sexually transmitted disease for which he was treated in 1967. Service treatment records were entirely silent for complaints, findings, or treatment for genital herpes or for lesions or a rash affecting the buttocks. At pre-induction examination in December 1965, the Veteran denied a history of venereal disease and clinical evaluation of the genitourinary system and skin was reported as normal. A January 1967 field medical card listed a diagnosis of "rash on penis" and "positive." Treatment was 1.5 ProPen [Procaine Penicillin]. An April 1967 service treatment note reflects the Veteran's report of a rash on his penis since January. An STS [serologic test for syphilis] was done that morning. The last [sexual] contact was reported as December. The diagnosis was condyloma acuminata - rule out condyloma lata. (A condyloma acuminatum is defined as "a type of papilloma usually found on the mucous membrane or skin of the external genitals or in the perianal region....Called also...venereal wart...." See Dorland's Illustrated Medical Dictionary, 409 (31st ed. 2007)). (A condyloma latum is defined as "a cutaneous manifestation of secondary syphilis, consisting of a broad, flat syphilitic condyloma, usually found in a warm, most, intertriginous area, such as around the anus, or external genitals. It may become hypertrophic and erode to form a soft, red mass with a moist, weeping surface. Called also flat c." See id.). The note listed the disposition in blue pen as "1) STS; 2) if #1 neg, then Podophyllin." A notation written in pencil indicates that the STS was negative; a laboratory report also indicates that the STS was non-reactive. According to UpToDate.com, Podophyllin is indicated for "[t]opical treatment of soft external genital (venereal) warts (condylomata acuminata). See http://www.uptodate.com/contents/podophyllum-resin-drug-information?source=search_result&search=Podophyllin&selectedTitle=1%7E23 (last visited Apr. 9, 2013). A July 1967 treatment record reflects that the Veteran left the field due to a rash on his penis and a desperate need for circumcision. Examination showed only mild inflammation of glans secondary to poor hygiene habits and he was given Phisohex. Subsequent July 1967 treatment notes and medical records documented that the Veteran had recurrent balanoposthitis that was treated and improved prior to having a circumcision under local anesthesia with a smooth, uncomplicated post-operative course. In a March 1968 separation report of medical history, the Veteran reported currently or previously having venereal disease. A physician's summary elaborated that all history was in the past with no sequellae at the present time. On separation examination, clinical evaluation of the genitourinary system and skin was reported as normal. A March 2008 post-service VA primary care record reflects that the Veteran presented to establish care. He reported being treated for genital herpes 40 years ago in Vietnam, having occasional recurrences, and no treatment. In a May 2008 follow-up visit, he complained of an outbreak of herpetic lesions to the external buttocks and reported having approximately eight episodes per year. The assessment was status post herpetic lesions on the buttocks. He declined suppressive therapy. Blood testing performed that day revealed positive herpes simplex virus types 1 and 2. In June 2008 he began Valtrex for suppressive therapy. Subsequent VA treatment record, including those associated with the electronic, Virtual VA claims file, reflect ongoing suppressive therapy with Valtrex for genital herpes. The Veteran's claim for service connection for genital herpes was received in April 2008. In an accompanying statement, he indicated that he was diagnosed with genital herpes in January or February 1967 and because of the infection, he was given a circumcision. The Veteran was afforded a VA infectious disease examination in June 2008. The examination report indicated that the Veteran had problems with herpes simplex since 1967 where he was noted to have a rash in April 1967 and again in July 1967 "on his penis and buttocks." The Veteran stated that he acquired herpes simplex through sexual intercourse in Vietnam and that throughout the years his outbreaks had become more frequent and severe during the last 25 years. He described outbreaks, which occurred 10 to 12 times a year, on the buttocks that seemed to be triggered by stress and exertion as well as scarring from the lesions. Following a review of the claims file and physical examination, the diagnosis was positive herpes simplex I and II. The examiner did not provide a medical opinion regarding the etiology of the Veteran's herpes. After his claim for service connection was denied, the Veteran reiterated in subsequent statements his assertion that he was treated for genital herpes in Vietnam. During the June 2010 hearing, the Veteran's representative acknowledged in opening statements that the Veteran's service treatment records were "negative for treatment, complaint, or diagnosis" of genital herpes. Noting that service records identified a condyloma acuminatum and asked whether he was ever told that he had genital warts, the Veteran testified that "they told him chancroids. That's what name they said. Generic maybe?" He stated that whatever he had now, he contracted it in Vietnam. In a June 2010 written statement, which the Veteran's representative read into the hearing record, the Veteran indicated that he was infected in Vietnam and went to the medical tent where he received an injection of penicillin. "The discharge seemed to go away, but then [he] started to get these growths around the head of [his] penis. They told [him] that the growths were shankaroids [sic] and gave [him] another injection," adding that a circumcision might help. He indicated that the growths seemed to go away, but then he started to get a small patch of intermittent outbreaks on his thigh, which itched extremely, and later he got "small growths on [his] hands very much like the shankaroids [sic]" that "started to break out with the same itchy patches as the ones" on his thighs. "Then, it also started to break out on [his] buttocks," and he had been "dealing with it to this day." The Veteran was afforded a VA skin diseases examination in December 2011. The examination report reflects that much of the medical history section was copied exactly from the June 2008 VA examination report, including the notation that the Veteran had problems since 1967 where he was noted to have a rash in April 1967 and again in July 1967 on "his penis and on his buttocks." However, he now stated that he was currently on Valtrex and the number of outbreaks had improved to nine times per year. The examining physician remarked that herpes "is not a progressive condition." Following a review of the claims file and examination, the examiner opined that the claimed herpes simplex disability was less likely than not incurred in or caused by in-service injury, event, or illness. The examiner explained that the Veteran was diagnosed with condyloma acuminata while in military service and was seen for lesions involving the penis. There was no documentation of rash involving the buttocks in service. The examiner elaborated that the current condition with rash on the buttocks is diagnosed as herpes simplex, but herpes simplex is not related to condyloma acuminata as each condition involves a different virus. During a final VA skin diseases examination in December 2012, the Veteran stated that he had recurrent rashes on his right thigh, back, and buttocks since 1967, but he did not seek medical attention until a few years ago when he underwent biopsy of one of the lesions and was told that he did not have cancer. Two years ago, he underwent blood tests and was told he had herpes simplex. He stated that he was started on medications, which helped, and the rashes had not come back. He denied current complaints or rashes. The examiner reviewed the claims file and examined the Veteran, indicating that he presently had no skin rashes or lesions on the buttocks. The examiner opined that it was less likely than not that the claimed herpes simplex disability was incurred in or caused by in-service injury, event, or illness. The examiner reasoned that the buttocks lesions or rashes had been diagnosed as herpes simplex and were suppressed by medications. The examiner added that it was very unlikely that these lesions were caused or aggravated by herbicide exposure because herpes simplex is caused by a virus. The Board has considered the medical and lay evidence of record, but concludes that service connection for buttocks lesions, diagnosed as genital herpes, is not warranted. The Veteran's service in the Republic of Vietnam has been verified and he is presumed to have been exposed to herbicides (to include Agent Orange) during service. Despite any assertions that the claimed genital herpes disability is associated with exposure to herbicides, genital herpes, or other sexually transmitted infections, in fact, is not included in the list of diseases associated with exposure to herbicides. See 38 U.S.C.A. § 1116 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309. Therefore, entitlement to service connection for genital herpes, or another sexually transmitted infection, is not warranted on a presumptive basis due to herbicide exposure. 38 C.F.R. §§ 3.307, 3.309. However, the Board will still consider the claim on a direct basis. Initially, the Board acknowledges that the Veteran is competent to describe symptoms of sexually transmitted diseases such as rash or lesions, itching, discharge, pain, or tingling. See Barr v. Nicholson, 21 Vet. App. 303 (2007). However, although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, diagnosing genital herpes or other sexually transmitted diseases and determining the etiology of such falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Thus, the Board accords significantly greater probative value to the medical evidence and opinions of record than to the Veteran's lay assertions on these points. The Board observes that, contrary to the Veteran's assertions, his service treatment records do not document treatment for genital herpes during service. Rather, the records reflect that in April 1967, the examiner diagnosed condyloma acuminata, or genital warts, and rule out condyloma lata, which, as noted above, is defined as a cutaneous manifestation of secondary syphilis. A serologic test for syphilis, or STS, performed that morning was non-reactive. Given these facts, the Board finds that one can reasonably deduce from this April 1967 record, that the examiner suspected genital warts or a secondary syphilis manifestation, he ordered a serologic test for syphilis that was reported as negative or nonreactive, and accordingly he prescribed Podophyllin for condyloma acuminata, or genital warts. The Board also finds that one can reasonably deduce from (1) the serologic test for syphilis ordered in April 1967 for the purpose of ruling out a secondary syphilis manifestation, or condyloma lata, and from (2) the January 1967 field medical card itself, that the notations on the January 1967 field medical card of "rash on penis" and "positive" for which "1.5 ProPen" was prescribed referred to a complaint, diagnosis, and treatment for syphilis. Indeed, the Veteran's testimony that he was told that he had a chancroid and received a Penicillin injection when he first went to the medical tent appears to be consistent with a diagnosis of primary syphilis and is consistent with the January 1967 field medical card. See Dorland's Illustrated Medical Dictionary, supra at 1880 (defining primary syphilis as "the first stage of syphilis, in which a painless primary lesion called a chancre appears at the site of inoculation and is associated with regional adenopathy and bubo formation....Untreated patients soon develop secondary syphilis."). Furthermore, the April 1967 suspicion that the Veteran possibly had a secondary syphilis manifestation is consistent with and supports the conclusion that he had a primary syphilis infection that was treated with penicillin in January 1967. In deducing these facts, the Board acknowledges the Court's holding in Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991), that the Board may consider only independent medical evidence to support its medical findings. The Court went on to say that, if the medical evidence of record is insufficient, the Board is free to supplement the record by seeking an advisory opinion, ordering a medical examination or citing recognized medical treatises in its decisions that clearly support its ultimate conclusions. Id. at 175. Here, the Board finds that the insufficiency of the service medical evidence was limited to (1) an abbreviation, STS, which required clarification; (2) medical diagnoses, condyloma acuminata, condyloma lata, and primary syphilis, which each required definition; and (3) medications, Procaine Penicillin and Podophyllin, which required description. The Board has supplemented the record, citing recognized medical treatises - Medical Abbreviations 13th Edition, Dorland's Illustrated Medical Dictionary 31st Edition, and www.UpToDate.com - to support the ultimate conclusions that the Veteran was treated for primary syphilis and genital warts during service. The Board also considered the Veteran's assertion that he was circumcised during service due to a genital herpes infection, but finds that this assertion is unsupported and contradicted by contemporaneous medical evidence of record. Again, his service treatment records reflect that he was treated for recurrent balanoposthitis manifested by inflammation of glans secondary to poor hygiene habits prior to undergoing a requested circumcision for the same problem. The only medical opinions to address the question of whether the Veteran's buttocks lesions, diagnosed as genital herpes, are related to service were from the December 2011 and December 2012 VA examiners. The Board finds that each of these opinions is probative evidence against the claim for service connection because each was based on a review of the claims file and examination of the Veteran and supported by an articulated medical rationale that was consistent with the medical and lay evidence of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). The December 2011 VA examiner explained that the Veteran was seen for lesions involving the penis in service and was diagnosed with condyloma acuminata, and that the current condition involving herpes simplex on his buttocks was not related to condyloma acuminata because they involve different viruses. The Board also notes that the examiner's explanation that herpes is not a progressive condition undermines the Veteran's assertion that he had herpes during service that had become worse over the years. The Board also observes that while the December 2011 examiner appeared to copy some of the reported history from the June 2008 examiner, who indicated that the Veteran was seen in July 1967 for a rash on his penis and buttocks, the examination report reflects that the December 2011 physician did, in fact, carefully review the claims file and observed that there was no documentation of rash involving the buttocks during service. Similarly, the December 2012 VA examiner explained that it was very unlikely that the current herpes simplex was caused by herbicide exposure because herpes is caused by a virus, and the Veteran's herpes simplex virus had been suppressed, to some degree, by medications. Finally, noting that service treatment records do reflect treatment with Procaine Penicillin for early syphilis January 1967; condyloma acuminata treated with Podophyllin in April 1967; and recurrent balanoposthitis treated by circumcision in July 1967; the Board considered whether service connection is warranted for any of these disorders. The Board observes that the April 1967 STS was non-reactive, thus ruling out secondary syphilis. In addition, service treatment records reveal no other complaints, findings, or reference to condyloma acuminata after treatment in April 1967 or to balanoposthitis after the July 1967 circumcision. Similarly, post-service medical evidence reflects no complaints, findings, or diagnosis of syphilis, genital warts, or recurrent balanoposthitis. Because the medical and lay evidence of record does not reflect diagnosis or persistent or recurrent symptoms of syphilis, genital warts, or recurrent balanoposthitis, the Board finds that a VA medical examination or medical opinion is not warranted regarding these disorders. See 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Moreover, Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C.A. § 1110 (West 2002). Accordingly, where, as here, there is no competent medical evidence establishing that the Veteran has current a syphilis, genital warts, or balanoposthitis disability, service connection for any of these disorders is not established, and thus, there can be no valid claim for service connection with respect to syphilis, genital warts, or balanoposthitis. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In conclusion, the Board finds there is no basis upon which to conclude that buttocks lesions, diagnosed as genital herpes, are related to military service. See 38 C.F.R. §§ 3.303, 3.307, 3.309. Therefore, service connection for buttocks lesions, diagnosed as genital herpes, is not warranted. For the foregoing reasons, the claim for service connection must be denied. In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for buttocks lesions, diagnosed as genital herpes, to include as due to exposure to herbicides, is denied. ____________________________________________ Thomas H. O'Shay Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs