Citation Nr: 1321694 Decision Date: 07/08/13 Archive Date: 07/18/13 DOCKET NO. 09-05 659 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for herpes. REPRESENTATION Appellant represented by: Virginia Department of Veterans Services ATTORNEY FOR THE BOARD M. Mills, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1989 to June 1994. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in July 2007 by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In June 2013, the Veteran was scheduled for a Central Office hearing before a Veterans Law Judge in Washington, DC; however, she failed to report for that proceeding. She has not requested that the hearing be rescheduled, nor has she provided good cause. Therefore, the Veteran's hearing request is deemed withdrawn, and the Board will proceed with its review on the present record. See 38 C.F.R. § 20.702(d). 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 law provides that VA shall make reasonable efforts to notify a claimant of the evidence necessary to substantiate a claim and requires VA to assist a claimant in obtaining that evidence. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159. Such assistance includes providing the claimant a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). In this case, it appears that there may be outstanding medical records. In this regard, the Board notes that the February 2009 statement of the case indicates that a VA examination was performed at the Winston-Salem Outpatient Clinic in June 2007. However, a copy of that report is not associated with the claims file. There is a June 2007 VA examination report of record, but it was not performed at the outpatient clinic. Records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Moreover, the claims file does not contain any treatment records dated after July 2008, and it is unclear as to whether the Veteran is currently receiving any treatment. Therefore, on remand, the RO/AMC should attempt to obtain and any associate with the claims file any outstanding medical records pertinent to the claim. In addition, the Board finds that a VA examination and medical opinion are necessary in this case. The Veteran has claimed that she contracted herpes simplex virus from another service member during her period of service. The Veteran's service treatment records do indicate that she sought treatment for unilateral pelvic pain in March 1990. She reported having a history of the herpes simplex virus II, but denied a recurrence of lesions. A NEFG (normal external female genitalia) examination showed no lesions. An NEFG examination in October 1990 did later reveal a small white round flat lesion that was slightly tender. The assessment included ruling out the herpes simplex virus. A herpes simplex virus test was performed, but the results of that test are not documented in the records. In an October 1991 gynecology clinic note, an examiner assessed candida vaginitis, but noted an otherwise normal examination. A March 1993 hospital narrative summary further noted a negative history of HIV, hepatitis, gonorrhea, and past treatment for chlamydia. Although the Veteran reported history of herpes and it was noted that the herpes simplex virus had to be ruled out in service, there is no documentation that the Veteran was actually diagnosed with herpes as opposed to some other disorder. Similarly, post-service treatment records dated in March 2008 noted the Veteran's reported history of genital herpes in her problem list, yet laboratory findings that same month indicate that no herpes simplex virus type I or II was detected. Nevertheless, the Veteran is competent to report her experience and symptoms in service. She is also competent to describe her current symptoms. See Charles v. Principi, 16 Vet. App. 370, 274 (2002) (finding veteran competent to testify to symptomatology capable of lay observation); Layno v. Brown, 6 Vet. App. 465, 469 (1994) (noting competent lay evidence requires facts perceived through the use of the five senses). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The evidence of record does not include a medical opinion based on a complete review of the evidence addressing whether the Veteran currently has the herpes simplex virus (as opposed to another disorder) related to her period of service. 38 C.F.R. § 3.159(c)(4)(i). In the case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), the United States Court of Appeals for Veterans Claims (Court) held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. Therefore, the Board concludes that a VA examination and medical opinion are necessary for the purpose of determining the nature and etiology of any current disorder. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for herpes. After acquiring this information and obtaining any necessary authorization, the RO/AMC should obtain and associate these records with the claims file. The RO/AMC should also attempt to secure the June 2007 examination results from the Winston-Salem Outpatient Clinic (listed in the February 2009 statement of the case). A specific request should also be made for any outstanding VA medical records dated from January 2008 to the present. It should be noted that the Veteran received VA treatment at multiple VA Medical Centers including the facilities in Richmond, Fayetteville, and Winston-Salem. 2. After completing the preceding development, the Veteran should be afforded a VA examination to determine the nature and etiology of any herpes that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's available service treatment records, post-service medical records, and assertions. It should be noted that the Veteran is competent to attest to factual matters of which she had first-hand knowledge. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. After performing any necessary testing and evaluation, the examiner should state whether the Veteran has a current diagnosis of herpes, as opposed to any other disorder. For all current diagnoses identified, the examiner should opine whether it is at least as likely as not the disorder manifested in service or is otherwise causally or etiologically related to her military service, to include her symptomatology therein. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1, copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 3. After completing these actions, the RO/AMC should conduct any other development as may be indicated by a response received as a consequence of the actions taken in the preceding paragraphs. 4. When the development requested has been completed, the case should be reviewed by the RO/AMC on the basis of additional evidence. If the benefits sought are not granted, the Veteran and her representative should be furnished a Supplemental Statement of the Case (SSOC) and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran 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. 2012). _________________________________________________ JESSICA J. WILLS 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) (2012).