Citation Nr: 1331162 Decision Date: 09/27/13 Archive Date: 10/01/13 DOCKET NO. 10-06 849 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for herpes simplex labialis (HCV1). 2. Entitlement to service connection for herpes simplex genitalis (HCV2). 3. Entitlement to a compensable evaluation for service-connected status post cystectomy for ovarian cyst. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Tahirih S. Samadani, Counsel INTRODUCTION The Veteran served on active duty from January 2004 to March 2005. This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran requested a Board hearing in her February 2010 VA Form 9. The hearing was scheduled for September 14, 2011, and the Veteran was notified. The Veteran failed to report for the hearing. To the Board's knowledge, the Veteran has offered no explanation as to why she was unable to appear for the scheduled hearing, and she has since made no request for another hearing. Accordingly, the Veteran's hearing request is considered as having been withdrawn, and the Board will proceed to a decision on this appeal. See 38 C.F.R. § 20.704(d) (2013). The United States Court of Appeals for Veterans Claims (the Court) held that when a claimant makes a claim, he or she is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. Clemons v. Shinseki, 23 Vet. App. 1 (Feb. 17, 2009). Here, the Veteran filed a claim for "herpes simplex, Type I". She attached a service treatment record showing positive lab findings for herpes simplex, Type 1. In her March 2009 notice of disagreement, she argued that service connection was warranted for herpes simplex virus and did not specify which type of herpes she was claiming. She referred to one service treatment record which included complaints of vaginal irritation. In her Form 9, the Veteran specifically argued that she was treated for vaginal herpes during service and had had outbreaks since service. In accordance to Clemons, the Board will consider that the Veteran is seeking service connection for the broad diagnosis of herpes simplex, including both herpes simplex labialis (HCV1) and herpes simplex genitalis (HCV2). The issue of a compensable evaluation for service-connected status post cystectomy for ovarian cyst is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The evidence of record is in equipoise as to whether the Veteran's current herpes simplex labialis is related to her active duty military service. 2. The evidence of record does not demonstrate that the Veteran had herpes simplex genitalis during her period of active duty military service or thereafter. CONCLUSIONS OF LAW 1. Resolving the benefit of the doubt in the Veteran's favor, herpes simplex labialis was incurred in active duty military service. 38 U.S.C.A. §§ 1131, 1154(b) 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013). 2. Herpes simplex genitalis was not incurred in active duty military service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist In correspondence dated in November 2008, the agency of original jurisdiction (AOJ) satisfied its duty to notify the Veteran under 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2008). Specifically, the November 2008 notice informed the Veteran of information and evidence necessary to substantiate the claim for service connection for herpes and of the relative burdens of VA and the Veteran, relating the information and evidence that VA would seek to provide and that which she was expected to provide. The notice informed the Veteran of information and evidence that governs the initial assignment of a disability evaluation and the regulations regarding the effective date of the establishment of service connection. VA has done everything reasonably possible to assist the Veteran with respect to her claim for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2008). Service treatment records have been associated with the claims file. All identified and available post-service treatment records have been secured. The Veteran has been medically evaluated and a medical opinion has been sought in conjunction with her claim. The duty to assist has been fulfilled. Legal criteria In general, service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303. Notwithstanding the above, service connection may be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred or aggravated in service. 38 C.F.R. § 3.303(d) (2013). To establish a right to compensation for a present disability, a Veteran must show: "(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." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (the Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Analysis As the evidence for herpes simplex labialis and herpes simplex genitalis overlap, the Board will discuss both issues together. In essence, the Veteran asserts that her current diagnosis for herpes simplex had its onset in service. See Veteran's statement dated in September 2008. As noted above, the Veteran initially filed a claim for "herpes simplex, Type 1" but later referred to her claim as "vaginal herpes." See Veteran's Form 9 dated in February 2010. As will be discussed in further detail below, the February 2009 VA examiner explained that herpes simplex, Type 1 (HCV 1) is the primary cause of cold sores (herpes labialis). Whereas, herpes simplex (HCV 2) is the primary cause of herpes genitalis. The Board will consider the evidence for both herpes simplex labialis and genitalis. To establish service connection, the Veteran must show (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). As to current disability of herpes labialis, a private lab finding notes herpes simplex, Type 1. See Quest Diagnostic report dated in July 2008. A December 2008 VA treatment record includes a diagnosis of herpes simplex 1. See VA treatment records dated in December 2008. Furthermore, the February 2009 VA examiner diagnosed the Veteran with herpes labialis (HCV1) of two occurrences, in 2004 and in 2008. The examiner found that it was resolved without residuals. See February 2009 VA examination report, page 4. To be present as a current disability, there must be evidence of the condition at some time during the appeals period. Gilpin v. West, 155 F. 3d 1353, 1356 (Fed. Cir. 1998); see also McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (the Gilpin requirement that there be a current disability is satisfied when the disability is shown at the time of the claim or during the pendency of the claim, even though the disability subsequently resolves); see also Romanowski v. Shinseki, WL 3455655 (Jul. 10, 2013). The Veteran filed her claim for service connection for herpes in September 2008. Therefore, there appears to be a diagnosis for herpes simplex labialis (HCV1) during the pendency of the claim. Resolving all doubt in the Veteran's favor, element (1) of the three-part test for service connection is indeed satisfied for herpes labialis. As for a current diagnosis of herpes genitalis, there is no evidence of a current diagnosis. She was diagnosed with herpes simplex 1 in December 2008. The February 2009 VA examiner noted that a primary care provider noted some mucocutaneous lesion on the mouth in December 2008 and HSV1 was positive at that time. See VA examiner's report dated in February 2009. The VA examiner concluded that there were no post-service records showing objective findings of herpes genitalis. Id. With respect to element (2), in service disease or injury, during the Veteran's service, records show a diagnosis for herpes simplex, Type I in a January 2005 treatment record. The record also indicated lab results showing HSV 1 serum was 3.5. See January 2005 treatment record. The February 2009 VA examiner noted that 3.5 was considered high and concluded that the Veteran had an outbreak of for herpes simplex labialis in 2004. See February 2009 VA examiner's report, page 3-4. The examiner did not find any in-service diagnosis of herpes genitalis. In December 2004, the Veteran sought treatment for discomfort and pain in the vaginal area. She had vulvar itching and burning pain. Upon examination, the Veteran's genitalia showed abnormalities including cutaneous irritation with swelling. The treatment provider diagnosed the Veteran with vulvovaginitis candida albicans and genital ulcers noting that she would take a specimen to run tests for herpes. After receiving laboratory results, the provider diagnosed the Veteran only with herpes simplex 1. Although the Board resolves all doubt in the Veteran's favor and finds that, the in-service incurrence of herpes simplex labialis (HCV1) is in fact demonstrated, the Board does not find that there is any in-service documentation of herpes genitalis (HCV 2). Shedden element (2) is therefore satisfied for herpes simplex labialis and not for herpes genitalis. With respect to crucial element (3), nexus or relationship, there is only one medical opinion available. The February 2009 VA examiner diagnosed the Veteran with herpes labialis (HCV1) of two occurrences in 2004 and 2008. She found that it had resolved without residuals but opined that it was caused by or related to the Veteran's military service. See February 2009 VA examiner's report, page 4. The examiner did not find a diagnosis for herpes genitalis (HCV2) during service or in post-service medical records. Id. In light of (1) the Veteran's competent and credible statement in her claim that herpes simplex labialis (HCV1) began during her military service; (2) that the Veteran was diagnosed with herpes simplex labialis (HCV1) during service; (3) that the Veteran has been diagnosed with herpes simplex labialis (HCV1) during the pendency of her appeal; (4) that the February 2009 VA examiner opined that herpes simplex labialis (HCV1) was caused by or related to her military service, the Board finds Shedden element (3) is satisfied for herpes simplex labialis (HCV1) and the benefit sought on appeal for herpes simplex labialis (HCV1) is allowed. As for herpes simplex genitalis (HCV2), the Board does not find medical evidence of a diagnosis for herpes simplex genitalis during service or following service. The only evidence of record that the Veteran currently has diagnosis of herpes simplex genitalis (HCV2), and had this diagnosis during service is the Veteran's own statements. The Board finds that the Veteran's assertions are credible. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (BVA has a duty to assess the credibility and weight of the evidence); Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (in weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness). The Veteran testified that she had vaginal discomfort and sought treatment during service. She believed that she had a diagnosis for herpes simplex genitalis in service and has had outbreaks since that time. These statements are indeed plausible. Despite this, the Board does not find that the Veteran is competent to opine as to a specific diagnosis of herpes simplex genitalis. Lay witnesses are competent to opine as to some matters of diagnosis and etiology, and the Board must determine on a case by case basis whether a veteran's particular disability is the type of disability as to which lay evidence is competent. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (Board's categorical statement that "a valid medical opinion" was required to establish nexus, and that a layperson was "not competent" to provide testimony as to nexus because she was a layperson, conflicts with Jandreau); Kahana v. Shinseki, 24 Vet. App. 428, 433, n. 4 (2011) (noting impropriety of the Board categorically discounting lay testimony and requiring the Board to determine, on a case by case basis, whether a veteran's particular disability is the type of disability for which lay evidence is competent); Jandreau, 492 F.3d at 1377, n. 4 ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"). In this case, the Veteran asserts that she had herpes simplex genitalis during service. Herpes simplex genitalis is an illness that is determined or confirmed by laboratory testing which usually requires a medical professional to understand and interpret the results. Therefore, a determination of herpes simplex genitalis is likely the type of diagnosis that the courts have found to be beyond the competence of lay witnesses. Compare Jandreau, 492 F.3d at 1376 (lay witness capable of diagnosing dislocated shoulder); Barr, 21 Vet. App. at 308-309 (lay testimony is competent to establish the presence of varicose veins); Falzone v. Brown, 8 Vet. App. 398, 403 (1995) (lay person competent to testify to pain and visible flatness of his feet); with Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) ("It is generally the province of medical professionals to diagnose or label a mental condition, not the claimant"); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis). Even if the Veteran were competent to testify to a diagnosis of herpes simplex genitalis during service or thereafter, the probative value of her general lay assertions are of lesser probative value than the specific and reasoned opinion of the trained health care professional discussed above. See VA examiner's report dated in February 2009. Also, the Veteran has submitted no other medical opinion stating that she had a diagnosis for herpes simplex genitalis during service or after service. In conclusion, the Board finds after careful review of the entire record that the weight of the competent and credible evidence is against the claim of service connection for herpes simplex genitalis. Accordingly, the claim for service connection for herpes simplex genitalis must be denied. As the preponderance of the evidence is against the claim for herpes simplex genitalis, the doctrine of reasonable doubt 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 herpes simplex labialis (HCV1) is granted. Service connection for herpes simplex genitalis (HCV2) is denied. REMAND The Veteran claims that her residuals of ovarian cysts should be evaluated higher than the noncompensable evaluation currently assigned. In her September 2008 claim, the Veteran reported that her ovarian cysts are chronic and cause fever, nausea, bleeding, hospitalization and miscarriages. The Veteran was afforded a VA examination in February 2009. The examiner acknowledged her history of ovarian cyst removal in June 2004 but found that it was resolved with normal findings. The examiner did not discuss the March 2008 Pelvic Sonogram which included a finding of ruptured right ovarian cyst. Also, since the time of the examination, the Veteran submitted results of a March 2008 CT which suggested partial rupture of ovarian cyst and a private treatment record dated in 2008 documenting a miscarriage. A record showing a ruptured cyst is highly probative to the severity of her disorder and was not discussed by the examiner. Also, the new evidence submitted suggests that her ovarian cyst residuals are more severe than what was found at the February 2009 VA examination. For these reasons, the Board finds that the Veteran should be afforded a new VA examination. Also, since the time of the February 2009 VA examination, the RO granted service-connection for Stage IV Endometriosis and assigned a 30 percent evaluation. The examiner should attempt to explain which symptoms are due to the Veteran's endometriosis and which symptoms are associated with post cystectomy for ovarian cyst. Accordingly, the case is REMANDED for the following action: 1. Obtain all recent VA treatment records and associate them with the claims file. 2. Schedule the Veteran for another VA compensation examination to reassess the severity of her service-connected status post cystectomy for ovarian cysts. In particular, the examiner must make specific findings consistent with the rating criteria listed under the appropriate diagnostic code under 38 C.F.R. § 4.116 (2013). If the Veteran's ovary disorder is continued to be evaluated under Diagnostic Code 7628, the examiner must specifically discuss impairment of the Veteran's urinary or gynecological systems or skin caused by her ovary disorder. Also, the examiner should attempt to explain which symptoms are due to the Veteran's endometriosis and which symptoms are associated with status post cystectomy for ovarian cysts. All indicated testing and evaluation should be conducted. The claims file, including a complete copy of this remand, must be made available and reviewed by the examiner. 3. Then, readjudicate the claim in light of this and all other additional evidence. If the claim is not granted to the Veteran's satisfaction, send her and her representative another SSOC and give them time to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of the claim. 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. 2012). ______________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs