Citation Nr: 1333764 Decision Date: 10/25/13 Archive Date: 11/06/13 DOCKET NO. 10-39 048 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES THE ISSUES 1. Entitlement to service connection for depressive disorder. 2. Entitlement to service connection for herpes simplex virus 2. REPRESENTATION Veteran represented by: North Carolina Division of Veterans Affairs ATTORNEY FOR THE BOARD Joseph Aquilina, Associate Counsel INTRODUCTION The Veteran had active military service from December 1985 to December 1993. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The Board has reviewed the Veteran's Virtual VA online records and associated relevant documents not previously included with the claims file. The issue as to the Veteran's herpes simplex virus two is addressed in the appeal portion below. That issue is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. FINDING OF FACT The Veteran's diagnosed acquired psychiatric disorder (major depressive disorder (MDD)) was incurred during and/or attributable to her active military service. CONCLUSION OF LAW MDD was incurred in active service. 38 U.S.C.A. §§ 1110, 1111, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.306 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). In this case, the Board is granting service connection for MDD. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (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"-the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Further, 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 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d) (2013). The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran contends that her current depressive disorder is due to various in service pathologies and events such as contracting venereal diseases, stress, and a divorce. She also relays in-service records show she was treated for insomnia and that her exit examination contains a notation of depression treatment while in service. The evidence of record establishes that the Veteran has a current diagnosis for depressive disorder. See May 2009 and September 2012 VA psychiatric examinations. The examiner who conducted the September 2012 examination noted chronic sleep impairment, flattened effect, as well as difficulties with motivation, mood, and establishing and maintaining effective work and social relationships. The examiner rendered a diagnosis of "major depressive disorder." The first element of Holton of a present diagnosis is met. The Veteran meets the second element of Holton requiring an in-service occurrence of a disease or disability. The Veteran's 1993 discharge examination includes notations depression and stress induced insomnia as daily occurrences for the Veteran. She reported that her last bout of insomnia had been one month earlier. Turning to the third element of Holton, the nexus requirement linking the Veteran's disability to her active service, the record contains a positive medical nexus. The September 2012 examiner opined that the Veteran's depressive disorder was as least as likely as not incurred in or caused by her time in service. Reference was made to the Veteran's primary symptoms of insomnia and fatigue. She indicated that her depression and insomnia began in 1991 on the heels of the dissolution of her marriage. She denied any in-service or post-service psychiatric care. Nevertheless, the examiner found that the Veteran's self-report of these symptoms was supported by her 1993 discharge examination. On that basis, he concluded that the Veteran's in-service insomnia was one of the primary symptoms of her major depression. With regard to the Veteran's depressive disorder, the Board notes that the Veteran is competent to offer a description of the symptoms she experienced in service, and to describe a continuity of symptoms since service. As a layperson, the Veteran is generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff'd sub nom. Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998), cert. denied, 119 S. Ct. 404 (1998). However, lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In this regard, the Veteran is competent to report what she experienced during service (i.e., insomnia, irregular sleeping patterns, etc), that she experienced a divorce as well as relate her depressed mood. However, she cannot render a competent medical opinion regarding diagnosis and causation. The Board finds the Veteran's statements regarding continuity of symptomatology persuasive and competent. See Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Taking into consideration the evidence in the claims folder, the Board will resolve all reasonable doubt in favor of the Veteran and grant the Veteran's claim of service connection for depressive disorder. A positive opinion exists that relates the Veteran's MDD to her active service. There is no competent opinion to the contrary. There is also no basis to question the credibility of the Veteran's assertion that she began to experience the symptoms of MDD, such as insomnia, in service. Service connection is thereby warranted for the Veteran's major depressive disorder. ORDER Entitlement to service connection for major depressive disorder is granted. REMAND The Board has reviewed the evidence of record and the development thus far undertaken with respect to the current claim for VA compensation for herpes simplex virus 2 ("herpes"). Due to current deficits in the record, which will be discussed in detail below, the Board finds that a remand is warranted to further develop the evidence. The Board regrets any delay in the timely adjudication of this claim that may result. The Veteran contends that she contracted the herpes in February 1987, which was during her active service. She references service treatment records that reflect a diagnosis of herpes "by military doctors" and states that when she entered service she did not have herpes. The Board was unable to locate records in the claims file reflecting treatment in service. However, the record contains numerous references for treatment related to vaginal discharge and an outpatient treatment slip reflecting a diagnosis of Chlamydia in January 1992. The claims file also contains the Veteran's report of medical examination for Air Force reserve enlistment and Veteran checked "yes" to the box listing "VD, syphilis, gonorrhea, etc." Private treatment record records include a document from May 1997 noting Chlamydia. A private treatment record from 2002 includes the following text "physician notes: patient has had herpes infections over the past six months." In light of the Veteran's documented gynecological problems in-service, to include reports of a sexual transmitted disease (STD), her competency to report certain symptoms (e.g., discharge and sore outbreaks), and post-service diagnoses of STDs, the Board finds that an examination is warranted. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). On remand, the AMC should also endeavor to obtain all VA and/or non-VA treatment records pertaining to the Veteran's claimed venereal disease. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and ask her to identify all VA and non-VA health care providers that have treated herpes or any other venereal disease since service discharge. On receipt of the necessary medical release, if necessary, all identified records should be obtained. 2. The RO should afford the Veteran a VA examination in order to address the nature and etiology of any venereal disease. The Veteran's claims folder must be made available to the examiner for review in conjunction with the examination. The examiner must annotate the examination report that the claims file was in fact made available for review in conjunction with the examination. All findings should be reported in detail accompanied by a complete rationale. The examination report should include a description of the Veteran's symptoms and clinical findings. The examiner should identify any venereal disease (active or non-active) that the Veteran has or has had during the appeal period. He or she should state whether or not the Veteran has herpes simplex virus 2. For each venereal disease identified/diagnosed, the examiner should state whether it is as least as likely as not (a 50 percent probability or greater) that the disease had its onset in service or is otherwise etiologically related to her active service. The clinical significance, if any, of the Veteran's multiple vaginal infections and Chlamydia should be discussed. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 3. Then readjudicate the claim in light of any additional evidence. If the remaining claim is not granted to the Veteran's satisfaction, send her a Supplemental SOC (SSOC) and give her an opportunity to respond to it before returning the file to the Board for further appellate consideration of the remaining claim. 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). _________________________________________________ MICHAEL A. HERMAN 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). Department of Veterans Affairs