Citation Nr: 1342355 Decision Date: 12/23/13 Archive Date: 12/31/13 DOCKET NO. 09-30 834 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Whether new and material evidence has been received to reopen a claim for service connection for herpes simplex, and if so, whether service connection is warranted. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Jonathan Tracy, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1976 to November 1979. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Board notes that the Veteran's claim for service connection for herpes simplex was previously denied in May 1982, August 2000, and November 2002. Those decisions were not appealed to the Board and became final. The Veteran filed to reopen the claim in April 2008. In the July 2008 rating decision, the RO found that no new and material evidence had been submitted and denied reopening the Veteran's claim. Subsequently, the RO issued a statement of the case in July 2009 where the claim was reopened, but the claim was denied on the merits. The Board is required to address the issue of whether the Veteran submitted new and material evidence despite the RO's findings. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380, 1383-84 (Fed. Cir. 1996). Only where the Board concludes that new and material evidence has been received does it have jurisdiction to consider the merits of the claim. Id. As such, the issue has been captioned as set forth above. The issue of reopening a claim for service connection for a jaw fracture has been raised by the record, but has not been adjudicated by the RO. Therefore, the Board does not have jurisdiction over it, and it is referred to the Regional Officer (RO) for appropriate action. FINDINGS OF FACT 1. Certain evidence that is not cumulative or redundant and relates to an unestablished fact necessary to substantiate the claim for service connection for herpes simplex has been received since the November 2002 rating decision. 2. Herpes simplex had its onset during active service. CONCLUSION OF LAW Herpes simplex was incurred in service. 38 U.S.C.A. § 1131 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist 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; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). In this case, the Board is granting in full the benefit sought on appeal. Consequently, the Board finds that any lack of notice and/or development, which may have existed, cannot be considered prejudicial to the Veteran, and remand for such notice and/or development would be an unnecessary use of VA time and resources. II. New and Material Evidence A claim which has been finally denied in an unappealed rating decision or Board decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c). The exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. Moreover, in determining whether this low threshold is met, consideration need not be limited to consideration of whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA's duty to assist or through consideration of an alternative theory of entitlement. See Shade v. Shinseki, 24 Vet. App. 110 (2010). As discussed in the introduction, a review of the record shows that the Veteran's service connection claim for herpes simplex was denied in November 2002. The Veteran was informed of the decision and failed to file a notice of disagreement to initiate an appeal. Consequently, that decision became final. 38 U.S.C.A. § 7105. The evidence at the time of the November 2002 rating decision consisted of the Veteran's service treatment records and VA treatment records. Pertinent evidence received since the November 2002 decision includes additional VA treatment records from the VA Medical Center North Florida/Georgia. These records show treatment for herpes simplex. Overall, the evidence received since the November 2002 rating decision is new and relates to an unestablished fact necessary to substantiate the Veteran's claim that he has herpes simplex. For this reason, the Board concludes that the Veteran has presented new and material evidence to reopen his claim for service connection for herpes simplex. III. Entitlement to Service Connection for Herpes Simplex Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection generally requires credible and competent evidence showing: (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. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet .App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995). Service treatment records do not show treatment but do show a reported history of herpes. On his separation examination report in August 1979, the Veteran reported recurrent herpes. The Board notes that the Veteran did not report herpes on his entrance examination in September 1976. The RO scheduled a VA examination in February 1982. The examiner reported that there "is a small area of depigmentation on the frenulum area of the penis. Four quarter-size areas on the right medial thigh that are slightly hypo-pigmented." The Veteran noted that these lesions tend to "recur periodically and never clear entirely." The examiner diagnosed "recurrent herpes simplex, genitalia and right medial thigh." Since that time, there are VA treatment records beginning in 2000 that show treatment for herpes simplex. In light of the diagnosis from the VA examiner in 1982, the reported history of herpes simplex on the separation examination report, and resolving all doubt in the Veteran's favor, the Board concludes that service connection is warranted for herpes simplex. ORDER Entitlement to service connection for herpes simplex is granted. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs