Citation Nr: 1429484 Decision Date: 06/30/14 Archive Date: 07/03/14 DOCKET NO. 09-16 867 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for human papilloma virus (HPV). 2. Entitlement to service connection for anxiety disorder secondary to HPV. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD James E. Carsten, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Army from May 2002 to February 2006. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In June 2012 the Board remanded the case to the Agency of Original Jurisdiction (AOJ) in order to conduct a hearing which was previously requested by the Veteran. In a written statement received in August 2012, the Veteran withdrew his request for a hearing. See 38 C.F.R. § 20.702(e) (2013). The issue of entitlement to service connection for anxiety disorder secondary to HPV addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. FINDING OF FACT The Veteran's currently diagnosed HPV infection had its onset during military service. CONCLUSION OF LAW The criteria for service connection for an HPV infection are met. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Under the relevant laws and regulations, 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). Generally, to establish service connection the evidence 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, 1166-67 (Fed. Cir. 2004). March 2006 and December 2007 VA treatment records document diagnosis and treatment of warts attributed to HPV infection. This is sufficient to establish that the Veteran has the claimed disability. See Romanowsky v. Shinseki, 26 Vet. App. 289, 321 (2013); McClain v. Nicholson, 21 Vet. App. 319 (2007). The present disability element of service connection is met. In his July 2007 claim, the Veteran reported that he was diagnosed with HPV with severe recurring genital warts in approximately May 2003. He reported the warts were treated with freezing during service. In a September 2007 statement, "T.K." who reported serving with the Veteran, indicated that in 2003 the ship's corpsman informed the Veteran that he had genital warts. T.K. noted that the Veteran underwent cryotherapy which the Veteran said was painful. Service treatment records do not show treatment for HPV or genital warts. In his January 2006 separation report of medical history, the Veteran endorsed that he either then had or had previously had a sexually transmitted disease to include genital warts. In an examiner's summary and elaboration of all pertinent data, a medical professional explained that the Veteran had a history of HPV with "3-4 current lesion[s]." Veteran was separated from active duty on February 2, 2006. The report of medical history, the statement of T.K., and the Veteran's own statements are compelling evidence that the in-service element of a service connection claim is met and outweigh the absence of record of treatment for his HPV during service. Therefore, the in-service element is met as to the HPV issue. Due to the reports of in-service contraction of HPV and the near immediate diagnosis post-service, the Board concludes that all the evidence, including that pertinent to service, establishes that the Veteran's post service HPV had onset during service. Therefore the third element necessary to establish service connection is met. As all three elements of service connection are met, the appeal as to entitlement to service connection for HPV must be granted. As the Board's only decision at this time is fully favorable to the Veteran, any error that VA may have made in its duties to notify and assist is necessarily harmless error with regard to this decision. Therefore, no further discussion as to those duties is necessary. See 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. ORDER Service connection for human papilloma virus (HPV) is granted. REMAND In July 2007, the Veteran submitted a claim of entitlement to service connection for anxiety disorder. He contends that such disorder is secondary to his HPV condition. Service connection may be granted on a secondary basis for a disability that is proximately due to a service-connected condition. 38 C.F.R. § 3.310(a). Service connection is also possible when a service-connected condition has aggravated a claimed condition, but compensation is only payable for the degree of additional disability attributable to the aggravation. Allen v. Brown, 7 Vet. App. 439 (1995). The regulation pertaining to secondary service connection was amended effective October 10, 2006 and under the revised regulation, the rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities (38 CFR Part 4) and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. See 38 C.F.R. § 3.310(b). As the AOJ denied service connection for the predicate primary HPV condition, an exam was not ordered for the secondary anxiety disorder condition. In light of the Board's decision to grant service connection for the primary condition, an exam is required for the secondary condition. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see also 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4). Accordingly, the case is REMANDED for the following action: 1. Obtain any pertinent VA records of treatment of the Veteran for HPV and any psychiatric disorder, to include an anxiety disorder and associate the records with the claims file. If no records are obtained, document efforts to obtain the records, including a negative reply or replies, and associate that documentation with the claims file. 2. Ensure that the Veteran is scheduled for a VA examination with regard to his claim of entitlement to service connection for an anxiety disorder. The claims file must be provided to the examiner, the examiner must review the claims file in conjunction with the examination and the examiner must annotate his or her report as to whether the claims file was reviewed. The examiner must provide a rationale for any and all opinions rendered. The examiner is asked to accomplish the following: (a) Identify whether the Veteran has, or has had any psychiatric disorder, to include an anxiety disorder, at any time since he filed his claim in July 2007. (b) If the examiner determines that the Veteran has, or has had any psychiatric disorder, to include an anxiety disorder, at any time since he filed his claim in July 2007, provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the psychiatric disorder, to include an anxiety disorder, was caused by any condition for which service connection has been established, to include HPV. (c) If the examiner determines that the Veteran has, or has had any psychiatric disorder, to include an anxiety disorder, at any time since he filed his claim in July 2007, and determines that the HPV condition or any other service connected disability did not cause the psychiatric disorder, to include an anxiety disorder, provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the psychiatric disorder, to include an anxiety disorder, has been worsened beyond its natural progression by any condition for which service connection has been established, to include HPV. (d) If the examiner determines that the Veteran has, or has had any psychiatric disorder, to include an anxiety disorder, at any time since he filed his claim in July 2007, and determines the anxiety disorder has been worsened beyond its natural progression by any condition for which service connection has been established, to include HPV, provide a baseline level of severity of any psychiatric disorder, to include an anxiety disorder before its worsening by any condition for which service connection has been established, to include HPV. 3. Then, the AOJ should review the claims file to ensure that the Board's remand directives have been followed. If the Board's remand directives have not been followed, then the AOJ should take any necessary action to ensure substantial compliance with the Board's remand directives. 4. Thereafter, review all evidence received since the last prior adjudication and re-adjudicate the Veteran's claim. If the determination remains unfavorable to the Veteran, then the RO should issue an appropriate supplemental statement of the case. An appropriate period of time should be allowed for response by the Veteran and his service representative. Thereafter, the case should be returned to the Board for further appellate consideration, in in order. The appellant has the right to submit additional evidence and argument on the matter 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. 2013). ______________________________________________ GAYLE E. STROMMEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs