Citation Nr: 1452045 Decision Date: 11/24/14 Archive Date: 12/02/14 DOCKET NO. 08-34 574 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a disability due to the human papilloma virus (HPV). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. Nye, Associate Counsel INTRODUCTION The Veteran served on active duty from August 2001 to August 2007. This case comes to the Board of Veterans' Appeals (Board) from a November 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The VA Regional Office in St. Petersburg, Florida, certified the appeal to the Board. In August 2012, the Board remanded the case to the agency of original jurisdiction (AOJ) for additional development. For the reasons below, the appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2014). Service connection may be demonstrated either by showing direct service incurrence or aggravation or by using applicable presumptions, if available. Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b) (2014). Service connection may also be granted for a disease first diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2014). The United States Court of Appeals for Veterans Claims has held that the presence of a chronic disability at any time during the claim process can justify a grant of service connection, even where the most recent diagnosis is negative. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In this case service treatment records from November 2003 describe a cervical biopsy and a diagnosis of mild dysplasia/low grade squamous intraepithelial lesion with HPV changes. This diagnosis satisfies one element of the claim for service connection for HPV, i.e., proof that the Veteran had a manifestation of a disease in service. See Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). To help resolve whether the Veteran currently has a chronic disability due to the HPV, the Board remanded the case for a new medical examination. The AOJ arranged for a physician to examine the Veteran, review her service treatment records and deliver a medical opinion. According to the physician's September 2012 VA examination report, the Veteran did not have HPV or any residuals of HPV, including genital warts. Unfortunately, the September 2012 VA medical opinion does not provide all of the information the Board needs to resolve the claim. According to the September 2012 report, "[the Veteran] reports that she had a genital wart in 4/20/2011 - (which) was diagnosed by Dr. Stubbs [of] Fort Myers. She reported that [the wart] was removed by chemical cauterization." The presence of a wart during the pendency of the claim is arguably sufficient to meet the "current disability" requirement, even if the disability has resolved before the Board adjudicates the claim. McClain. The question is, however, whether the genital wart treated in April 2011 is related to the inservice finding of HPV. The Veteran filed her claim of entitlement to service connection for a disability due to HPV in April 2007, prior to the alleged diagnosis of a genital wart in April 2011. If the genital wart diagnosed by Dr. Stubbs is related to the HPV noted in her service treatment records, the Veteran arguably may be entitled to service connection for a disability due to HPV even though she does not currently have such a disability. In developing her opinions, the September 2012 VA examiner reviewed all of the Veteran's service treatment records and the appellant's records from various VA medical facilities. According to the examiner's report, however, there was no documentation from Dr. Stubbs available for her review. The Veteran submitted five pages of private treatment records to VA in September 2012. These do not appear to be records from Dr. Stubbs, but they include a note dated January 2011 which refers to a "small condyloma excised for upper (right) labia majora." A condyloma is "a warty growth on the skin or a mucus membrane." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY, 402 (32d ed. 2012). A remand is therefore warranted to obtain any outstanding treatment records of Dr. Stubbs. Given that the September 2012 VA examiner limited her opinions to whether the Veteran in September 2012 had a disability due to HPV or genital warts or any residuals of HPV or genital warts, the examiner failed to address whether at any time since April 2007 the appellant has presented any form of disability due to the HPV, to include genital warts. An addendum opinion that addresses this question should therefore be obtained. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be requested to sign any necessary authorization for the release of the records of Dr. Stubbs to VA, particularly records related to the Veteran's treatment for a genital wart by Dr. Stubbs in 2011. If the AOJ cannot locate such records, the AOJ must specifically document the attempts that were made to locate them. The AOJ must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claim. The claimant must then be given an opportunity to respond. 2. After the above development has been completed to the extent possible, the AOJ must seek an addendum opinion from the physician who conducted the September 2012 VA examination. The physician should review the claims file, VBMS file, Virtual VA file, and a copy of this remand. The physician must then opine to whether the Veteran currently has or, at any time since April 2007 has had a disability due to HPV. The physician must opine whether it is at least as likely as not, i.e., is there a 50/50 chance, that any demonstrated disability, to include any 2011 presentation of a genital wart, is due to the HPV diagnosed in service. A complete rationale should be provided for all opinions expressed. If the September 2012 VA examiner is unavailable for any reason, the AOJ should seek a new examination from an equally qualified physician, who must review all the evidence of record and provide the opinion requested above. The AOJ must ensure that the opinion requested is in complete compliance with the directives of this remand. The AOJ must ensure that the physician has documented his/her consideration of records that are part of VBMS and/or Virtual VA. If the examination report is deficient in any manner, the AOJ must implement corrective procedures at once. 3. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be readjudicated. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and her representative. After the Veteran and her representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. 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 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). _________________________________________________ DEREK R. BROWN 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) (2014).