Citation Nr: 1603457 Decision Date: 02/02/16 Archive Date: 02/11/16 DOCKET NO. 09-01 111 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to service connection for venereal warts. 2. Entitlement to service connection for sinusitis. 3. Entitlement to service connection for herpes. ATTORNEY FOR THE BOARD David R. Seaton, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1993 to November 1996. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia. The matter was subsequently transferred to the RO in Jackson, Mississippi. This matter was previously before the Board in November 2012, May 2013, and September 2013. After further developing the record in compliance with the Board's remand instructions the matter was recertified back to the Board. Of note, while the American Legion entered a Brief in this case in January 2016, the American Legion clearly and explicitly revoked their representation of the Veteran in a September 2012 letter. Since that date, the American Legion has not submitted a new Form 21-22 to show they are the Veteran's representative. The issue of entitlement to service connection for herpes is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Regarding venereal warts, the weight of the evidence is not sufficient to demonstrate that there was an in-service incurrence; or that a medical nexus exists between the Veteran's current diagnosis of venereal warts and a period of service. 2. The weight of the evidence indicates that the Veteran does not have a current diagnosis for sinusitis. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for venereal warts have not been met. 38 U.S.C.A. §§ 1101, 1110 (West 2014); 38 C.F.R. §§ 3.303, 3.304 (2015). 2. The criteria for entitlement to service connection for sinusitis have not been met. 38 U.S.C.A. §§ 1101, 1110 (West 2014); 38 C.F.R. §§ 3.303, 3.304 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In this case, required notice was provided, and neither the Veteran, nor his representative, has either alleged, or demonstrated, any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009). Thus, adjudication of his claim at this time is warranted. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and, therefore, appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service treatment records, VA treatment records, and private treatment records have been obtained. The Board notes that this matter was previously remanded in May 2013 in order for the RO to obtain outstanding VA medical records to include all records dated after April 18, 2012. Nevertheless, the record indicates that VA has obtained additional treatment records including records dated after April 18, 2012. Accordingly, the Board finds that the RO has substantially complied with this remand instruction. Additionally, the Veteran was offered the opportunity to testify at a hearing before the Board, but he declined. The Veteran was also provided with several VA examinations the reports of which have been associated with the claims file. The Board notes that this matter was remanded, in November 2012 as well as in September 2013, for additional VA examinations. The Board finds that in developing these additional examinations the RO has substantially complied with the Board's remand instructions. Furthermore, the Board finds the VA examinations of record to be adequate for the purposes of determining service connection, because the examiners had a full and accurate knowledge of the Veteran's disability and contentions, and grounded their opinions in the medical literature and evidence of record. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Moreover, neither the Veteran nor his representative has objected to the adequacy of any of the examinations conducted during this appeal. See Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011). As described, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). There is no prejudice to the Veteran in adjudicating this appeal, because VA's duties to notify and assist have been met. Service Connection The Veteran contends that he is entitled to service connection for venereal warts and sinusitis. The Veteran first filed for service connection for both disorders in June 2007. The RO denied the Veteran service connection for both disorders in May 2008, and the Veteran appealed. In seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. The Veteran is not entitled to service connection, because the weight of the evidence indicates that there is no in-service incurrence of venereal warts; and the Veteran does not have a current diagnosis of sinusitis. Venereal Warts A review of the service treatment records indicates that the Veteran was neither diagnosed with nor sought treatment for venereal warts while in service. However, during his period of service the Veteran was diligent in reporting his symptoms for a variety of medical conditions; including herpes and verruca vulgaris. The Veteran's other medical records are silent regarding the Veteran's venereal warts until July 2007. In July 2009, the Veteran sought treatment at a VA facility for lesions on his penis. The VA physician noted an impression of condyloma on the shaft of the penis and referred the Veteran to a VA urology clinic for further evaluation and treatment. The Veteran was treated by a VA staff physician at the VA urology clinic in September 2009. The Veteran reported that he had moles on his penis and scrotum that had increased in size over the last several months. The Veteran denied that these "moles" were painful. Additionally, the Veteran indicated that he had not had any previously sexually transmitted diseases. The staff physician diagnosed the Veteran with genital warts. The Veteran was examined at a VA facility in December 2012. The Veteran indicated that he was diagnosed with penile condyloma at a VA facility in July 2009. On examination, the examiner observed several lesions on the right lateral base of the penis consistent with penile condyloma. The examiner provided a medical opinion in May 2014 based on a review of the available medical records. The examiner noted that the record does not contain any documentation of the Veteran being diagnosed or treated for human papillomavirus until 2009. The examiner noted lesions can also take years to appear, making it difficult to track the infection as it is passed from one partner to another. However, given the absence of any documentation in service regarding the venereal warts, the condition was likely contracted after the Veteran left the service. The Veteran is currently diagnosed with venereal warts, but the weight of the evidence indicates that there is no incurrence during a period of service or medical nexus between the current diagnosis and a period of service. The Veteran's service treatment records are silent regarding a diagnosis or treatment of venereal warts in spite of the fact that the Veteran was otherwise diligent in reporting his symptoms of a variety of medical conditions including skin disorders and sexually transmitted diseases. Accordingly, the Board finds that if the Veteran had venereal warts or related symptoms this would have been normally recorded in the Veteran's service treatment records. Kahana v. Shinseki, 24 Vet. app. 428 (2011). Furthermore, the earliest record for treatment of venereal warts does not appear until July 2009; over 12 years after the Veteran left the service. As a lay person, the Veteran is competent to report what comes to him through his senses, but he lacks the medical training and expertise to provide a complex medical opinion as to the etiology venereal warts. See Layno v. Brown, 6 Vet. App. 465 (1994), Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Here, the Veteran has not specifically suggested that his venereal warts began in service or were diagnosed in service. He has not suggested that he has experienced symptoms of the condition continuously since service. As noted, the Veteran's venereal warts were first diagnosed more than a decade after the Veteran's military service. As such, the Veteran's statements alone do not support a grant of service connection. A medical opinion was obtained, but the VA examiner opined that it was more likely than not that the Veteran's venereal warts were contracted after he left active duty. The Board finds the examiner's opinion to persuasive, because the examiner formed his opinion by applying reliable principles and methods to adequate facts and data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board notes the caveat in the examiner's opinion that the disease can be difficult to track from partner to partner due to potentially long periods between when the disorder is contracted and when symptoms develop. Nevertheless, the weight of the evidence is not sufficient to demonstrate that it is at least as likely as not that the Veteran experienced incurrence during a period of service; or a medical nexus exists between the Veteran's current diagnosis of venereal warts and a period of service. See generally Hickson v. West, 12 Vet. App. 247, 253 (1999). The Board is certainly sympathetic to the Veteran's claims. Unfortunately, the evidence is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Accordingly, the Board finds that the weight of the evidence indicates that the criteria for service connection have not been met, and entitlement to service connection for venereal warts is denied. Sinusitis Service treatment records reveals no record of the Veteran seeking treatment for sinusitis while on active duty. VA medical records throughout the period on appeal note a past medical history of acute sinusitis and list sinusitis as a problem on the Veteran's problem lists during that period. A January 2007 computerized tomography (CT) scan of the Veterans sinuses indicated that there was minimal mucosal thickening of the right maxillary and bilateral ethmoid sinuses. The Veteran's osteomeatal unit complexes were intact and his mastoid air cells were clear. Both of the Veteran's orbits were intact, and his bony calvarium was unremarkable. No soft tissue abnormalities were seen. A February 2007 VA medical record indicated that the Veteran's acute sinusitis was resolved. A July 2009 VA medical record indicated that the Veteran has a history of sinusitis, but a July 2009 CT scan noted only a small amount of mucosal thickening in the left sinus. No abnormalities of the Veteran's temporal bones were seen on the on the CT scan. A December 2009 VA medical record indicated the Veteran's acute sinusitis had resolved. A January 2010 VA medical record indicated that the Veteran had an elevated blood pressure reading without acute sinusitis. A December 2012 VA medical record indicated that the Veteran has a history of chronic sinusitis, but x-rays indicated that the Veteran's sinuses were normal. The Veteran was examined at a VA facility in December 2012. The examiner noted a history of chronic sinusitis. The Veteran reported a chronic problem with blocked sinuses since mid-1990 causing chronic blockage and congestion. The Veteran did not report a history of nasal trauma, nasal allergies, facial swelling, or loss of smell. The examiner did not diagnose the Veteran with sinusitis. The examiner went on to opine that there was no clinical or radiologic evidence of acute or chronic sinusitis disease on the examination. In April 2014, the examiner reiterated that he had never diagnosed the Veteran with sinusitis, and that he found no evidence sinusitis. The examiner was quite emphatic in this opinion, and explained that while the past medical history had listed sinusitis, that a review of the medical evidence of record in this case and physical examination did not support a finding that the Veteran had ever actually had chronic sinusitis. The weight of the evidence indicates that the Veteran does not have a current diagnosis of sinusitis, nor has he had chronic sinusitis during the period on appeal. The Board notes that medical records memorialize a past medical history of both acute and chronic sinusitis. Nevertheless, VA medical records from February 2007 and December 2009 indicated that the Veteran's acute sinusitis had resolved. CT scans from January 2007 and July 2009 as well as a December 2012 X-ray indicated that the Veteran's sinuses were normal. Finally, a VA examiner stated in December 2012, and reiterated in April 2014, that there was no evidence that the Veteran had sinusitis when the Veteran was examined in December 2012. The Board is persuaded by the examiner's opinion, because the examiner formed his opinion by applying reliable principles and methods to adequate facts and data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Accordingly, the weight of the evidence does not support the Veteran's contention that he has a current diagnosis sinusitis or an unresolved diagnosis of sinustitis during the period on appeal. While the Veteran undoubtedly had acute sinusitis during the course of his appeal, the weight of the evidence is against a finding that he had chronic sinusitis at any point, and service connection is generally only warranted for chronic disabilities. Accordingly, the Veteran's claim for service connection is necessarily precluded. See Romanowsky v. Shinseki, 26 Vet. App. 289 (2013); see also McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Once again unfortunately, the evidence is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Accordingly, the Board finds that the weight of the evidence indicates that the criteria for service connection have not been met, and entitlement to service connection for sinusitis is denied. ORDER Service connection for venereal warts is denied. Service connection for sinusitis is denied. REMAND The Veteran contends that he is entitled to service connection for herpes. When the Veteran was medically examined and accepted for service in September 1993 prior to entering service in December 1993, the military examiner did not "note" a diagnosis of herpes. Additionally, the Veteran denied a history of herpes in medical histories provided in September 1993 and December 1993. The Veteran first sought treatment for a sexually transmitted disease in January 1994 while he was stationed at Paris Island. The Veteran reported that he had a painful itchy rash in his groin. The Veteran also theorized at the time that he may have gotten it from his girlfriend prior to joining the service. The Veteran was diagnosed with herpes simplex virus type I. The Veteran was prescribed medication, and he reported being asymptomatic later that month. The Veteran service treatment records are otherwise silent regarding any signs or symptoms of herpes or any other sexually transmitted diseases. Nevertheless, the Veteran's service treatment records do indicate that he sought treatment for a variety of conditions from April 1994 to March 1995; including verruca vulgaris a skin condition. Additionally, the record is also otherwise silent regarding any other treatment for sexually transmitted diseases until July 2009. In July 2009, the Veteran sought treatment at a VA facility for lesions on his penis. The Veteran was ultimately diagnosed with venereal warts. At that time, the Veteran reported that he had a history of herpes, but denied having experienced any flare ups in the last twelve years. The Veteran was treated by a VA staff physician at the VA urology clinic in September 2009, at which time he denied having had any previously diagnosed sexually transmitted diseases, other than the venereal warts for which he was seeking treatment at that time. The Veteran was first examined at a VA facility in December 2012. On examination, the examiner observed several lesions on the right lateral base of the penis consistent with penile condyloma, but otherwise made no mention of symptoms related to herpes. The examiner provided a medical opinion in April 2014 based on a review of the available medical records. The examiner noted that lesions typically appear within three week to six months after sexual contact with an infected person. Nevertheless, the examiner also indicated that lesions can also take years to appear, and it is difficult to track infection as it is passed from one partner to the next. The examiner noted that the Veteran was treated for herpes in January 1994 shortly after entering service, but that he could not find any earlier treatment dates. The examiner opined that the Veteran's herpes pre-existed his enlistment, and that it had taken on the normal progression of the virus. The Veteran's reports of his symptoms can be summarized as follows. The Veteran first reported symptoms associated with herpes in January 1994 and claimed he was asymptomatic by the end of the month. In July 2009, the Veteran claimed that he had not had any herpes flare ups for the last twelve years. This would seem to indicate that the Veteran was symptom free from approximately July 1997 to July 2009. In September 2009, the Veteran denied having a history of any sexually transmitted disease prior to July 2009 including herpes. In December 2012, the Veteran reported having experienced herpes flare ups when he was stationed at the Red Stone Arsenal (approximately April 1994), and that his condition never resolved after that occurrence. This would seem to suggest that the Veteran symptoms flared up continuously from approximately April 1994 to December 2012. This is in spite of the fact that the Veteran's service treatment records are silent regarding any flare ups of the Veteran's herpes symptoms, and the Veteran was diligent in reporting his symptomology during this period. Accordingly, the Veteran's reports of flare ups of his herpes symptoms after January 1994 are not found to be credible for the following reasons. First, 18 years passed between when the flare ups allegedly began (approximately April 1994) and when the Veteran first reported them (December 2012). The frailty of human memory alone makes the report unreliable so many years after the event it describes. Second, there are what seem to be conflicting reports of the Veteran's symptomology. Specifically, the Veteran cannot have both been symptom free since July 1997, and have continuously experienced symptoms from April 1994 to December 2012. Additionally, the Veteran's September 2009 claim that he did not have a history of sexually transmitted diseases prior to July 2009 is flatly contradicted by all the evidence of record including all of the Veteran's statements before and after September 2009. Third, the Veteran's diligence in reporting his symptoms, during the period in and around April 1994, suggests that if he was experiencing flare ups of his herpes symptoms, at that time, it would have been normally recorded in his service treatment records. As previously, noted the Veteran theorized, in January 1994, that he contracted herpes from his girlfriend prior to entering the service. The Veteran is not competent to provide medical etiology opinions, but is certainly competent to indicate whether he was engaged in sexual activity. Finally, the Board also notes that it finds the VA examination is credible, because it was based on the application of reliable principals and methods to sufficient facts and data. See Nieves-Rodriguez. Accordingly, the Board is left with the following evidence. The Veteran was sexually active prior to entering the service. No signs or symptoms of herpes were noted when the Veteran was examined, accepted, and enrolled in to the service. The Veteran did not report a history of herpes from September 1993 to December 1993. The Veteran entered the service in December 1993, and he did not report herpes symptoms until January 1994. Finally, the VA examiner opined that the Veteran's herpes pre-existed his enlistment, and it took on the normal progression of the virus. A veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto. Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304. Accordingly, the Veteran is presumed to be sound with regard to herpes because it was not noted at entry. To rebut the presumption of soundness, VA must show that clear and unmistakable evidence demonstrates both that the Veteran's disease or disability pre-existed his service and that it was not aggravated by his service. Id. Here, in providing the requested medical opinion, the VA examiner did not apply the correct legal standard (clear and unmistakable evidence) when opining that the Veteran's herpes pre-existed service and wasn't aggravated by his service. As such, an addendum opinion is required. Accordingly, the case is REMANDED for the following action: 1. Return the Veteran's claims file to the examiner who provided the April 2014 opinion, or if he is not available, to another examiner. If an opinion cannot be provided without an examination, one should be provided. The examiner should answer the following questions: a. Does the evidence of record clearly and unmistakably show that the Veteran's herpes, diagnosed 23 days after entering the service and while the Veteran was in basic training was contracted prior to service? Why or why not? b. If the herpes is found to have pre-existed service, does the evidence clearly and unmistakably show that it was not aggravated (meaning that the underlying disease was not worsened beyond the natural progression of the disability) by the Veteran's service? Why or why not? The examiner is informed that temporary or intermittent flare-ups during service of a preexisting injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted to symptoms, is worsened. 2. Then, readjudicate the claim on appeal. If the benefit sought is not granted, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate opportunity to respond thereto before returning the case to the Board, if in order The Veteran 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 2014). ______________________________________________ MATHEW W. BLACKWELDER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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). Department of Veterans Affairs