Citation Nr: 1800623	
Decision Date: 01/05/18    Archive Date: 01/19/18

DOCKET NO.  14-23 508	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUES

1.  Whether new and material evidence has been received to reopen the previously denied claim for service connection for a skin condition, claimed as herpes progenitalis.

2.  Entitlement to service connection for a viral infection, claimed as herpes simplex virus.	


REPRESENTATION

Veteran represented by:	Georgia Department of Veterans Services


WITNESS AT HEARING ON APPEAL

The Veteran



ATTORNEY FOR THE BOARD

K. Lynch, Associate Counsel


INTRODUCTION

The Veteran served on active duty from July 1977 to July 1981.

This case comes to the Board of Veterans' Appeals (Board) on appeal from a January 2013 rating decision by a Department of Veterans' Affairs (VA) Regional Office (RO).

In April 2017, the Veteran testified at a hearing before the Board.  A transcript of that hearing is of record.  At the hearing, the Veteran waived RO review of new evidence.

The issue of entitlement to service connection for a viral infection, claimed as herpes simplex virus, is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

 1.  A November 1981 rating decision denied entitlement to service connection for a skin condition, which was claimed as herpes progenitalis.  The Veteran was notified of that decision, but did not initiate an appeal, and new and material evidence was not received within one year of the notice of that rating decision.

2.  Some of the evidence received since November 1981, when considered by itself or in connection with evidence previously assembled, relates to unestablished facts necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim .


CONCLUSIONS OF LAW

1.  The November 1981 rating decision, which denied the Veteran's claims of entitlement to service connection for a skin condition, claimed as herpes progenitalis, is final.  38 U.S.C. § 7105(c)(2012); 38 C.F.R. §§ 3.104, 3.156, 20.201, 20.302, 20.1103 (2017).

2.  The evidence received since the November 1981 rating decision is new and material, and the claim of entitlement to service connection for a skin condition, claimed as herpes progenitalis, is reopened.  38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  New and Material Evidence

In order to reopen a claim which has been denied by a final decision, the claimant must present new and material evidence.  38 U.S.C. § 5108.  New evidence means existing evidence not previously submitted to VA.  Material evidence means existing 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 of record at the time of the last prior final denial of the claim, and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a).  For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed.  See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, the "credibility" of newly presented evidence is to be presumed unless the evidence is inherently incredible or beyond the competence of the witness).

The language of 38 C.F.R. § 3.156(a) creates a low threshold for finding new and material evidence, and views the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening."  Evidence "raises a reasonable possibility of substantiating the claim," if it would trigger VA's duty to provide an examination in adjudicating a non-final claim.  Shade v. Shinseki, 24 Vet. App. 110 (2010).

Analysis

In November 1981 rating decision, the RO denied the claim of entitlement to service connection for a skin condition, which was identified alternatively as penile lesions and herpes progenitalis, based on the determination that no lesions were found on a September 1981 VA examination.

The Veteran did not submit a notice of disagreement with the November 1981 rating decision.  No new evidence was received by VA within one year of the issuance of the November 1981 rating decision.  As such, the November 1981 rating decision became final.  See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156, 20.1103; see also Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011).

Since the final November 1981 RO decision, upon the April 2017 hearing before the Board, the Veteran testified that he first contracted a viral infection after a port visit to Thailand while on active duty.  The Veteran stated that he was diagnosed as having warts at sick bay and diagnosed as having a skin condition after he left service.  However, he testified that he has a current diagnosis of herpes simplex virus.  The Veteran stated that he experiences flare-ups and symptoms of pain and itching.  He stated that he has lived with this condition for 37 to 38 years and has been under this affliction for most of his adult life.  The Veteran stated that this condition was misdiagnosed while on active duty and that he did not get any assistance about needing to see someone about his condition at that time.

At the April 2017 hearing, the Veteran submitted a January 2012 private laboratory test results showing a positive result for herpes simplex virus 1 and an equivocal result for herpes simplex virus 2.  Positive results indicate that herpes simplex virus 1 antibodies were detected.  Equivocal results suggest early infection and, if clinically appropriate, should be retested at a later date.  See April 2017 medical treatment record.  This April 2017 record is duplicative of a December 2012 medical treatment record.  

The Veteran's April 2017 testimony and January 2012 laboratory test results are new and material evidence because they were not of record at the time of the final RO decision in November 1981, and indicate the Veteran has herpes simplex virus 1 and possibly herpes simplex virus 2, which may be related to the Veteran's symptoms during active duty service.  The Board finds this evidence would trigger VA's duty to provide an examination in adjudicating a non-final claim.  Accordingly, the Board finds this new evidence raises a reasonable possibility of substantiating the claim of entitlement to service connection for a skin condition, now characterized as a viral infection.  See Shade, 24 Vet. App. 110.


ORDER

New and material evidence having been submitted, the claim of entitlement to service connection for a skin condition, now characterized as a viral infection, is reopened.


REMAND

The Board finds a remand is necessary prior to adjudicating the claim on appeal to ensure that there is a complete record upon which to afford the Veteran every possible consideration and to decide his claim.  See 38 U.S.C. § 5103A  (2012); 38 C.F.R. § 3.159 (2017).

With respect to in-incurring a disease in-service, the Veteran's April 2017 Board testimony stated that he contracted a viral infection when his ship made a port visit in Thailand.  See April 2017 hearing transcript, p. 3.  

Also, the Veteran's service treatment records indicate treatment that may be associated with a viral infection.  In May 1979, the Veteran requested a "clap" test.  He was also told by his girlfriend that he may have contracted gonorrhea.  See September 1981 service treatment records, pp. 29, 31.  

The Veteran's medical record contains a current positive test result for herpes simplex virus 1 and an equivocal test result for herpes simplex virus 2.  See April 2017 medical treatment record.  Also, the Veteran testified that he currently experiences pain and itching associated with herpes and that he has intermittent outbreaks of the condition.  See April 2017 hearing transcript, p. 6.  

In light of the foregoing, the Board finds that the aforementioned service treatment records, current medical evidence, and Veteran testimony are enough to trigger VA's duty to assist by obtaining a VA examination since the Veteran has not received an opinion regarding the etiology of the claimed herpes simplex virus.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006).

Accordingly, the case is REMANDED for the following action:

1. Contact the Veteran, and, with his assistance, identify any outstanding records of pertinent medical treatment from private or VA health care providers, including the Oakland Veterans Administration Medical Center (VAMC) and Washington D.C. VAMC.

2.  After completing the development set forth above, afford the Veteran a VA examination with an appropriate medical examiner to determine the nature and etiology of any viral or skin condition in the area of the genital, to include herpes simplex virus.  The claims file, including a copy of this remand, must be made available to, and reviewed by, the examiner.  All necessary tests and studies should be performed, and all clinical findings should be reported in detail. 

After a review of the record and an examination and interview of the Veteran, the examiner should offer his or her opinion as to the following inquiry:

As to any viral and/or skin condition in the area of the genitals, to include herpes simplex virus, the examiner should opine as to whether it is at least as likely as not (a 50 percent or greater probability) that the disorder is etiologically related to, or was incurred during, his active military service. 

In rendering such opinion, the examiner should, at a minimum, consider and discuss the Veteran's treatment in service, his testimony regarding incurring the viral infection in service, and his contention that he still suffers from current flare-ups.  The examiner should also consider possible dormant states of the virus, positive test results for herpes simplex virus 1, and equivocal test results for herpes simplex virus 2.

A complete rationale should be provided for any opinion expressed.  If the examiner is unable to reach an opinion as to any of the information requested above without resorting to speculation, he or she should explain the reasons for such inability and comment on whether any further tests, evidence, or information would be useful in rendering the opinion being sought.

3.  After completing the development requested above, and any other development deemed necessary, readjudicate the Veteran's claim.  If the benefit sought is not granted in full, the Veteran and his representative should be furnished a Supplemental Statement of the Case and given the opportunity to respond thereto.  The case should then be returned to the Board, if otherwise 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. §§ 5109B, 7112 (2012).




______________________________________________
MICHAEL LANE
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs