Citation Nr: 20004623 Decision Date: 01/21/20 Archive Date: 01/21/20 DOCKET NO. 19-20 136 DATE: January 21, 2020 ORDER New and material evidence having been received to reopen the claim of entitlement to service connection for genital herpes, is reopened is granted. Service connection for left shoulder disability is denied. Service connection for neck disability is denied. REMANDED Entitlement to service connection for genital herpes claimed as viral condition and hsv2 is remanded. FINDINGS OF FACT 1. Service connection was previously denied for genital herpes by a November 1998 rating decision; the Veteran did not appeal the decision or submit any pertinent evidence with the appeal period. 2. Evidence received since that November 1998 rating decision was not previously submitted to agency decisionmakers, relates to an unestablished fact necessary to substantiate the claim, is not cumulative nor redundant of the evidence of record at the time of the last prior final denial, and raises a reasonable possibility of substantiating the claim. 3. The preponderance of the evidence shows the Veteran’s neck condition did not have its onset during service and is not otherwise is not related to service. 4. The preponderance of the evidence shows the Veteran’s left shoulder condition did not have its onset during service and is not otherwise is not related to service. CONCLUSIONS OF LAW 1. New and material evidence having been received; the claim of entitlement to service connection for genital herpes is reopened. 38 U.S.C. §§ 5108; 38 C.F.R. § 3.156. 2. The criteria for service connection for left neck condition have not been met. 38 U.S.C. §§ 1110, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for left shoulder condition have not been met. 38 U.S.C. §§ 1110, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from October 1982 to July 1986. Service Connection Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA’s policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C. § 1154 (a); 38 C.F.R. § 3.303 (a). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 1377 (Fed. Cir. 2007) (holding that “[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board”). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C. § 7104 (a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran’s demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See Id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See Id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (“[A] medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions.”). Threshold Issue: Missing Service Treatment Records (STRs) The Veteran contends that he developed left neck and left shoulder conditions during active duty service. See March 20, 2015 NOD. The Veteran advances that documentation of his participation in bootcamp, infantry and infantry school is necessary to establish service connection, exists in his service treatment records (STRs), which are not associated with the claims file. See infra. A review of the evidence of record reveals that the RO made repeated attempts to obtain these STRs. See, e.g., August 24, 1998 VA 21-21-1 Request for Information; August 28, 1998 VA 21-3101 Request for Information; September 09, 1998 VA 21-3101 Request for Information. Thus, the Board must conclude that there is no extant official documentation that is obtainable and, hence, reviewable concerning his participation in bootcamp, infantry school or infantry. As discussed below, the Veteran has supplied both narrative accounts and some information necessary for VA Form 21-2142 authorizations. However, attempts to recover objective documentation of an in-service incurrence have been exhausted. Stated differently, all avenues of obtaining the STRs (or other in-service medical documentation) have proven themselves to be fruitless. The Board acknowledges that STRs are unobtainable, and therefore, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of- the-doubt rule. See O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The Board must note that the O’Hare precedent does not lower the threshold for an allowance of a claim; there is no reverse presumption for granting a claim. The legal standard for proving a claim is not lowered; rather, the Board’s obligation to discuss and evaluate evidence is heightened. See Russo v. Brown, 9 Vet. App. 46 (1996). Case law does not establish a heightened “benefit of the doubt,” only a heightened duty of the Board to consider the applicability of the benefit-of-the-doubt doctrine, to assist the claimant in developing the claim, and to explain its decision when a claimant’s medical records have been lost or destroyed. See Ussery v. Brown, 8 Vet. App. 64 (1995). Thus, missing STRs alone are indeed unfortunate, but their absence does not obviate the need for the Veteran to still have competent and credible evidence supporting his claim for service connection by showing he has the claimed disability. See Milostan v. Brown, 4 Vet. App. 250, 252 (1993) (citing Moore v. Derwinski, 1 Vet. App. 401 (1991) and O’Hare, 1 Vet. App. at 367). 1. New and material evidence having been received to reopen the claim of entitlement to service connection for genital herpes, is reopened The Veteran previously submitted a claim of entitlement to service connection for a genital herpes which was denied in a November 1998 rating decision on the basis that there is no record of treatment in service for this condition. The Veteran’s complete service treatment records are unavailable for review. The November 1998 rating decision became final because the Veteran did not submit a Notice of Disagreement or new evidence in connection with the claims within the appeal period. See 38 C.F.R. § 3.156(b). In connection with the Veteran’s claim to reopen, he submitted additional evidence since that time. Thus, the Board finds that new and material evidence has been received sufficient to reopen his previously denied claim. 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010); 3 Vet. App. 510, 513 (1992). 2. Entitlement to service connection for left shoulder condition and left shoulder condition. The Veteran asserts that he is entitled to service connection for a left neck and left shoulder condition that developed during active duty service. See March 2015 Notice of Disagreement; see also April 2014 VA Form 21-4138, Statement in Support of Claim. Specifically, the Veteran asserts that his shoulder and knees were persistently overused due service and that left him injured. See May 2019 Appeal to Board of Veterans’ Appeals. The Veteran’s October 1994 post service treatment note reveals, that at that visit, the Veteran was concerned about restriction of shoulder movement. However, the examiner did not assess it to be a major problem. The examiner stated, the examination was quite normal, except palpation of the superior bursa. The examiner could not rule out bursitis, although he considered the Veteran rather young to have some symptoms. The examiner assessed the with possible muscle strain. There was concern about possible disk disease because the Veteran has some strenuous activity at work and used to play baseball several years ago. See May 1994 Medical Treatment Note. The Veteran’s August 1994 treatment note demonstrates the Veteran stated, he had pain in his upper and lower back, sides, arms, etc. He thought he was “falling apart.” The examiner noted, this was not unusual for the Veteran, as “he tends to work himself up into a frenzy at times.” The examiner noted, that a psychological consultation was recommended during previous examinations, the Veteran declined. See August 1994 Medical Treatment Note. The Veteran’s shoulder examination was benign. The November 1994 treatment record reveals the Veteran reported, that he had been skiing over the weekend and fallen. He reported, that he was hurting and could not move his neck and felt dizzy. He reported his neck pain was easing a bit with the application of heat and cold. The Veteran’s C-spine x-ray was negative. The January 1998 treatment records reflect the Veteran complained of left shoulder pain. The examiner noted, the Veteran was seen in the past for upper extremity pain secondary to his job by his physician. The Veteran was working at the Post Office. He reported, that he had done reasonably well up until 3-4 months prior, when he noticed an insidious onset of left posterior shoulder pain. The Veteran stated, he worked casing mail, which involves repetitive motions of reaching in a bag and placing pieces of mail in slots. The Veteran did not do much heavy lifting “over his head work”. He stated, his pain is worse at the end of the day and he has not had any significant radicular symptoms associated with this. He did not remember any specific traumatic event. The examiner diagnosed the Veteran with myofascial syndrome, left shoulder. See January 1998 Follow up Note. The Board considered the Veteran assertions that he believed his injuries were “at least as likely as not” caused by his military service. See May 2019 VA Form 9, Appeal to Board of Veterans’ Appeals. Additionally, the Board considered the Veteran’s reports of his duties during active duty service. See January 2015 Correspondence; see also April 2014 VA Form 21-4138, Statement in Support of Claim. While the Veteran is competent to report his symptoms, lay persons are not competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), and the issue in this case falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Thus, the Veteran was not competent to provide an opinion as to causation for these particular claims. The Board acknowledges the Veteran’s honorable service. Nonetheless, given the foregoing, the Board finds that the preponderance of the evidence is against the claims for service connection for a left neck condition and left shoulder condition must be denied. The Board has considered the applicability of “benefit of the doubt” doctrine; however, the record does not demonstrate an approximate balance of positive and negative evidence as to warrant the resolution of this matter on that basis. See 38 U.S.C. § 5107 (b); see also Ortiz v. Principi, 274 F.3d 1361, 1366 (Fed. Cir. 2001); Gilbert, supra. REASONS FOR REMAND Entitlement to service connection for genital herpes claimed as viral condition and hsv2 is remanded. The Veteran asserts that he is entitled to service connection for genital herpes that he developed during service. The Veteran has a diagnosis of herpes. See October 1994 Urology Note. The Veteran reports that his STRs show he was diagnosed with genital herpes during service. See March 2015 NOD. As noted, the National Personnel Records Center (NPRC), in response to VA requests, reported finding no records. The Veteran’s July 1993 treatment records presented for referral for herpes. The Veteran’s October 1994 private examiner noted the Veteran had a history of herpes of the penis. In August 1995, the Veteran’s private examiner diagnosed the Veteran with chronic groin pain, possible genital femoral neuralgia secondary to herpes simplex. The examiner stated, the Veteran’s symptoms where consistent with neuralgia of the genital femoral nerve possibly iliohypogastric and ilioinguinal nerves which, she believed may have been secondary to herpes simplex, although she was unable to reference documenting herpes simplex associated neuralgia. The Board finds that remand is necessary, to provide the Veteran with a VA examination to determine the nature, onset and etiology of the claimed condition, as one has not yet been provided to date. The matters are REMANDED for the following action: 1. Ask the Veteran to identify any and all outstanding treatment records and obtain those outstanding treatment records for the Veteran’s genital herpes. 2. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of his genital herpes symptoms and the onset of the disability in service. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 3. Schedule the Veteran for a VA examination to determine the nature, onset and etiology of his genital herpes and any residuals of an in-service disease. Based on a review of the file and the lay evidence regarding the onset of his genital herpes problems, the examiner must opine whether the Veteran’s genital herpes is at least as likely as not related to service. The examiner is to acknowledge and discuss the Veteran’s current diagnosis and treatment for genital herpes. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Jacquelynn M. Jordan, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.