Citation Nr: 21001724 Decision Date: 01/11/21 Archive Date: 01/11/21 DOCKET NO. 15-19 504 DATE: January 11, 2021 ORDER Entitlement to service connection for headaches, to include as secondary to service-connected recurrent herpes simplex is granted. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder (PTSD) is remanded. FINDING OF FACT The evidence of record is in relative equipoise as to whether the Veteran has headaches associated with his service-connected recurrent herpes simplex disability. CONCLUSION OF LAW The criteria for entitlement to service connection for headaches, as secondary to or associated with his service-connected recurrent herpes simplex, are met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1975 to August 1980. This appeal is before the Board of Veterans’ Appeals (Board) from a June 2010 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). In November 2017, the Veteran appeared and provided testimony before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is associated with the claims file. Also, the Veteran’s claims were previously remanded by the Board in August 2018 for further development. The Board finds substantial compliance with the remand directives. Stegall v. West, 11 Vet. App. 268 (1998). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303(a). Service connection requires: (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, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition to the regulations cited above, service connection is warranted for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Any additional impairment of earning capacity resulting from an already service-connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition, should also be compensated. Allen v. Brown, 7 Vet. App. 439 (1995). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. Id. In rendering a decision on appeal, the Board must analyze the credibility and probative value of all medical and lay evidence of record, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. 38 U.S.C. § 1154(a); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (“although interest may affect the credibility of testimony, it does not affect competency to testify”). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board must resolve reasonable doubt in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Entitlement to service connection for headaches The Veteran seeks entitlement to service connection for headaches associated with his service-connected recurrent herpes simplex. Turning to the evidence of record, in June 1981, private hospital records indicate he reported complaints of head pain and received treatment for herpes. In February 2005, private treatment records from a Dr. R.U. indicate the Veteran received treatment for headaches. In June 2008, private treatment records indicate his active medical problems included headaches and a coinciding nursing assessment indicates he was diagnosed with chronic headaches. An April 2009 letter from the Veteran’s psychiatrist, Dr. T.H. indicates the Veteran periodically experienced a “rash” on his forehead and the sides of his head which caused “headaches and intense distress.” An August 2009 private treatment record indicates he had a history of headaches. In August 2011 the Veteran underwent a VA neurology examination report which included a review of the claims file, a recitation of complaints and medical history, and physical examination results. The Veteran subjectively reported headaches in-service and ever since, including an attempt in the 1980s to resolve the issue. He also subjectively reported that he, “developed lesions on his head with sun exposure. These would be associated with a bad headache.” The examiner ultimately opined the Veteran did not have a known headache syndrome. The examiner also opined, It is within the realm of possibility that the patient may have developed an infectious or possibly autoimmune dermatologic condition in the service, but I will defer on this to Dermatology. In September 2011, the Veteran underwent a VA dermatology examination report which included a review of the claims file, a recitation of complaints and medical history, and physical examination results. The Veteran subjectively reported that in 1977 he developed a rash on his “forehead and temples which was extremely painful and blistering and scabbing and associated headaches.” He also reported that this rash persistently occurs especially with exposure to heat and direct sun and the last occurrence was in 2010. The assessment section states: Recurrent herpes simplex on the forehead which started during the service in 1977… This constitutes less than 5 percent of the exposed body surface area most likely service connected. There is no functional impairment secondary to this problem. The Veteran states that he gets headaches recurrent with the herpes simplex but no fevers and no other significant problems. There is no functional impairment secondary to this problem. In a May 2014 rating decision, the Veteran was granted service connection for recurrent herpes simplex with a February 11, 2009 effective date. In August 2018, the Board remanded the Veteran’s claims for further development to seek outstanding treatment and Social Security Administration records which were associated with the claims file in March 2019. After a review of the claims file in conjunction with the applicable laws and regulations, the Board finds the evidence of record is in relative equipoise as to whether the Veteran’s headache disability is related to his service-connected recurrent herpes simplex. The Board acknowledges he is currently service connected for recurrent herpes simplex. Thus, he meets the first requirement for service-connection on a secondary basis. See 38 C.F.R. § 3.310. Here, the Board acknowledges the August and September 2011 VA examinations; however, both examinations are deficient. The August 2011 neurological examination ultimately determined that he did not have a recurrent headache disability. However, the examiner also deferred to the dermatological specialist to determine the effects and nature of the Veteran’s recurrent herpes simplex. As such, in regard to whether the Veteran experiences headaches as a result of his recurrent herpes simplex, this examination provides little probative value. As to the September 2011 dermatological examination, although the examiner noted the Veteran’s statements of headaches associated with outbreaks of his herpes simplex, the examiner determined, “There is no functional impairment secondary to this problem.” However, functional impairment is not the same as a present disability and no opinion as to whether he experienced headaches as a result of his herpes simplex was rendered. Moreover, the report did not address the June 1981 record, less than a year after separation from service, when the Veteran sought treatment for a headache associated with an outbreak of his herpes simplex. Indeed, the examiner did not rationalize any of the Veteran’s lay statements and private medical records of associated headaches with outbreaks of his recurrent herpes simplex. As such, this examination also provides little probative value. Additionally, the Board also finds the Veteran’s lay statements are competent evidence that he suffered from headaches that occur in conjunction with his recurrent herpes simplex. Moreover, the Board finds his lay statements to be credible, evidenced by his June 1981 hospital record and his testimony of continued headaches associated with outbreaks of his herpes simplex. In view of the multiple attempts by VA to obtain a medical opinion, the Board finds that to remand for a nexus opinion and/or a VA examination to render an opinion would be futile. As such, considering the balance of positive and negative evidence, the Board finds the evidence of record to be in relative equipoise as to whether the Veteran has a current headache disability that is a result of his service-connected recurrent herpes simplex. When cases such as this contain an approximate balance of positive and negative evidence regarding the matter at issue, the Board must resolve reasonable doubt in the Veteran’s favor. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49. Accordingly, upon resolution of reasonable doubt in favor of the Veteran and considering the extreme length of time since the Veteran filed his claim and the date of this decision, the Board determines that the evidence of record is in relative equipoise as to whether his headaches are related to his service-connected recurrent herpes simplex disability. As such, the benefit of the doubt rule applies. Id. at 58. Accordingly, the Veteran’s claim of service connection for headaches associated with his service-connected recurrent herpes simplex, is granted. REASONS FOR REMAND Service connection for an acquired psychiatric disorder to include PTSD The Veteran seeks entitlement to service connection for an acquired psychiatric disorder to include PTSD due to alleged in-service combat experiences. Turning to the evidence of record, the Veteran’s service personnel records (SPRs) indicate his military occupational specialty was a radio operator and that he served in Riyadh, Saudi Arabia from May 1979 to March 1980. In September 2009, the Veteran submitted a PTSD Stressor Corroboration Research form indicating in-service stressors that occurred in Riyadh, Saudi Arabia. Specifically, in the Spring of 1979 he was “chased by a crowd of civilians” and when he returned to “his compound he opened fire upon a taxi that had been chasing him.” In November 2009, the Veteran submitted a VA Form 21-0781 which alleged that in 1979 he was at the U.S. embassy in Riyadh, Saudi Arabia and he engaged in combat with a crowd that were attempting to overtake the embassy. On January 8, 2010, the RO attempted to corroborate the Veteran’s alleged in-service stressors. The request states in pertinent part, “Riots broke out at the US Embassy in Tehran.” On January 13, 2010 the RO received the following response: Mr. [REDACTED] states that during the riots at the US Embassy in Tehran, he was ordered to fire into the crowd. We researched the Significant Terrorist Incidents 1961-2003 published by the US State Department. The report indicates that during the time period November 4, 1979 thru January 1981 the US Embassy was in control of Iranian radicals. In March 2010, a VA memorandum was entered into the claims file. The memorandum indicates the information provided by the Veteran was insufficient to send to the U.S. Army Joint Services Records Research Center (JSRRC). In September 2011, the Veteran underwent a VA initial post-traumatic stress disorder examination report which included a review of the claims file, a recitation of complaints and medical history, and examination results. The Veteran reported the following in-service events: (1) seeing the burned bodies of victims of an accident involving an airplane that caught fire on the runway, (2) his compound in Saudi Arabia being attacked by extremists, (3) being arrested by Saudi police and spending 7 or 8 hours in prison, and (4) seeing a father and son killed by the Saudi guards when their vehicle attempts to attack the compound. Also, in September 2011, the Veteran submitted a letter to the VA detailing the previously mentioned in-service stressors that he alleges occurred in Saudi Arabia. Moreover, the letter also states that in the Fall of 1979 he was “Forced to assist Saudi forces in firing on rioting religious fanatics.” In March 2013, an email correspondence from a VA Decision Review Officer was entered into the claims file. The email states: The issue of service connection for PTSD I believe requires additional development as the Veteran reported three unverified stressors that are not related to hostile military or terrorist activity and one which the examiner noted to be related to hostile military or terrorist activity which appear may be inconsistent with events that occurred… I believe that a JSRRC request would be appropriate to confirm the event as at this time the claimed stressor does not appear to be consistent with the places, types and circumstances of the Veteran’s service. In May 2013, the VA called the Veteran and attempted to obtain further information in support of the JSRRC request but was unable to reach the Veteran. In July 2014, the Veteran provided testimony that was documented in a Decision Review Conference Report. The Veteran reported he engaged in combat to protect the U.S. Embassy in Saudi Arabia. The Decision Review Officer wrote: “C folder contains a review from Quality Team that indicates it appears necessary to go out to JSRRC.” While the Board regrets further delay, another review of the evidence of record turns up something undetected in previous reviews. Therefore, further development is necessary prior to adjudicating this claim. Although VA previously attempted to corroborate the Veteran’s alleged in-service stressors, those efforts are deficient. The Veteran alleged his in-service stressors occurred while he served in Saudi Arabia; however, the January 2010 request stated his alleged in-service stressors occurred in Iran. Furthermore, in the request, the timeframe provided for the Veteran’s in-service stressors was November 1979 to January 1981; however, the Veteran reported his events occurred in the Spring and Fall of 1979. Additionally, after the Veteran provided further information during his March 2013 Decision Review Officer hearing, the officer specifically wrote, “I believe that a JSRRC request would be appropriate” to confirm the Veteran’s alleged stressors. However, the RO conducted one May 2013 phone call and the evidence of record does not indicate any physical request for further information was sent to the Veteran. Moreover, in July 2014 a separate Decision Review Officer in a post hearing Conference Report confirmed that a “review from a Quality Team [indicates] it appears necessary to go out to JSRRC.” However, again, the evidence of record does not contain any indication the VA attempted to contact the Veteran for further information after the Conference Report was filed. As such and considering the insufficient attempts by the RO to corroborate the Veteran’s alleged in-service stressors, a remand is necessary to ensure that VA has met its duty to assist. Therefore, reasonable attempts must be made to corroborate the Veteran’s alleged in-service stressors with the JSRRC and/or other appropriate sources. This matter is remanded for the following actions: 1. Take reasonable steps necessary to gather additional information necessary on the stressors detailed im the September 2011, VA initial post-traumatic stress disorder examination report, including: 1) seeing the burned bodies of victims of an accident involving an airplane that caught fire on the runway, (2) his compound in Saudi Arabia being attacked by extremists, (3) being arrested by Saudi police and spending 7 or 8 hours in prison, and (4) seeing a father and son killed by the Saudi guards when their vehicle attempts to attack the compound. 2. Based on the information provided by the Veteran and the evidence of record, contact the JSRRC to attempt corroboration of the Veteran’s alleged in-service stressors that occurred in the Spring and Fall of 1979 while serving in Riyadh, Saudi Arabia; or as otherwise may be detailed by the Veteran. 3. Review the evidence obtained, if any, and take any additional development deemed necessary. This may include the procurement of a VA mental disorders examination and opinion. 4. Thereafter, readjudicate the claim considering any additional evidence obtained. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Law Clerk, Tyler R. Masters 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.