Citation Nr: 21001856 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 15-42 808 DATE: January 12, 2021 ORDER New and material evidence has been received to reopen the claim of entitlement to service connection for herpes simplex II; service connection for herpes simplex II is denied. Entitlement to service connection for obstructive sleep apnea (OSA) is denied. REMANDED Entitlement to service connection for bone spurs left big toe is remanded. Entitlement to service connection for bone spurs left heel is remanded. Entitlement to service connection for bone spurs right big toe is remanded. Entitlement to service connection for bone spurs right heel is remanded. FINDINGS OF FACT 1. A May 1993 rating decision denied service connection for herpes; the Veteran did not timely perfect an appeal. 2. Since the May 1993 rating decision, additional evidence has been received that is new and which raises a reasonable possibility of substantiating the claim for service connection for herpes. 3. The probative evidence of record demonstrates that the Veteran’s herpes simplex II did not originate in service or for many years thereafter and is not related to any incident during active service. 4. The probative evidence of record demonstrates that the Veteran’s sleep apnea did not originate in service or for many years thereafter and is not related to any incident during active service. CONCLUSIONS OF LAW 1. The May 1993 rating decision, in which the Agency of Original Jurisdiction (AOJ) of the Department of Veterans Affairs (VA) denied service connection for herpes, is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. Evidence received since the May 1993 rating decision to reopen the claim of entitlement to service connection for herpes is new and material and the claim is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156 (a). 3. The criteria for entitlement to service connection for herpes simplex II are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 4. The criteria for entitlement to service connection for sleep apnea are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310, 3.317. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from October 1988 to September 1992. His service included service in the Southwest Asia Theater of Operations. In July 2019, the Board of Veterans’ Appeals (Board) remanded the claim for additional development. The case has since been returned to the Board for appellate review. New and Material Evidence Prior unappealed decisions are final. However, a claim will be reopened and the former disposition reviewed if new and material evidence is presented or secured with respect to the claim which has been disallowed. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). The United States Court of Appeals for Veterans Claims (Court) has held that, when “new and material evidence” is presented or secured with respect to a previously and finally disallowed claim, VA must reopen the claim. Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). VA law requires that in order to reopen a previously and finally disallowed claim, there must be new and material evidence presented or secured since the time that the claim was finally disallowed on any basis. Evans v. Brown, 9 Vet. App. 273 (1996). Where a claim has been finally adjudicated, a claimant must present new and material evidence in order to reopen the previously denied claim. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); see also Wakeford v. Brown, 8 Vet. App. 239-40 (1995). New evidence is that which was not previously submitted to agency decisionmakers. Material evidence is that which by itself, or when considered with previous evidence of record, relates to an unestablished fact that is 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 final denial, and it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). For the purpose of reopening, evidence received is generally presumed credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). There is a low threshold for finding new evidence that raises a reasonable possibility of substantiating a claim. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). VA should consider whether the newly received evidence could reasonably substantiate the claim were the claim to be reopened, including whether VA’s duty to provide a VA examination is triggered. There must be new and material evidence as to at least one of the bases of the prior disallowance to warrant reopening. Shade, 24 Vet. App. at 117-20. 1. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for herpes The Veteran’s claim for service connection for herpes was denied by the AOJ in a May 1993 rating decision. The May 1993 rating decision, in which the AOJ denied service connection for herpes is final. 38 U.S.C. § 7105. The basis for the denial was that there was no evidence that there was a current diagnosed medical condition. Since the last prior final decision, lay evidence and medical evidence have been added to the record. In December 2010, the Veteran was diagnosed with herpes simplex II by a VA physician. During his July 2018 Board hearing, the Veteran testified that he contracted during active service. The reason for the prior final denial was that there was no evidence establishing a current diagnosed medical condition. This recent evidence indicates that the Veteran has been diagnosed with herpes simplex II. Also, he reported penile bumps with onset during active service that has continued since. The evidence raises a reasonable possibility of substantiating the claim. The Board finds that new and material evidence has been received since the May 1993 rating decision. Therefore, the claim of entitlement to service connection for herpes simplex II is reopened. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of an enumerated chronic disease manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303 (b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed. Cir. 2013) (holding that only conditions listed as chronic diseases in § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303 (b)). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303 (d). Generally, to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Persian Gulf War veterans may be entitled to service connection for a chronic disability resulting from an undiagnosed illness or medically unexplained chronic multi-symptom illness in certain circumstances. 38 U.S.C. § 1117; 38 C.F.R. § 3.317. A Persian Gulf veteran is defined as one who served on active military, naval, or air service in the Southwest Asia Theater of operations during the Persian Gulf War. 38 C.F.R. § 3.317 (e)(1). The Persian Gulf War began on August 2, 1990. 38 C.F.R. § 3.2 (i). The Southwest Asia Theater of operations refers to Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, and the Red Sea. 38 C.F.R. § 3.317 (e)(2). Under legislation specific to Persian Gulf War veterans, service connection may also be established for a qualifying chronic disability resulting from an undiagnosed illness that became manifest during active service in the Southwest Asia theater of operations during the Persian Gulf War or to a degree of 10 percent or more during a presumptive period. 38 U.S.C. § 1117; 38 C.F.R. § 3.317 (a)(1). The term “qualifying chronic disability” means a chronic disability resulting from any of the following (or any combination of any of the following): (A) an undiagnosed illness; (B) a medically unexplained chronic multi-symptom illness (such as chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome) that is defined by a cluster of signs or symptoms; (C) any diagnosed illness that the Secretary determines in regulations prescribed under subsection (d) warrants presumptive service-connection. 38 U.S.C. § 1117 (a)(2); 38 C.F.R. § 3.317 (a)(2)(i). Service personnel records confirm that the Veteran served in the Southwest Asia theater of operations during the Persian Gulf War. See 38 C.F.R. § 3.317 (e); see also 38 U.S.C. § 101 (33). However, although he qualifies for consideration for presumptive service connection for disabilities resulting from an undiagnosed illness or medically unexplained chronic multi-symptom illness, the claimed conditions on appeal have all been attributed to a diagnosed pathology. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 2. Service connection for sleep apnea The Veteran contends that his OSA is related to his active service. Alternatively, the Veteran asserts that his OSA is due to environmental hazards he was exposed to during the Gulf War. The question for the Board is whether the Veteran has a current disability that began during service, is otherwise at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of OSA, the preponderance of the evidence weighs against finding that his OSA began during service or is otherwise related to an in-service injury, event, or disease or to a service-connected disability. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. §§ 3.303(a), (d), 3.310. In March 2000, the Veteran underwent a private sleep study and was diagnosed with mild OSA. In June 2011, the Veteran underwent a general VA examination as he claimed sleep apnea secondary to service in Southwest Asia. He was diagnosed with obstructive sleep apnea. In September 2011, a VA physician opined that the Veteran’s obstructive sleep apnea was not due to service in Southwest Asia as it is not outlined in the environmental hazards guidelines. During his July 2018 Board hearing, the Veteran testified that he had fatigue and sleep problems during service and that he would stop breathing when he was asleep and then would wake up. He claimed service connection for sleep apnea on a direct basis and testified that he was always tired, restless, puzzled, and unable to focus during his active duty service. Shipmates reportedly routinely woke him because he was snoring loud. In a March 2020 statement, the Veteran’s wife noted that the Veteran had apneas when sleeping since they met in 2003. She would shake the Veteran awake so that he would breathe. In May 2020, a VA examiner opined that the Veteran’s sleep apnea was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained that there was no evidence of sleep disturbance during service or proximate to service. The Veteran’s post-service examination in February 1993 was negative for sleep disturbance. He was not diagnosed with mild OSA until March 2000. The Veteran’s only in-service complaints related to sleep were associated with significant pharyngitis and the inability to sleep due to pain. The Veteran’s statements regarding fatigue and drowsiness could be attributed to many things other than OSA, including usual troubles sleeping while living aboard a ship, that do not necessarily represent OSA. The examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Veteran is competent to report his symptoms associated with his sleep apnea, and any frequent waking symptoms that are readily apparent to a lay person. However, the Veteran is not shown to be competent to determine the etiology or onset of the claimed disability. The Board finds that there is no competent medical evidence of record to indicate that the Veteran’s sleep apnea is related to his military service. To the extent that the Veteran claims that his sleep disorder is attributable to an undiagnosed illness or medically unexplained chronic multi-symptom illness related to his Persian Gulf War service, the Board finds that such is not supported by the evidence of record. The medical evidence shows that his current symptoms are poor sleep and frequent awakening which are secondary to service-connected posttraumatic stress disorder (PTSD) and OSA, which are known clinical diagnoses. After weighing and balancing the evidence of record, the Board finds that the preponderance of the evidence of record is against a finding that the Veteran’s sleep apnea was incurred during his service. Accordingly, the Board finds that the criteria for service connection for sleep apnea are not met and the Veteran’s claim must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. See 38 U.S.C. § 5107 (b). However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997). 3. Service connection for herpes simplex II The Veteran contends that he contracted herpes simplex II during his active duty service. The question for the Board is whether the Veteran has a current disability that began during service, is otherwise at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of herpes simplex II, the preponderance of the evidence weighs against finding that his herpes simplex II began during service or is otherwise related to an in-service injury, event, or disease or to a service-connected disability. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. §§ 3.303(a), (d), 3.310. STRs indicated that the Veteran had recurrent bumps on his penis in March 1992. He was diagnosed with probable herpes simplex and labs were taken. In September 1992, lab results were negative for herpes simplex; however, his right inguinal node was slightly tender and there were several scabs on the right side of his penis shaft. The Veteran’s July 1992 separation Report of Medical History was negative for venereal diseases, as well as his July 1992 separation examination, although his swollen and tender right inguinal node was noted. In December 2010, the Veteran was diagnosed with herpes simplex II by a VA physician and he was prescribed medication. In August 2012, the Veteran underwent a VA examination for herpes simplex II. He was not diagnosed with herpes simplex and the VA examiner opined that the claimed condition was less likely than not incurred during active service as while the Veteran reported recurrent bumps on his penis in March 1992, September 1992 laboratory results were negative for herpes and syphilis. Further, the Veteran did not have symptoms of herpes upon examination. During his July 2018 Board hearing, the Veteran testified that he contracted herpes shortly before separation from active service in September 1992 and that he sought treatment from the VA Medical Center in Charleston, South Carolina shortly after separation. In a March 2020 statement, the Veteran’s wife noted that the Veteran repeatedly rejected intimate relations due to herpes since they met in 2003. The Veteran reported that he contracted herpes on active duty due to having unprotected sex. In May 2020, a VA examiner opined that the Veteran’s herpes simplex II was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained that the veteran was not diagnosed with herpes simplex II during active service. The Veteran had vesicular eruptions on the shaft of the penis beginning in January 1992. The presumptive diagnosis was herpes simplex II; however, two separate tests, including culture and Tzanck smear, were negative for herpes. No final diagnosis for the penile lesions were noted in the STRs. No lesions of the penile shaft were noted upon separation. The Veteran was first diagnosed with herpes in 2010, nearly 2 decades after active service. Therefore, the examiner found that the Veteran’s currently diagnosed herpes simplex II was less likely as not caused by or due to his penile shaft eruptions during active service. The examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Veteran is competent to report his symptoms associated with his herpes simplex II, and any irritation symptoms/lesions that are readily apparent to a lay person. However, the Veteran is not shown to be competent to determine the etiology or onset of the claimed disability. The Board finds that there is no competent medical evidence of record to indicate that the Veteran’s herpes simplex II is related to his military service. After weighing and balancing the evidence of record, the Board finds that the preponderance of the evidence of record is against a finding that the Veteran’s herpes simplex II was incurred during his service. Accordingly, the Board finds that the criteria for service connection for herpes simplex II are not met and the Veteran’s claim must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. See 38 U.S.C. § 5107 (b). However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997). REASONS FOR REMAND 5. Service connection for bone spurs of the right and left big toes, and bones spurs of the right and left heels is remanded. The Veteran contends that his bilateral big toe bone spurs and bilateral heel spurs are due to his active duty service. In September 1993, after active duty service, the Veteran reported left foot heel pain. Onset was reportedly three months prior. He was diagnosed with plantar fasciitis. In October 1993 the diagnosis was musculoskeletal pain. In August 2012, the Veteran underwent a VA examination for foot conditions. He was diagnosed with degenerative joint disease of his bilateral feet and an image study revealed bilateral calcaneal spurs. In 2011, the Veteran had bilateral spurs of his big toe removed by a private doctor. An opinion was not rendered by the VA examiner. During his July 2018 Board hearing, the Veteran stated that his foot disabilities were due to the foot trauma he endured during training and his duties while repairing leaks and clogs on his ship. He stated that a private doctor opined that wearing combat boots for long hours in wet conditions caused his foot disabilities; however, this is not of record. Also, the Veteran asserted that his flatfoot condition was aggravated by his active duty foot trauma which caused his bilateral big toe spurs and heel spurs. He noted that he had foot problems, such as discomfort, during active service and since, and that it has progressed since. In March 2020, the Veteran’s wife noted that the Veteran had complained of foot pain since they met in 2003. He reported onset during active service. In May 2020, a VA examiner opined that the Veteran’s left and right heel bone spurs and left and right big toe bone spurs were less likely as not incurred in or caused by the claimed in-service injury, event, or illness. However, the examiner, incorrectly noted that the Veteran was first diagnosed with plantar fasciitis in February 2007; however a September 1993 treatment note indicates that he was diagnosed the plantar fasciitis months after separation from active service. Also, the examiner’s rationale did not address the Veteran, or his wife’s, reports of foot pain since active service. The Board notes that lay testimony is competent as to matters capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Therefore, in light of the foregoing, the AOJ should obtain additional medical opinion to fully addresses these matters. The matters are REMANDED for the following action: 1. Obtain a VA medical addendum opinion from the May 2020 examiner, or a similarly qualified individual, to determine the nature and etiology of any current bilateral foot (including specifically, the heels and toes) conditions. The record must be made available to the examiner and the examiner should indicate in his/her report whether the record was reviewed. Based on a review of the record and any examination findings, if conducted, the examiner should address the following: (a.) Identify all current diagnoses of the bilateral feet. (b.) As to each currently diagnosed foot disorder including of the bilateral heels and toes, indicate whether it is at least as likely as not (probability of at least 50 percent) that the condition (1) began during active service; (2) is otherwise related to any in-service event or injury, to include wearing combat boots in wet conditions; or (3), for arthritis only, manifested within one year of active duty service. The examiner should address the Veteran’s competent statements and testimony that he has had foot discomfort since his active service, the 1993 diagnosis of left foot plantar fascitis with onset of pain months prior, his wife’s report of foot pain since service, as well as provide a complete rationale for all opinions expressed and conclusions reached. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Costello, 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.