Citation Nr: 21075821 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 18-25 764 DATE: December 21, 2021 ORDER New and material evidence not having been received to reopen the claim of service connection for diabetes, the appeal is denied. New and material evidence not having been received to reopen the claim of service connection for hypertension, the appeal is denied. As the severance of service connection for moderate degenerative changes at L5/S1 (claimed as lower back pain) was proper, the appeal is denied. REMANDED Service connection for herpes is remanded. FINDINGS OF FACT 1. Since a final January 2010 rating decision, the evidence received pertaining to diabetes and hypertension is cumulative and redundant of evidence of record at the time of the prior denial, does not, when considered with previous evidence of record, relate to unestablished facts necessary to substantiate the claims, or otherwise raise a reasonable possibility of substantiating either claim. 2. The award of service connection for moderate degenerative changes at L5/S1 (claimed as lower back pain) was clearly and unmistakably administrative error where the probative evidence shows that the diagnosis is not related to any event or injury during service. CONCLUSIONS OF LAW 1. The criteria to reopen the claim of service connection for diabetes have not been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 2. The criteria to reopen the claim of service connection for hypertension have not been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 3. The severance of service connection for moderate degenerative changes at L5/S1 (claimed as lower back pain) was proper. 38 U.S.C. § 5112; 38 C.F.R. § 3.105 REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1975 to March 1978. The claims involving herpes, hypertension, and diabetes are on appeal from a June 2015 rating decision. The issue involving the severance of service connection for moderate degenerative changes at L5/S1 (claimed as lower back pain) is on appeal from a January 2016 rating decision. The Veteran testified before the undersigned in April 2021. The June 2015 rating decision denied an original, January 2015 claim of service connection for herpes. In a December 2015 statement, the Veteran requested reconsideration based on clear and unmistakable error (CUE) of a June 2015 rating decision denying service connection for herpes. This December 2015 statement was submitted within one year of the June 2015 rating decision denying service connection for herpes. A formal notice of disagreement (NOD) was not required at that time because the claim was pending prior to March 24, 2015. See 79 Fed. Reg. 57660, 57686 (Sept. 25, 2014). The Veteran's December 2015 statement qualifies as an informal NOD because it identifies the June 2015 rating decision and expresses a desire to contest the results. See 38 C.F.R. §§ 20.200, 20.201 (in effect prior to March 24, 2015). Hence, the January 2015 claim did not become final and has remained pending since that time. New and material evidence is not required to reopen the claim. See 38 C.F.R. § 3.156(a). Likewise, as the June 2015 rating decision is nonfinal, a motion for revision of that rating decision on the basis of CUE may not be raised at this time. 38 C.F.R. § 3.105(a). The June 2015 rating decision also denied petitions to reopen prior claims of service connection for diabetes and hypertension. The Veteran filed a December 2015 statement requesting reconsideration of the two claims. As that statement qualifies as an NOD, the diabetes and hypertension claims remained pending from the January 2015 petition to reopen. According to a March 2018 statement of the case (SOC), new and material evidence was not required as the December 2015 statement was a request to reopen. Notwithstanding the RO's finding, the Board may not address the merits of the previously denied claims without first determining that new and material evidence has been submitted. See 38 U.S.C. § 7104(a); 38 C.F.R. § 3.156(a); Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001); Elkins v. West, 12 Vet. App. 209, 218-19 (1999); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). New and Material A claimant is entitled to notice of any decision by VA affecting the payment of benefits or the granting of relief. 38 U.S.C. § 5104. Generally, a VA decision becomes final if a notice of disagreement (NOD) is not filed. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.1100, 0.1103. It is, however, incorrect to assert that a rating decision is necessarily final because the Veteran failed to file a NOD. See Buie v. Shinseki, 24 Vet. App. 242, 252 (2011). To the contrary, if new and material evidence is received during an applicable appellate period following a RO decision, the new and material evidence will be considered as having been filed in connection with the claim that was pending at the beginning of the appeal period. See 38 C.F.R. § 3.156 (b); Young v. Shinseki, 22 Vet. App. 461, 466 (2009). Moreover, except as otherwise provided, if at any time following issuance of a decision VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided a prior claim, VA will reconsider the claim. See 38 C.F.R. §§ 3.156 (c), 20.1000(b). By operation of § 3.156(c), an original claim is not just reopened, it is reconsidered and serves as the date of the claim and the earliest date for which benefits may be granted. Stowers v. Shinseki, 26 Vet. App. 550, 554 (2014). Otherwise, to reopen and review a claim that has been previously denied, new and material evidence must be submitted by or on behalf of a claimant. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); see also Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). The question of whether to reopen a claim should be considered under the standard of 38 C.F.R. § 3.159(c)(4)(iii), consistent with McLendon v. Nicholson, 20 Vet. App. 79 (2006), for determining whether a VA examination is necessary. See Shade v. Shinseki, 24 Vet. App. 110, 118-19, 123 (2010). 1. Whether new and material evidence has been received to reopen the claim for service connection for diabetes 2. Whether new and material evidence has been received to reopen the claim for service connection for hypertension As issues 1-2 are interrelated, the Board will address them together. The Veteran filed an original claim of service connection for hypertension and diabetes in August 2009. The RO denied the claim in a January 2010 rating decision. Notification of this decision was mailed to the Veteran later in January 2010. It is not clear if the notification was mailed to his latest mailing address of record. It was mailed to a street address, which the Veteran had previously used in all correspondence to VA. The only exception was a December 2009 VA 21-4142 Authorization for Release of Information, in which he listed a P.O. Box for his mailing address. Since that time, he has used both addresses, the street address and the P.O. Box address, as his mailing address in various correspondence to VA. See, e.g., 2/11/2010 VA 21-22 Appointment of Veterans Serv. Org. as Claimant Representative (using the street address); 1/26/2011 VA 21-526b, Veteran Supplemental Claim (using the P.O. Box); 1/29/2015 VA 21-526EZ, Fully Developed Claim (Compensation) (using the street address). It appears most likely that he was receiving mail at both addresses. In either event, the January 2010 notification letter was not returned as undeliverable, and the Veteran has not alleged nonreceipt. Consequently, the Board finds that the presumption of regularity applies and is not rebutted by clear evidence. Romero v. Tran, 33 Vet. App. 252, 259 (2021). As such, a preponderance of the evidence supports a conclusion that he received actual notice of the January 2010 decision. See id. at 267. The Veteran did not appeal the January 2010 determination, no new and material evidence was received prior to expiration of the appeal period, and no further official service department records have been obtained. Accordingly, the August 2009 claim became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.103(f), 3.156(b)-(c), 20.200, 20.201, 20.300, 20.302, 20.1103. The January 2010 rating decision denied both claims on the basis that there were no complaints, treatment, or diagnosis in service, and neither condition was diagnosed within one year of service. The RO determined that neither condition was incurred in or caused by service. The Veteran filed the instant petition to reopen in January 2015. The January 2015 claim included a statement that hypertension was secondary to diabetes. Since that time, he also submitted a December 2015 statement in which he wrote "2nd to herpes" after listing the two conditions. It is presumed from this statement that he intended to claim both conditions on a secondary basis to service-connected herpes. In a September 2019 claim statement, he wrote "diet" where asked how the condition relates to service. He also testified at a Board hearing in April 2021. Also of record are ongoing VA medical records showing treatment for these conditions. The Board finds new and material evidence has not been received. First, the Veteran's statements are not "new" evidence. They do not provide any evidence indicating a relationship to service. His written statements raise new theories of entitlement, but they do not provide evidence in support of the theories. Raising new theories of entitlement without supporting evidence does not amount to new and material evidence. See Boggs v. Peake, 520 F.3d 1330, 1336-37 (Fed. Cir. 2008); Velez v. Shinseki, 23 Vet. App. 199, 206 (2004). His Board hearing testimony is not new evidence as he was not able to articulate any reason why he believed service connection should be granted for either condition; his testimony is essentially nonevidence. The new VA medical records show ongoing treatment for the conditions, but do not indicate a nexus to service, which is the reason the claim was previously denied, or a service-connected disability. Moreover, this evidence is not consistent with the criteria of 38 C.F.R. § 3.159(c)(4)(iii), and McLendon, 20 Vet. App. 79, for determining whether a VA examination is necessary because it provides no indicate that a current condition is related to service or a service-connected disability. See Shade, 24 Vet. App. 110. Even assuming his credibility, the Veteran's own conclusory statements would not entitle him to a VA examination. See Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010). Under these circumstances, even after resolving all reasonable doubt in the Veteran's favor, the Board must conclude that new and material evidence to reopen the claims for hypertension and diabetes has not been received. As he has not met the threshold burden of submitting new and material evidence to reopen the previously denied claims, the appeals are denied. 3. Whether the severance of service connection for moderate degenerative changes at L5/S1 (claimed as lower back pain) was proper A June 2015 rating decision granted service connection for moderate degenerative changes at L5/S1 (claimed as lower back pain). The RO determined that service connection was established as directly related to service. Although not cited in the June 2015 rating decision, the grant appears to have been materially based on a June 2015 VA examination and opinion. That examiner opined that the Veteran had a condition that was at least as likely as not incurred in or caused by service. A September 2015 rating decision proposed to sever service connection. The RO found that there was clear and unmistakable error in the grant of service connection because service connection had been granted based on a medical opinion that was speculative and not supported by the evidence. The RO explained that the positive opinion was based on the Veteran's history which was not supported by service treatment records. A January 2016 rating decision made the severance final. The RO reiterated the reasons set forth in the proposed rating decision. The instant appeal followed. The Veteran argues that the severance was improper because he was injured in service. He was sitting at his desk and fell backwards in his chair. Board Hr'g Tr. 3. He was taken to the hospital. Board Hr'g Tr. 3. He did not then file for service connection or seek treatment at VA after service because he was discharged from service abruptly and not told about filing for disability. Board Hr'g Tr. 3-4. A. Applicable Law Service connection will be severed only where evidence establishes that it is clearly and unmistakably erroneous (CUE) (the burden of proof being on the Government). 38 C.F.R. § 3.105(d). When severance of service connection is considered warranted, a rating proposing severance will be prepared setting forth all material facts and reasons. The claimant will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefor and will be given 60 days for the presentation of additional evidence to show that service connection should be maintained. Unless otherwise provided in paragraph (i) of this section, if additional evidence is not received within that period, final rating action will be taken and the award will be reduced or discontinued, if in order, effective the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expires. 38 C.F.R. § 3.105(d). A change in diagnosis may be accepted as a basis for severance action if the examining physician or physicians or other proper medical authority certifies that, in the light of all accumulated evidence, the diagnosis on which service connection was predicated is clearly erroneous. This certification must be accompanied by a summary of the facts, findings, and reasons supporting the conclusion. 38 C.F.R. § 3.105(d). To establish that a grant of service connection was the product of CUE, VA must show that (1) either the correct facts as they were known at the time were not before the adjudicator, the adjudicator made an erroneous factual finding, or the statutory or regulatory provisions were incorrectly applied; (2) the alleged error was undebatable, not merely a disagreement as to how the facts were weighed or evaluated; and (3) the error manifestly changed the outcome of the prior decision. See Allen v. Nicholson, 21 Vet. App. 54, 58-59 (2007); Stallworth v. Nicholson, 20 Vet. App. 482, 487-88 (2006); cf. Bustos v. West, 179 F.3d 1378, 1380-81 (Fed. Cir. 1999); Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell v. Principi, 3 Vet. App. 310, 313-14, 319 (1992) (en banc). A clear and unmistakable error is one about which reasonable minds could not differ. See, e.g., 38 C.F.R. § 20.1403(a). In most respects, the CUE standard for severing service connection under § 3.105(d) is equivalent to the CUE standard for reversing or revising a prior final decision under 38 C.F.R. § 3.105(a). See Baughman v. Derwinski, 1 Vet. App. 563, 566 (1991). Section 3.105(d) places at least as high a burden of proof on the VA when it seeks to sever service connection as § 3.105(a) places upon an appellant seeking to have an unfavorable previous determination overturned. See id. However, the determination is not limited to the law and the record that existed at the time of the original decision. VA may consider medical evidence and diagnoses that postdate the original award of service connection to demonstrate that the diagnosis on which service connection was predicated is clearly erroneous. Stallworth, 20 Vet. App. at 488. The Secretary's burden is not to prove clear and unmistakable error in the original decision in the same manner a claimant would show CUE under sections 5109A or 7111. Id. The clear and unmistakable evidence standard does not require the absence of conflicting evidence, and conflicting evidence can be considered in determining whether the evidence, whatever it may be, leads, clearly and unmistakably, to the unfavorable conclusion. Kent v. Principi, 389 F.3d 1380, 1383 (Fed. Cir. 2004) A decision that is reversed or amended on the basis of CUE is revised to conform to the true state of the facts or the law that existed at the time of the original adjudication. Allen, 21 Vet. App. at 62 (internal quotations omitted). B. Discussion The question before the Board in this case is whether the grant of service connection for the Veteran's low back disability was clearly and unmistakably erroneous. The Board concludes that the grant was clearly and unmistakably erroneous because there is no probative evidence indicating that the Veteran's current low back disability is related to service. Rather, the grant of service connection was clearly based on administrative error. It is not in dispute that the Veteran is currently diagnosed with a lumbar spine condition. A June 2015 VA examiner diagnosed mild degenerative changes at L5-S1. X-rays in August 2011 also showed remote fracture involving the left transverse process of L1. It is also not in dispute that the Veteran was treated for symptoms during service. To this end, there is some indication of a preexisting lumbar spine condition. His service treatment records (STRs) show a diagnosis of mild lordosis, asymptomatic, at service entrance in December 1974. It is not clear and unmistakable, however, that the service-connected condition is related to the preexisting lordosis. The presumption of soundness applies only when a disease or injury not noted upon entry to service manifests in service, and a question arises as to whether it preexisted service. Gilbert v. Shinseki, 26 Vet. App. 48, 55 (2012), aff'd 749 F.3d 1370 (Fed. Cir. 2014). Here, the entrance examination does not note a diagnosis of moderate degenerative changes at L5/S1. The Veteran's STRs and post-service medical records do not otherwise indicate a relationship between mild lordosis and moderate degenerative changes at L5/S1. On this question, the only relevant evidence is a VA examiner's opinion from March 2018. The examiner commented that the diagnosis of lordosis at service entrance was "likely of a structural variant, of unknown significance." The examiner did not indicate any relationship to the service-connected degenerative changes at L5/S1. Overall, this evidence does not raise a question as to whether the service-connected diagnosis preexisted service. As such, the presumption of soundness applies as to the service-connected disability. See 38 U.S.C. § 1111; Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). The STRs next show that the Veteran was seen for low back complaints during service. In August 1975, he was treated for low back pain of approximately 3 weeks duration with no injury. In January 1976, he was treated for low back pain for 3 days after spending an "excessive" amount of time playing basketball on a hard court 3 days prior. The diagnosis was paraspinous strain. X-rays in February 1976 showed rudimentary rib formation on L-1 on the left; spina bifida occulta of S-1, no clinical significance; otherwise unremarkable. At his March 1978 service separation examination, the Veteran gave a history of having "good" health except for "low back, pains"; clinical evaluation of the spine was marked as "normal." At his Board hearing, the Veteran testified that he had an accident during service while sitting at his desk. He fell backwards and believes he was taken to the hospital. Board Hr'g Tr. 3. Overall, the STRs do not confirm the injury reported by the Veteran. However, the STRs do reflect treatment for low back complaints during service. Hence, an in-service event is established. Although the Veteran is diagnosed with a current low back condition and experienced back pain in service, the grant of service connection was clear and unmistakable error because there is no probative evidence relating the moderate degenerative changes at L5/S1 (claimed as lower back pain) to service. After service, there is no documented treatment for low back pain until August 2011. At that time, he reported that he had hurt his back approximately one week prior after lifting weights and playing golf. In August 2011, X-rays showed the diagnosis of moderate degenerative changes at L5/S1, plus remote fracture involving the left transverse process of L1. In July 2015, he complained of (upper and) lower back pain after a motor vehicle accident (MVA) five days prior. In June 2016, he complained of low back (and neck) pain since the MVA. In August 2019, he reported increased low back pain for 2-3 months. This evidence does not show that he denied a history of low back pain since service. It is essentially negative on this question. However, it is important evidence showing the context of his post-service complaints. In connection with the instant claim, the Veteran underwent a VA examination in June 2015. He again reported an injury during service involving a fall backwards out of his chair and injuring his lower back with pain off-and-on since then. The VA examiner in June 2015 opined that the Veteran's claimed condition was at least as likely as not incurred in or caused by service. The VA examiner reasoned that there is no documentation of the incident in the file, but there was documentation of a stable old fracture of the left transverse process of L1. The examiner felt this may be a residual of what happened when he fell out of the chair. The examiner explained that degenerative changes at L5/S1 are an example of something that happens over time and would not be related to the fall out of the chair. A different VA examiner in March 2018 opined that it is less likely the left transverse process L-1 fracture is due to the back pains during service in 1976/1978, despite the 2015 radiological comment, because too many years had passed since service to specifically pinpoint this fracture to an incident/episode in service. The VA examiner concluded that this condition is less likely due to/a result of the isolated entries in service. The VA examiner reasoned that the X-rays in 2015 make mention of the old L-1 spinous process fracture, but "the cause could be anything." The examiner acknowledged such a condition was "many times injury-related," but here it was unknown as to when the injury occurred. The examiner pointed out that it did not appear on X-rays in 1976. The examiner concluded that when this spinous process fracture appeared (or what caused it) is completely unknown and would be totally speculative. With regard to the service-connected moderate degenerative changes at L5/S1, the March 2018 VA examiner explained that the Veteran was 60 years old, and natural progression of disease with age is a common cause of degenerative changes. The examiner noted that the record is silent for back complaints for many, many years after discharge in 1978. Hence, the examiner concluded, whether any degenerative change in his lower back is specifically due to/a result of those isolated entries in the 1970s is completely unknown and cannot be determined, especially when one factors in progression of disease with age over time. The examiner pointed out that chronicity of complaints/visits for same would have been helpful to review in the subsequent years after service. Granting service connection on this evidentiary record was clear and unmistakable error. There is no probative evidence relating the moderate degenerative changes at L5/S1 to service. The June 2015 VA examiner indicated that the fracture documented by the August 2011 X-ray "may" be a result of an in-service injury, but the Veteran was never granted service connection for the fracture. Hence, that diagnosis is not at issue in this appeal. Even if he had been granted service connection for the fracture, the examiner's opinion was expressed in only speculative language, so it did not provide probative evidence of a nexus. See, e.g., Hood v. Shinseki, 23 Vet. App. 295, 298-99 (2009). In either event, as to the service-connected disability, moderate degenerative changes at L5/S1, the June 2015 VA examiner opined that it would not have resulted from the injury during service. There is no reason to call into question or otherwise discount the probative weight of the VA examiner's opinion on this question. The examiner's opinion is clear and unequivocal as to the moderate degenerative changes at L5/S1, and it was based on the relevant information, including the relevant in-service and post-service information. Moreover, the examiner's explanation is understandable, and all inferences appear to follow from the facts and information given. See McCray v. Wilkie, 31 Vet. App. 243, 257 (2019); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Thus, overall, the June 2015 VA examiner's opinion is of great probative weight and establishes why, as a medical matter, a nexus in this case is not supported. The March 2018 VA examiner likewise explained why the diagnosis was less likely than not related to service. The VA examiner commented that it would have been helpful to review any chronicity of complaints/visits in the subsequent years after service. To this end, it appears the VA examiner did not account for the Veteran's report to the June 2015 VA examiner that he had back pain off-and-on after service. This certainly undermines the probative value of the opinion because it shows the examiner did not have a complete factual foundation. However, it does not establish that the severance of service connection was improper. Essentially, it leaves the VA examiner's opinion with little probative weight. See, e.g., Kahana v. Shinseki, 24 Vet. App. 428, 439 N. 8 (2011) (Lance, J., concurring) (distinguishing an incorrect factual premise, which has no probative value, from an incomplete factual premise). This is immaterial at this stage, however, as the June 2015 VA examiner had already probatively explained why a nexus to service was unlikely. The inadequacy in the March 2018 opinion also does not mean that remand for a new opinion is needed because the highly probative June 2015 opinion answers all medical questions raised. The grant of service connection was essentially administrative error. The RO misread the June 2015 VA examiner's opinion as positive, where it actually expressed a negative opinion as to moderate degenerative changes at L5/S1. The collective evidence since that time continues to confirm that the Veteran's condition is unrelated to the treatment during service. There is at present no conflicting evidence on the nexus question. The Veteran informed the June 2015 VA examiner that he had pain off-and-on since service, but his statements do not indicate a nexus for three reasons. First, the existence of intermittent pain after service does not alone establish a nexus; whether his pain was a manifestation of in-service complaints is a medical question. See Savage v. Gober, 10 Vet. App. 488, 497 (1997) (medical expertise is required to relate the Veteran's present arthritis etiologically to his post-service symptoms). Second, his own opinion is not otherwise probative evidence of a nexus as this is a complex medical question, and the record shows he does not have the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Third, the June 2015 VA examiner considered the Veteran's assertions, but made clear that the in-service injury would not account for the diagnosis. Hence, overall, there was no probative evidence relating the moderate degenerative changes at L5/S1 to service. The cumulative evidence currently of record continues to lack any probative evidence of a nexus. The only probative evidence establishes that the Veteran's diagnosis is unlikely to be related to service. As such, RO granted service connection based on a negative evidentiary record. This amounts to administrative error. To conclude, the grant of service connection was clear and unmistakable error here because there is not conflicting evidence as to the nexus element. The probative evidence establishes that the service-connected disability involving moderate degenerative changes at L5/S1 (claimed as lower back pain) is not related to service. This evidence does not present a reasonable disagreement as to whether a nexus exists, and reasonable minds could not disagree that the grant of service connection was essentially administrative error. Accordingly, the severance of service connection was proper, and the appeal is denied. REASONS FOR REMAND Service connection for herpes is remanded. This issue is remanded for a new VA opinion. The Veteran maintains that he first had lesions during service as an "unfortunate incident of promiscuity" during his service. Board Hr'g Tr. 7. He testified that he did not go for treatment during service. Board Hr'g Tr. 8. Notwithstanding the Veteran's assertion of not seeking treatment during service, his service treatment records (STRs) document treatment on several occasions for symptoms in the same area of the body. First, in February 1976, he was seen for possible urethral discharge; a smear was ordered. The diagnosis is unclear, but on follow-up the next day, he was counseled on venereal disease and treated with spectrimycin. In March 1976, June 1976 (two occasions), and August 1976, he was treated for a rash in the groin area, diagnosed as tinea cruris. In June 1977, he was seen for lesions on the underside of the penis, assessed as benign pustules. Later in June 1977, he was again seen for recurrent rash in the groin area, diagnosed as tinea. In November 1977, he was seen for urethral discharge of one day, which was presumptive for gonorrhea. In December 1977, he was seen for a "pimple" on his penis, which was assessed as folliculitis. At service separation, the clinical evaluation was negative or normal in all material respects, but the Veteran endorsed a history of venereal disease. After service, the first indication of symptoms appears in an October 1999 VA medical record. The Veteran gave a history of genital herpes for which he wished to start suppressive therapy. In connection with his current claim, he underwent a VA examination in June 2015. The examiner gave a diagnosis of herpes simplex, diagnosed in 2003. The Veteran informed the examiner of his history of sores on his penis in 1977, but reported he was not told it was herpes and was not treated for herpes, but had continued to get sores "every so often" until diagnosed with herpes approximately 10-12 years prior to the examination. The examiner noted that laboratory testing ordered by the examiner came back negative for Herpes 1 and 2, although a note with the results stated that this did not rule out an infection. The examiner opined that the condition was less likely than not related to service. The examiner reasoned that there was no documentation the Veteran had herpes in service. The Board finds that this opinion is not sufficient to make a fully informed decision on the claim. First, it is not entirely clear that the Veteran has been diagnosed with herpes. The VA medical records appears to have treated him based solely on his assertion of having herpes. The Board was not able to locate any diagnostic testing confirming the diagnosis. The June 2015 VA examiner's opinion does not clarify as it gives conflicting information as to the diagnosis. Second, the examiner's rationale is unclear. The examiner's entire rationale was that there was no documentation of herpes in service. However, it is not clear what this means when considering the extensive treatment during service for symptoms in the same bodily area. The treatment during service raises the question of whether the symptoms in service were actually the first manifestation of the condition (assuming the diagnosis). Although a diagnosis of herpes was not made during service, it appears possible that the symptoms were misdiagnosed during service. The June 2015 VA examiner's rationale does not indicate if this was considered and ruled out. It is possible the VA examiner did consider this possibility and ruled it out. On the other, it could be that the examiner simply demanded a documented diagnosis of "herpes" in service and, absent such, reached the negative opinion. The Board has no way to know what the examiner intended to mean from the conclusory rationale, absent any informative discussion. As such, remand for a new examination opinion is needed. The matters are REMANDED for the following action: Schedule the Veteran for an examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) by an appropriate clinician to determine the nature and etiology of the claimed herpes. The examiner is asked to provide a response to the following: (a.) Does the Veteran have a current diagnosis of herpes? The examiner must conduct all necessary diagnostic testing, unless it can be explained why such testing is not medically necessary. If a diagnosis cannot be ruled in or out, please explain why. (b.) If there is a diagnosis of herpes, is the condition at least as likely as not related to service? The examiner should address whether the symptoms in service might have been misdiagnosed and actually represented the initial onset of the condition. In answering all questions, the examiner is asked to consider the statements from the Veteran regarding his history of symptoms during and since service. The examiner is asked to explain why his statements make it more or less likely that the current condition started during service. If indicated, it should be explained whether there is a **medical** reason to believe that the Veteran's recollection of his symptoms during and after service may be inaccurate or not medically supported as the onset or cause of his current diagnosis. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed condition is known to develop, or are the Veteran's reports generally inconsistent with medical knowledge or implausible? The examiner should not rely on silence in the medical records unless it can be explained: (a) why the silence in the available records can be taken as proof that the symptom(s) did not occur, including why the fact would have normally been recorded if present, or (b) why the absence of medical records is medically significant. KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Bosely, 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.