Citation Nr: 21028203 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 17-47 985 DATE: May 10, 2021 REMANDED Entitlement to service connection for a sexually transmitted disease (STD), to include genital herpes is remanded. Entitlement to an initial rating in excess of 10 percent for nephrolithiasis is remanded. REASONS FOR REMAND The Veteran served on active duty from November 3, 1989 to July 28, 2003 and was honorably discharged for VA purposes; he also served on active duty from July 29, 2003 to March 1, 2013 for which he was discharged under dishonorable conditions. This matter is before the Board of Veterans' Appeals (Board) on appeal from a November 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Board issued a prior decision on these claims in February 2020. However, following an appeal to the United States Court for Appeals for Veterans Claims (Court), in January 2021 a Joint Motion for Remand (Joint Motion) was entered, vacating the Board's February 2020 decision. 1. Entitlement to service connection for a STD, to include genital herpes is remanded. In the January 2021 Joint Motion, the parties found that the Board erred in not addressing the Veteran's lay statements of being exposed to genital herpes during his period of honorable service. A review of the record shows that on his initial application for service connection the Veteran indicated that his genital herpes began in 1997. Moreover, the Veteran has made several statements that his only exposure to genital herpes was from his ex-wife in service in 1997. Service treatment records dated October 2007 note "Pt c/o genital herpes. States his wife has genital herpes that she contracted before they were married. They have been married 10 years and this is his first episode of genital herpes. He states he started having pain in the skin around his penis about 4 days ago followed by three small vesicles. No urethral discharge. No dysuria/hematuria. No F/C/N/V/D/C." The Veteran was diagnosed with genital herpes and prescribed acyclovir. The Board notes that this initial diagnosis occurred during a period of dishonorable service. However, since the Veteran has contended that his initial exposure was in 1997 during his period of honorable service and pursuant to the Joint Motion, the Board finds that remand is necessary in order to obtain a medical opinion regarding such. 2. Entitlement to an initial rating in excess of 10 percent for nephrolithiasis is remanded. In the January 2021 Joint Motion, the parties found that the Board erred in not addressing whether a staged rating was warranted for the Veteran's nephrolithiasis, failing to properly apply diagnostic code 7508, failing to note the use of a catheter during the Veteran's September 2015 surgery, and in failing to address discrepancies within the August 2017 VA examination regarding the number of procedures the Veteran underwent for his kidney stones. Accordingly, the Board finds that remand is warranted to provide the Veteran with another VA examination. The matters are REMANDED for the following action: 1. Update the electronic file with any new VA treatment records. 2. Obtain an opinion regarding the Veteran's genital herpes. The claims folder must be thoroughly reviewed by the examiner, and such review must be reflected in his or her report. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's genital herpes began during his period of honorable military service (between November 3, 1989 to July 28, 2003). In formulating an opinion, the examiner should specifically consider and address the Veteran's lay statements that his only known exposure to herpes was from his wife in 1997 and the Veteran's service treatment records that show that his first episode of genital herpes occurred in October 2007. A detailed rationale for the opinion must be provided. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 3. Schedule the Veteran for a VA examination to determine the current severity of his nephrolithiasis. The claims folder must be thoroughly reviewed by the examiner in connection with the examination, and such review must be reflected on the examination report. A complete history should be elicited directly from the Veteran. Any tests and studies deemed necessary by the examiner should be conducted. All findings should be reported in detail. The examiner should specifically provide findings regarding the severity of the Veteran's nephrolithiasis from May 23, 2013 to that date of the examination, answering the following questions: (1) Has the Veteran's nephrolithiasis required diet therapy at any time between May 23, 2013 and the date of the examination? If so, please provide the date at which this therapy began. (2) Has the Veteran's nephrolithiasis required drug therapy at any time between May 23, 2013 and the date of the examination? If so, please provide the date at which this therapy began. (3) Has the Veteran's nephrolithiasis required invasive or non-invasive procedures more than two times/year at any time between May 23, 2013 and the date of the examination? If so, please provide the number of such procedures and the dates they occurred. (4) Has the Veteran's nephrolithiasis resulted in frequent attacks of colic, requiring catheter drainage at any time between May 23, 2013 and the date of the examination? If so, please provide the date of such. In answering these questions, the examiner should specifically consider and address the January 2021 Joint Motion noting (1) two medical operations in September and December 2015; (2) a lithotripsy procedure done four times in 2017; (3) the use of a catheter in the September 2015 surgery; and (4) the discrepancies in the August 2017 VA examiner's report indicating that the Veteran has only had on average 0 to 1 invasive or non-invasive procedures per year for his nephrolithiasis despite the record seemingly showing more procedures. A detailed rationale for the opinion must be provided. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. TANYA SMITH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Ruiz, 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.