Citation Nr: 21041789 Decision Date: 07/10/21 Archive Date: 07/10/21 DOCKET NO. 10-45 518 DATE: July 10, 2021 REMANDED Entitlement to service connection for a venereal disease is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1974 to December 1978 and from April 1979 to January 1988. In June 2015, the Veteran testified at a Board hearing before a Veterans Law Judge (VLJ) who is no longer employed at the Board. The Veteran was offered the opportunity to testify at another Board hearing before a different VLJ. However, in March 2018, he indicated that he did not desire another Board hearing. In August 2015, the Board remanded the case for further development. In May 2018, the Board denied the Veteran's claim for service connection for venereal disease. The Veteran appealed the decision to the U.S. Court of Appeals for Veterans Claims (Court). In February 2019, the parties to this appeal entered into a Joint Motion for Remand (JMR) in which they moved the court to vacate and remand the Board's denial. In a March 2019 Order, the Court granted the parties' JMR. Pursuant to the JMR, the case was remanded in August 2019 and returned for further appellate review. The Veteran's case was most recently before the Board in December 2020 but was returned to the Agency of Original Jurisdiction (AOJ) for further development. The December 2020 Board remand directed the AOJ to obtain an additional medical opinion concerning the etiology of the Veteran's venereal disease. For reasons discussed in detail below, the March 2021 medical opinion is inadequate for purposes of determining service connection. Accordingly, the Board finds there has not been substantial compliance with the remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to service connection for venereal disease The Veteran's claim was remanded in December 2020 for an addendum medical opinion regarding the etiology of the Veteran's current venereal disease. The December 2020 Remand stated: Following a review of the record, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's herpes had its onset in, or is otherwise related to, his military service, include the November 1986 STR which noted "a new penile lesion." In offering such opinion, the examiner must consider the Veteran's statements and VA treatment records reflecting the Veteran's assertions pertaining to the onset and continuity of symptomatology. In March 2021, an addendum medical opinion was obtained and associated with the claims file. The opinion found it was less likely than not that the Veteran's herpes was incurred during or otherwise related to the Veteran's period of active service. The examiner reasoned: Specific to this opinion is the finding of a 3mm erosion found on the penis in Oct. 1986. The examiner was a dermatology specialist, who commented that it was firm to touch and consistent with a syphilitic chancre (ulcer). An RPR apparently confirmed a positive result. Credence is given to this diagnosis because of the specialty background of the examiner, who evaluates and treats dermatologic lesions on a daily basis. Penile ulcers are associated with both herpes and syphilis. Syphilitic ulcers are classically a single, painless, ulcerative lesion, whereas there are usually multiple small, painful ulcers during a herpetic outbreak. This Veteran had a single ulcer with a border that was consistent with a syphilitic chancre. Veteran had many RPRs (lab tests for syphilis) done during his military career due to repeated sexually transmitted infections. He did not have a positive RPR before this lesion was diagnosed nor after it was adequately treated with penicillin. Herpes will not give a positive on an RPR. The blood test verifies the diagnosis. The Board finds that the March 2021 addendum opinion is inadequate and does not meet the required remand directives. While the addendum opinion addressed the November 1986 STR noting a "new penile lesion", the opinion did not address the Veteran's many lay statements regarding the time of onset and continuity of symptomatology. Specifically, Veteran statements in October 2006 and October 2008 report onset during his period of active service. A December 2008 statement notes that the Veteran has experienced symptoms since the 1980s. A March 2014 statement notes that the Veteran venereal disease began during active service and has continued since active service. A medical opinion is inadequate if the examiner's rationale fails to account for pertinent evidence, to include competent lay statements describing symptoms of the disability at issue. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Dalton v. Nicholson, 21. Vet. App. 23 (2007). An addendum opinion must be provided that addresses the Veteran's lay contentions. The Board emphasizes that it is not determining whether or not the Veteran's statements that about his venereal disease are credible at this time, as the additional development set forth in the directives below could impact that determination. Accordingly, the matters are REMANDED for the following action: 1. Provide the Veteran's claims file to an appropriate medical professional to provide an addendum opinion for the Veteran's venereal disease. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinion. Following a review of the record, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's herpes had its onset in, or is otherwise related to, his military service. In offering such opinion, the examiner must consider the Veteran's lay statements and VA treatment records reflecting the Veteran's assertions pertaining to the onset and continuity of symptomatology. A rationale for any opinion offered should be provided. Any opinion that does not specifically address the Veteran's statements regarding period of onset and continuity of symptomatology will be considered inadequate. The clinician must provide a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the clinician must state this and provide a rationale for such conclusion. (Continued on the next page) 2. After all completed development, the AOJ should then readjudicate the claim. If the benefits sought on appeal are not granted, the Veteran and his representative should be provided a Supplemental Statement of the Case and afforded the requisite opportunity to respond before the case is returned to the Board. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Riordan, 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.