12-19 157
12-19 157
| Board of Vet. App. | Jun 21, 2017Background
- Veteran served on active duty Nov 1996–Nov 2000 and appealed RO decisions from June 2010 and May 2011.
- Two contested matters: (1) request to reopen service connection for a lump under the right breast; (2) service connection for herpes.
- At an Oct 2016 videoconference hearing the Veteran testified the “lump” was later diagnosed as a ventral hernia that has been service-connected.
- Medical records show a genital rash treated in Jan–Feb 2000; service records do not contain a written herpes diagnosis, but the Veteran reports being told she had herpes in Feb 2000 and repeatedly listed an STD on post-service medical history forms.
- VA examinations in 2011–2012 documented an active diagnosis of herpes simplex II; a May 2012 VA opinion concluded service connection was less likely because no in-service documentation of herpes was found.
- The Board found the breast-lump claim moot (because the condition is already service-connected as a ventral hernia) and granted service connection for herpes based on the Veteran’s credible lay testimony and medical history reporting.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Reopen claim for lump under right breast | Lump was a service-connected issue needing reopening | VA: issue mooted because the condition is now diagnosed and service-connected as a ventral hernia | Dismissed as moot — reopening claim is unnecessary and Board lacks jurisdiction |
| Service connection for herpes | Veteran asserts she was diagnosed in service and continues to have outbreaks; reported STD on separation and follow-up forms | VA: no contemporaneous service record diagnosis; 2012 examiner said in-service herpes unlikely | Granted — Board found Veteran credible that she was told she had herpes in service and medical history supports service incurrence |
Key Cases Cited
- Holton v. Shinseki, 557 F.3d 1362 (Fed. Cir. 2009) (elements and nexus requirement for service connection)
- Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004) (service-connection nexus discussion)
- Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (lay evidence competency for simple diagnoses/symptoms)
- Gabrielson v. Brown, 7 Vet. App. 36 (1994) (Board must analyze credibility and probative value and explain rejection of favorable evidence)
- Gilbert v. Derwinski, 1 Vet. App. 49 (1990) (requirement for reasons and bases)
- Esteban v. Brown, 6 Vet. App. 259 (1994) (pyramiding and distinct manifestations guidance)