BVA9501903 DOCKET NO. 93-08 408 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for herpes. REPRESENTATION Appellant represented by: Mississippi Veterans Affairs Commission ATTORNEY FOR THE BOARD Christine E. Puffer, Associate Counsel INTRODUCTION The veteran had active service from August 1972 to August 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 1992 rating decision of the Department of Veterans Affairs (VA) Jackson, Mississippi, Regional Office (RO) which denied entitlement to the benefit sought on appeal. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends, in essence, that he incurred herpes in service. He avers that the disease could not have been acute and transitory as it is incurable, and can lie dormant for extended periods of time. It is requested that the veteran be granted the benefit of every reasonable doubt. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that service connection for herpes is warranted. FINDINGS OF FACT 1. All evidence necessary for an equitable disposition of the instant appeal has been obtained by the RO. 2. The veteran's service medical records reflect that he was diagnosed with genital herpes in service. There is no evidence that herpes pre-existed service. 3. The veteran presently is diagnosed with, and receiving treatment for, genital herpes. CONCLUSION OF LAW Herpes was incurred in service. 38 U.S.C.A. §§ 1110, 1111, 5107 (West 1991); 38 C.F.R. §§ 3.102, 3.301, 3.303, 3.304 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION As a preliminary matter, the Board finds that the veteran's claim is well-grounded within the meaning of 38 U.S.C.A. § 5107(a). See Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). That is, the Board finds that he has presented a claim which is not implausible when his contentions and the evidence of record are viewed in the light most favorable to the claim. The Board is also satisfied that all relevant facts have been properly and sufficiently developed. The veteran is seeking service connection for herpes. He essentially contends that he incurred herpes in service, and that he continues to suffer from the disease. In order to obtain service connection, there must be both evidence of a disease or injury that was incurred in or aggravated by service, and a present disability which is attributable to such disease or injury. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Where, as here, service connection is being sought for a venereal disease, a finding that the disease was incurred in service requires that the initial infection must have occurred during active service. 38 C.F.R. § 3.301(c)(1). A review of the veteran's service medical records reveals no evidence that he had any infectious disease, including herpes, at the time of his induction examination in June 1972. In November 1973, the veteran presented for treatment complaining of burning on the head of his penis with bumps. Physical examination revealed vesicular lesions at the coronal line, and an impression of herpes progenitalis was made. A health record entry of December 1973 cited the same impression, as did another entry later that month. The report of the veteran's separation examination of May 1974 made no mention of any findings regarding herpes. However, on the associated report of medical history completed by the veteran, he reported in the affirmative to a question regarding whether he then, or ever, had suffered from a venereal disease. Medical records dating from 1976 through 1990 pertaining to the veteran's service in the U.S. Army Reserves contain no reports of clinical findings, nor complaints by the veteran, regarding herpes. However, a note from Thad C. Carter, M.D., dated in May 1992, indicated that he had treated the veteran for herpes since 1986. The veteran has represented that he did not report having herpes during his periods of Reserve duty as he knew the disease was incurable, and was reluctant to reveal his condition. As there is no indication that the veteran suffered from herpes prior to his entry into active military service, the presumption of soundness is invoked. See 38 U.S.C.A.. § 1111; 38 C.F.R. § 3.304(b). In light of the evidence contained in the veteran's service medical records, and in according the veteran every benefit of the doubt, the Board finds that herpes first occurred during service. See 38 U.S.C.A.. § 5107(b); Doran v. Brown, 6 Vet.App. 283, 286 (1994). The remaining question is whether the veteran's currently diagnosed herpes is causally or etiologically related to the veteran's service. The veteran's representative has cited The Merck Manual (15th ed. 1987) (hereinafter Merck) in support of his contention that herpes is incurable and may lie dormant for extended periods of time. This averment was offered in opposition to the RO's denial of service connection based on a finding of a lack of continuity between the veteran's in service diagnosis and his current herpes. A review of the relevant Merck section indicates that genital herpes' most common complication is its tendency to recur. That section also indicates that the rate and severity of recurrences vary greatly, and that even early treatment of primary infections does not prevent latent infections or recurrences. In sum, this evidence supports the veteran's representations that genital herpes is "incurable," and may lie dormant for periods of time. Given the nature of the disease, the Board finds the evidence to be, at a minimum, in equipoise, and that the veteran is to be accorded the benefit of the doubt. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. As such, service connection for herpes is warranted. The Board notes that its citation to Merck does not violate the holding of the United States Court of Veterans Appeals (Court) as stated in Thurber v. Brown, 5 Vet.App. 119, 126 (1993). In that case, the Court held that if the Board relied upon evidence developed after the most recent Statement of the Case that it must provide a claimant with reasonable notice of the evidence, the reliance to be placed upon that evidence, and a reasonable opportunity to respond to the evidence. In the instant appeal, the veteran's representative initially cited to the text in question to support the proposition under which the Board reviewed the same same text relied upon by the Board to determine whether the veteran's claimed disability is chronic in nature and may lie dormant for extended periods. As the Board has concurred with the veteran's interpretation of the information contained in the relevant section of Merck, no prejudice attaches to the veteran and any failure to comply with the procedures outlined in Thurber constitutes harmless error. See Junstrom v. Brown, 6 Vet.App. 264, 268 (1994); see also Yabut v. Brown, 6 Vet.App. 79, 84-5 (1993). ORDER Service connection for herpes is granted. JACQUELINE E. MONROE Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.