Citation Nr: 1128399 Decision Date: 07/29/11 Archive Date: 08/04/11 DOCKET NO. 09-15 793 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to service connection for syphilis. REPRESENTATION Appellant represented by: National Association for Black Veterans, Inc. ATTORNEY FOR THE BOARD L.M. Yasui, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1943 to March 1945. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. In his May 2009 substantive appeal, the Veteran requested a personal hearing before a member or members of the Board. In a subsequent letter sent to the Veteran in February 2010, the RO informed the Veteran of a Board hearing scheduled in March 2010. He failed to appear. Accordingly, the hearing request is considered to have been withdrawn. See 38 C.F.R. § 20.702 (2010). In July 2010, the Board remanded this matter to the RO via the Appeals Management Center (AMC) in Washington DC. to obtain additional evidence. That action completed, the matter has properly been returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT Syphilis did not have its onset in active service and is not otherwise etiologically related to the Veteran's service from December 1943 to March 1945. CONCLUSION OF LAW The criteria for service connection for syphilis have not been met. 38 U.S.C.A. §§ 1110 (West 2002); 38 C.F.R. § 3.303 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2010). "To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service" - the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service treatment reports are not available in this case. In a February 2008 response, the National Personnel Records Center (NPRC) indicated that the Veteran's service treatment records are unavailable due to a fire. The Board has considered the U.S. Court of Appeals for Veterans Claims (Court) statement in Washington v. Nicholson, 19 Vet. App. 362, 371 (2005) that: [I]n cases where, as here, the appellant's SMR's have been lost or destroyed, the Board's obligation to provide well reasoned findings and conclusions to evaluate and discuss all of the evidence that may be favorable to the appellant, and to provide and adequate statement of the reasons or bases for its rejection of such evidence is heightened. With this heightened duty in consideration, the Board remanded this matter in July 2010 to obtain the Veteran's Social Security Administration records and other private treatment records. These records could not be located and/or do not exist, as evidenced by the negative responses associated with the claims file. The Board also requested an expert medical opinion in March 2011 regarding the etiology of the Veteran's claimed syphilis. Post-separation, a hospital admission note from June 2007 indicated that the Veteran had a history of a positive rapid plasma reagin (RPR), a screening test for syphilis. At that time, however, he was not a candidate for a spinal tap. Indeed, there was no laboratory confirmation of the positive RPR in the evidence of record. The Veteran was again admitted to the hospital in October 2008. The report indicated that "the patient had received treatment for syphilis in the past." He was treated with a 30 day course of doxycycline for benign latent syphilis in case he had not previously received appropriate therapy. At that time, a spinal tap was not performed to rule out aymptomatic neurosyphilis. According to the evidence of record, post-service treatment for syphilis did not arise until over six decades following separation, more than one-half century, from active service. In this regard, evidence of a prolonged period without medical complaint, and the amount of time that elapsed since military service, can be considered as evidence against the claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Pursuant to a request from the Board in March 2011 for an expert opinion regarding the etiology of the Veteran's claimed syphilis, Dr. "H.W.," an infectious diseases specialist, submitted his statement for the record in April 2011. While Dr H.W. specifically stated that his opinion was speculative, he nonetheless opined that by his estimate, "the likelihood that this veteran acquired syphilis in the military is about 20 [percent]." He explained that syphilis is a common sexually transmitted disease for which reliable therapy was not available until the late 1940s. He also noted that there were no reports from the Veteran's medical records on the age and frequency of sexual exposures, which is the most frequent mode of acquisition of syphilis. Dr. H.W. further explained that the average age of syphilis acquisition is between the early 20s and early 30s. Therefore, he concluded that, "[i]f the peak of syphilis acquisition is between age 20 and 30, and this veteran's duration of military service was approximately 1.5 years, I would estimate that his risk of acquiring syphilis in the military is about 20 [percent]." In addition, Dr. H.W. noted that syphilis acquisition is also more likely to occur in large urban areas. Therefore, the fact that the Veteran's active military service was in Kansas also makes acquisition during his active service less likely. This evidence weighs heavily against the Veteran's claim for service connection as it fails to establish the requisite nexus between the Veteran's syphilis and his service and provides highly probative evidence against such a finding, with a clear rationale that the Board finds highly persuasive, making it less likely than not that this problem began in service from December 1943 to March 1945. A 20 percent chance is, simply, well less than a 50% chance that this problem was acquired during active service. Only the Veteran's own contention, that his syphilis is related to his active service, stands in favor of his claim. A layperson, such as the Veteran, is generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997); see also Bostain v. West, 11 Vet. App. 124, 127 (1998) (a layperson without the appropriate medical training and expertise is not competent to provide a probative opinion on a medical matter, to include a diagnosis of a specific disability and a determination of the origins of a specific disorder). Lay testimony is competent, however, to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). In Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) stated that lay evidence is competent and sufficient in certain instances related to medical matters. Specifically, the Federal Circuit commented that such instances include to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Id. Similarly, the Court has held that when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). In this case, the Veteran's contentions regarding a relationship between his claimed disability and his military service are not statements about symptomatology, an observable medical condition, or a contemporaneous medical diagnosis. Rather, these contentions are statements of causation. Such statements clearly fall within the realm of opinions requiring medical expertise. The Veteran has not demonstrated any such expertise. Hence, his contentions are not competent medical evidence of the cause of the claimed disability. Further, the Board has reviewed the Veteran statements, in detail. His statements are, at best, vague, regarding how he believes he caught syphilis during service. Simply stated, the fact that the Veteran has a "history of syphilis", as he noted in his appeal to the Board, does not suggest that this disability has a connection with service more than 60 years ago. In this regard, the Board must find that the Veteran's statements, overall, particularly regarding a continuity of symptoms or regarding the factual issue of how/when the Veteran was exposed to syphilis, is entitled to very low probative weight. In any event, the Veteran's lay statements are outweighed by the medical opinion of the infectious diseases specialist, Dr. H.W. Upon review of the Veteran's VA outpatient treatment reports, the Board finds no evidence favorable to the Veteran's claim for service connection for syphilis. Based on the above, the preponderance of the evidence of record is against a grant of service connection for syphilis, and his claim must be denied. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2010). Duties to Notify and Assist The Board is required to ensure that VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2008). The notification obligation in this case was accomplished by way of a letter from the RO to the Veteran dated in June 2008. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Regarding the medical opinion in this case, the Board finds it is fully satisfactory. In this regard, the Board must note the highly limited medical record in this case providing limited information for the expert to base his opinion. Notwithstanding, the doctor provided a well reasoned opinion regarding the issue before the Board at this time. The RO also provided assistance to the Veteran as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. The Veteran has not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide this appeal, and has not argued that any error or deficiency in the accomplishment of the duty to assist has prejudiced him in the adjudication of his appeal. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006). Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claim. ORDER The appeal is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs