Citation Nr: 1228331 Decision Date: 08/16/12 Archive Date: 08/21/12 DOCKET NO. 08-39 377 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for chronic residuals of a syphilis infection. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD P. Olson, Counsel INTRODUCTION The Veteran had active military service from August 1971 to June 1972. This matter is before the Board of Veterans' Appeals (Board) following Board remands in February 2010 and January 2012. This matter was originally on appeal from a February 2008 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Montgomery, Alabama. In October 2009, the Veteran testified at a Travel Board hearing. A transcript of that hearing is of record. The issues of entitlement to service connection for an acquired psychiatric disability, hepatitis B, traumatic headaches, and abdominal disability and the issues of whether new and material evidence has been received to reopen previously-denied claims of entitlement to service connection for hypertension and diabetes have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. FINDING OF FACT The Veteran does not have chronic residuals of a syphilis infection that are related to his active duty service. CONCLUSION OF LAW The Veteran does not have chronic residuals of a syphilis infection that was incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2011). REASONS AND BASES FOR FINDING AND CONCLUSION Preliminary Matter Pursuant to the Board's February 2010 and January 2012 remands, the RO requested treatment records dated in 1972 and 1973 from Tuskegee VAMC, obtained the Veteran's Social Security Administration (SSA) records, scheduled VA examinations to determine whether any diagnosed disorder was etiologically related to the Veteran's syphilis infection in service, readjudicated the Veteran's claim under provision of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) as discussed in more detail below, and issued a Supplemental Statement of the Case. Based on the foregoing actions, the Board finds that there has been compliance with the Board's February 2010 and January 2012 remands. Stegall v. West, 11 Vet. App. 268 (1998). Veterans Claims Assistance Act of 2000 As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2011). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. With respect to service connection claims, the U.S. Court of Appeals for Veterans Claims held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA has met all statutory and regulatory notice and duty to assist provisions. An October 2007 letter fully satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio, 6 Vet. App. at 183, Dingess, 19 Vet. App. at 473. The October 2007 letter informed the appellant of what evidence was required to substantiate the claim and of the appellant's and VA's respective duties for obtaining evidence, as well as how VA determines disability ratings and effective dates. The claim was most recently readjudicated in a May 2012 Supplemental Statement of the Case. The notice required by 38 U.S.C.A. § 5103(a) should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005). That was done in this case. The Veteran's service treatment records, VA medical treatment records, SSA records, and identified private medical records have been obtained, to the extent available. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. There is no indication in the record that any additional evidence, relevant to the issues decided herein, is available and not part of the claims file. The Board notes that the Veteran identified treatment at the Tuskegee VAMC after service. As noted above, the RO requested records from Tuskegee VAMC dated in 1972 and 1973. A reply from Central Alabama Health Care System dated in June 2010 indicates they were unable to locate treatment records for the Veteran from 1972 and 1973. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. In December 2011, a VA medical opinion was obtained regarding whether the Veteran had a current, chronic disorder related to his history of syphilis infection during service. In addition, the Veteran was accorded a VA examination in February 2012 with regard to whether the Veteran had a current, chronic cardiac disorder related to history of syphilis infection during service. 38 C.F.R. § 3.159(c)(4). Both VA medical professionals addressed the questions at issue in conjunction with a review of the claims file. The VA examiner who conducted the February 2012 examination also provided a physical examination of the Veteran. The December 2011 and February 2012 medical opinions are thorough; thus these opinions are adequate upon which to base a decision. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notice. See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). Service Connection Service connection means that the facts establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be established for a current disability on the basis of a presumption under the law that certain chronic diseases manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C.A. §§ 1101, 1110, 1112; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a). Service connection may be established under 38 C.F.R. § 3.303(b) by evidence of continuity of symptomatology. Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); 38 C.F.R. § 3.303(b). To prevail on the issue of service connection, there must be medical evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v. West, 12 Vet App. 341, 346 (1999). A prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330 (Fed. Cir. 2000) (service incurrence may be rebutted by the absence of medical treatment for the claimed condition for many years after service). The first question that must be addressed, therefore, is whether incurrence of chronic residual disability from syphilis infection is factually shown during service. The Board concludes it was not. The Veteran's service treatment records indicate that that on Report of Medical Examination dated May 9, 1972 for the purpose of AFM 39-12, syphilis was noted to be determined and confirmed by FTA absorptions. The Veteran was treated May 26, 1972 and advised to have follow-up in six weeks. Summary of defects and diagnoses included secondary syphilis, treated. It was noted that there were no mental or physical defects that would warrant consideration for separation under the provisions of AFM 35-4. Despite findings in service of a diagnosis of syphilis in service, the Board cannot conclude a "chronic" condition from the syphilis diagnosis was incurred during service. Treatment for a disorder in service cannot be considered treatment for a chronic disorder unless there is some indication that a chronic disorder exists. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. For a showing of chronic disability in service, there is required a combination of manifestations sufficient to identify the disorder, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Alternatively, when a chronic disease is not present during service, service connection may be established under 38 C.F.R. § 3.303(b) by evidence of continuity of symptomatology. Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); 38 C.F.R. § 3.303(b). Such evidence is lacking here. Although the Veteran reports continuity of post-service symptoms, the Board finds his allegations to be of limited probative value. The symptoms that the Veteran has claimed has continued since his service time include his deteriorating vision and depression. The Veteran testified in October 2009 that he was diagnosed in service, he was prescribed glasses, and that every six months his vision was worse and he had to change glasses. In addition, an undated VA treatment record indicates that the Veteran reported getting hepatitis and syphilis while in service and having been depressed since then. However, the Veteran's service treatment records indicate that he entered service with a refractive error; distant vision on the right was 20/50 and on the left as 20/30. At his separation examination in May 1972, his distant and near vision was noted to be 20/20, and his psychiatric health was evaluated as normal. In addition, the Veteran reported that he did not wear glasses or contact lenses and denied ever having eye trouble, depression or excessive worry, and nervous trouble of any sort. In adjudicating a claim, including as to continuity of symptomatology, the Board must assess the competence and credibility of the veteran. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Board also has a duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). The Veteran is competent to give evidence about what he experienced; for example, he is competent to report that he engaged in certain activities in service and currently experiences certain symptomatology. See Layno v. Brown, 6 Vet. App. 465 (1994). Competency, however, must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). The Board acknowledges that it cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). However, such lack of contemporaneous evidence is for consideration in determining credibility. In this regard, the Board notes that the record is devoid of objective evidence of any eye problems or depression until many years after service. In addition, the Veteran's statements of eye problems and depression in service and since service are inconsistent with his actual service treatment records which indicate that he denied ever having eye trouble, depression or excessive worry, nervous trouble of any sort, and wearing glasses. As such, the Board finds that any assertions by the Veteran as to the continuity of symptomatology of eye symptoms and depression since service to be less than credible. When a disease is first diagnosed after service, service connection can still be granted for that condition if the evidence shows it was incurred in service. 38 C.F.R. § 3.303(d). To prevail on the issue of service connection, a claimant must demonstrate "(1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service." Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed.Cir .2004). A disability may be found to be service connected on a secondary basis if the claimant demonstrates that the disability is either (1) proximately due to or the result of an already service-connected disease or injury or (2) aggravated by an already service-connected disease or injury. See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc); 38 C.F.R. § 3.310 (2012). However, no medical professional has ever related this condition to the Veteran's military service. In May 2008, the Veteran presented with focus on his VA benefits. The provider, a nurse practitioner, noted that the Veteran sought service connection for all his health problems that he considered related to his syphilis. The nurse practitioner noted that the medical record appeared to be devoid of any evidence that the Veteran current carries a diagnosis of syphilis or any residuals thereof. The nurse practitioner noted that the Veteran had applied for service-connected compensation for hypertension, diabetes, liver disease, pituitary adenoma, and loss of vision as secondary to his syphilis. The nurse practitioner noted that syphilis could be associated with uveitic glaucoma but that optometry notes indicate that the Veteran is a "glaucoma suspect," that neither glaucoma nor cataracts was found on his active problem list, and that "uveitic glaucoma," as an active diagnosis was not found. The nurse practitioner noted that there has been an association with the presumptive diagnosis of pituitary adenoma and a subsequent finding of granulomatous hypophysitis related to syphilis but that as there had been no surgery or biopsy, and only found adenoma on the Veteran's problem list. The nurse practitioner noted that no other relationship between adenoma and syphilis was found. The nurse practitioner summarized, "apparently there can be a relationship between syphilis and residuals affecting the nervous system, vascular system, eyes and ears. There may be a relationship with glaucoma if he has glaucoma. If the diagnosis of pituitary adenoma is wrong, there may be a tie to syphilis if his diagnosis became granulomatous hypophysitis. The Veteran underwent a VA examination in December 2010 at which time the examiner noted that the Veteran has hypertension, diabetes mellitus, and a pituitary tumor which causes progressive visual loss. The examiner opined that it was less likely as not that any of these conditions were caused by syphilis. The examiner explained that according to medical literature, if syphilis is untreated, it will become a chronic infection that eventually advances to late stage or tertiary syphilis which causes gradual but serious damage to body organs, over five to 30 years. The examiner noted that syphilis attacks the heart and arteries, causing heat valve problems, heart failure, and aneurisms. A December 2011 VA medical opinion indicates hepatitis C treated with interferon and Ribavirin for four months with no adequate response back in 1999. The VA medical expert noted that the Veteran's liver condition, chronic hepatitis C, is caused by a viral infection and was unrelated to the causative agent of syphilis, Treponema pallidum, which is a bacterium. The VA medical expert noted hypertension in 2000 and stated that there was no known correlation between late or tertiary syphilis and the development of hypertension. The VA medical expert noted that the Veteran was diagnosed as having diabetes mellitus in 2007 and that although there have been scattered reports of diabetes and syphilis in old medical literature, the correlation was at best controversial. The VA medical expert noted that the Veteran was not diagnosed to be diabetic until 2007 and that in fact his Hemoglobin A1C levels were normal prior to that data. The VA medical expert noted that an eye evaluation in 2007 showed no retinopathy and the Veteran was given a diagnosis of glaucoma, suspect; and that the Veteran's visual problems are related to glaucoma and not to syphilitic involvement of the eyes. The medical expert explained that eye findings in syphilis are typically optic atrophy, cranial nerve palsies, Argyll-Robertson pupils, uveitis, choriorectinitis, and vasculitis which were not seen on the Veteran's eye examination. The VA medical expert indicated that the pituitary microadenoma was incidentally found during an evaluation post facial trauma after a fall and subsequently found to be nonfunctional with follow up MRI scans showing stable adenoma. The VA medical expert stated that the pituitary microadenoma was not related to neurosyphilis, a late manifestation of the disease and that the Veteran did not exhibit any of the symptoms of neurosyphilis such as hemiplegia, seizures, paresis or tabes dorsalis. The expert noted that invariably, patients with neurosyphilis have positive serum treponemal antibody response. The VA medical expert further noted that repeat RPR testing in March 2006 and December 2007 was non-reactive. The Veteran underwent a VA examination in February 2012, at which time he was noted as having left ventricular hypertrophy, non-specific T wave abnormality, and left atrial abnormality based on electrocardiogram in August 2011 and echocardiogram in September 2011, October 2011, and February 2012. After physical examination of the Veteran, the VA examiner, a cardiologist, opined that the Veteran's heart condition was less likely than not incurred in or caused by the in-service incident of syphilis. The examiner noted that potential causes of left ventricular hypertrophy included hypertension (the probable cause), aortic stenosis, hypertrophic cardiomyopathy, intense athletic training, marked obesity, and rare conditions such as certain types of muscular dystrophy and Fabry's disease. The examiner noted that syphilis was treated with parenteral penicillin in May 1972 and that there were no military records subsequently documenting negative tests for the infection. The examiner noted that untreated syphilis (in late stages) may lead to cardiovascular disease and that clinical features of cardiovascular syphilis include aortitis of the ascending aorta/aortic arch with resultant aneurysm formation of the ascending aorta (occurs in 40 percent of cases). Other features involving the heart including aortic valvulitis with aortic regurgitation (29 percent of cases) and coronary ostial stenosis (in approximately 30 percent of cases). The examiner noted that syphilis is not recognized as a primary cause of left ventricular hypertrophy and that there was no evidence of aortic enlargement, aortic valve disease, or myocardial ischemia in the tests described. The examiner opined that it was less likely as not that the left ventricular hypertrophy was caused by the 1972 in-service syphilis infection. Thus, the record is absent competent and credible evidence of in-service incurrence of chronic residuals of a syphilis infection, credible evidence of continuity of symptomatology, and medical evidence of a nexus between service and his currently diagnosed disorders. Although the Veteran contends that he suffers from chronic residuals of syphilis infection that are related to his service, as a layman he is not competent to offer opinions on medical causation between syphilis and other medical disorders; this is the province of trained medical professionals. See 38 C.F.R. § 3.159(a)(2). Accordingly, the Board concludes that the preponderance of the evidence is against the claims for service connection, and the benefit of the doubt rule enunciated in 38 U.S.C.A. § 5107(b) is not for application. ORDER Entitlement to service connection for chronic residuals of a syphilis infection is denied. ______________________________________________ A. C. MACKENZIE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs