Citation Nr: 1315374 Decision Date: 05/09/13 Archive Date: 05/15/13 DOCKET NO. 06-17 606A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and depression, not otherwise specified. 2. Entitlement to service connection for a sexually transmitted disease (STD), to include gonorrhea and herpes. 3. Entitlement to service connection for sexual problems, to include as being secondary to gonorrhea and herpes and as secondary to a service-connected penile scar. REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D.S. Lee, Counsel INTRODUCTION The Veteran served on active duty from June 1980 through June 1983. The Veteran also served in the United States Army Reserves and the Army National Guard of Illinois. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota which, among other issues, denied service connection for PTSD, gonorrhea, and sexual problems. A timely Notice of Disagreement (NOD) was received from the Veteran in February 2006. After a Statement of the Case (SOC) was issued in May 2006, the Veteran perfected his appeal in June 2006, via VA Form 9 substantive appeal. The Veteran testified during a February 2007 hearing that was held at the RO before a decision review officer (DRO). A transcript of those proceedings is associated with the record. In July 2009, the Board denied service connection for PTSD and remanded the remaining issues of service connection for gonorrhea and sexual problems for further development, to include arranging the Veteran to undergo a VA examination of those claimed disabilities. Concurrently, the Veteran appealed the Board's denial of service connection for PTSD to the United States Court of Appeals for Veterans Claims (Court). In a March 2011 joint motion, counsel for the Veteran and the VA Secretary argued that the evidence indicated that efforts to corroborate the Veteran's stressors were inadequate; namely, that despite the Veteran's unit information and approximate dates of service being available in the record, the Veteran's complete service personnel records had not been obtained. The parties also argued that the Board failed to explain adequately why it rejected PTSD diagnoses reflected in the VA treatment records. On these grounds, the parties argued that the Board's July 2009 denial of service connection for PTSD should be vacated and remanded. By a March 2011 order, the Court granted the parties' joint motion and remanded the matter for compliance with the instructions in the joint motion. Subsequently, the matter was returned to the Board. In July 2011, the Board remanded the issue of service connection for PTSD for further development, to include further efforts to locate records pertinent to the Veteran's reported guard duty service at the Korean demilitarized zone (DMZ) from March through May (or the summer months) of 1981; efforts to locate records pertinent to the Veteran's reported Article 15 arrest during subsequent service; efforts to obtain any additional VA treatment records that were not yet associated with the record; and arranging the Veteran to undergo VA examination of his claimed PTSD. In relation to the issues of service connection for gonorrhea and sexual problems, the Board again directed that the Veteran be arranged to undergo a VA examination of his claimed gonorrhea and sexual problems. Efforts to comply with the Board's remand directives have been performed and the matter has been returned to the Board for its de novo consideration. The Veteran's appeal also initially included the issues of service connection for a left foot disorder and service connection for sleep problems. During his February 2007 DRO hearing, however, he indicated on the record that he wished to withdraw his appeal for service connection for a left foot disorder. Regarding the issue of entitlement to service connection for sleep problems, the Veteran clarified in a February 2007 statement that he was not pursuing such a claim, but rather, that he was asserting that sleep problems were a symptom of his claimed PTSD. Accordingly, neither issue is presently before the Board on appeal. With respect to the Veteran's claim for service connection for PTSD, the United States Court of Appeals for Veterans Claims (Court) has held that claims for service connection for PTSD encompass claims for service connection for all psychiatric disabilities. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record). As discussed in the July 2011 remand, claims for service connection for depression, alcoholism, and memory loss were adjudicated separately by the RO in an April 2005 rating decision. The Veteran submitted a notice of disagreement (NOD) with regard to these issues in May 2005. The Veteran withdrew his claim for service connection for alcoholism in a June 2005 statement. A SOC was issued in August 2005 with regard to the claim of service connection for depression with memory loss, as well as a claim for service connection for arthritis. The Veteran did not appeal these issues to the Board. In consideration of the holding in Clemons, the Board determined in the July 2011 remand, that this was not a situation in which the Veteran's other possible mental or psychiatric disabilities have been ignored by VA. Rather, they were addressed separately, and, as the Veteran did not properly appeal these issues, the Board concluded that it had no jurisdiction to review the claims for entitlement to service connection for depression, memory loss, or alcoholism. Since the July 2011 remand, however, the Board finds that additional evidence and argument has been received raising the issue of service connection for depression. Consequently, in accordance with Clemons, the Board has recharacterized the issue on appeal as a claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD and depression, not otherwise specified. The issue of entitlement to service connection for acquired psychiatric disorder and sexual problems are addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran was not diagnosed with or treated for gonorrhea or other sexually transmitted disease (STD) during his active duty service; however, he was treated for molluscum contagiosum (warts) on his penis. 2. The Veteran does not have current gonorrhea. 3. Current herpes has not been shown to be related to the Veteran's in-service molluscum contagiosum or to his active duty service. CONCLUSION OF LAW The criteria for service connection for an STD, to include gonorrhea and herpes, have not been met. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.159, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011) and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). 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 evidence or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). In accordance with 38 C.F.R. § 3.159(b)(1), proper notice 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. VA's notice requirements apply to all five elements of a service-connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In cases that concern the assignment of a disability rating, a claimant must be provided with information pertaining to assignment of disability ratings (to include the rating criteria for all higher ratings for a disability), as well as information regarding the effective date that may be assigned. Id. Notice should be provided to a claimant before the initial unfavorable decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In a pre-rating May 2009 letter, the RO provided notice to the Veteran explaining what information and evidence was needed to substantiate his claims for service connection for gonorrhea, as well as the respective responsibilities of the Veteran and VA in submitting and obtaining information and evidence relevant to those claims. The January 2006 rating decision reflects the initial adjudication of the claim after issuance of the May 2009 letter. A subsequent July 2011letter provided the Veteran with information pertaining to the assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations, consistent with Dingess/Hartman. After issuance of this letter, and reasonable opportunity for the Veteran to respond, the Veteran's claims were readjudicated in a February 2013 supplemental SOC (SSOC). Accordingly, although VA's initial May 2009 letter was deficient, any prejudice that may have resulted from VA's notice error has been cured. Moreover, there is no indication in the record that the Veteran has been prejudiced by the late timing of VA's Dingess/Hartman notice. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in an SOC or SSOC, is sufficient to cure a timing defect). In addition, VA has fulfilled its duty to assist in obtaining identified and available evidence needed to substantiate the Veteran's claims. His service treatment records, service personnel records, National Guard and Army Reserve records, claims submissions, identified and relevant private treatment records, and VA treatment records have been associated with the record. The Veteran was afforded a VA examination of his claimed gonorrhea in December 2012. For the reasons discussed in the Board's analysis below, this examination, along with the other evidence of record, is fully adequate for the purposes of determining the nature and etiology of the Veteran's claimed gonorrhea and other STDs. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Overall, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. I. Service Connection In his claim, the Veteran alleges generally that he is entitled to service connection for gonorrhea and associated sexual problems that were initially sustained during active duty service in Korea. During his February 2007 DRO hearing, he elaborated that he was treated during service for gonorrhea which went into periodic remission before recurring on multiple occasions during service. He testified further that he continues to experience a burning sensation and scarring. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Notwithstanding the lack of evidence of disease or injury during service, service connection may still be granted if all of the evidence, including that pertinent to service, establishes that the disability was incurred in service. See 38 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503, 505 (1992). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b). Here, the preponderance of the evidence does not show that the Veteran has a current disability due to gonorrhea, herpes, or other STDs sustained during his active duty service. In support of the foregoing, the Board notes that the service treatment records reflect that he was treated in July 1982 for warts located on his penis that were diagnosed as molluscum contagiosum. Treatment consisted of application of silver nitrate to remove the warts. Three months later, in October 1982, the Veteran reported a lesion on his groin area which was diagnosed as tinea cruris. There is no indication in the service records that the diagnosed tinea cruris continued through the course of the Veteran's active duty service. In that regard, subsequent treatment records do not reflect further complaints or treatment associated with tinea cruris. Although the service records indicate the aforementioned skin conditions on the Veteran's penis and groin, there is no indication in the service treatment records that the Veteran was ever diagnosed with or treated during service for gonorrhea or other STD. The post-service treatment records, which consist of private and VA treatment records relating to treatment from 1994 through the present, do not indicate frequent treatment for an STD. During a November 2003 physical examination performed prior to admission into a VA chemical dependency detoxification and counseling program, the Veteran expressly denied having any concerns regarding sexuality, sexual function, or STDs. During a March 2004 VA treatment, he reported problems associated with a purported cyst in the left inguinal region. An examination at that time, however, revealed only some firm nodules located in the left inguinal area, but no actual cysts. The examining medical staff diagnosed left inguinal reactive lymph nodes that were believed to be related to tinea pedis. In May 2011, the Veteran returned for VA treatment of irritation and lesions located on the left side of his penis. An examination confirmed the presence of two small lesions; however, no specific diagnosis was given. Subsequent treatment records do not indicate any follow-up examination or treatment of these lesions. During a December 2012 VA genitourinary examination, the Veteran provided a history of sexually transmitted diseases sustained on three or four occasions during service in Korea, to include gonorrhea and chlamydia. He reported that he experienced symptoms which included a burning sensation, pus, white discharge, scarring, burning, and the occurrence of swollen and painful blisters, a patchy rash, and itchy bumps. Regarding his current symptoms, the Veteran reported intermittent eruptions of herpes, difficulty urinating due to decreased flow, scarring at the tip of his penis, and difficulty achieving erections. He stated that he was currently treating with Acyclovir. A physical examination of the Veteran's penis, however, did not reveal any abnormalities except for an area of irregular hypopigmentation that was located on the ventral aspect of the penis. The examiner found no evidence of gonorrhea but diagnosed herpes simplex type II and hypopigmented scarring. Further, on review of the claims file, the examiner noted that the service treatment records are negative for treatment or diagnosis of gonorrhea. Although the examiner acknowledged that the Veteran was apparently diagnosed after service with type II herpes simplex (by report, according to a March 2012 statement from the Veteran), she noted that this diagnosis occurred many years after the Veteran's active duty service. Accordingly, the examiner concluded that the Veteran's herpes was not related to his active duty service. The Board notes that the examiner also concluded that it was at least as likely as not that the noted scar on the Veteran's penis was related to a penile ulcer sustained during service as a result of treatment via silver nitrate for molluscum contagiosum. Service connection for this disability was already granted in full in a February 2013 rating decision, and thus, is not for the Board's consideration. The examiner expresses in her December 2012 report that the Veteran remained seated in a wheelchair over the duration of the examination due to a recent stroke. Nonetheless, there is no indication in the report that the examination was hindered due to the Veteran's need to remain seated. The Board also acknowledges the Veteran's statement during the examination that he was uncomfortable being disrobed in the presence of females. Although the Veteran was given the option of a male examiner, the examiner noted that the Veteran declined and wished to proceed with the designated examiner. Indeed, the examiner's report indicates that a full physical examination was performed without any noted limitations or other irregularities. Accordingly, the Board finds that the December 2012 examination is adequate for purposes of adjudication, and, in fact, constitutes the most probative evidence of record as to whether the Veteran has an STD that was incurred in service. In relation to the Veteran's claim of service connection of gonorrhea, herpes, or other STD, the only other evidence in the record concerning the existence and etiology of the Veteran's claimed STDs are the Veteran's own general statements that he currently has gonorrhea or herpes that was first sustained during service. In addressing lay evidence and determining its probative value, if any, attention is directed to both competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). See Layno v. Brown, 6 Vet. App. 465, 469 (1994). As a general matter, a layperson is not capable of opining on matters requiring medical knowledge. See 38 C.F.R. § 3.159(a)(2); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). In certain circumstances, however, lay evidence may be sufficient to establish a medical diagnosis or nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In that regard, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder). In view of the foregoing law, the Veteran could be considered competent to provide probative statements as to when symptoms in the penis and groin area began and how long they have continued. Nonetheless, the presence of skin lesions and symptoms on the Veteran's penis may be explained by potential causes other than actual STDs. For example, the Veteran has specifically related his scar to treatment received for gonorrhea even though service treatment records clearly show that the scar is the result of silver nitrate used to remove warts that were diagnosed as molluscum contagiosum. A subsequent lesion was also noted in service, but diagnosed as tinea cruris. As discussed, a VA health care provider reviewed the record in detail, and considered the Veteran's complaints, and concluded that there was no evidence supporting a diagnosis of gonorrhea. The examiner did note a diagnosis of herpes, but concluded that this disease most likely had an onset long after his separation from service. In view of the inconsistencies between the Veteran's recollections and the contemporaneous clinical findings in service, and as the Veteran is ultimately not competent to attribute his symptoms to a specific underlying pathology, the Board finds that the Veteran's general assertions that the current lesions on his penis are related to STDs initially sustained during active duty service are far less probative than the VA opinion discussed above. Overall, the preponderance of the evidence is against the Veteran's claim of service connection for an STD, to include gonorrhea and herpes. Accordingly, these claims must be denied. In reaching these determinations, the Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is inapplicable with regard to the Veteran's claims for service connection for an STD, to include gonorrhea and herpes, because the preponderance of the evidence is against the Veteran's claim. See Gilbert, 1 Vet. App. at 55; 38 U.S.C.A. § 5107(b). ORDER Entitlement to service connection for an STD, to include gonorrhea and herpes, is denied. REMAND With regard to the Veteran's claim for service connection for an acquired psychiatric disorder, consistent with the Board's prior remands, the Veteran was afforded a VA PTSD examination in December 2012. As noted in the corresponding report, however, an examination of the Veteran was impracticable because of impairments that had resulted from a recent stroke. Indeed, private and VA treatment records in the claims file show that the Veteran suffered a massive stroke in October 2012 which required hospitalization and surgery followed by physical, occupational, and speech therapy. Given the resulting complications, and the degree to which the Veteran was unresponsive during the December 2012 PTSD examination, the Board has considered whether further attempts at an examination would be unavailing. However, it must be noted that the Veteran underwent a VA genitourinary examination later in December 2012, and it appears from that report that he was able to communicate with the VA examiner to a much larger degree than during his earlier VA PTSD examination. For this reason, the Board finds that another attempt should be made to conduct a VA examination to explore the nature and etiology of the Veteran's psychiatric disorder. 38 C.F.R. § 3.159(c)(4). In relation to the Veteran's claim of service connection for sexual problems, he alleged in a March 2012 statement that he has been unable to be sexually active, apparently due to decreased confidence associated with the reported scarring on his penis. In that regard, he stated that he was afraid to take his clothes off in the presence of other people. He also reported that he was experiencing decreased sexual desire. In a March 2013 statement, he reiterated that he was unable to perform sexually. During VA treatment in July 2006, the Veteran complained of sexual dysfunction, apparently due to difficulty achieving an erection, and requested Viagra. No specific diagnosis was given at that time. In her December 2012 opinion, the VA examiner noted that the Veteran indicated that his erectile dysfunction was in part related to the Veteran's feelings of his scar. Overall, the evidence appears to suggest that the Veteran's claimed sexual problems are of an emotional or psychiatric nature, and result from service-connected scarring on his penis. Therefore, the Board finds that the VA psychiatric examination discussed above should also explore the nature and etiology of his sexual problems. 38 C.F.R. § 3.159(c)(4). Prior to arranging the above examination, in order to insure that the most complete and up-to-date evidence has been associated with the claims file, the Veteran should also be asked to identify any private or VA treatment providers who have rendered mental health care treatment since February 2013. VA must then also make efforts to obtain any treatment records that are identified by the Veteran. 38 C.F.R. § 3.159. Accordingly, the case is REMANDED for the following action: 1. A letter should be sent to the Veteran explaining, in terms of 38 U.S.C.A. §§ 5103 and 5103A, the need for additional evidence regarding his claims of entitlement to service connection for an acquired psychiatric disorder and for sexual problems. This letter must also inform the Veteran about the information and evidence that is necessary to substantiate his claims and provide notification of both the type of evidence that VA will seek to obtain and the type of evidence that is expected to be furnished by the Veteran. The letter must also notify the Veteran that VA is undertaking efforts to arrange a VA psychiatric examination of his claimed psychiatric disability and sexual problems. The Veteran should be advised that it remains his responsibility to report for the scheduled VA examinations and to cooperate with the development of his claim; failure to report without good cause may result in denial of his claim. The Veteran should also be provided a VA 21-4142 release and be asked to identify the name(s) and current address(es) for any private and/or VA treatment providers who have provided psychiatric treatment since February 2013. 2. Make efforts to obtain the records of any treatment identified by the Veteran. Any records obtained as a result of such efforts should be associated with the claims file. If such efforts yield negative results, a notation to that effect should be inserted in the file. The Veteran and his representative are to be notified of unsuccessful efforts in this regard, in order to allow the Veteran the opportunity to obtain and submit those records for VA review. 3. After the development actions described above have been performed to the extent possible, the Veteran should be afforded a new VA mental health examination to determine the nature and etiology of his claimed psychiatric disorder and sexual problems. The Veteran's claims file should be made available to the examiner prior to the examination, and the examiner must review the entire claims file in conjunction with the examination. A full examination, to include an interview of the Veteran and any tests and studies deemed necessary by the examiner, should be conducted. In that regard, the examiner is requested to consider, and discuss as necessary, the Veteran's service treatment and service personnel records and lay statements received from the Veteran. The examiner should provide a multi-axial diagnosis that includes an Axis I diagnosis(es) based upon findings from the examination. For each provided diagnosis, the examiner should specifically discuss how the Veteran has met the DSM-IV criteria for each diagnosed disorder. The examiner should also comment upon the PTSD diagnosis shown in the Veteran's VA treatment records, and, provide an explanation as to why her or she does or does not concur with that diagnosis. If PTSD is diagnosed, then the examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's PTSD is related to his claimed in-service stressors. For any diagnosed psychiatric disorder, other than PTSD, the examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that the disorder either began during or was otherwise caused by the Veteran's active duty service. If the examiner determines that the Veteran does not have a current psychiatric disorder, or, that a current psychiatric diagnosis cannot be given, then the examiner should provide rationale for such findings. Also, the examiner should provide an appropriate diagnosis (if warranted) and etiology opinion as to the Veteran's claimed sexual problems. In particular, the examiner should provide an opinion as to whether it is at least as likely as not that his claimed sexual problems are related to the service-connected scar on the Veteran's penis. If the examiner is unable to provide any of the opinions requested above without resort to speculation, he or she should explain the reasons for this inability and comment on whether any further tests, evidence or information would be useful in rendering an opinion. 4. If the Veteran fails to report to the scheduled examination, the RO must obtain and associate with the claims file a copy of any notice(s) of the date and time of the examination sent to the Veteran by the pertinent VA medical facility. 5. After completion of the above development, the issues of the Veteran's entitlement to service connection for an acquired psychiatric disorder, to include PTSD and depression, and for sexual problems, should be readjudicated. If the determination remains adverse to the Veteran, he and his representative should be furnished with a supplemental SOC and be given an opportunity to respond. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs