Citation Nr: 1317871 Decision Date: 05/31/13 Archive Date: 06/06/13 DOCKET NO. 08-05 892 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a genitourinary disorder. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD C. Lawson, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from September 1981 to June 1988. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2007 rating decision by the Waco, Texas Department of Veterans Affairs (VA) Regional Office (RO). In his February 2008 VA Form 9 (substantive appeal) the Veteran requested a hearing before the Board. He failed to report for such hearing scheduled in February 2011. The case was before the Board in April 2011, when it was remanded for further development. The Veterans Law Judge who remanded the case in April 2011 has retired, and the case was reassigned to the undersigned. It was before the Board in July 2012 and in March 2013 (when this issue was remanded for further development). The Veteran filed a claim of service connection for "gonorrhea". Based on notations in the record of penile lesions and balanitis, the issue was recharacterized as one seeking service connection for a genitourinary disorder (however diagnosed). FINDING OF FACT The Veteran's current genitourinary disorder, herpes genitalis, was not manifested in, and is not shown to be related to, his service. CONCLUSION OF LAW Service connection for a genitourinary disorder is not warranted. 38 U.S.C.A. §§ 1131, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran was advised of VA's duties to notify and assist in the development of his claim prior to its initial adjudication. An April 2007 letter explained the evidence necessary to substantiate his claim, the evidence VA was responsible for providing, and the evidence he was responsible for providing; it also advised him of disability rating and effective date criteria. The Veteran has had ample opportunity to respond/supplement the record, and has not alleged that notice in this case has been less than adequate. The Veteran's service treatment records (STRs) are associated with the record, and pertinent postservice treatment records have been secured. In the April 2011 Board remand and by RO notice letter, the Veteran was advised that approximately the last year of his STRs were not available, and that alternate source records would be sought/considered if identified. He was afforded opportunity to submit alternate source records (or identify providers for VA to assist him in securing such records), but did not respond. The RO arranged for VA examinations in May 2011 and April 2013. Collectively, the examination reports are adequate for rating purposes, as they reflect familiarity with the relevant evidence and note pertinent findings, and include adequate explanation of rationale. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (VA must provide an examination that is adequate for rating purposes).] The Board finds that the record includes adequate competent evidence to allow the Board to decide the matter, and that no further development of the evidentiary record is necessary. See generally 38 C.F.R. § 3.159(c)(4). The Veteran has not identified any pertinent evidence that is outstanding. VA's duty to assist is met. . Legal Criteria, Factual Background, and Analysis Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). 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 nexus 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). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, 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 fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). As was noted above, approximately the last year of the Veteran's STRs are unavailable. Where records once in the hands of the government are lost, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule where applicable. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The Board notes that it has reviewed all of the evidence in the Veteran's claims file, and in "Virtual VA" (VA's electronic data storage system), with an emphasis on the evidence relevant to the matter on appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. The Veteran's STRs show that in March 1984, he was seen for a yellow purulent urethral discharge 3 days after sexual contact. Gonorrhea verses non-gonococcal urethritis was to be ruled out. He was treated with antibiotics. In November 1984, he was seen for yellow discharge for one day. There were no bumps or abnormal lesions or abrasions. A lab report was positive for gonorrhea. Antibiotics were prescribed. On November 2004 VA evaluation, the Veteran reported a pruritic, recurring lesion on the foreskin of his penis for most of his life. Genitourinary evaluation revealed no discharge; there was some erythema along the edge of the foreskin. Balanitis was assessed. On June 2005 VA evaluation, the Veteran reported noticing redness and irritation of his foreskin about 6 months prior, with recurrence several times since, lasting one week or less. The first time it occurred he was playing in grass. There was no relation to sexual activity and the head of the penis was not involved. He reported that his penis was circumcised and that he had no urethral discharge and no pain on urination. On examination there were no foreskin lesions and no irritation. The assessment was possible balanitis, resolved. In April 2011, the Board remanded the case to the RO for a VA examination. The examiner was to opine whether on the basis of the clinical record and the known development characteristics of the diagnosed balanitis, it could be concluded that the balanitis existed at the time of the Veteran's separation from service in June 1988; identify the first documentation of balanitis, and discuss the Veteran's description of his symptoms during and after service and the significance of any infection in service. The examiner was to opine whether the Veteran's balanitis was etiologically related to an incident in service, including his bout of gonorrhea, or whether it was more likely due to some other cause or causes. On May 2011 VA examination, the examiner indicated that there was no balanitis observed. The glans was normal without redness or sign of infection or inflammation. However, there were a couple of 2 mm small round lesions at the dorsum of the distal penile shaft that were almost healed but had probably ulcerated in the past. The examiner stated that there was no mention in history or in the claims folder of symptoms related to balanitis. He found that the Veteran's penile shaft lesion was unrelated to balanitis or to gonorrhea (if the Veteran ever had it in the past). As the opinion of the May 2011 VA examiner was based on factual findings that conflict with the actual record and did not respond to all questions posed, in July 2012 and March 2013, the Board remanded this matter for further development. On August 2012 VA examination, the examiner concluded that the pustular lesions which the Veteran had been experiencing in his frenular area, which would break and become ulcerated, followed by pains and itchiness, were less likely than not (less than 50 percent probability) incurred in service or caused by the claimed in-service injury, event, or illness. The rational was that gonorrhea affects the urethra and causes inflammation of the mucosa followed by pus discharge, pain on urination, and sometimes difficulty voiding. However, the Veteran was treated by antibiotics in the past and most likely the bacteria had been eradicated and the gonorrhea was cured. The lesion the Veteran was describing (it was not present that day) was outside of his urethra and off and on many years after the so-called gonorrhea infection that he had. Gonorrhea most of the time is cured with antibiotic treatment and does not leave complications like stricture or lesions outside of the penis as described by the Veteran. Also, the Veteran had no voiding symptoms like dysuria or hematuria that could relate to his urethra. The only lesions described by the Veteran were allegedly small eruptions, mostly vesicles, that turned into pustular eruptions, coming off and on, and that were itchy and painful. On April 2013 VA examination, the examiner reviewed the record, examined the Veteran, and noted that he had gonorrhea infections twice (in 1984) and was twice treated with antibiotics. The Veteran reported that several years later in about 2004, he had small bumps on his penis, which were treated with creams with resolution and recurrence until he was seen in 2012 by a dermatologist who diagnosed herpes genitalis and prescribed Acyclovir (with resolution of the penis irritation). He was seen by urology in 2011 when there was a normal exam, and no finding of balanitis or gonorrhea. The bumps had resolved and were not found on examination. The examiner noted that the Veteran did not have a history of recurrent symptomatic urethral infections. She noted that the Veteran had 2 bouts of gonorrhea in service, both successfully treated with antibiotics; that after service he began having nonurethral symptoms that were called balanitis; and that he was finally diagnosed as having herpes genitalis (treated by dermatology in 2012 with the antiviral Acyclovir, with resolution). He was circumcized at birth, making a diagnosis of balanitis unlikely. He currently had no symptoms or findings. The "balanitis" was more likely than not due to viral herpes genitalis since there was a 2005 note describing the same recurrent condition. The initial condition diagnosed was gonorrhea which was definitively treated in service in 1984. The lesions which were recurrent and more recently diagnosed by dermatology were balanitis due to herpes genitalis. This diagnosis was unrelated to his 1984 diagnosis of gonorrhea since the Veteran did not have the same symptoms of penile urethral discharge and it was due to a secondary infection caused by genital virus infection sometime in the 2004 timeframe after his discharge from service. The "apparent balanitis" diagnosed by urology was a recurrent condition from the mid-2000's and not a continuation of his service gonorrhea/urethritis condition. The examiner noted that in 2011, the urologist did not find evidence of urethritis. The Veteran did not have any current pathology. The Veteran reported it had resolved with Acyclovir in 2012. The etiology of his penile lesions in June 2011 was herpes genitalis as evidenced by the diagnosis and successful treatment by dermatology. As was well-explained by the April 2013 VA examiner, the only genitourinary disorder shown by the record since the Veteran filed his claim in 2007 is herpes genitalis. Therefore, the question to be resolved is whether such disability was manifested in, or is otherwise related to, the veteran's service. The preponderance of the evidence establishes that what the Veteran had manifest in service was not herpes, but instead was gonorrhea which was treated successfully with antibiotics, and resolved with no recurrence since. As is explained by the April 2013 VA examiner, herpes was first manifested in 2004. The preponderance of the evidence also establishes that the Veteran's herpes genitalis is unrelated to his service. August 2012 and April 2013 VA examiners have indicated that is so, explaining that the Veteran had gonorrhea in service that most likely resolved with antibiotics, and that his current /herpes genitalis lesions are unrelated to his service and the bouts of gonorrhea treated therein. Significantly, the record does not support the veteran's allegation that he has had continuing manifestations of herpes genitalis ever since service. His accounts in that regard have been inconsistent. While he indicated in November 2004 that he had had a pruritic, recurring lesion on his penis for most of his life, in June 2005 he reported that he had first noticed symptoms on his penis about 6 months prior. Notably, the April 2013 VA examiner (who reviewed the record) has observed that the Veteran's outer penis lesion was first shown many years after service. The initial manifestation of herpes shown by the record was in 2004 (some 15-years postservice), and is too remote from service to support a finding of onset therein. The question of when herpes genitalis was initially manifested based on symptoms shown/reported is a medical question beyond the scope of lay observation. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). While the Veteran is competent to observe various genitourinary symptoms, he lacks the medical expertise to assign a specific diagnosis to such symptoms. That is a medical question, and the medical professionals who have addressed it have opined that symptoms noted/reported prior to 2004 (and particularly in service) did not reflect the presence of herpes genitalis, and that the current herpes genitalis is unrelated to what was manifested in service. In light of the foregoing the Board finds that the preponderance of the evidence is against the claim. Therefore, the appeal in this matter must be denied. ORDER Service connection for a genitourinary disorder is denied. ____________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs