Citation Nr: 1328589 Decision Date: 09/09/13 Archive Date: 09/17/13 DOCKET NO. 08-37 389 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for skin problems associated with syphilis and herpes simplex II, claimed as secondary to service-connected syphilis. 2. Entitlement to service connection for arthritis of the bilateral knees, ankles and right elbow, claimed as secondary to service-connected syphilis. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Joseph R. Keselyak, Counsel INTRODUCTION The Veteran served on active duty from August 1956 to November 1957. This matter comes to the Board of Veterans' Appeals (Board) from January 2006 and August 2007 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. Jurisdiction over the matter was later transferred to the Atlanta, Georgia RO. In May 2011, the Veteran was afforded a hearing before a Decision Review Officer (DRO). In June 2013 the Veteran was afforded a Travel Board hearing. Transcripts of the testimony offered at these hearings have been associated with the record. FINDINGS OF FACT 1. The Veteran's skin problems, including herpes simplex II, are not medically related to his service-connected syphilis, either directly or through aggravation. 2. The Veteran's arthritis of the bilateral knees, ankles and right elbow is not medically related to his service-connected syphilis, either directly or through aggravation. CONCLUSIONS OF LAW 1. Service connection for skin problems associated with syphilis and herpes simplex II is not established. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2012). 2. Service connection for arthritis of the bilateral knees, ankles and right elbow is not established. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Notice and Assistance Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. In the notice, VA will inform the claimant which information and evidence, if any, that the claimant is to provide to VA and which information and evidence, if any, that VA will attempt to obtain on behalf of the claimant. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159 (2011); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Notice should also address the rating criteria and effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). With respect to the January 2006 rating decision, the RO provided the appellant pre-adjudication notice by a letter dated in May 2005. In a September 2006 letter, he was provided notice addressing the rating criteria and effective date provisions related to the claim, which was subsequently readjudicated. Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). With respect to the August 2007 rating decision, the RO provided the appellant pre-adjudication notice by a letter dated in September 2006. Although none of the letters addressed direct service connection, as addressed herein below, the Veteran is claiming his present disabilities only as secondary to service-connected syphilis. Thus, there is no harm in proceeding in this regard. See Robinson v. Mansfield, 21 Vet. App. 545 (2008). VA has obtained the Veteran's service treatment records and VA medical records, assisted the Veteran in obtaining evidence, afforded the Veteran physical examinations, obtained medical opinions as to the severity of his claimed disabilities, and afforded the Veteran the opportunity to give testimony before the Board. In this regard, the Board notes that at his May 2011 DRO hearing, the Veteran testified as to the presence of possibly relevant outstanding private records. At this time, the Veteran was suggested that he submit such records. Bryant v. Shinseki, 23 Vet. App. 488 (2010). He was also sent a letter in May 2011 to this effect, and which provided him releases for VA to obtain any such records and did not respond. All known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file; and the Veteran has not contended otherwise. A review of the record shows that the Veteran is in receipt of Social Security Administration (SSA) disability benefits. Appropriate action to obtain all records associated with any SSA claim must be accomplished before adjudication can be made on the merits. See generally Murincsak v. Derwinski, 2 Vet. App. 363, 372 (1992). However, not all SSA records must be sought, but rather only those that are relevant to the claim. See Golz v. Shinseki, 590 F.3d 1317, 1321 (Fed. Cir. 2010). A review of the record clearly indicates that the Veteran is in receipt of such benefits for a psychiatric disability. See June 2013 Board hearing transcript at pg. 18. Accordingly, the SSA records are not relevant to the present claims and no development is necessary in this regard. Id. The United States Court of Appeals for Veterans Claims (hereinafter "the Court") has held that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that VA examinations and opinions obtained in this case are adequate. They are predicated on a substantial review of the record and medical findings and consider the Veteran's complaints, symptoms, history and contentions. Accordingly, VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the service connection issue addressed in this decision has been met. 38 C.F.R. § 3.159(c)(4). VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. Laws and Regulations Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a) (2012). Service connection may be granted for a disease diagnosed after service discharge when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In addition to the regulations cited above, service connection is warranted for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (2012). A finding of secondary service connection requires competent medical evidence to connect the asserted secondary disability to the service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); Velez v. West, 10 Vet. App. 432 (1997). The Board notes that 38 C.F.R. § 3.310 was amended effective October 10, 2006. Under the revised § 3.310(b) (the existing provision at 38 C.F.R. § 3.310(b) was moved to sub-section (c)), any increase in severity of a nonservice-connected disease or injury proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the disease, will be service-connected. The new regulation appears to place additional evidentiary burdens on claimants seeking service connection based on aggravation; specifically, in terms of establishing a baseline level of disability for the non-service-connected condition prior to the aggravation. As the Veteran filed his claims prior to this date, the amendment is inapplicable to the current claims. Under applicable criteria, VA shall consider all lay and medical evidence of record in a case with respect to benefits under laws administered by VA. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Facts The Veteran asserts that he has a skin condition and arthritis of various joints of his body as secondary to his service-connected syphilis. He particularly asserts that his syphilis never resolved and instead developed into tertiary syphilis, late syphilis, or latent syphilis, which in turned has caused all of his current maladies. Service connection for syphilis has been in effect since June 23, 2004. A review of the Veteran's service treatment records documents treatment for syphilis in August 1957 and that he had a penile chancre related thereto, which was apparently treated and resulted in no residuals. See September 1957 Report of Medical Examination. Of record is a March 1984 VA report of physical examination. Examination of the of the genitalia was normal and the penis was without lesions. Examination of the extremities showed normal joints, without edema, deformity or trauma. Of record is an August 2004 VA primary care note that documents a problem of possible "persistent positive syphilis serology." Also noted was continued recurrent genital herpes. Healing lesions in the inguinal area were noted and there was no penile discharge. In October 2004, the Veteran was afforded a VA examination. At this time, the Veteran was noted as having "suffered from syphilis." The examiner documented that the current symptoms were "sores on penis," although the Veteran reported that his symptoms were currently in remission. He related that when active, it lasted for 1 week and occurred as frequently as 5 times per year. The skin was clear of rashes or lesions. Examination of the extremities showed no ulceration, edema or stasis dermatitis. Syphilis was apparently objectively diagnosed, with subjective factors of "history of sores" noted. A January 2005 VA note documents that the Veteran presented with a complaint of severe neck and shoulder pain a couple of hours after a lumbar puncture to rule out neurosyphilis 4 days prior. It was felt that the Veteran's complaints were unlikely due to the lumbar puncture, but were more consistent with muscle spasm. Of record is a March 2005 VA primary care record, which documents a lumbar puncture was negative for neurosyphilis. The Veteran was concerned about a healing furuncle on the abdominal wall. However, although positive syphilis serology was noted, it was doubted that syphilis was active as the laboratory tests stayed positive once one had had a bout of syphilis. In June 2005, the Veteran was again afforded a VA examination. The examination report documents a history of sores on the penis, along with skin spots, apparently since 1957, as reported by the Veteran. It also documents that he had been diagnosed as having herpes II in 1984. Herpes simplex II was diagnosed and it was concluded that the Veteran's current findings were not secondary to his service-connected syphilis. In furtherance of attempting to substantiate his claims, the Veteran has submitted several pieces of medical literature. Generally, these documents relate to the manifestations of syphilis in later stages of the disease, including skin, bone and joint complications. The Veteran claims that his syphilis remained active since service in this regard. He particularly asserts that he has tertiary syphilis. Of record is an August 2006 VA rheumatology consultation record, which documents a complaint of "syphilis complaint of chronic pain in both knees." Osteoarthritis of the knees was assessed at this time. No clinical or biochemical evidence of arthropathy was found and it was explained to the Veteran in detail the causes and natural history of osteoarthritis. The record does not purport to relate the Veteran's complaints to his service-connected syphilis. A September 2006 VA primary care note documents the Veteran's assertions that his knee pain is related to syphilis and that he blamed VA for misdiagnosing him. Osteoarthritis of the knees was assessed. A July 2007 VA urology consultation notes that the Veteran complained of numerous problems, including of his knees, that he felt were related to his syphilis infection in service. No treatment, however, was recommended and it was noted that he had a history of "treated syphilis" and that although specific tests would remain positive for life, other non-specific tests were negative and showed that he had no active disease. The examining provider discussed the Veteran's case with Dr. Y., who did not feel that the Veteran's complaints were attributable to syphilis. An August 2007 VA Mental Health (MH) outpatient visit note that documents the Veteran's history of syphilis in service, and that the Veteran believed that he had tertiary syphilis. The Veteran notably had read books about it and attributed any physical symptoms he had to syphilis. Assessed at this time was that the Veteran was "preoccupied with the delusional idea that he is dying from the effects of tertiary syphilis, despite the fact that he had no serious acute physical symptoms." In a September 2007 statement, the Veteran related that he disagreed with the RO's denial with respect to arthritis of the knees, ankles and right elbow. In this regard, he related that "osteoarthritis is the loss of articular cartilage" and that "it should be considered the final pathway for persistent inflammatory conditions." He asserted that syphilis was the "etiological agent" in this regard. In February 2008, the Veteran was afforded a VA examination related to syphilis. At this time, the examiner noted current symptoms of joint pain, and a history of right total knee replacement. The Veteran reported at this time that he had had syphilis twice since 1957. The examiner, however, found that syphilis had resolved. In May 2008, the Veteran was afforded a VA examination of the skin. The examination report notes that the Veteran had contracted syphilis in service, which was treated with penicillin. A history of herpes infection "[s]ometime thereafter" is also noted, as is a history of recurrent "skin abscesses." No active skin disease was diagnosed at this time and the examiner remarked that syphilis and his skin condition had resolved. The Veteran was also afforded a VA examination of the joints at this time. He complained of pain in the knees, ankles and right elbow. The opinion notes that the Veteran had been previously worked up by rheumatology and that the workup had showed no evidence that his arthritis and joint complaints were related to syphilis, and further that his joint complaints were natural progression, wear and tear, and age-related. The examiner endorsed these findings based on his review of the record and examination of the Veteran. He further stated that there was no evidence to implicate an infectious disease, such as syphilis, as the cause of arthritis in any of the Veteran's joints. A May 2010 VA infectious disease documents a history of syphilis diagnosed in the 1950s. It also notes that the condition "rx on 2 occasions according to previous records," but that the Veteran was asymptomatic for sequelae. A subsequent May 2010 VA note states that the Veteran was asymptomatic for "tertiary syphilis" with negative RPR and that no therapy was necessary. In May 2011, the Veteran testified before a Decision Review Officer (DRO). At this time, the Veteran reiterated that he had joint and skin conditions he felt were attributable to his service-connected syphilis. He contended that doctors knew that he did not have "ordinary arthritis." With respect to the claimed skin condition, he claimed that doctors "never put anything in the record that this things was caused by syphilis." He offered a history of lesions all over his body, as well. He again asserted that he had advanced syphilis that was responsible for his maladies. The DRO notably discussed with the Veteran that a doctor's opinion supporting his contentions would be helpful, particularly in light of the negative VA examinations and opinions, referenced herein. In August 2012, the Veteran was afforded a VA infectious diseases examination. The examination documents a history of syphilis diagnosed in 1973, although the examiner noted a history of assessed syphilis in 1957 during service. The examiner also noted a history of lesions on the penis since 1957, as well as "current symptoms [of] joint pain." The examiner also related that the condition became in active in 1975, with no apparent symptoms thereof. In June 2013, the Veteran testified before the Board. He testified that with respect to the joints, he had started having problems about 20 years prior. He testified that shortly following service he "broke out like [he] had measles" and was treated with penicillin and that years later his joints started deteriorating. He also testified to having had "big tumors" and rashes on his skin with related scarring, other than on his penis. He denied having been informed by a doctor that his conditions were attributable to syphilis, noting that he had been informed that his syphilis was cured. He insisted that his conditions were related to syphilis. Analysis Initially, the Board will address the Veteran's lay assertions that he has skin problems and joint conditions attributable to his service-connected syphilis. In this regard, the Board acknowledges the Veteran's belief that his conditions are attributable to service-connected syphilis; however, these assertions are clearly not within the purview of a layperson and require a level of expertise that the Veteran clearly does not possess. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a Veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). Such an opinion on the presence of tertiary syphilis requires skilled knowledge of the inner workings of the body and how disease processes work. While the Veteran has read books and conducted informal research on syphilis, this does not qualify him to render opinions on such complex matters. Therefore, the Board does not afford the Veteran's assertions weight in the matter of nexus. The Board also notes that the Veteran has submitted several pieces of medical literature in support of the claim. However, it cannot afford these items probative value. The evidence is general in nature and does not specifically relate to the facts and circumstances surrounding the Veteran's particular case. Nor does this research include a concurrent medical opinion relating it to the Veteran's situation. Thus, this evidence cannot serve to substantiate the claims. The Board acknowledges that the VA examination in October 2004 on its face seems to endorse "sores on penis" as due to syphilis. Additionally, the August 2012 VA examination on its face seems to endorse joint pain as a symptom of syphilis. However, a review of these examination reports in full clearly indicates that these notations were reflections of the Veteran's subjective reports, as opposed to objective medical findings. The probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches. A note based on the Veteran's unsubstantiated opinion does not equal credible medical evidence, especially in light of the other evidence of record. Turning to that other evidence, the Board finds that the preponderance of the competent and probative evidence of record indicates that the Veteran's syphilis resolved without any complications, that it remained asymptomatic since the in-service infection, and that neither physical nor laboratory results indicate the presence of tertiary syphilis. The VA medical records clearly indicate that, despite positive serology indicating a prior infection of syphilis, syphilis resolved following treatment in service. See March 2005 VA primary care record, noting negative lumbar puncture for neurosyphilis; July 2007 VA urology consultation, nothing negative lab tests for active infection; February 2008 VA infectious disease examination report, noting that syphilis had resolved; and, May 2010 VA infectious disease note, indicating negative RPR and a finding of no tertiary syphilis. In addition, the Board finds particularly probative the August 2006 rheumatology note finding no clinical or biochemical evidence of arthropathy due to syphilis, as well as the May 2008 VA joints examination report, in which the examiner thoroughly reviewed the record and supported the finding that there was no evidence implicating an infectious disease process such as tertiary syphilis with respect to the Veteran's arthritis in multiple joints. Indeed, in March 1984, almost 30 years following the original syphilis infection, examination of the skin and joints was normal. Thus, although osteoarthritis, herpes simplex II and skin conditions have been assessed, the evidence clearly indicates that these conditions are not attributable to service-connected syphilis through any secondary means, including by aggravation, as the Veteran's syphilis has remained asymptomatic since treatment thereof in service. Thus, the Board must conclude that the evidence preponderates against the claims and they are, therefore, denied. Gilbert, supra. ORDER Entitlement to service connection for skin problems associated with syphilis and herpes simplex II as secondary to service-connected syphilis is denied. Entitlement to service connection for arthritis of the bilateral knees, ankles and right elbow as secondary to service-connected syphilis is denied. ____________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs