Citation Nr: 1335509 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 08-03 735 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for venereal disease. 2. Whether new and material evidence has been presented to reopen a claim of service connection for sinusitis. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. Fitch, Counsel INTRODUCTION The Veteran served on active duty from July 1966 to October 1969. This matter is before the Board of Veterans' Appeals (Board) on appeal of a July 2007 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In March 2011, the Board granted reversal of the rating decision in July 1970 by the RO, denying the Veteran's claim for service connection for left knee arthritis, based on clear and unmistakable error of fact. The decision also denied reversal, based on clear and unmistakable error, of rating decisions dated in February 1989 (denying service connection for a right leg injury), in February 1989 (denying service connection for a left leg injury), in September 1994 (denying service connection for psychosis), in September 1994 (denying service connection under 38 U.S.C.A. § 1702), in August 1995 (denying service connection for venereal disease), and in April 2002 (denying service connection for sinusitis). In addition, the Board denied the Veteran's application to reopen claims of entitlement to service connection for a right leg injury, residuals of a left leg injury, a psychiatric disorder, to include psychosis and schizophrenia, and service connection under 38 U.S.C.A. § 1702. Finally, the Board reopened a claim of entitlement to service connection for venereal disease and denied service connection for posttraumatic stress disorder. The Board remanded the reopened claim of entitlement to service connection for venereal disease, as well as the application to reopen a claim of service connection for sinusitis, for further development. In August 2012, the Board denied the Veteran's June 2012 motion for reconsideration of the March 2011 decision. In the March 2011 decision, the Board noted that, in correspondence dated in November 2006, the Veteran raised the issues of service connection for psychosis/schizophrenia secondary to (caused or aggravated by) venereal disease; service connection for posttraumatic stress disorder secondary to (caused or aggravated by) venereal disease; and service connection for a leg injury secondary to (caused or aggravated by) venereal disease. The Board noted that these claims had not been adjudicated and were referred to the RO for appropriate action. The Board notes that, in addition to the Veteran's claims file, the Veteran also has a Virtual VA paperless claims file, which is a highly secured electronic repository that is used to store and review documents involved in the claims process. The Board has reviewed the contents of the paperless file as well as the Veteran's claims file and will proceed with review of the claims based upon all relevant evidence. FINDINGS OF FACT 1. Venereal disease, to include herpes genitalis, has not been shown to have had its onset in service, nor is such disability otherwise a result of active military service. 2. In an unappealed rating decision dated in February 2002, the RO denied the Veteran's claim of entitlement to service connection for sinusitis; the decision was not appealed and no new and material evidence was received within one year of its issuance. 3. The evidence received since the February 2002 RO decision, by itself or in connection with previously considered evidence, does not relate to an unestablished fact necessary to substantiate the claim or raise a reasonable possibility of substantiating the claim of entitlement to service connection for sinusitis. CONCLUSIONS OF LAW 1. Venereal disease, to include herpes genitalis, was not incurred in or aggravated by the Veteran's active military service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2013). 2. The February 2002 RO decision, that denied entitlement to service connection for sinusitis, is a final decision. 38 U.S.C.A. §§ 7105(c) (West 1991); 38 C.F.R. §§ 20.302, 20.1103 (2001). 3. New and material evidence sufficient to reopen a previously denied claim of service connection for sinusitis has not been received. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VCAA As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), 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. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Proper notice from VA must inform the claimant of any information and 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 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield, 444 F.3d at 1328; see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In claims to reopen, VA must both notify a claimant of the evidence and information necessary to reopen the claim, as well as the evidence and information required to establish entitlement to the underlying claim for the benefit that is being sought. Kent v. Nicholson, 20 Vet. App. 1 (2006). To satisfy the above requirement, the Secretary must consider the bases for the denial in the prior decision and provide the claimant with a notice letter describing what evidence would be necessary to substantiate those elements required to establish service connection that were previously found insufficient. Id. Here, the Veteran was sent a notice letter, dated in March 2011, pursuant to the Board's March 2011 remand. That letter provided information as to what evidence was required to substantiate the claims and of the division of responsibilities between VA and a claimant in developing an appeal. The letter also explained what type of information and evidence was needed to establish a disability rating and effective date. Significantly, the notice letter complied with Kent in that it told the Veteran when and why his prior claim of service connection for sinusitis was denied, and defined new and material evidence. The Board acknowledges that, in the present case, complete notice was not issued prior to the adverse determination on appeal. However, fully compliant notice was later issued and the claims were thereafter readjudicated. Thus, any timing deficiency has here been appropriately cured. Mayfield, 444 F.3d at 1328. Accordingly, no further development is required with respect to the duty to notify. Next, VA has a duty to assist the Veteran in the development of the claims. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. Moreover, statements in support of the claims are of record. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claims. In this regard, the Board acknowledges that the Veteran has not been afforded a VA examination specifically in connection with his claim to reopen. With respect to this claim, however, unless new and material evidence is submitted, the duty to assist a claimant does not include a VA examination. 38 C.F.R. § 3.159(c)(4)(iii). For the above reasons, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio, 16 Vet. App. at 183. II. Service Connection Claim Applicable law provides that service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2013). In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995); 38 C.F.R. § 3.303(a). The existence of a current disorder is the cornerstone of a claim for VA disability compensation. Degmetich v. Brown, 104 F. 3d 1328 (1997) (interpretation of 38 U.S.C.A. § 1110 and 38 U.S.C.A. § 1131 as requiring the existence of a present disorder for VA compensation purposes cannot be considered arbitrary and decision based on that interpretation must be affirmed); Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). That a condition or injury occurred in service alone is not enough. There must be disability resulting from that condition or injury. In the absence of proof of a present disability, there can be no valid claim or the grant of the benefit. Rabideau, 2 Vet. App. at 141; see also McLain v. Nicholson, 21 Vet. App. 319, 321 (2007) (the requirement that a claimant have a current disability before service connection may be awarded for that disability is also satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, even if no disability is present at the time of the claims adjudication). The residuals of venereal disease are not to be considered the result of willful misconduct. 38 C.F.R. § 3.301(c)(1) (2013). It is the Board's responsibility to evaluate the entire record on appeal. 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, reasonable doubt will be resolved in each such issue in favor of the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. A claimant need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. To deny a claim on its merits, the evidence must preponderate against the claim. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Alemany v. Brown, 9 Vet. App. 518 (1996). In this case, the Veteran contends that he is entitled to service connection for venereal disease. The Veteran's service treatment records show that the Veteran received treatment for gonorrhea and venereal warts. A 1970 VA hospital record, which was shortly after discharge, contained no mention of any form of venereal disease. After service, the Veteran reported to VA treatment providers in March 1994 that he was on medication for venereal disease. In order to determine whether the Veteran has a venereal disease that is related to his military service, the Veteran was afforded a VA examination dated in April 2011 pursuant to the Board's March 2011 remand. The examiner indicated that the Veteran's claims file had been reviewed in connection with the examination and report. The examiner noted that that Veteran had a diagnosis of gonorrhea, which was treated appropriately while the Veteran was in the military. There were no penile lesions noted and a syphilis examination was negative. The examiner found that there was no history of herpes documented in the Veteran's Veteran service treatment records. The Veteran reported current complaints of a rash that appears on his penis about once a month which cleared over the next 2-3 weeks. The examiner indicated that there were no active herpetic lesions and no urethral discharge. There was a small hypopigmented macule from a previous herpetic lesion present, but no active vesicles, no bulla, no chancres, and no adenopathy. After examination, the Veteran was diagnosed with herpes genitalis. The examiner stated that, after a review of the Veteran's medical records, history, and a physical examination, it was less likely than not that the current herpes genitalis was etiologically related to the Veteran's military service. The herpes was not diagnosed while the Veteran was on active duty and there was no current evidence of the sexually transmitted diseases which were diagnosed in the military (gonorrhea and venereal warts). Therefore, the Veteran's current condition of recurrent herpes genitalis was unlikely to be etiologically related to his military service. Based on the foregoing, the Board finds that entitlement to service connection for a venereal disease is not warranted in this case. Here, the Veteran has been diagnosed with herpes genitalis. However, the April 2011 VA examiner expressly found that the Veteran's diagnosed disorder was not related to his military service characterized as "less likely than not" and also "unlikely." Additionally, the venereal disease that was shown in service is not shown to be present during the course of the claim. The VA examiner expressly found that gonorrhea and venereal warts were not present. The Board notes that 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. The credibility and weight to be attached to these opinions is within the province of the Board. Guerrieri v. Brown, 4 Vet. App. 467 (1993). The Board must account for evidence it finds persuasive or unpersuasive, and provide reasons for rejecting material evidence favorable to the claim. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). In determining the weight assigned to this evidence, the Board also looks at factors such as the health care provider's knowledge and skill in analyzing the medical data. Guerrieri, 4 Vet. App. at 467; Black v. Brown, 10 Vet. App. 279 (1997). The Board finds that the opinion of the VA examiner in this case to be most persuasive as it was based on an examination of the Veteran and an accurate medical history. The examiner explained that there is a current venereal disease, but that it is not the same as the disease shown in the Veteran's service. In addition, the Board notes that the Veteran has contended on his own behalf that his claimed disability is related to his service. Lay witnesses are competent to provide testimony or statements relating to symptoms or facts that the lay witness observed and is within the realm of his personal knowledge. See Jandreau, 492 F.3d at 1377 (noting that lay testimony may be competent to identify a particular medical condition). Lay evidence may also be competent to establish medical etiology or nexus. Davidson, 581 F.3d at 1313. However, while VA must consider lay evidence, it may give it whatever weight it concludes the evidence is entitled to, and a mere conclusory generalized lay statement that service event or illness caused the claimant's current condition is insufficient to require VA to provide an examination. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010); see also See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (Lance, J. concurring) ("the Board should avoid overbroad statements about the competence of laypersons and should carefully distinguish its treatment of lay testimony of symptoms and its analysis of lay competence on issues of diagnosis or causation"). Although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). The Board finds that the diagnosis and etiology of the Veteran's claimed venereal disease is a complex medical question, beyond the competency of a layperson. Id. While the Veteran may be competent to identify the observable symptomatology of venereal disease and that he has been treated for venereal disease, the type of venereal disease and whether current venereal disease is related to venereal disease from several decades earlier requires certain medical expertise that it is not shown that the Veteran possesses. Therefore, as the Veteran has only provided his own conclusory lay opinion regarding diagnosis and causation, the Board finds that the Veteran's opinion to be of no probative value as he is not competent to opine on such a complex medical question. In summary, the Board concludes that the preponderance of the evidence is against the Veteran's claim of service connection for venereal disease. The Board may not base a decision on its own unsubstantiated medical conclusions but, rather, may reach a medical conclusion only on the basis of independent medical evidence in the record. Hensley v. Brown, 5 Vet. App. 155 (1993). Because the preponderance of the evidence is against the claim, the claim must be denied and the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 49. II. Claim to Reopen In a February 2002 decision, the RO denied entitlement to service connection for sinusitis. The Veteran did not file a timely appeal with respect to this decision and no new and material evidence was received within a year of its issuance to preclude its finality under 38 C.F.R. § 3.156(b); Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011). Thus, the February 2002 decision is final. 38 U.S.C.A. §§ 7105(c) (West 1991); 38 C.F.R. §§ 20.302, 20.1103 (2001). The medical evidence at the time of the February 2002 decision indicated that the Veteran was seen in service for symptoms of sinus congestion and cough. No diagnosis was indicated. Upon service separation, the Veteran's sinuses were normal. After service, the Veteran was seen for sinus congestion that resolved. Service connection was denied in February 2002 due to a lack of evidence of chronic sinusitis in service. The evidence contained in the claims file after the February 2002 decision consists of outpatient treatment records and statements of the Veteran. The medical evidence, however, does not indicate any treatment for sinusitis. The Veteran also submitted copies of his service treatment records, but these are duplicates of records previously submitted. As a general rule, a claim shall be reopened and reviewed if new and material evidence is presented or secured with respect to a claim that is final. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a). Under 38 C.F.R. § 3.156(a), new evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). When determining whether a claim should be reopened, the credibility of the newly submitted evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). In order for the evidence to be sufficient to reopen a previously denied claim, the evidence must be both new and material. If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. Smith v. West, 12 Vet. App. 312 (1999). If it is determined that new and material evidence has been submitted, the claim must be reopened. The Board may then proceed to the merits of the claim on the basis of all of the evidence of record. As set forth above, the evidence associated with the claims file since the February 2002 RO decision is new evidence, in that it was not previously physically of record at the time of the February 2002 decision. However, the evidence is not "material evidence" since it does not indicate treatment for sinusitis, nor does it link this disability to the Veteran's active military service. In addition, the Veteran's statements basically reiterate the Veteran's prior contentions already of record and are therefore cumulative and redundant. The evidence therefore does not relate to an unestablished fact necessary to substantiate the claim or raise a reasonable possibility of substantiating the claim. In sum, the Board finds that the evidence added to the record since February 2002 is cumulative of the evidence previously considered by the RO at that time and does not relate to an unestablished fact necessary to substantiate the claim and, therefore, does not raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). For these reasons, the Board finds the new evidence of record is not material to the Veteran's claim of entitlement to service connection for sinusitis. As such, the Veteran's claim is not reopened and the appeal is denied. ORDER Service connection for venereal disease, to include herpes genitalis, is denied. New and material evidence sufficient to reopen a claim of entitlement to service connection for sinusitis has not been received, and the appeal is denied. ____________________________________________ RYAN T. KESSEL Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs