Citation Nr: 1640590 Decision Date: 10/14/16 Archive Date: 10/27/16 DOCKET NO. 13-16 931 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for residuals of venereal disease. 2. Entitlement to service connection for residuals of venereal disease, to include a skin disorder of the genitalia. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Hammad Rasul, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from March 1957 to January 1959. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. In that decision, the RO denied entitlement to service connection for skin cancer of the foreskin. After additional evidence was received, the RO confirmed and continued the denial of this claim in an August 2009 rating decision. See 38 C.F.R. § 3.156(b) (2015) (new and material evidence received prior to the expiration of the appeal period will be considered as having been filed in connection with the claim that was pending at the beginning of the appeal period). With regard to characterization of the issue on appeal, the Veteran sought service connection specifically for "residual of skin cancer of foreskin." The Veteran later acknowledged, however, that he does not suffer from skin cancer. See August 2009 Statement in Support of Claim. The statements of the Veteran and his wife reflect that he claims he had symptoms of a sexually transmitted disease, specifically, a skin disorder of the genitalia, in and since service. The evidence also suggests prior treatment for gonorrhea. Given that what constitutes a claim is not limited by a lay veteran's assertion of his condition in the application, but must be construed based on the reasonable expectations of the non-expert claimant and the evidence developed in processing the claim, the Board has characterized the issue more broadly as indicated on the title page. Clemons v. Shinseki, 23 Vet. App. 1 (2009). In addition, the Board notes that in a May 1984 rating decision, the RO denied a claim for service connection for a venereal disease. In determining whether new and material evidence is required to reopen a previously denied claim or whether the new claim should be considered on a de novo basis, the focus of the Board's analysis must be on whether the evidence presented truly amounts to a new claim "based upon distinctly diagnosed diseases or injuries" or whether it is evidence tending to substantiate an element of a previously adjudicated matter. Velez v. Shinseki, 23 Vet. App. 199, 204 (2009) (quoting Boggs v. Peake, 520 F.3d 1330, 1337 (Fed. Cir. 2008). Here, given that the prior denial assumed the Veteran had venereal disease in service but found that residuals of this disorder were not shown by the evidence (as discussed in more detail below), the Board finds that the current claim, which seeks compensation for a skin disorder of the genitalia that could be residual to venereal disease, relates to the same disorder as the previously denied claim. Therefore, although the RO adjudicated a claim for service connection for cancer of the foreskin on a de novo basis, the Board will adjudicate the claim as an application to reopen the previously denied claim for service connection for residuals of venereal disease. In his August 2016 Substantive Appeal, the Veteran elected to have a Board hearing at his local RO. The day prior to the hearing, the Veteran requested that his Board hearing be cancelled. His Board hearing request is thus withdrawn. See 38 C.F.R. § 20.702 (e) (2015). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. The Veteran's claim of entitlement to service connection for residuals of venereal disease was denied in a May 1984 rating decision; the Veteran did not appeal this decision and new and material evidence was not received prior to the expiration of the appeal period. 2. Evidence received since the May 1984 rating decision relates to unestablished facts necessary to substantiate the claim of service connection for residuals of venereal disease and raises a reasonable possibility of substantiating the claim. 3. The competent and credible evidence of record fails to demonstrate that the Veteran has had residuals of venereal disease during the pendency of the claim or for two years prior thereto. CONCLUSIONS OF LAW 1. The May 1984 RO decision that denied service connection for residuals of venereal disease is final. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 20.302, 20.1103 (2015). 2. New and material evidence has been submitted since the May 1984 rating decision; as a result, the criteria for reopening of the claim of entitlement to service connection for residuals of venereal disease have been met. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2015). 3. The Veteran does not have disability residual to venereal disease that is the result of disease or injury incurred in or aggravated during active military service. 38 U.S.C.A. §§ 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Notice and Assistance The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. As the Board is granting the application to reopen, further discussion of the VCAA with regard to that aspect of the claim is unnecessary. Regarding the underlying claim, the VCAA applies in the instant case and the requirements of the statutes and regulation have been met. Specifically, VA provided pre-adjudication notice to the Veteran in an April 2007 letter, which informed the Veteran of the information and evidence needed to substantiate and complete a service connection claim, to include notice of what part of that evidence he was to provide, what part VA would attempt to obtain, and how disability ratings and effective dates are determined. The Board is cognizant of the fact that the record reflects that the Veteran's service treatment records (STRs) were destroyed by a fire (The record does contain one in-patient clinical record showing treatment for the flu in February 1958). In these circumstances, when a Veteran's STRs are unavailable through no fault of his own, VA's duties to assist, to provide reasons and bases for its findings and conclusions, and to consider carefully the benefit-of-the-doubt rule are heightened. Milostan v. Brown, 4 Vet. App. 250, 252 (1993) (citing Moore v. Derwinski, 1 Vet. App. 401, 406 (1991) and O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991)). The Board finds that VA has satisfied its heightened duty to assist. To this end, his existing STRs, VA and private treatment records, and lay statements have been obtained and associated with his claims file for consideration. Moreover, the duty to assist includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on a claim. 38 U.S.C.A. § 5103A (d)(2); 38 C.F.R. §§ 3.159 (c)(4), 3.326(a). See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In April 2013, the Veteran was afforded a VA examination. The examiner conducted an extensive review of the claims folder and a thorough physical examination of the Veteran. For the reasons indicated in the discussion below, this examination was adequate because it was based on consideration of the Veteran's prior medical history and provided sufficient detailed examination findings to allow the Board to make a fully informed evaluation. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). Thus, VA has complied with its heightened duty to assist. II. Application to Reopen In the May 1984 rating decision, the RO denied the Veteran's claim of service connection for venereal disease. The Veteran was notified of this denial in a letter later that month and, after he indicated that the disease reappeared every month, the RO in July 1984 requested that the Veteran submit evidence showing continuing treatment for this disorder. The Veteran did not respond, did not appeal, and did not submit new and material evidence within the one year appeal period. Consequently, the May 1984 rating decision became final. See 38 U.S.C.A. § 7105(c); 38 C.F.R. §§ 20.302, 20.1103. Due to the finality of the May 1984 rating decision, the Veteran's claim of service connection for residuals of venereal disease may now be considered on the merits only if new and material evidence has been received since the time of the last final denial. 38 U.S.C.A. § 5108; Evans v. Brown, 9 Vet. App. 273 (1996). New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing 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). In making the determination of materiality, the "credibility of the evidence is to be presumed." Justus v. Principi, 3 Vet. App. 510, 513 (1992). To determine whether new and material evidence has in fact been submitted, the Board first must compare the evidence submitted since the previous final denial with evidence previously of record. If the newly submitted evidence is that which was not of record at the time of the last final disallowance (on any basis) of the claim, and is not merely cumulative of other evidence that was then of record, it will be considered "new evidence" under 38 C.F.R. § 3.156 (a). If the evidence is in fact new, the Board will then consider whether it is also material. In this regard, the Board notes that the threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). When evaluating the materiality of newly submitted evidence, the focus must not be solely on whether the evidence remedies the principal reason for denial in the last prior decision; rather the determination of materiality should focus on whether the evidence, taken together, could at least trigger the duty to assist or consideration of a new theory of entitlement. See id. at 118. In its May 1984 decision, the RO noted that the Veteran reported no residuals of venereal disease, that the STRs were missing, and that residuals of venereal disease, if such condition was treated in service, were not shown by the evidence of record. Evidence received and/or developed since the May 1984 rating decision includes a March 2001 VA treatment record that provides a diagnosis of possible gonorrhea and denotes the Veteran's history of chancroid. As this new indicates a possible sexually transmitted disease that could be residual or related to venereal disease, while the evidence previously of record did not show evidence of a disease residual to venereal disease, the evidence relates to the basis for the prior denial and raises a reasonable possibility of substantiating the claim. Accordingly, the criteria for reopening of the claim for service connection for residuals of venereal disease have been met. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156 (a). III. Service Connection Initially, the Board notes that it will address the underlying service connection claim after granting the application to reopen because the RO has addressed the claim on a de novo basis. There is thus no prejudice to the Veteran in this regard. Bernard v. Brown, 4 Vet. App. 384, 393 (1993). Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the current disability and an in-service precipitating disease, injury or event. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). A necessary element for establishing a service connection claim is the existence of a current disability. See Degmetich v. Brown, 104 F. 3d 1328 (1997) (holding that section 1110 of the statute requires the existence of a present disability for VA compensation purposes). The presence of a disability at the time of filing of a claim or during its pendency warrants a finding that the current disability requirement has been met, even if the disability resolves prior to the Board's adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). However, when the record contains a recent diagnosis of disability prior to a veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency." Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013). In other words, the Board should not draw a bright line at the date of filing of the claim when considering whether the current disability requirement has been met; rather, it should consider all of the evidence in making this determination. The Veteran filed his service connection claim in December 2006. However, the claim must be denied because the preponderance of the evidence reflects that the Veteran has not had residuals of venereal disease, to include a skin disorder of the genitalia, during the pendency of the claim or for two years prior thereto. VA treatment records show that the Veteran was treated for a skin condition of the genitalia in March 2001. Specifically, patient history indicated a history of sexually transmitted disease in 1959, treatment for chancroid, and that the Veteran "still gets sore on the penis on and off, no discharge." On examination, a small ulcer on the foreskin of the penis was noted, with no discharge, was noted. The assessment indicated, "STD - Gonorrhea??" In November 2010, the Veteran's wife submitted a statement detailing the Veteran's history regarding "a chronic periodic sore or lesion on his penis and foreskin" and the difficulties that it caused in their sexual relationship. The Veteran's wife indicated that the Veteran only discussed the episodes with her in 2009, when he said that the episodes had ceased after he received an injection from one of his VA doctors in 2002. In his May 2007 statement, the Veteran stated that he went to sick call on board ship during service, he was not diagnosed with any disorder at that time but was referred to a hospital, he was tested for "every venereal disease imaginable but none was found/diagnosed." The Veteran also indicated that he suffered with this disorder until 2004 when he was "diagnosed with skin cancer," given "a shot in his left hip region and within two weeks the symptoms subsided." Laypersons are competent to testify to their observations, and the statements of the Veteran and his wife are credible. They indicate that he suffered a skin disorder of the genitalia from the time of service until 2002 or 2004. Consistent with the statements of the Veteran and his wife, the Veteran's VA treatment records dated after November 2001 through 2007 (specifically the treatment records dated May 17, 2004; July 8, 2005; March 2, 2006; and April 16, 2007) do not indicate any treatment or diagnoses relating to problems with the skin of the genitalia. In fact, the treatment records listed the Veteran's skin as "Normal, No Rash." In April 2013, the VA examiner performed an in-person examination and reviewed the Veteran's VA claims file. The VA examiner concluded that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness because no record of a skin condition treatment and no current skin condition was noted on the examination. The examiner wrote, "The condition has resolved and there are no skin ailments related at this time." The question of whether the Veteran's skin disorder of the genitalia is related to venereal disease in service is one on which there is no medical opinion. The Veteran and his wife have opined that he had a skin disorder of the genitalia that had its onset in service residual to venereal disease. Lay witnesses are competent to opine as to some matters of diagnosis and etiology and the Board must determine on a case by case basis whether a veteran's particular disability is the type of disability for which lay evidence is competent. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Here, however, the Board must first answer the question of whether the Veteran has met the current disability requirement. As noted, the Court has held that a current disability is one that exists from the time of the claim and during its pendency, but that the Board must also consider evidence prior to the filing of the claim in making this determination. Here, the statements of the Veteran and his wife are consistent with the evidence of record in indicating that the Veteran did not have disability in the form of a skin disorder of the genitalia after 2004, two years before he filed his claim for compensation for such disability in December 2006. The Board therefore finds that the current disability requirement has not been met. In Romanowsky, a possible in-service diagnosis was followed shortly thereafter by the Veteran's claim and a VA medical examiner's finding of no diagnosed disorder. Here, the evidence indicates a much longer period between a diagnosis and filing of the claim, as well as lay and medical evidence indicating no disability for at least two years prior to the claim or during its pendency. The above evidence, in particular the competent statement of the Veteran and his wife, reflects that he has not had residuals of venereal disease, to include a skin disorder of the genitalia, at any time since he filed his claim in December 2006 or for two years prior to that date. As the preponderance of the evidence reflects an absence of a current disability with regard to the claim on appeal, the Veteran has failed to meet his burden of establishing this essential element of his claim. See 38 U.S.C.A. § 5107(a) (a claimant has the responsibility to present and support a claim for VA benefits); Skoczen v. Shinseki, 564 F.3d 1319, 1323 (Fed. Cir. 2009) (the "support" requirement of section 5107(a) obligates the claimant to provide some evidentiary basis for his benefits claim). The preponderance of the evidence is thus against the claim for entitlement to service connection for residuals of venereal disease, to include a skin disorder of the genitalia. The benefit of the doubt doctrine is, therefore, not for application, and the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. In making the above findings, the Board has considered VA's heightened duty to assist, as well as the Board's heightened obligation to provide reasons and bases for its findings and conclusions, and to consider carefully the benefit-of-the-doubt rule. Here, the Board has found the statements of the Veteran and his wife that he had symptoms of venereal disease in service and through 2004 to be competent and credible and the missing STRs have therefore not prejudiced him. Given the current disability requirement as interpreted in McClain and Romanowsky, however, the fact that the preponderance of the lay and medical evidence reflects that the Veteran has not met this requirement warrants a denial of the claim for the reasons stated above. ORDER The application to reopen the claim for service connection for residuals of venereal disease is granted. Entitlement to service connection for residuals of venereal disease, to include a skin disorder of the genitalia, is denied. ____________________________________________ Jonathan Hager Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs