Citation Nr: 1829367 Decision Date: 06/04/18 Archive Date: 06/27/18 DOCKET NO. 14-39 256 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California THE ISSUES 1. Entitlement to service connection for syphilis. 2. Entitlement to service connection for reactive arthritis, claimed as secondary to syphilis. REPRESENTATION Appellant represented by: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Hammad Rasul, Associate Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from March 1980 to March 1984, and from May 1987 to April 1990. This appeal to the Board of Veterans' Appeals (Board) arose from a December 2009 rating decision in which the RO denied service connection for syphilis and reactive arthritis. In March 2010, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in December 2013, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in January 2014. In June 2017, the Veteran testified during a Board videoconference hearing before the undersigned Veterans Law Judge; a transcript of that hearing is also of record. While the Veteran previously had a paper claims file, this appeal is now being processed utilizing the paperless, electronic Veterans Benefits Management System and Virtual VA (Legacy Content Manager) claims processing systems. All records have been reviewed. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate each claim on appeal have been accomplished. 2. There is no competent medical evidence that the Veteran currently has, or at any point pertinent to the current claim on appeal has had, syphilis or any current residuals. 3. As service connection for syphilis has not been established, there is no legal basis to award service connection for reactive arthritis as secondary to syphilis. CONCLUSIONS OF LAW 1. The criteria for service connection for syphilis are not met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). 2. The criteria for service connection for reactive arthritis, as secondary to syphilis are not met. 38 U.S.C. §§ 5103, 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.159, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Due Process Considerations The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (2012) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2017). Here, in a July 2009 letter issued prior to the rating decision on appeal, the RO provided notice to the Veteran explaining what information and evidence was needed to substantiate a service connection claim, as well as what information and evidence must be submitted by the Veteran, and what information and evidence would be obtained by VA. See Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The notice letter also provided general information pertaining to VA's assignment of disability ratings and effective dates (in the event service connection is granted), as well as the type of evidence that impacts those determinations. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006): Hence, the July 2009 letter met the VCAA's content and timing of notice requirements. See 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b). The Veteran does not assert any prejudicial error from any notification deficiency and none is found by the Board. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015). The record also reflects that, consistent with applicable duty-to-assist provisions, VA has made reasonable efforts to develop the claims herein decided, to include obtaining or assisting in obtaining all relevant records and other evidence pertinent to the claims. Available service treatment records (STRs) and post service VA treatment records have been obtained. The Veteran was afforded an appropriate VA examination in March 2015. Also of record and considered in connection wth the claim is the transcript of the Board hearing, along with various statements by the h The Board finds that no further action on either claim, prior to appellate consideration, is required. As for the July 2009 Board hearing, the transcript reflects that, during the hearing, the undersigned identified the issues then on appeal, to include the issues herein decided. Pertinent testimony was elicited regarding the nature and etiology of, and treatment for, syphilis and reactive arthritis. Although the undersigned did not explicitly suggest the submission of any specific, additional evidence, on these facts, such omission is harmless. Nothing gave rise to the possibility, at the time of the hearing or since, that there is any existing, pertinent evidence outstanding. The hearing was legally sufficient. See 38 C.F.R. § 3.103 (c)(2) (2017); Bryant v. Shinseki, 23 Vet. App. 488 (2010). In sum, there is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required in connection with either claim. Notably, neither the Veteran, nor his representative, has raised any specific issue regarding any notice or assistance provided (or not provided) with respect to these claims. See Scott, 789 F.3d at 1381 (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). Accordingly, the Veteran is not prejudiced by the Board proceeding to a decision for these service connection claims on appeal, at this juncture. II. Analysis Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2017). In addition, service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, to establish service connection, there must be competent evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). See also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The determination as to whether elements are met is based on an analysis of all the evidence of record, and evaluation of its competency, credibility and probative value. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Baldwin v. West, 13 Vet. App. 1, 8 (1999). Under 38 C.F.R. § 3.310(a), service connection also may be granted for disability that is proximately due to or the result of a service-connected disease or injury. That regulation permits service connection not only for disability caused by service-connected disability, but for the degree of disability resulting from aggravation of a nonservice-connected disability by a service-connected disability. See 38 C.F.R. § 3.310 (2017). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Considering the evidence of record, in light of the above-noted legal authority, the Board finds that neither service connection for claimed syphilis nor reactive arthritis as secondary to syphilis, is warranted. The Veteran's service treatment records (STRs) document that the Veteran was treated for syphilis in 1980. However, the STRs during the Veteran's second period of service are silent for any complaints, findings, r diagnosis of syphilis. In the Disability Benefits Questionnaire (DBQ) associated with a March 2015 VA examination, the examiner noted that the Veteran had previously been diagnosed with syphilis in 1980 and had been treated twice with penicillin. The examiner also noted that continuous medication is not required for control of syphilis. The examiner then noted that syphilis has been inactive since 2007 and that the Veteran does not currently have symptoms attributable to syphilis and he does not have residuals attributable to syphilis since 2007. The examiner opined that it less likely as not that the syphilis the Veteran had in 2007 is related to the syphilis he had in service in 1980. The examiner reasoned that the medical record indicate that the Veteran was treated with the appropriate antibiotic regimen and that there were no medical records for syphilis afterwards until 2007. During the June 2017 Board hearing, the Veteran stated that he still had syphilis until 2007. The Veteran further stated that after he left service, he had to get a medical examination done for employment, during which a physician told him that he still had syphilis in his blood and that he will always have a small percentage of the disease. The Veteran stated that private treatment records from that physician no longer exist. The Veteran then stated that his syphilis was completely cured in 2007. The Veteran reasoned that he believes that he was not cured until 2007 because he only received one injection in 1980, whereas in 2007, he received two injections with a stronger dose of penicillin Notably, 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). Evidence generated shortly prior to the claim must also be considered in determining a current disability. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013). In this case, however, there is no competent, probative evidence indicating that, fundamentally, the Veteran currently has, or at any point pertinent to the current claim has had, a current disability of syphilis for which service connection is sought. Rather, as indicated, the medical record is devoid of such evidence, and the only competent medical comments on this point-those rendered by the March 2015 VA examiner-weigh against a finding of current disability. Significantly, neither the Veteran nor his representative have submitted or identified any existing medical evidence to support a finding of current syphilis. Although, during the June 2017 Board hearing stated he was told by a physician that he will always have some syphilis in his blood--a matter about which he competent to report-such reports, in and of themselves, do not constitute competent medical evidence of a diagnosis. See Robinette v. Brown, 8 Vet. App. 69, 77 (1995). Furthermore, to the extent that the Veteran himself attempts to assert the existence of current syphilis, such a diagnosis is a complex medical matter that falls outside the realm of common knowledge of a layperson. See Jandreau, 492 F.3d at 1377, n. 4 (providing that lay persons are not competent to diagnose cancer). As any such lay assertions in this regard are not competent, they have no probative value in this appeal. The Board emphasizes that Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in disability. See 38 U.S.C. § 1110. Thus, where, as here, competent, probative evidence establishes that, fundamentally, the Veteran not have the disability for which service connection is sought, there can be no valid claim for service connection. See Brammer, supra. See also Shedden, supra; Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998). For all the foregoing reasons, the Board finds that the claim for service connection for syphilis must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claims, that doctrine is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Furthermore, regarding claimed reactive arthritis, the Board points out that the Veteran contends that service connection for such is warranted secondary to syphilis. However, there is no legal basis for granting service connection for reactive arthritis, as the Veteran has not been awarded service connection for syphilis. Where, as here, service connection for a primary disability has not been awarded, the Veteran cannot establish entitlement to service connection, pursuant to 38 C.F.R. § 3.310 (a), for a secondary condition. Thus, any assertions as to entitlement to secondary service connection for reactive arthritis are without legal merit. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER Service connection for syphilis is denied. Service connection for reactive arthritis, claimed as secondary to syphilis, is denied. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs