Citation Nr: 21071889 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 10-45 518 DATE: December 1, 2021 ORDER Entitlement to service connection for a venereal disease is denied. FINDING OF FACT A current venereal disease did not have its onset in service, has not been chronic or continuous since service, and is not due to an in-service disease, injury, or other incident of service. CONCLUSION OF LAW The criteria for entitlement to service connection for a venereal disease have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1974 to December 1978, and from April 1979 to January 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a 2009 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). In June 2015, the Veteran testified at a Board hearing before a Veterans Law Judge (VLJ) who is no longer employed at the Board. The Veteran was offered the opportunity to testify at another Board hearing before a different VLJ. However, in March 2018, he indicated that he did not desire another Board hearing. In August 2015, the Board remanded the case for further development. In a May 2018 decision, the Board denied the Veteran's claim for an increased rating for his long right finger disability and service connection for venereal disease. The Veteran subsequently appealed such denial to the U.S. Court of Appeals for Veterans Claims (Court). In February 2019, the parties to this appeal entered into a Joint Motion for Remand (JMR) in which they moved the court to vacate and remand the Board's service connection denial. In a March 2019 Order, the Court granted the parties' JMR. Pursuant to the JMR, the case was remanded by the Board in August 2019 and again in December 2020 and July 2021. It now returns for further appellate review. The Veteran was previously represented by a private attorney; in June 2021, however, that representation was terminated, and the Veteran is now unrepresented. Entitlement to service connection for a venereal disease The Veteran seeks service connection for a venereal disease. He asserts such a disease was incurred in service, and service connection is therefore warranted. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. For the showing of "chronic" disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. Considering first the service treatment records, these indicate the Veteran was seen several times in service for gonorrhea with positive culture tests in May 1980 and April 1987. On each occasion, he was given medication. In November 1986, he was treated for a penile lesion, and syphilis was suspected. He was given antibiotics. A service separation examination was declined by the Veteran. Post-service, the Veteran was treated in May 2006 for syphilis, according to a VA clinical notation. A prior history of a syphilis diagnosis in September 2004 was noted. No prior history of a venereal disease was noted at that time. In December 2008, the Veteran sought treatment for a possible genital herpes infection. He reported a history of periodic vesicular eruptions in the genitals occurring one to two times per year since the 1980s. Currently, neither herpes nor any other venereal disease was noted to be active on objective examination. He was given medication and told to return for treatment as needed. Thus, based on the above, the Board must conclude a current diagnosis of any venereal disease did not have its onset in service. While the Veteran was diagnosed with gonorrhea in service, he was treated at that time and this disorder apparently resolved. Post-service medical records are negative for such a diagnosis. Moreover, while he has post-service diagnoses of herpes, this disorder was not diagnosed in service. The Veteran was also diagnosed with syphilis in service, but this was appropriately treated, and this disorder did not recur for many years, according to the evidence of record. Finally, post-service VA and private treatment records are negative for any diagnosis of or treatment for a venereal disease between 1987, the Veteran's last in-service diagnosis of a venereal disease, and 2004, when he reportedly first sought treatment for syphilis. The Veteran was afforded a VA examination in June 2016. His claims file was reviewed in conjunction with the examination. The examiner noted the Veteran's in-service diagnoses of gonorrhea and syphilis. The examiner further found, however, that these were appropriately treated with antibiotics, and resolved without residuals. Post-service, he had an episode of syphilis in 2005 that resolved with treatment. Regarding the Veteran's herpes, the examiner found no evidence of onset of this disability in service. As such, the examiner concluded it was less likely than not any current venereal disease was due to an in-service disease or injury. Another VA examination was afforded the Veteran in December 2019. The Veteran's claims file was reviewed by the examiner and his history of venereal disease was noted. Regarding the etiology of the Veteran's current venereal disease, genital herpes, the examiner opined it was less likely than not any current genitourinary disability was incurred in or otherwise aggravated by service, or was the result of an in-service disease or injury. While the Veteran was diagnosed with gonorrhea and syphilis in service, these were treated and were not noted for the remainder of service or for many years thereafter. Moreover, a current diagnosis of herpes was not noted at any time during service. More recently, a VA medical opinion was obtained in March 2021. The claims file was reviewed by the examiner, but the Veteran was not evaluated in person. Upon review of the claims file, this examiner found it less likely than not the Veteran's in-service penile lesion was due to herpes. The current VA examiner noted the in-service examiner who treated the Veteran for a penile lesion in 1986 was a dermatology specialist, who noted the in-service lesion was firm to touch and consistent with a syphilitic chancre (ulcer). Clinical testing at that time confirmed a positive result. According to the VA examiner, this diagnosis in service is probative because of the specialty background of the examiner, who evaluated and treated dermatologic lesions on a daily basis. Penile ulcers are associated with both herpes and syphilis. Syphilitic ulcers are classically a single, painless, ulcerative lesion, whereas there are usually multiple small, painful ulcers during a herpetic outbreak. This Veteran had a single ulcer with a border that was consistent with a syphilitic chancre, according to the VA examiner. Another examination and medical opinion were afforded the Veteran in August 2021. The claims file was reviewed in conjunction with the examination. After reviewing the record and examining the Veteran, the VA examiner concluded it was less likely than not a current diagnosis of herpes had its onset in service, or was otherwise related to an in-service disease or injury. The examiner noted the Veteran was seen for a penile lesion in November 1986. The darkfield microscopy was negative, and the lesion was consistent with a syphilitic chancre, according to the service treatment records. The examiner noted that the in-service report was of a single lesion, measuring 3mm, whereas a herpes outbreak often erupts in multiple small vesicles. Additionally, there were no reports of pain associated with syphilitic chancres, whereas herpes lesions are typically very painful. Service treatment records indicate that the Veteran was treated with penicillin, and there was no evidence of recurrent lesions during service, which would also be suggestive of a herpes diagnosis. The examiner further noted treatment records did not suggest an official diagnosis of herpes until 2007, over 20 years after separation from service. Additional VA treatment records confirm a current diagnosis of genital herpes, but do not otherwise indicate onset in service or an etiological basis in service. Based on this evidence, the Board must conclude the current herpes diagnosis did not have its onset in service. None of the venereal diseases diagnosed in service or after service are presumptive chronic diseases as listed under 38 C.F.R. § 3.309 (a). Moreover, multiple competent medical examiners reviewed the claims file and determined the Veteran's November 1986 penile lesion was most likely syphilis, not herpes, and the current herpes did not have its onset in service. As these opinions were rendered by competent medical experts based on examination of the Veteran and/or review of the medical file, and are uncontradicted within the medical record, the Board finds them highly probative. The Board acknowledges its obligation to read the filings of this pro se claimant liberally. See Moody v. Principi, 360 F.3d 1306 (Fed. Cir. 2004); Szemraj v. Principi, 357 F.3d 1370 (Fed. Cir. 2004); and Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001) (each emphasizing that pro se filings must be read liberally). While the Veteran has himself asserted that he has experienced herpes-like penile lesions since service, the Board does not find this evidence sufficiently competent or credible to overcome the remainder of the medical record, to include the aforementioned medical opinions. First, the medical record does not reflect such symptomatology. Additionally, as a layperson, the Veteran is not capable of making medical conclusions; thus, his statements regarding diagnosis and causation are not competent evidence. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. Id; see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). However, genitourinary disorders are complex disorders which require specialized training for a determination as to diagnosis and causation, and they are therefore not susceptible of lay opinions on etiology, and the Veteran's statements therein cannot be accepted as competent medical evidence. More specifically, the Veteran is not competent to differentiate between syphilis and herpes. The Veteran is also not reporting an expert opinion as told to him, and his lay contentions have not subsequently been confirmed by a competent expert. In conclusion, the preponderance of the evidence is against the award of service connection for a venereal disease on any basis, and the claim must be denied. As a preponderance of the evidence is against the award of service connection, the benefit of the doubt doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). LLOYD MASON CRAMP Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Thomas D. Jones, Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.