Citation Nr: 21074729 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 17-15 577 DATE: December 16, 2021 ORDER Service connection for residuals of syphilis, other than disability of the eyes, is denied. A total disability rating based on individual unemployability due to service-connected disability (TDIU) is denied. FINDINGS OF FACT 1. The Veteran is service connected for bilateral chorioretinitis, vitreous degeneration, and macular drusen (disability of the eyes) as residuals of syphilis. 2. The weight of the evidence is against a finding that the Veteran suffers from any residuals of syphilis other than the eye disabilities for which he is already service connected. 3. The Veteran's only service-connected disabilities are his eye disabilities; the evidence does not support a finding that those disabilities have prevented him from securing or following a substantially gainful occupation during the period on appeal. CONCLUSIONS OF LAW 1. The criteria for an award of service connection for residuals of syphilis, other than disability of the eyes, have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for an award of a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from May 1975 to June 1978. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office in Waco, Texas. In August 2019, the Veteran testified at a Board hearing before the undersigned Veteran's Law Judge in Washington, D.C. A transcript of that hearing has been associated with the record. In December 2019, the Board remanded the case to the agency of original jurisdiction (AOJ) for additional development. In April 2020, after taking further action, the AOJ granted service connection for bilateral chorioretinitis, vitreous degeneration, and macular drusen. The AOJ otherwise confirmed and continued the prior denial with respect to residuals of syphilis and the case was returned to the Board. In July 2020, the Board again remand the case to the AOJ for further development, to include a new examination. After taking further action, the AOJ confirmed and continued its prior determination and again returned the case to the Board. The record reflects that a supplemental statement of the case was most recently issued in September 2020. After that, additional VA-generated evidence was added to the claims file, including additional VA treatment records and the report of a March 2021 VA eye examination. In August 2021, the Veteran submitted a waiver of AOJ review of the new evidence. See 38 C.F.R. § 20.1305(c). 1. Service connection for residuals of syphilis The Veteran seeks to establish service connection for residuals of syphilis other that the eye disabilities for which he has already been service connected. He maintains, in essence, that he was diagnosed with syphilis while serving in the Army, and that it was dormant in intervening years, but that he currently suffers from a variety of ailments related to that diagnosis. These include genital sores, joint aches, anal bleeding, hypertension, and loss of concentration. See August 2019 Board hearing transcript; March 2017 VA Form 9; September 2013 statement in support of claim. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). A layperson is generally incapable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff'd sub nom., Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998). However, lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, tinnitus (ringing in the ears), etc.), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In essence, lay testimony is competent when it pertains to the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also 38 C.F.R. § 3.159(a)(2). A determination as to whether medical evidence is needed to demonstrate that a Veteran presently has the same condition he or she had in service or during a presumptive period, or whether lay evidence will suffice, depends on the nature of the Veteran's present condition (e.g., whether the Veteran's present condition is of a type that requires medical expertise to identify it as the same condition as that in service or during a presumption period, or whether it can be so identified by lay observation). See Barr v. Nicholson, 21 Vet. App. 303, 310 (2007). Thus, medical evidence is not always or categorically required when the determinative issue involves either medical diagnosis or etiology, but rather such issue may, depending on the facts of the particular case, be established by competent and credible lay evidence under 38 U.S.C. § 1154(a). See Davidson, supra. 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 (1990). In the present case, the Veteran's service treatment records (STRs) reflect treatment for venereal disease. Several rapid plasma reagin (RPR) tests, which were administered between December 1976 and August 1977, indicated non-reactive results. Decades later, the Veteran was administered eye examinations by Dr. R.M., a private ophthalmologist. Examination and RPR testing produced negative results. However, an August 2007 fluorescent treponemal antibody absorption (FTA-ABS) test demonstrated some minimal reaction. By a May 2014 VA examination, it was determined that the Veteran had been successfully treated and cured of syphilis in 1977. However, the May 2014 examiner, M.W.R., did not explicitly discuss whether the Veteran's eye disabilities might be related to syphilis, as suggested by the August 2007 FTA-ABS test. In December 2019, the Board remanded the Veteran's claims for additional development. Specifically, the Board sought a medical determination as to whether the Veteran's chorioretinitis was at least as likely as not related to the Veteran's service, to include his treatment for syphilis. By way of a March 2020 VA examination, the Veteran's left eye disabilities were determined to be likely related to in-service syphilis. In April 2020, the AOJ awarded service connection for bilateral chorioretinitis, vitreous degeneration, and macular drusen, effective June 13, 2013. In July 2020, the Board remanded the case to obtain an updated medical assessment of the Veteran's syphilis and any potential complications or residuals related thereto. See July 2020 Board remand. Thereafter, the Veteran underwent a new VA examination in July 2020. The VA examiner, Dr. M.K., examined the Veteran, reviewed the record, and ordered additional RPR with REFL titer and confirmatory testing. The RPR with REFL titer and confirmatory testing produced negative results. The tests were non-reactive. After examining the Veteran and discussing the natural history of syphilisincluding the fact that, after the initial infection, syphilis bacteria can remain inactive in one's body for decades before becoming active againthe examiner concluded that the Veteran's syphilis was treated and became inactive in 1977 and that there were no longer any current symptoms or residuals of the condition. See July 2020 VA infectious diseases examination. In support of his conclusion, the examiner noted that "all titers were negative in 1977, 2014, and 2020." The examiner concluded that "After reviewing all medical evidence[,] in my opinion it is less likely than not (less than 50 percent probability) that syphilis . . . [was] incurred in or caused by the events during claimant's service. No diagnosis is given for the claimed condition due to lack of exam findings, x-ray, history, and medical record evidence." The July 2020 examiner's opinion is based on an accurate understanding of the facts and articulates reasons for the conclusion reached. Therefore, the Board finds the opinion highly probative. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). The Board has considered the Veteran's lay statements, which, in pertinent part, indicate a belief that he has residuals of syphilis beyond the eye disabilities for which he has been service connected. However, there is nothing in the record to establish that he has the specialized training or experience necessary to render a competent opinion with respect to the medically complex matter of whether a current symptom or disability can be attributed to a prior episode of syphilis. As such, his opinion in that regard cannot be afforded any probative weight. The Board has also considered the medical articles the Veteran has submitted relative to the nature of syphilis and its possible course and manifestations, including the possibility that syphilis can remain inactive for decades before becoming active again. However, the information submitted is generic in nature and does not speak to the particular facts of the Veteran's case. As noted, after examining the Veteran, reviewing the claims file, and performing testing, a VA examiner has opined that the Veteran does not suffer from any additional residuals of syphilis. The Board assigns more weight to the examiner's opinion than to the generic articles the Veteran has submitted. In light of the foregoing, the Board must find that the preponderance of evidence weighs against the Veteran's claim. Simply put, there is no competent and probative evidence that, during the period on appeal, he has suffered from residuals of syphilis beyond those disabilities for which he has already been awarded service connection. The benefit-of-the-doubt doctrine does not apply, and the appeal of this issue must be denied. 2. Entitlement to TDIU A TDIU is warranted where the evidence of record shows that a veteran is unable to secure or follow a substantially gainful occupation, consistent with his education and occupational experience, as a result of service-connected disability, without regard to advancing age. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Provided, however, that, if there is only one such disability, the disability must be rated at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from common etiology or a single accident; (3) disabilities affecting a single body system (e.g., orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric); (4) multiple injuries incurred in action; or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a). The foregoing notwithstanding, it is VA's established policy that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disability shall be rated totally disabled. 38 C.F.R. § 4.16(b). If a Veteran fails to meet the percentage standards set forth in 38 C.F.R. § 4.16(a), and evidence indicates that he or she is unemployable by reason of service-connected disability, the case should be referred to the Director of the Compensation Service for extra-schedular consideration. 38 C.F.R. § 4.16(b). In the present case, the Board finds that the Veteran does not meet the threshold requirements for a schedular award of TDIU. He is currently in receipt of a 0 (zero) percent (noncompensable) rating for bilateral chorioretinitis, vitreous degeneration, and macular drusen associated with syphilis. He has no other service-connected disabilities. Under circumstances where the threshold requirements for a schedular award of TDIU have not been met, the initial question for the Board is whether the record contains sufficient evidence to substantiate a reasonable possibility that the Veteran is unemployable due to service-connected disabilities, so as to warrant extra-schedular referral. Ray v. Wilkie, 31 Vet. App. 58, 66 (2019). If not, the Board must also address whether the Veteran is unemployable due to service-connected disabilities. Snider v. McDonough, No. 19-6707 (U.S. Vet App. Nov. 19, 2021). The Veteran underwent two VA eye examinations in connection with his appeal. On VA examination in March 2020, he was found to have bilateral chorioretinitis, vitreous degeneration, and macular drusen, which were thought likely to be causing some visual impairment. He had uncorrected visual acuity of 20/40, bilaterally, for distance, corrected to 20/20 or better, bilaterally, and uncorrected visual acuity of 5/200 or worse, bilaterally, for near (reading), corrected to 20/20 or better, bilaterally. His pupils were round and reactive to light. No afferent pupillary defect was present, he did not have a corneal irregularity that resulted in severe irregular astigmatism, and there was no diplopia. Slit lamp and external eye examinations were normal, there was no documented visual field defect or scarring, and it was noted that he had not had any incapacitating episodes attributable to an eye condition in the last 12 months. As to the impact on functions related to work, the examiner acknowledged that the Veteran could suffer from pain, blurry vision, photophobia, and flashes of light during times of active chorioretinitis symptoms, and that there was a "likely chance" that it could impact his performance at work that day, in terms of needing to take more frequent days off or breaks during work to rest his eyes; but that with the correct spectacle prescription, the Veteran had visual acuity of 20/20, bilaterally, for distance and near, and no visual field defects. As such, he should be able to secure and maintain substantially gainful employment. In March 2021, the Veteran underwent another VA eye examination. The March 2021 VA examiner noted a diagnosis of inactive periphery chorioretinitis secondary to syphilis. On examination, the Veteran had uncorrected visual acuity of 20/40 in the right eye and 20/20 in the left eye, for distance, corrected to 20/40 in the right eye and to 20/20 or better in the left eye. He also had uncorrected visual acuity of 20/100 in the right eye and 20/200 in the left eye, for near (reading), corrected to 20/20 or better, bilaterally. His pupils were round and reactive to light. No afferent pupillary defect was present, he did not have a corneal irregularity that resulted in severe irregular astigmatism, and there was no diplopia. Slit lamp and external eye examinations were normal and it was noted that he had not had any incapacitating episodes attributable to an eye condition in the last 12 months. He did have a documented visual field defect, but no loss of a visual field and no scotoma. The examiner explicitly noted that the Veteran had inactive chorioretinitis secondary to syphilis "that is not impacting his vision," and that the conditions of macular drusen and vitreous degeneration had resolved. It was noted that there was no impact on his ability to work. Based on review of the record, the Board finds that the evidence is insufficient to substantiate a reasonable possibility that the Veteran is unemployable due to service-connected disabilities. The final determination with respect to a veteran's entitlement to a TDIU is an adjudicatory, and not a medical, function. Nevertheless, the findings of the two VA examiners are evidence to be considered. The first examiner found, in essence, that the Veteran's eye disabilities could sporadically impact his performance at work, resulting in a need to take more frequent days off or breaks during work to rest his eyes, but that the disabilities were not so severe as to prevent him from securing and maintaining substantially gainful employment. The second examiner concluded that, as of March 2021, the service-connected conditions had either resolved entirely or were no longer impacting his vision. In the Board's view, the evidence falls short of substantiating a reasonable possibility that the Veteran is unemployable due to his service-connected disabilities. The Board finds, further, that the preponderance of the evidence is against a finding that the Veteran is unemployable due to service-connected disabilities. Again, his only service-connected disabilities are the disabilities of his eyes. He is not service connected for any impairment that impacts activities such as lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, or hearing. Neither is he service connected for any mental disability manifested by, for example, limitations of memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, or demonstrate reliability and productivity. His eye disabilities may result (or may have resulted in the past) in a need to take more frequent days off or breaks during work to rest his eyes. However, the Board is not persuaded that those disabilities alone have prevented him from securing or following a substantially gainful occupation for any part of the period on appeal. In light of the foregoing, a referral to the Director of the Compensation Service is not warranted under 38 C.F.R. § 4.16(b), and the claim for TDIU must be denied. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board F. Lanton, Associate 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.