Citation Nr: 21011514 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 16-42 374 DATE: March 2, 2021 ORDER Entitlement to service connection for neurosyphilis is denied. Entitlement to service connection for a spine disability, to include as secondary to neurosyphilis is denied. Entitlement to service connection for a left leg disability, to include as secondary to neurosyphilis is denied. Entitlement to service connection for a right leg disability, to include as secondary to neurosyphilis is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that neurosyphilis began during active service or is otherwise related to an in-service injury or disease. 2. The preponderance of the evidence is against finding that Veteran’s spine disability began during active service or is otherwise related to an in-service injury or disease, and the Veteran does not have a primary service-connected disability upon which secondary service connection may be granted. 3. The preponderance of the evidence is against finding that Veteran’s left leg disability began during active service or is otherwise related to an in-service injury or disease, and the Veteran does not have a primary service-connected disability upon which secondary service connection may be granted. 4. The preponderance of the evidence is against finding that Veteran’s right leg disability began during active service or is otherwise related to an in-service injury or disease, and the Veteran does not have a primary service-connected disability upon which secondary service connection may be granted. CONCLUSIONS OF LAW 1. The criteria for service connection for neurosyphilis are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303 (2019). 2. The criteria for service connection for a spine disability are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.306 (2019). 3. The criteria for service connection for a left leg disability are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.306 (2019). 4. The criteria for service connection for a right leg disability are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.306 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1977 to May 1982. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2015 rating decision from a Department of Veterans Affairs (VA) regional office (RO). A supplemental statement of the case was issued in July 2020 following the January 2019 Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the claims file. In May 2019, the Board remanded the Veteran’s claim for additional development. The case is once again before the Board. Service Connection Generally, service connection may be established if the evidence demonstrates that a current disability resulted from a disease or injury incurred in or aggravated by active duty service. 38 C.F.R. § 3.303. In that regard, service connection may be established for any disease diagnosed after discharge, when all the evidence, including that pertinent to the period of service, establishes the disease was incurred during active duty service. 38 C.F.R. § 3.303(d). In order to prove service connection, there must be competent and credible evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus or link between the current disability and the in-service disease or injury. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In addition to service connection on a direct basis, service connection may be granted on a secondary basis for a disability that is proximately due to or aggravated beyond its natural progression by a service-connected disease or injury. 38 C.F.R. § 3.310. 1. Entitlement to service connection for neurosyphilis The Veteran contends that his neurosyphilis is related to service. Specifically, he asserts that he contracted syphilis while serving in South Korea. See January 2019 Hearing Transcript. A review of the evidence of record reflects a current diagnosis of neurosyphilis; therefore, the current disability element for this claim has been established. See November 2019 VA examination. With respect to an in-service injury or disease, although the Veteran has claimed that he contracted syphilis in service, a review of his service treatment records does not reveal treatment or a diagnosis of syphilis. Instead, service treatment records (STRs) reflect a diagnosis of gonorrhea in February 1978. Further, July 1978 STRs, reflect the Veteran reported discharge of the penis and the record reflects a diagnosis of intra-extra cellular GND, gram negative diplococci. The Veteran was afforded a VA examination in November 2019 during which the examiner opined that the Veteran’s neurosyphilis was not incurred in or caused by any in-service injury, event or illness. The VA examiner noted the Veteran’s complaint of discharge from his penis in February 1978 and explained that this is a typical symptom of gonorrhea, but it is not a symptom of syphilis. He explained that microbiology laboratory studies of his penile discharge revealed neisseria gonorrhea in his discharge. He further explained that the Veteran had an RPR (blood test) drawn which is a standard screening test for syphilis and the results were non-reactive which means he did not have syphilis. He noted however, that it is possible in the very early post infection period an RPR will still be non-reactive. The VA examiner noted a second RPR performed four months later in June 1978 and again the results were non-reactive. He stated this would have been enough time for the organism to produce antibodies and if he had syphilis it would have been reactive. The VA examiner noted at separation his discharge examination noted RPR non-reactive so at the time of his separation examination in March 1982 he did not have laboratory studies ever documenting that he had syphilis during active duty. The November 2019 VA opinion is afforded great probative weight as it has a clear conclusion and supporting data, as well as a reasoned medical explanation that is based on all relevant facts in this case. For example, the VA examiner noted that even if the Veteran had primary syphilis in service that was not treated effectively in 1978, he should have shown signs of secondary syphilis while still in the military since he did not separate from service until 1982. The Veteran’s available medical records indicate a diagnosis of neurosyphilis was not made until 1996, approximately 14 years following separation from service. During his January 2019 Board hearing the Veteran testified that he was diagnosed with chronic gonococcal infection while on active duty in Korea and that this was the only time he had ever been diagnosed with a sexually transmitted disease (STD). He also testified that the STD he contracted during service was actually syphilis. The Board is aware that the Veteran believes his neurosyphilis is related to military service. However, the Veteran, as a lay person, is not competent to independently opine as to the specific etiology of a condition as this is a medically complex issue and he has not provided any information, evidence, or argument that sufficiently rebuts the findings of the VA opinion. Therefore, the Board assigns greater probative weight to the medical evidence of record, to include the November 2019 VA opinion, which was rendered by a trained medical professional, based on appropriate diagnostic testing, and contains reasonably drawn conclusions with supportive rationale. Therefore, the Board finds the preponderance of the evidence is against a finding that the Veteran’s neurosyphilis is causally or etiologically related to any disease, injury, or incident in service. Accordingly, service connection is not warranted, the benefit of the doubt doctrine is not applicable, and the Veteran’s claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 2. Entitlement to service connection for a spine disability, to include as secondary to neurosyphilis The Veteran contends that his spine injury is related to service, or in the alternative, that his spine disability is secondary to neurosyphilis. Specifically, in his October 2015 NOD, he contends that after contracting syphilis, his spine was aggravated after jumping out of the back of a cargo truck while on active duty in Korea. The Veteran is currently diagnosed with lumbar spine degenerative changes, mild lower lumbar spondylosis, moderated bilateral foraminal diagnosed in 2105 and neurosyphilis claimed in 1996 with spinal myelopathy and spastic paresis of the right and left lower extremities. See November 2019 VA back examination. Additionally, a June 2015 MRI revealed mild lower lumbar spondylosis, moderate bilateral foraminal stenosis L4-L5, mild cervical spondylosis, small left paramedian disc herniation. Therefore, a current disability has been established. During his January 2019 Board hearing he testified that he was told he had been diagnosed with neurosyphilis to where the syphilis had been dormant in his body and come to his lower spine. He also testified that while in service he jumped off the back of a truck onto what he thought was snow but happened to be a patch of ice. He stated he saw a field medic for his back who gave him some pain pills but he did not receive any other treatment. He testified that he was currently being treated for neurosyphilis because it is attacking the nerves down his legs and back and that all of his issues are related to neurosyphilis. He stated that the syphilis he contracted during service went to the weakest point in his body at the time, which was his injured back and that he was told by doctors it laid dormant until 1996. The Veteran was afforded a VA back examination in November 2019 during which the VA examiner opined the Veteran’s current lumbar spine degenerative changes were not incurred in or caused by any in-service injury, event or illness. The VA examiner further opined the Veteran’s lumbar degenerative changes are not due to or the result of his claimed neurosyphilis. He stated that the Veteran’s degenerative changes began many years after his discharge from service and are typical of age-related degenerative changes. In addition, the VA examiner noted the Veteran’s report of an x-ray of the lumbar area, MRI and spinal tap in 1996. The Veteran indicated that he was diagnosed with a “glob” that was syphilis. He stated he was told that the medicine he received for the syphilis was “too low” and that is how he got syphilis. After review of all the lay and medical evidence of record, the Board finds that the weight of the evidence is against finding a spine injury during service. While the Board acknowledges the Veteran’s testimony that he injured his spine in-service, the STRs contain no complaints, symptoms, diagnosis, or treatment related to a lumbar spine and/or cervical spine injury. On his March 1982 separation examination, he checked “no” to having, or ever experiencing, recurrent back pain. A clinical examination conducted at this time revealed no abnormalities of the Veteran’s spine. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than subsequently reported history). The Board also finds that the spine injury is not related to the alleged in-service symptoms because the weight of the evidence demonstrates back was not present at service separation, and there is no other in-service injury or disease or event to which any current disability could be related. In addition, on the question of nexus of current disability to service, the November 2019 VA examiner opined that the current spine disabilities were not related to service. The Board finds that the November 2019 VA examiner’s opinion is highly probative as it is based on an accurate history and objective findings as shown by the record with supporting rationale. The Board acknowledges the Veteran’s assertions that his spine disability is directly related to service, however, the Board finds that, under the specific facts of this case, even if the Board were to assume, arguendo, that the Veteran injured his spine during service after jumping from a truck, he is not competent to relate the currently diagnosed spine disabilities which had their onset after service to active service. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). For these reasons, the Board finds that the preponderance of the lay and medical evidence that is of record weighs against service connection for a spine disability; consequently, the claim must be denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Finally, while the Veteran has asserted his spinal cord injury was secondary to neurosyphilis, the claim for secondary service-connection must be denied as a matter of law because there is no primary service-connected disability upon which secondary service connection may be granted. See 38 C.F.R. § 3.310(a). As the Veteran has no service-connected disability that may have caused or aggravated the Veteran’s spine disability, the benefit of the doubt doctrine does not apply, and service connection on a secondary basis must be denied. See 38 C.F.R. § 3.310(a); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). 3. Entitlement to service connection for a left leg disability, to include as secondary to neurosyphilis 4. Entitlement to service connection for a right leg disability, to include as secondary to neurosyphilis The Veteran contends that his left and right leg disability is related to service, or in the alternative, that it is secondary to his neurosyphilis. Specifically, he contends that he injured his legs when he jumped out of the back of a cargo truck in service. See October 2015 NOD. He stated that he experiences pain in his ankles and associates the symptoms with neurosyphilis. Id. As indicated above, the Veteran testified during his January 2019 Board hearing that he was currently being treated for neurosyphilis because it is attacking the nerves down his legs and backs. He testified that the nerve at the base of his spine controls the blood flow to his hamstring and it was constricted so there was not enough blood to get to his legs. He stated the doctors told him this is related to neurosyphilis. The Veteran was afforded a VA hip and thigh exam in November 2019 during which the examiner noted a diagnosis of avascular necrosis bilateral hips in 2009. At the time of the exam the Veteran reported that he avoids steps because he is very slow, he needs wide steps to get both legs on the step, he is slow walking, sometimes his legs drag, he has a hard time getting out of a chair and he does not squat because he cannot get up. He stated he has hip and leg pain 24/7. In a separate November 2019 medical opinion, the VA examiner opined the Veteran’s bilateral hip avascular necrosis was not incurred in or caused by any in-service injury, event or illness. The VA examiner further opined that the Veteran’s bilateral leg spastic paresis from neurosyphilis myelopathy was not incurred in or caused by any in-service injury, event or illness. The VA examiner noted STRs do not document treatment for any chronic lower extremity condition or avascular necrosis of the hips or any hip complaint. He stated the Veteran did not have any of these problems while he was in service, nor did he provide any medical documentation in the proximate, post military discharge period. After review of all the lay and medical evidence of record, the Board finds that the weight of the evidence is against finding a bilateral leg injury during service. While the Board acknowledges the Veteran’s testimony that he injured his legs in-service, the service treatment records appear complete, and contain no complaints, symptoms, diagnosis, or treatment related to a right or left leg injury. On his March 1982 separation examination, he checked “no” to bone, joint or other deformity; “no” to trick or locked knee and “no” to foot trouble. He checked “yes” to “cramps in your legs.” The November 2019 VA examiner noted that the Veteran had transient leg cramps after exercise which is not a chronic lower extremity condition and is common in persons after increased exercise. The Board acknowledges the Veteran’s assertions that his bilateral leg disability is directly related to service, however, the Board finds that, under the specific facts of this case that include the Veteran’s self-report of an in-service injury after jumping from a truck, but no other in-service back and/or spine injury or disease, and no post-service symptoms, treatment, or diagnosis for years after service, the Veteran is not competent to relate the currently diagnosed bilateral leg disabilities to active service. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) For these reasons, the Board finds that the preponderance of the lay and medical evidence that is of record weighs against service connection for a bilateral leg disability; consequently, the claim must be denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Finally, while the Veteran has asserted that his bilateral leg disability is secondary to neurosyphilis, the claim for secondary service-connection must be denied as a matter of law because there is no primary service-connected disability upon which secondary service connection may be granted. See 38 C.F.R. § 3.310(a). As the Veteran has no service-connected disability that may have caused or aggravated the Veteran’s bilateral leg disability, the benefit of the doubt doctrine does not apply, and service connection on a secondary basis must be denied. See 38 C.F.R. § 3.310 (a); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). M. Donohue Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Aston, Deborah L., 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.