Citation Nr: 21031706 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 17-42 259 DATE: May 24, 2021 ORDER 1. The appeal to reopen a claim of service connection for residuals of syphilis is granted. 2. Entitlement to service connection for residuals of syphilis (on de novo review) is denied. FINDINGS OF FACT 1. An unappealed March 2003 rating decision declined to reopen a claim seeking service connection for residuals of syphilis based on a finding that the evidence continued to not show such disability. 2. Evidence received since the March 2003 rating decision tends to show that the Veteran may have residuals of syphilis; relates to unestablished facts necessary to substantiate the claim of service connection for syphilis residuals; and raises a reasonable possibility of substantiating such claim. 3. The Veteran is not shown to have (or at any time during the pendency of the instant claim to have had) residuals, of syphilis. CONCLUSIONS OF LAW 1. New and material evidence has been received and the claim of service connection for residuals of syphilis may be reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 2. On de novo review, service connection for residuals of syphilis is not warranted. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from June 1969 to May 1971. This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2015 rating decision which declined to reopen a claim of service connection for cold injury residuals and reopened but denied a claim of service connection for residuals of syphilis. In September 2019, a hearing was held before the undersigned in Washington, D.C; a transcript is in the Veteran's record. In February 2020, the Board remanded the appeal to reopen a claim of service connection for residuals of syphilis for additional development. [The February 2020 Board decision also reopened the claim seeking service connection for cold injury residuals and remanded that claim (on de novo review) for additional development. An August 2020 rating decision granted service connection for cold injury residuals of both lower extremities. Accordingly, that matter is no longer before the Board.] Although the Agency of Original Jurisdiction (AOJ) reopened the syphilis residuals claim and decided it on the merits, the Board must make its own determination as to whether new and material evidence to reopen the claim was received, in order to establish its jurisdiction to review de novo the merits of previously denied claim. See Barnett v. Brown, 83 F. 3d 1380 (Fed. Cir. 1996); Jackson v. Principi, 265 F. 3d 1366 (Fed. Cir. 2001). 1. The appeal to reopen a claim of service connection for residuals of syphilis is granted. Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. § 7105. However, a claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 U.S.C. § 5108. "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, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In determining whether the claim should be reopened, credibility of newly submitted evidence is presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003). The United States Court of Appeals for Veterans Claims (CAVC) has held that the requirement of new and material evidence raising a reasonable possibility of substantiating the claim is a low threshold requirement. The CAVC interpreted the language of 38 C.F.R. § 3.156(a) as "enabling rather than precluding reopening." See Shade v. Shinseki, 24 Vet. App. 110 (2010). An unappealed March 2003 rating declined to reopen a claim of service connection for syphilis on the basis that the medical evidence did not show residuals of such disability. The Veteran did not appeal that rating decision, or submit new and material evidence within the following year, and it became final and is the last prior final rating decision in the matter. 38 U.S.C. § 7105. Evidence of record at the time of the March 2003 rating decision included service treatment records (STRs), VA treatment records, VA examination reports, and the Veteran's lay statements. As the claim was previously denied because syphilis residuals were not shown, for evidence to be new and material, it must relate to that unestablished fact (tend to show that the Veteran has syphilis residuals (that may be related to his service)). Evidence received since the March 2003 rating decision includes an October 2019 statement (received in March 2020) from a pastor who has known the Veteran for over 40 years. The pastor reported that he "is a trained medical student and has worked with both mental and hospitalized patients for physical ailments." He reported that the Veteran lost approximately 70 pounds (from 220 pounds down to 150 pounds). [The time period for such weight loss was not specified.] The pastor also stated that the Veteran's mental and physical conditions have "deteriorated over the past years," and include "absent mindedness and periods of mental confusion and delusions. [The Veteran] has suffered from syphilis and frostbite." In March 2020, VA also received a template letter completed by one of the Veteran's treating nurse practitioners, L.K. She checked the box to indicate that she has been treating the Veteran for "mental health" conditions. The template letter continues to state that it is her opinion that the Veteran's "mental health conditions are directly related to injuries incurred in service or aggravated by the service-connected conditions." [The report fails to identify a specific disability entity. It also does not include any rationale.] The statements from the pastor and L.K. are new evidence, as they were not in the record in March 2003, and are material, as they are competent (medical, per their reports) evidence (presumed credible for the purpose of reopening) that pertains to the unestablished facts necessary to substantiate the claim, namely that the Veteran may have syphilis residuals. Consequently, and considering the "low threshold" standard for reopening endorsed by the CAVC in Shade, the Board finds that the evidence received is both new and material, and that the claim of service connection for residuals of syphilis may be reopened. De novo consideration of the claim is discussed below. 2. Entitlement to service connection for residuals of syphilis (on de novo review) is denied. Legal Criteria Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for a disease initially 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). To substantiate a claim of service connection, there must be evidence of: (1) a current claimed disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a nexus between the current disability and the disease or injury in service. See Shedden v. Principi, 281 F.3d 1163, 1166-67 (Fed. Cir. 2004). The determination whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). Lay evidence may be competent evidence to establish incurrence. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). 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), (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. However, competent medical evidence is necessary where the determinative question is one requiring medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Factual Background The Veteran contends that he has residuals of syphilis diagnosed (and treated) in service. He asserts that his syphilis "never got fully treated" in service and that he currently has symptoms including loss of hair, loss of weight, loss of appetite, eye trouble, high blood pressure, and neurological/cognitive difficulties. See October and December 2015 statements. The Veteran's service treatment records (STRs) note a January 1971 complaint of a penile lesion. On February 1971 separation from service examination, the Veteran's genitourinary system was clinically normal. A March 1971 STR notes a diagnosis of syphilis, primary, of genital organs; he was treated with Bicillin. One week later, he received a second shot of Bicillin. An April 1971 STR notes that STS reactive test was negative; there were no clinical signs of Lues. [The Board notes that 'Lues' is an alternate (older) name for syphilis.] In a May 1971 statement of medical condition, the Veteran reported that there has been no change in his medical condition since the February 1971 examination. In late-May 1971, the Veteran filed a claim seeking service connection for a venereal disease. On July 1971 examination, it was noted that treatment for syphilis in service "was uneventful." The examiner reported ongoing serology tests at a city clinic. On examination there were no lesions, no evidence of ulcerations or discharge, no evidence of irritation. Genitalia was normal to inspection and palpation. There were "no symptoms at this time." A final August 1971 rating decision denied the claim based on findings that the Veteran was asymptomatic on examination (including normal genitalia on clinical examination), and that the disability was a result of his own willful misconduct. A November 2002 VA clinical record notes that a RPR [rapid plasma reagin] conducted in 1997 was negative. A final March 2003 rating decision declined to reopen the claim of service connection for syphilis on the basis that the medical evidence did not show a current chronic residual of syphilis related to military service. On April 2015, VA infectious diseases examination, the examiner reviewed the record and noted a diagnosis of syphilis in February 1971 and that the Veteran underwent treatment with Bacillin 2.4 million units once weekly for two consecutive weeks. His serology was checked monthly for 6 months after treatment and at 9, 12, 18, and 24 months. She noted that because he had neurological deficits, he was evaluated and had his RPR checked in 1997 and in 2013, "which were both non reactive." The examiner explained that the status of the disease is "Inactive." It became inactive in April 1971. She opined that the Veteran does not have any symptoms or residuals attributable to syphilis. She explained that syphilis was diagnosed in the military and treated and that RPRs remained non-reactive. Other RPRs since, including at the VA, have also been non-reactive. Accordingly, she opined that any diagnosis of residuals of syphilis is less likely as not incurred in or caused by the syphilis diagnosed in service. "Based on the numerous nonreactive RPRs, there are no evidence at this time, that the [V]eteran's neurologic symptoms are secondary and or caused by his treated/resolved syphilis infection." In October 2015, VA received a private medical statement from Dr. S.M., dated January 2004. He noted that the Veteran has a past history of syphilis. However, no medical opinion was provided. The report is focused on the Veteran's feet and frostbite injury. At the September 2019 Board hearing, the Veteran reported ongoing VA treatment for syphilis residuals, alleged to include as hair loss, memory loss, dementia, and depression. In February 2020, the Board remanded the claim for development to obtain outstanding treatment records and to attempt to obtain any outstanding Social Security Administration (SSA) medical records. [In February 2020, VA was notified that there are no SSA medical records.] VA Medical treatment records do not show treatment for, or diagnosis of, syphilis or any residuals thereof. A June 2017 treatment record notes the Veteran was seen for complaints of paraproteinemia and neurocognitive changes. The Veteran noted that he was treated with Bicillin in 1971. "The titers returned to completely normal. His present RPR is normal." The physician noted that, "In view of remote history of Bicillin treated syphilis in 1971 in the military, careful pupillary check was to see if the [V]eteran had any features of tabetic pupils. These were not found...[MRI] is consistent with small vessel ischemic disease." The impression was cognitive deficit related to small vessel disease or mixed vascular dementia process. A July 2017 VA treatment record notes that the Veteran asked a treating physician whether his neurodegenerative changes are related to syphilis in service. Dr. M.E. wrote him a letter (copied in the treatment records) which explains that after consulting a neurologist, he determined, "Your current situation and treatment of syphilis in 1971 are likely not related. Looks like you were treated appropriately in 1971 per standards set up for that time period and also 4 times in last few years your syphilis test in VA has been negative." A February 2018 record notes that the Veteran's RPR is normal. A September 2019 VA treatment record notes that the Veteran's "syphilis test has been negative in VA systems." A January 2020 clinical record (written by mental health nurse practitioner, L.K.) notes follow-up treatment for depression. She noted that the Veteran "sees neurology for memory." The impression was cognitive defect related to small vessel disease or mixed vascular dementia. As noted above, in March 2020, VA received an October 2019 letter by a pastor who has known the Veteran for over 40 years. The pastor reported that he "is a trained medical student and has worked with both mental and hospitalized patients for physical ailments." [The submission did not include a copy of any medical credentials, such as a medical license or medical degree.] He reported that the Veteran had lost approximately 70 pounds (from 220 pounds down to 150 pounds). [The time period for the loss was not specified.] The pastor also stated that the Veteran's mental and physical conditions have "deteriorated over the past years," and include "absent mindedness and periods of mental confusion and delusions. [The Veteran] has suffered from syphilis and frostbite." In March 2020, VA also received a template letter completed by L.K. She checked the box to indicate that she was treating the Veteran for "mental health" conditions. The template letter continues to state that it is her opinion that the Veteran's "mental health conditions are directly related to injuries incurred in service or aggravated by the service-connected conditions." [It does not identify a specific disability entity, and also does not include any rationale/explanation.] [The Board notes that a final March 2017 rating decision denied service connection for anxiety disorder and for memory loss.] Analysis The threshold matter that must be addressed here (as in any claim seeking service connection) is whether or not there is competent evidence that the Veteran currently has (or during the pendency of the claim has had) the disability for which service connection is sought, residuals of a syphilis infection in service. The Board notes the Veteran's reports of hair loss, weight loss, loss of appetite, eye trouble, high blood pressure, and neurological/cognitive difficulties, and acknowledges his belief that these are related to his syphilis in service. Whether current symptoms or pathology underlying the symptoms are residuals of a remote infectious disease such as syphilis is a medical question beyond the realm of common knowledge or capability of lay observation. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran is a layperson, and his own assertion that his reported hair loss, weight loss, loss of appetite, eye trouble, high blood pressure, and neurological/cognitive difficulties are residuals of syphilis in service are not competent (and probative) evidence. Rather, the most probative evidence in the matter is against a finding that the Veteran currently has syphilis, or residuals of syphilis. The most probative evidence in this matter is the April 2015 VA infectious disease examination report. The examiner, a physician assistant, acknowledged the Veteran's early-1971 syphilis infection but explained that he underwent treatment for such at that time, and that it became inactive in April 1971. She further explained that numerous RPRs were non-reactive (negative) in the two years following treatment, and have continued to be negative over the last four decades. She found that the Veteran does not have symptoms or residuals attributable to the disease. Such opinion is supported by (and consistent with) the July 2017 opinion from one of the Veteran's treating physicians, Dr. M.E., who opined that the Veteran's neurocognitive degenerative changes are likely not related to syphilis in 1971, noting that he was treated appropriately at that time and that several RPR tests have been negative in recent years. [Notably, the record shows an impression of cognitive defect related to small vessel disease (confirmed on MRI) or mixed vascular dementia.] The Board acknowledges the statement from the Veteran's pastor, but finds it less probative than the April 2015 examination report and the July 2017 opinion from Dr. M.E. As noted above, although the pastor reported he has some medical training, the record does not include any credentials to support such report. Furthermore, the statement does not affirmatively link the Veteran's degenerative condition and weight-loss to syphilis in 1971; it merely notes that he "has suffered from syphilis and frostbite." The statement also does not show (or suggest) familiarity with the Veteran's claims file or treatment records, and lacks adequate explanation of rationale. The Board also notes the March 2020 template letter from L.K. She checked the box to indicate that she has been treating the Veteran for "mental health" conditions, and that such conditions are directly related to injuries incurred in service or aggravated by the service-connected conditions. However, the letter does not identify the mental health disability entity; does not reflect familiarity with the record; does not explain why such is related to service (lacks rationale); and does not explain which service-connected disability aggravates his "mental health" condition. [Significantly, service connection for anxiety disorder was denied by a final rating decision, and that issue (if raised under a different diagnosis) is not before the Board at this time.] Accordingly, the letter has little to no probative weight in a claim (on de novo review) seeking service connection for syphilis residuals. Accordingly, the Veteran has not met the threshold requirement for substantiating a claim of service connection, competent evidence that he has current residuals of his syphilis in service. In the absence of proof of residuals of syphilis, there is no valid claim of service connection for such disability. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998), cert. denied, 526 U.S. 1144 (1999). The preponderance of the evidence is against this claim. Therefore, the benefit-of-the-doubt rule does not apply; the appeal in this matter must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). GEORGE R. SENYK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Dupont, 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.