Citation Nr: 1749135	
Decision Date: 10/31/17    Archive Date: 11/06/17

DOCKET NO.  09-32 060	)	DATE
	)
	)
On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUES

1.  Entitlement to service connection for residuals of gonorrhea.

2.  Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities.


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


WITNESSES AT HEARING ON APPEAL

The Veteran and his wife


ATTORNEY FOR THE BOARD

Jonathan Z. Morris, Associate Counsel


INTRODUCTION

The Veteran had active military service from June 1967 to June 1970.

This appeal to the Board of Veterans' Appeals (Board/BVA) is from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO).  A December 2008 rating decision, in pertinent part, denied the Veteran's claim of entitlement to service connection for residuals of gonorrhea.  A more recent March 2015 rating decision also denied his claim for a TDIU.

In October 2011, the Veteran testified at a hearing at the RO before the undersigned Veterans Law Judge of the Board, in other words at Travel Board hearing.  A transcript of the proceeding is of record.

The Board subsequently, in May 2012, remanded the service-connection claim for further development.  The RO continued the denial of this claim, also the TDIU claim, as reflected in the September 2015 Supplemental Statement of the Case (SSOC), and returned the file to the Board for further appellate review.  There was compliance, certainly the acceptable substantial compliance, with the Board's May 2012 remand instructions.  See Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008).


FINDINGS OF FACT

1.  The preponderance of the evidence shows that the Veteran does not have a current genitourinary disability, to include residuals of gonorrhea.

2.  The preponderance of the evidence is against a finding that the Veteran's service-connected disabilities preclude him from securing or maintaining substantially gainful employment.


CONCLUSIONS OF LAW

1.  The criteria are not met for entitlement to service connection for residuals of gonorrhea.  38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2016).

2.  The criteria also are not met for entitlement to a TDIU.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2016).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duties to Notify and Assist

VA has duties to notify and assist a claimant in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016).

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, which is necessary to substantiate the claim.  38 U.S.C.A. § 5103 (a); 38 C.F.R. § 3.159 (b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Ideally, this notice should be provided prior to an initial unfavorable decision on a claim by the RO.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).

In this case, VA's duty to notify was satisfied by a letter sent to the Veteran in September 2008.  The letter informed him of the evidence required to substantiate the claim, and of his and VA's respective duties in obtaining this necessary supporting evidence.  The letter also advised him of how a "downstream" disability rating and effective date are determined.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Moreover, the claim was subsequently readjudicated in the August 2009 SOC, as well as in additional SSOCs.  See Prickett v. Nicholson, 20 Vet. App. 370 (2006).  He has had ample opportunity to respond or supplement the record, and has not alleged that any notice was less than adequate.  Therefore, the Board finds that VA's duty to notify has been satisfied.

Regarding the duty to assist, the Board notes that the claims file contains the Veteran's service treatment records (STRs), service personnel records, VA and private treatment records, and his contentions.  The Veteran has not identified, nor does the record otherwise indicate, any other evidence relevant to his claim that has not been obtained.  Furthermore, the Veteran was provided with VA examinations in November 2012.  Upon review of the medical evidence, the Board concludes that this examination report is adequate for the purpose of rendering a decision in this case.  See 38 C.F.R. § 4.2; Barr v. Nicholson, 21 Vet. App. 303 (2007).

Accordingly, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the Veteran's claim.  Therefore, no further assistance to the Veteran with the development of evidence is required.

II.  Legal Criteria for Service Connection

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active military service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.  Generally, to successfully establish service connection, there must be competent and credible evidence showing (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 disease or injury incurred in or aggravated during service.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

Certain "chronic diseases" may be presumed to have been incurred in or aggravated by service if they manifest to a degree of 10 percent or more within one year of a Veteran's separation from service.  38 C.F.R. §§ 3.307, 3.309(a).  This presumption is rebuttable by probative evidence to the contrary.  Id.

When a chronic disease is shown in service, sufficient to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes.  38 C.F.R. § 3.303(b).  To be "shown in service," the disease identity must be established and the diagnosis must not be subject to legitimate question.  Walker v. Shinseki, 708 F.3d 1331, 1335 (Fed. Cir. 2013); see also 38 C.F.R. § 3.303(b).  There is no "nexus" requirement for compensation for a chronic disease which was shown in service, so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease.  Walker, 708 F.3d at 1336.

Service connection may also be granted on a secondary basis for a condition that is not directly caused by the Veteran's service.  38 C.F.R. § 3.310.  In order to prevail under a theory of secondary service connection, the evidence must demonstrate an etiological relationship between (1) a service-connected disability or disabilities and (2) the condition said to be proximately due to the service-connected disability or disabilities.  Buckley v. West, 12 Vet. App. 76, 84 (1998); see also Wallin v. West, 11 Vet. App. 509, 512 (1998).  In addition, secondary service connection may also be found in certain instances when a service-connected disability aggravates another condition.  See Allen v. Brown, 7 Vet. App. 439 (1995); 38 C.F.R. § 3.310(b).

Thus, service connection may be established either by showing (1) direct service incurrence or aggravation, (2) an etiological relationship between the claimed condition and a service-connected disability, or (3) using applicable presumptions, if available.  See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).

In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied.  38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the claimant.

The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value.  38 U.S.C.A. § 7104 (a); Baldwin v. West, 13 Vet. App. 1 (1999); see 38 C.F.R. § 3.303 (a).  A layperson is competent to report on the onset and continuity of his current symptomatology.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge).  Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (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.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  When considering whether lay evidence is competent, the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, supra.

The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show.  The Veteran should not assume that the Board has overlooked pieces of evidence that are not specifically discussed herein.  See Timberlake v. Gober, 14 Vet. App. 122 (2000).  The law requires only that the Board provide reasons for rejecting evidence favorable to the Veteran.

III.  Service Connection for Residuals of Gonorrhea

The Veteran seeks service connection for residuals of a gonorrhea infection that he suffered during service.  Having carefully considered the Veteran's claim, in light of the evidence of record and the applicable law, the Board concludes that the preponderance of the evidence is against a finding that the Veteran has a current disability and, therefore, the appeal must be denied.

The Board will begin by addressing direct service connection.

As noted above, the first element of direct service connection requires medical evidence of a current disability.  Here, a current diagnosis of a genitourinary disability, to include residuals of gonorrhea, has not been established.

The existence of a current disability is the cornerstone of a claim for VA disability compensation.  See Degmetich v. Brown, 104 F.3d 1328, 1332 (1997) (holding that §§ 1110 and 1131's requirement of the existence of a present disability for VA compensation purposes cannot be considered arbitrary).  Consequently, the evidence of record must show that the Veteran currently has the disability for which benefits are being claimed.  In this case, the Veteran testified that he suffers from urinary frequency, both day and night, which he believes is a residual of gonorrhea he contracted during his military service.  October 2011 Board Hearing Transcript at 10.  He also testified to experiencing other genitourinary symptoms, including especially decreased urine flow, incomplete emptying of his bladder, recurring urinary tract infections, and occasional erectile dysfunction, all of which he also believes are residuals of the gonorrhea he contracted in service.  Id. at 11-12.  His wife additionally testified to the sometimes transmission of this consequent disease and bacteria to her in their lovemaking.  Id. at 13-14.

Turning to review of the medical evidence of record shows that the Veteran was afforded a VA compensation examination in November 2012.  The examiner noted that the Veteran had been diagnosed with gonorrhea in 1969.  Following review of the evidence of record and physical evaluation of the Veteran, the examiner opined that it is less likely as not (less than 50 percent probability) that the Veteran has any current genitourinary disability that is at least as likely as not a residual of the gonorrhea he contracted during his military service from June 1967 to June 1970.

The Board notes that the November 2012 VA examination report is highly probative in support of the claim, as it represents the conclusions of a medical professional and is supported by a full-articulated opinion with sound reasoning for the conclusions contributing to the weight of the opinion in relation to other evidence in the file.  Also, the opinion is based on reliable principles and supported by other evidence.  See Neives-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008).  In Neives-Rodriguez, the Court held that most of the probative value of an opinion comes from the discussion of its underlying reasoning or rationale, so a medical opinion should contain a conclusion and a reference to supporting data with a reasoned medical explanation connecting the two."  Neives-Rodriguez, at 301.

In the absence of proof of a present disability (and, if so, of a nexus between that disability and service), there can be no valid claim for service connection.  See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  Therefore, because the evidence of record shows that the Veteran does not have a current diagnosis of a genitourinary disability, the Board concludes that service connection for residuals of gonorrhea is not warranted, and no further discussion of the remaining elements is necessary.  See Coburn v. Nicholson, 19 Vet. App. 427, 431 (2006) (finding that the absence of any one element will result in denial of service connection).

In reaching this determination, the Board acknowledges the records of treatment by Dr. V.M., which the Veteran cited during his Board hearing as evidence documenting his current disability.  Unfortunately, the records obtained from this doctor show treatment primarily for benign essential hypertension (chronic) and elevated cholesterol (hyperlipidemia).  And, because it was determined that he was at high risk for developing diabetes, he was counseled concerning that, too.  These records also show treatment for a skin boil (abscess cellulitis), but not for residuals of gonorrhea.  In fact, these records contain some instances when the Veteran specifically denied experiencing the type of genitourinary symptoms now claimed to be residuals of the gonorrhea he contracted in service-namely, dysuria, frequency, hesitancy, urgency, etc.  This included both when seen by Dr. V.M. and by another doctor, L.B., M.D., who is a gastroenterologist/internal medicine.

Accordingly, to the extent that the medical evidence addresses whether the Veteran has genitourinary disability, the preponderance of the evidence indicates that he does not.  The Veteran is competent to report his current symptoms, but his reports must be weighed against the medical evidence of record.  See Grover v. West, 12 Vet. App. 109, 112 (1999); Jandreau, supra.  To the extent that the Veteran has indicated that he currently has a genitourinary disability, to include residuals of gonorrhea, the medical evidence showing an absence of such a disability is of greater probative weight than the Veteran's reports made during the course of his claim for VA benefits.  Furthermore, as the question of causation extends beyond an immediately observable cause-and-effect relationship, he is not competent to render a diagnosis or address etiology in the present case.  Although lay persons are competent to provide opinions on some medical issues, see, e.g. Kahana, 24 Vet. App. 428, 435 (2011), the specific issue of whether the Veteran currently has a genitourinary disability falls outside the realm of common knowledge of a lay person.  Consequently, his statements as to a current diagnosis of genitourinary disability, to include residuals of gonorrhea, are not probative.

As the preponderance of the evidence is against a finding that the Veteran has a current genitourinary disability, to include residuals of gonorrhea, the benefit of the doubt rule is not applicable.  See 38 U.S.C.A. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990).

IV.  TDIU

In order to establish entitlement to a TDIU due to service-connected disabilities, there must be impairment so severe that it is impossible for the average person to follow a substantially gainful occupation.  38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16.  In making this determination, the central inquiry is whether the Veteran's service-connected disabilities, alone, are of sufficient severity to cause unemployability.  Hatlestad v. Brown, 5 Vet. App. 524 (1993).  Consideration may be given to his level of education, special training and previous work experience, but not to his age or any impairment caused by nonservice-connected disabilities.  38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993).

If the schedular rating is less than total, meaning less than 100 percent, a TDIU may be assigned if the Veteran has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one rated at 40 percent or higher and the combined rating is 70 percent or higher.  38 C.F.R. § 4.16(a).  Disabilities resulting from common etiology and those affecting a single body system or both upper or lower extremities are considered one disability for purposes of determining whether these threshold minimum percentage requirements are met.  Id.  But even if the Veteran does not meet these threshold minimum percentage rating requirements, he can still receive a TDIU, albeit instead on a special extra-schedular basis under the alternative provisions of 38 C.F.R. § 4.16(b), if it is shown he is indeed unemployable owing to his service-connected disabilities.  In that circumstance, however, the Board is precluded from granting the TDIU in the first instance, having instead to refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension (C&P) Service for this initial consideration.  See Barringer v. Peake, 22 Vet. App. 242 (2008).  This does not, however, preclude the Board from determining whether this special consideration is warranted.  See Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995); and VAOPGCPREC 6-96 (August 16, 1996).

As it now stands, service connection is in effect for: (1) PTSD, rated as 30 percent disabling prior to July 31, 2017, and 50 percent disabling thereafter; and, (2) a left hand disability, rated as 10 percent disabling, effective January 24, 2008.  He has a combined total disability rating of 40 percent, prior to July 31, 2017, and 60 percent thereafter, which is insufficient to meet the schedular requirements for TDIU consideration under 38 C.F.R. § 4.16(a).  However, as noted above, the Veteran is still potentially eligible to receive a TDIU, albeit on a special extra-schedular basis under the alternative provisions of 38 C.F.R. § 4.16(b), if it is shown that he is indeed unemployable due to his service-connected disabilities

In this case, however, the Board finds that referral for extraschedular consideration is not warranted as the preponderance of the evidence is against a finding that the Veteran was unable to secure or follow a substantially gainful occupation due to his service-connected disabilities.

The Veteran was afforded a VA examination in November 2012.  The examination report does not show that either the Veteran's left fifth finger condition or his PTSD affects his eligibility for employment.  Specifically, no functional limitations in the workplace were documented for the Veteran's left hand disability.  Similarly, the examiner indicated that the symptoms from the Veteran's PTSD are not severe enough to interfere with his occupational and social functioning.

In a February 2016 statement, the Veteran stated that he was not able to maintain gainful employment due to hypertension, secondary to diabetes mellitus; both of which are nonservice-connected disabilities.  See February 2015 Rating Decision.

A July 2017 private treatment record reflects that the Veteran's self-care and domestic skills are intact, but at times he is socially isolated.  The record reflects that there were no apparent signs of hallucinations, delusions, bizarre behaviors, or other indicators of psychotic process.  Associations are intact, thinking is logical, and thought content appears appropriate.

The Veteran was afforded a VA examination in August 2017, where the examiner indicated that the Veteran's PTSD was best summarized as an occupational and social impairment with reduced reliability and productivity.  While the findings from this examination were significant enough to warrant an increased evaluation for the Veteran's PTSD, the examiner did not indicate whether it would preclude him from securing or maintaining substantially gainful employment.

Based on the foregoing, as previously mentioned, the Board finds that referral for extraschedular consideration is not warranted as the preponderance of the evidence is against a finding that the Veteran was unable to secure or follow a substantially gainful occupation due to his service-connected disabilities.  The evidence and various medical opinions of record simply do not indicate that the Veteran's service-connected disabilities have any functional impact on his ability to work.

The Board observes that previously, in July 2012, the Veteran was asked to complete and return an official TDIU application (VA Form 21-8940) so that VA could fully develop his TDIU claim.  But, inexplicably, the Veteran did not submit a completed copy of this form.  In pursuing a claim, a claimant has a responsibility to cooperate in developing all facts pertinent to the claim; that is to say, VA's duty to assist is not a one-way street.  See Wood v. Derwinski, 1 Vet. App. 190 (1991).

Accordingly, the benefit of the doubt doctrine is not for application, and referral for extraschedular consideration is not required.  38 U.S.C.A. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).



ORDER

The claim of entitlement to service connection for residuals of gonorrhea is denied.

The claim of entitlement to a TDIU due to service-connected disabilities also is denied.



____________________________________________
KEITH W. ALLEN
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs

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