Citation Nr: 0303046 Decision Date: 02/20/03 Archive Date: 03/05/03 DOCKET NO. 97-04 163 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES Entitlement to service connection for diarrhea and stomach cramps due to Chloroquine-Primaquine and/or Dapsone use in the prevention of malaria. (A decision concerning the issues of entitlement to service connection for visual disorders and headaches is deferred pending further development by the Board). REPRESENTATION Veteran represented by: Lisa A. Lee, Attorney at Law WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Daniel R. McGarry, Counsel INTRODUCTION The veteran served on active duty from June 1965 to September 1968 including a tour of duty in Vietnam. Initially, this matter came before the Board of Veterans' Appeals (Board) on appeal from a May 1996 rating decision in which the regional office (RO) denied entitlement to service connection for vision disorders, headaches, a stomach disorder, and diarrhea. The Board issued a decision in August 1998 denying these claims. The veteran appealed the case to the U.S. Court of Appeals for Veterans Claims (CAVC). In a December 2000 order, CAVC vacated the August 1998 decision and remanded the case to the Board. The Board remanded the case for additional development in August 2001. The Board notes that while this case was pending at CAVC, the RO, in July 2000, determined that the veteran had not submitted new and material evidence to reopen a claim for service connection for vision disorders and headaches. Following a notice of disagreement, the RO issued a statement of the case on this issue and the veteran submitted a VA Form 9 in January 2001, in which he requested a Travel Board hearing. However, these are same issues addressed by CAVC in its December 2000 order. Therefore, these issues are deferred pending a final decision by the Board. The Board is undertaking additional development on the issues of entitlement to service connection for vision disorders and headaches pursuant to authority granted by 38 C.F.R. § 19.9(a)(2). When it is completed, the Board will provide notice of the development as required by Rule of Practice 903. 38 C.F.R. § 20.903. After giving the notice and reviewing any response to the notice, the Board will prepare a separate decision addressing these issues. FINDING OF FACT There is no competent medical evidence of record of a diagnosis of a current disability from a stomach disorder or diarrhea that is related to a disease or injury incurred during his active duty service. CONCLUSION OF LAW A stomach disorder or diarrhea was not incurred or aggravated during the veteran's service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 1991 & Supp. 2002); 38 C.F.R. § 3.303 (2002). REASONS AND BASES FOR FINDING AND CONCLUSION I. Service Connection for a Stomach Disorder and Diarrhea The veteran contends that he has current disability from a stomach disorder and diarrhea as a result of a medication he was required to take for malaria while serving in Vietnam. For the reasons and bases discussed below, the Board finds that the veteran does not have current disability from a stomach disorder or diarrhea that is a result of a disease or injury incurred during his active military service, or that is related to side effects of medication he took during such service. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West Supp. 2002); 38 C.F.R. § 3.303(a) (2002). 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, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2002). Service connection may be also 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) (2002). Service connection connotes many factors, but basically, it means that the facts, as shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service. A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease in service. See Pond v. West, 12 Vet. App. 341 (1999); Watson v. Brown, 4 Vet. App. 309, 314 (1993). Service medical records show that during treatment in September 1966, the veteran complained of developing nausea, diarrhea and abdominal cramping after taking malaria pills every week. The impression was gastrointestinal reaction to Chloroquine-Primaquine. A December 1966 treatment note indicated that the veteran awoke with vomiting, abdominal cramps and diarrhea. The impression was gastroenteritis. At a September 1967 medical examination, the veteran's abdomen and viscera were clinically normal. No significant interval history was noted. Military treatment notes dated in October and November 1967 disclose that the veteran reported having diarrhea off and on, both during and since his service in Vietnam, but he denied having stomach ache or cramps. In November 1967, the veteran had nausea and vomiting. The impression was gastroenteritis. At his August 1968 separation examination, the veteran denied a history of stomach and intestinal trouble, although he did report having had surgery for appendectomy when he was 17 years old. Evaluations of the veteran's abdomen and viscera were clinically normal. During a March 1969 VA examination, the veteran complained of waxing and waning abdominal cramps and diarrhea. He denied having fever. The cramps were localized to the lower abdominal region. A laboratory test for ova and parasites was negative. A radiological study with a barium enema was negative. An examiner reported a diagnosis of "record of malaria". The claims file does not contain VA or private medical or treatment records that document complaints, diagnoses, or treatment of a stomach disorder or diarrhea after the veteran's separation from service in 1968. The veteran has asserted that while he was serving in Vietnam, he was required to take a medication for prevention of malaria in a dose of 500 milligrams once per week. In an April 1978 letter, the Department of the Army confirms that chloroquine phosphate tablets in a dosage of .5 gram were used in Vietnam for either the prevention or treatment of malaria. In an April 1996 letter, the veteran's commanding officer while in Vietnam confirmed that the veteran was required to take chloroquine/primaquine for the prevention of malaria and that the veteran had "adverse reactions" to the medication for which he sought medical treatment. The veteran has submitted medical literature which indicates that possible side effects from the medication include anorexia, nausea, vomiting, abdominal cramps, and diarrhea. During a November 1997 hearing, the veteran did not assert that he had current disability from a stomach disorder or diarrhea. The veteran is competent to report that on which he has personal knowledge, that is what comes to him through his senses. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, the veteran is not competent to provide a medical opinion because this requires specialized medical knowledge. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). There is no evidence of record indicating that the veteran has specialized medical training so as to be competent to render a medical opinion. The Board considered the medical treatises submitted by the veteran which indicate that possible side effects of the use of Chloroquine-Primaquine and Dapsone include nausea, vomiting and abdominal cramps. However that evidence does not specifically address this veteran's case. The question of whether medical texts are sufficient to support a VA claim has been considered by the Court, and the rule that has evolved is that generic medical literature which does not apply medical principles regarding causation or etiology to the facts of an individual case does not provide competent evidence to establish the nexus element. See Libertine v. Brown, 9 Vet. App. 521, 523 (1996), Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Sacks v. West, 11 Vet. App. 314 (1998). On the other hand, in the case of Wallin v. West, 11 Vet. App. 509 (1998), the Court suggested that medical treatise information may be regarded as competent evidence where "standing alone, [it] discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least plausible causality based upon objective facts rather than on an unsubstantiated lay medical opinion." Here, the medical treatises submitted by the veteran fall squarely into the category of generic medical treatise literature that does not apply to the specific facts of the present claim. The literature suggests that possible side effects from use of certain malaria suppressive drugs include nausea, vomiting, and cramps. The veteran had such symptoms in service. However, the same literature does not indicate that such symptoms continue after the use of the drug is discontinued. Therefore, such literature is not sufficient to establish a nexus between the veteran's current complaints and the use of such drugs in service. The Board has reviewed the entire record and finds that the veteran does not have current disability from a stomach disorder or diarrhea as a result of a disease or injury incurred during his active military service. Although, while in service, he did have side effects of nausea, vomiting and stomach cramps which were associated with the use of a malaria preventive drug, it has not been shown that any current disability is associated with the use of such medicine in service. It appears that the symptoms abated with discontinuance of the medicine. This finding is based on the lack of any abnormal clinical findings at the time of the veteran's separation from service and the lack of abnormal clinical findings during his VA examination in March 1969. Additionally, the record contains no clinical findings of continuity of symptomatology since the veteran's separation from service. Finally, the record does not show complaints, findings or diagnoses of current stomach or gastrointestinal disorder. Service connection is warranted for a "[d]isability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty . . .." 38 U.S.C.A. §§ 1110, 1131 (West Supp. 2002). A current disability is required to establish service connection. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Based on review of the evidence of record, the Board concludes that the preponderance of such evidence is against entitlement to service connection for a stomach disorder or diarrhea. Accordingly, the claim for service connection is denied. II. Applicability and Compliance with VCAA There was a significant change in the law during the pendency of this appeal. The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West Supp. 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2002) redefined the obligations of VA with respect to the duty to assist, and imposed on VA certain notification requirements. The final regulations implementing the VCAA were published on August 29, 2001, and they apply to most claims for benefits received by VA on or after November 9, 2000, as well as any claim not decided as of that date, such as the one in the present case. 38 C.F.R. § 3.159. First, VA has a duty to notify the veteran of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102 and 5103; 38 C.F.R. § 3.159(b). There is no issue as to providing an appropriate application form or completeness of the application in this case. In the circumstances of this case, the veteran has been advised of the applicable laws and regulations, and the evidence needed to substantiate his claim by the May 1996 rating decision, the December 1996 statement of the case, the Board's August 1998 decision, and the December 2002 supplemental statement of the case. In particular, October 2001 and June 2002 letters notified the veteran that VA would obtain all relevant evidence in the custody of a federal department or agency, including VA, Vet Center, service department, Social Security, and other federal agencies. He was advised that it was his responsibility to either send medical treatment records from his private physician regarding treatment for his claimed disabilities, or to provide a properly executed release so that VA could request the records for him. The veteran was also asked to advise VA if there were any other information or evidence he considered relevant to his claim so that VA could help by getting that evidence. Thus, VA's duty to notify has been fulfilled. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). Secondly, VA has a duty to assist the veteran in obtaining evidence necessary to substantiate the claim. 38 U.S.C.A. § 5103A (West Supp. 2002); 38 C.F.R. § 3.159(c)). The record shows that the RO has secured the veteran's service medical records, VA clinical records and examination reports, and private medical records. The RO has obtained all relevant records identified by the veteran or otherwise evident from the claims folder. Under 38 C.F.R. § 3.159(c)(4) (2002), VA must provide a medical examination or obtain a medical opinion in compensation claims when such an examination or opinion is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d)(2) (West 1991 & Supp. 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.356(a) (2002). As the claims file does not contain evidence that the veteran has current disability from a digestive disorder that is related to malaria suppressing medication taken in service, the Board does not deem a VA examination necessary to decide this claim. In absence of current disability and an indication that the claimed disability is related to service, no such examination is necessary. In view of the foregoing, the Board finds that all reasonable efforts to secure and develop the evidence that is necessary for an equitable disposition of the matter on appeal have been made by the agency of original jurisdiction. Every possible avenue of assistance has been explored, and the veteran has had ample notice of what might be required or helpful to establish his claim. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran). The Board concludes, therefore, that a decision on the merits at this time does not violate the VCAA, nor prejudice the veteran under Bernard v. Brown, 4 Vet. App. 384 (1993). ORDER Entitlement to service connection for a stomach disorder and diarrhea is denied. CHERYL L. MASON Acting Veterans Law Judge, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.