Citation Nr: 0321946 Decision Date: 08/29/03 Archive Date: 09/04/03 DOCKET NO. 00-01 433 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for residuals of malaria. 2. Entitlement to service connection for status post liver transplant, claimed as secondary to malaria, or as a residual of exposure to herbicides. REPRESENTATION Appellant represented by: Michael Wildhaber, Attorney at Law ATTORNEY FOR THE BOARD Robert C. Scharnberger, Associate Counsel INTRODUCTION The veteran served on active duty from June 1966 to June 1969. This case comes before the Board of Veterans' Appeals (the Board) on appeal from June 1998 and September 1998 rating decisions of the St. Petersburg, Florida, Department of Veterans Affairs (VA) Regional Office (RO). FINDINGS OF FACT 1. All evidence necessary for an equitable disposition of this appeal has been obtained. 2. Malaria was not present in service and the veteran does not have any current residuals of malaria. 3. The veteran's liver transplant was due to cirrhosis of the liver due to alcohol abuse; it is not shown to be due to service, including inservice exposure to herbicides. CONCLUSIONS OF LAW 1. Malaria was not incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2002). 2. The veteran's liver disability that led to his transplant was not incurred, aggravated or otherwise related to active service, including inservice exposure to Agent Orange. 38 U.S.C.A. §§ 1110, 1116 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2002). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Background As an initial matter, the Board notes that there has been a significant change in the law during the pendency of this appeal. On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. § 5100 et seq. (West 2002); see 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2002). This law eliminated the concept of a well-grounded claim, redefined the obligations of VA with respect to the duty to assist, and imposed on VA certain notification requirements. 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 (West 2002); 38 C.F.R. § 3.159(b) (2002); see Quartuccio v. Principi, 16 Vet. App. 183 (2002) (holding that both the statute, 38 U.S.C. § 5103(a), and the regulation, 38 C.F.R. § 3.159, clearly require the Secretary to notify a claimant which evidence, if any, will be obtained by the claimant and which evidence, if any, will be retrieved by the Secretary). Second, VA has a duty to assist the veteran in obtaining evidence necessary to substantiate the claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2002). The December 1999 Statement of the Case (SOC) and the August 2002 and December 2002 Supplemental Statements of the Case (SSOC) advised the veteran of the laws and regulations pertaining to his claims for service connection for residuals of malaria and status post liver transplant. These documents informed the veteran of the evidence of record and explained the reasons and bases for denial. The veteran was specifically informed that service connection for malaria was being denied because there was no evidence of in-service occurrence of malaria and no evidence that he has current residuals linked to service. The veteran was informed that service connection for status post liver transplant was being denied because the evidence did not show it was related to herbicide exposure, or that it was otherwise related to service. The most likely etiology for the veteran's liver disease was cirrhosis secondary to alcoholic liver disease that was first manifested many years after service discharge. The SOC and SSOCs made it clear to the veteran that in order to prevail on his service connection claims, he needed to present medical evidence that his conditions are linked to service. The RO sent a letter to the veteran dated in June 2001 that informed him of the provisions of the VCAA and informed him what action he needed to take and what action the RO would take on his claim. Specifically he was told that he needed to submit evidence showing that he has residuals of malaria that are linked to service and evidence that his liver disease is related to service connected malaria or related to exposure to herbicides. The RO obtained the veteran's service medical records, private medical treatment records, and Social Security records. The veteran was provided two VA examinations in February 2002. The RO also reviewed a report from a doctor retained by the veteran to review his claims. There is no indication that there is more information or medical evidence to be found with respect to the veteran's claim. The Board notes that it is unclear whether the veteran wished a hearing or not. The Board sent a letter to the veteran dated in April 2003, asking him if he wished a hearing. There was no response to this letter, therefore, the Board will presume the veteran does not wish a hearing. Accordingly, the Board finds that VA has satisfied its duty to notify and to assist and that under the circumstances of this case, a remand would serve no useful purpose. 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); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). II. Service connection for residuals of malaria In general, service connection will be granted for disability resulting from injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2002). If a condition noted during service is not determined to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303(b) (2002). Service connection may also be 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). To grant service connection, it is required that the evidence shows the existence of a current disability, an inservice disease or injury, and a link between the disability and the inservice disease or injury. Watson v. Brown, 4 Vet. App. 309, 314 (1993). This principle has been repeatedly reaffirmed by the United States Court of Appeals for the Federal Circuit, which recently stated that "a veteran seeking disability benefits must establish . . . the existence of a disability [and] a connection between the veteran's service and the disability". Boyer v. West, 210 F.3d 1351, 1353 (Fed.Cir. 2000). The veteran's service medical records are negative for any mention of malaria. The veteran's report of medical history at the time of his discharge, and his separation examination are both negative for any mention of malaria. The veteran's private treatment records and VA treatment notes, and the records from the Social Security Administration are all negative for any mention of malaria or any residuals of malaria, except that they do mention the veteran's own report of having suffered from malaria. The Court has held that bare transcription of lay history unenhanced by any additional medical comment by the examiner, is not competent medical evidence. LeShore v. Brown, 8 Vet. App. 406 (1995). There is no medical documentation of malaria and no blood test or other test result that suggests a past or present infection with malaria. The veteran underwent a VA examination in February 2002. The examiner reviewed the claims folder and was unable to find any medical evidence that the veteran had ever been diagnosed with malaria. The examiner did not provide a diagnosis of malaria or of any residuals of malaria. Based on the above, the Board finds that the veteran has presented no competent evidence that establishes that he suffers from residuals of malaria that are linked to service. The service medical records do not show any history of malaria and the separation examination is negative. At no point in the years since service has the veteran been diagnosed with malaria or any residuals of malaria. The February 2002 VA examination report does not indicate any diagnosis of malaria or any medical documentation in the claims folder that the veteran suffered form malaria while in service or any residuals of malaria since service. The Board notes the veteran's belief that he suffers from residuals of malaria that are linked to service and the statement from a service buddy and from the veteran's brother indicating the veteran was hospitalized for malaria while in service. It is not clear how the veteran's brother and service acquaintance learned of the veteran having malaria, but to the extent that they may have learned of it from medical personnel, it is not competent evidence that the veteran had malaria. The connection between what a physician said and layperson's account of what he purportedly said is simply too attenuated and inherently unreliable to constitute medical evidence. Robinette v. Brown, 8 Vet. App. 69 (1995). Furthermore, as laypersons, the veteran and his friend and brother are not competent to testify as to medical diagnosis or etiology. See, Espiritu v. Derwinski, 2 Vet. App. 492 (1992). In the absence of proof of a present disability there can be no valid claim. Brammer v Derwinski, 3 Vet. App. 223, 225 (1992). Since a clear preponderance of the evidence is against a finding that the veteran suffers from residuals of malaria that are related to service, service connection is not warranted. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2002). III. Entitlement to service connection for status post liver transplant The veteran has claimed service connection for status post liver transplant as secondary to service-connected malaria, or alternatively, as a result of exposure to herbicides in service. A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310(a) (2002). The veteran underwent a liver transplant in 1998. The medical records related to the transplant, including Dr. Acosta's report dated September 30, 1998, Dr. Rodriguez' report of December 12, 1997, and Dr. Gonzalez' report of July 1, 1998 all state that the veteran's liver disease was cirrhosis secondary to alcohol abuse. The Social Security records also indicate that the veteran was suffering from cirrhosis of the liver. The veteran submitted an opinion from Dr. Bash indicating Dr. Bash's opinion that the veteran suffered from malaria which "likely damaged his liver" and "significantly increased his risk for his current end stage liver disease". There is no basis in the record to support Dr. Bash's conclusion that the veteran suffered from malaria in service other than the veteran's own statements, and unfortunately there is no credible evidence to support that story. Medical opinions have no probative value when they are based on an inaccurate factual predicate, such as the veteran's self- reported and inaccurate history. See Reonal v. Brown, 5 Vet.App. 458 (1993); Swann v. Brown, 5 Vet. App. 229 (1993); Godfrey v. Brown, 8 Vet. App. 113 (1995). Furthermore, the veteran is not competent to testify as to a medical diagnosis. See, Espiritu, 2 Vet. App. 492 (1992). In light of the Board's decision denying service connection for residuals of malaria, the claim for service connection for status post liver transplant, secondary to residuals of malaria must also be denied. Since the underlying condition, residuals of malaria, is not itself service-connected, nothing that might be caused by that condition can be granted service connection on a secondary basis. 38 C.F.R. § 3.310(a) (2002). The veteran, in the alternative, has claimed that his liver disease should be presumed service-connected as a result of exposure to Agent Orange while in the Republic of Vietnam. VA regulations provide that, if a veteran was exposed to an herbicide agent during active service (which is now presumed for all veterans who served in the Republic of Vietnam), presumptive service connection is warranted for the following disorders: chloracne or other acneform disease consistent with chloracne; type 2 diabetes (also known as type II diabetes mellitus or adult-onset diabetes); Hodgkin's disease; multiple myeloma; Non-Hodgkin's lymphoma; acute and subacute peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancer (cancer of the lung, bronchus, larynx, or trachea); and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e) (2002). The regulations do not provide for presumptive service connection for liver disease including cirrhosis or liver disease related to malaria, and therefore, presumptive service connection is not warranted for these conditions. 38 U.S.C.A. § 1116, 38 C.F.R. § 3.307, 3.309 (2002). In the case of Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994), the U.S. Court of Appeals for the Federal Circuit found that, under the Veterans' Dioxin and Radiation Exposure Compensation Standards Act, a claimant was not precluded from presenting proof of direct service connection between a disorder and exposure to Agent Orange, even if the disability in question was not among statutorily-enumerated disorders which were presumed to be service related, the presumption not being the sole method for showing causation. Hence, a claimant may establish service connection for status post liver transplant by presenting competent evidence suggesting that the disability was caused by inservice Agent Orange exposure. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.303; Gilbert v Derwinski, 1 Vet. App. 49 (1990). However, the veteran has presented no competent medical evidence causally linking his claimed disability to exposure to Agent Orange in service. Based on a National Academy of Sciences report which listed various conditions and diseases that were not associated with Agent Orange exposure, and which included an exhaustive review of the scientific and medical literature, the Secretary has determined that there is no positive association between exposure to herbicides and any other condition for which he has not specifically determined that a presumption of service connection is warranted. 67 Fed. Reg. 42,600 (June 24, 2002). In light of this finding, and there being no evidence presented by the claimant that would tend to suggest that liver disease is related to Agent Orange exposure, the Board finds that the clear preponderance of competent evidence is against a finding that service connection is warranted for this disability. ORDER Entitlement to service connection for residuals of malaria is denied. Entitlement to service connection for status post liver transplant, claimed as secondary to malaria, or as a residual of exposure to herbicides, is denied. ____________________________________________ THOMAS J. DANNAHER 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.