Citation Nr: 0716455 Decision Date: 06/04/07 Archive Date: 06/18/07 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 Veteran represented by: Michael E. Wildhaber, Attorney ATTORNEY FOR THE BOARD S. B. Mays, Associate Counsel INTRODUCTION The veteran served on active duty from June 1966 to June 1969. This case was previously before the Board of Veterans' Appeals (hereinafter Board) on appeal from June and September 1998 rating decisions of the Department of Veterans Affairs (hereinafter VA) Regional Office in St. Petersburg, Florida (hereinafter RO). The case was initially remanded by the Board in April 2001. Thereafter, an August 2003 Board decision denied the veteran's claims. The veteran appealed this decision to the United States Court of Appeals for Veterans Claims (formerly the United States Court of Veterans Appeals) (Court). By Order dated July 13, 2004, the Court vacated the August 2003 Board decision and remanded the case to the Board for compliance with the instructions contained in a Joint Motion for Remand. In February 2006, the Board remanded the case for further development. The case was referred for a VHA opinion in January 2007, and now again returns to the Board. FINDINGS OF FACT 1. Service medical records show treatment for malaria plasmodium falciparum. 2. The medical evidence of record does not show the veteran currently has malaria or residuals of malaria. 3. The preponderance of the evidence is against a finding that the veteran's liver disability is a residual of malaria. 4. The veteran served in the Republic of Vietnam and herbicide exposure is presumed. 5. Liver disability, including cirrhosis, was not present during the veteran's military service, and is not otherwise related to such service, to include presumed herbicide exposure. CONCLUSIONS OF LAW 1. Residuals of malaria were not incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2002 & Supp. 2006); 38 C.F.R. § 3.303 (2006). 2. Liver disability, to include cirrhosis and status-post liver transplant, was not incurred in or aggravated by service and it may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1110, 1116 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2006), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2006), provides that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. In addition, VA must also request that the claimant provide any evidence in the claimant's possession that pertains to the claim. In the present case, the veteran was provided with the notice required by the VCAA in letters dated in June 2001 and December 2004. Collectively, these letters informed the veteran to submit any pertinent evidence he has in his possession, informed him of the evidence required to substantiate his claim, the information required from him to enable VA to obtain evidence on his behalf, the assistance that VA would provide to obtain evidence on his behalf, and that he should submit such evidence or provide VA with the information necessary for VA to obtain such evidence on his behalf. Therefore, the Board finds that he was provided with the notice required by the VCAA. Moreover, all available evidence pertaining to the veteran's claims has been obtained. The claims folder contains service medical and personnel records, the veteran's contentions, other lay statements, records from the Social Security Administration, and post-service medical records from the VA Medical Centers in Miami, and medical evidence from numerous private medical providers. It appears that all obtainable evidence identified by the veteran relative to his claim has been obtained and associated with the claims folder, and that neither he nor his representative has identified any other pertinent evidence, not already of record, which would need to be obtained for a fair disposition of this appeal. The Board is also unaware of any such evidence. Therefore, the Board is satisfied that VA has complied with its duty to assist the veteran in the development of the facts pertinent to his claim. The record also reflects that the originating agency readjudicated the veteran's claim following the provision of the required notice and the completion of all indicated development of the record. There is no indication in the record or reason to believe that the ultimate decision of the originating agency on the merits of the claim would have been different had complete VCAA notice been provided at an earlier time. The record also reflects that the originating agency readjudicated the veteran's claims being decided herein following the provision of the required notice and the completion of all indicated development of the record. There is no indication in the record or reason to believe that the ultimate decision of the originating agency on the merits of the claim would have been different had complete VCAA notice been provided at an earlier time. In a May 2006 letter, the RO advised the veteran as to how disability ratings and effective dates are assigned, so there can be no possibility of prejudice to the veteran under the holding in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). For the above reasons, it is not prejudicial to the veteran for the Board to proceed to finally decide the issue discussed in this decision. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004); Quartuccio v. Principi, 16 Vet. App. 183; Sutton v. Brown, 9 Vet. App. 553 (1996); Bernard v. Brown, 4 Vet. App. 384 (1993); see also 38 C.F.R. § 20.1102 (2006) (harmless error). Legal Criteria - Service Connection For service connection to be established, there must be a current disability and evidence that such disability resulted from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2002 & Supp. 2006); 38 C.F.R. § 3.303 (2006). Regulations also provide that service connection may 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) (2006). A disability which is proximately due to or the result of a service-connected disease or injury shall also be service connected. When service connection is established for a secondary condition, it shall be considered a part of the original condition. 38 C.F.R. § 3.310(a) (2006). There must be medical evidence of a current disability, medical or lay evidence of in-service incurrence or aggravation of a disease or injury, and medical evidence linking the current disability to that in-service disease or injury. Pond v. West, 12 Vet. App. 341, 346 (1999); Hickson v. West, 12 Vet. App. 247, 253 (1999). A service connection claim must be accompanied by evidence which establishes that the claimant currently has the claimed disability. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992). Where a veteran served ninety days or more during a period of war and certain tropical diseases, including malaria, becomes manifest to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred in service even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Analysis The veteran asserts that he is entitled to service connection for residuals of malaria. The Board has reviewed the veteran's November 1998 polygraph test results to the effect that he was diagnosed with malaria during service. The Board points out that the veteran is competent as a layperson to report on which he has personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994), but he is not competent to offer medical opinion as to diagnosing a disease or disability as there is no evidence of record that the veteran has specialized medical knowledge. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). The Board does not refute the fact that the veteran was diagnosed with malaria during service, as his service medical records show that, in October 1968, he was treated for malaria plasmodium falciparum, which was substantiated by blood smear. It was noted that malaria was contracted near Pleiku, Republic of Vietnam. The veteran was prescribed medication for 10 days, and there was no evidence of drug resistance. Separation examination report dated in June 1969 is negative for a diagnosis of malaria. While the veteran was diagnosed with malaria in service, the current medical evidence fails to show that he has been diagnosed with residual disability. The post-service medical evidence shows no treatment for malaria or residuals of malaria. On March 2005 VA examination, the examiner specifically indicated that there is no evidence showing that the veteran currently has malaria, and no residual disability was found. In August 1993, the veteran developed chronic liver disease and subsequently in 1999, he underwent a liver transplant due to Laennec's cirrhosis. The veteran contends that his current liver disability is a residual of in-service malaria. On review of all evidence of record, the Board finds that the preponderance of the evidence is against a finding that the veteran's current liver disability is a residual of in- service malaria, and is not otherwise related to service. The record contains favorable and unfavorable medical opinions with regard to the etiology of the veteran's liver disability. In a March 1999 statement, the veteran's primary care physician, Dr. Hershman indicated that the veteran "is under my care for liver disease secondary to malaria which he contracted in Vietnam." In an August 1999 report, Dr. Shufflebarger recited the veteran's past history, including a liver transplant secondary to malaria. The report relates to spinal disability and indicates that the veteran should contact his "liver people" for advice on medications. Also of record is an October 2001 medical opinion provided by a private physician, Dr. Bash. Dr. Bash concluded that "this patient's in-service malaria likely damaged his liver and reduced his hepatic reserve, and thereby significantly increased his risk for his current end-stage liver disease." Dr. Bash indicated that the veteran did not have medical record documentation of other risk factors for end-stage liver disease. Dr. Bash also stated that the medical literature supports a causative association between malaria and hepatitis, and between chronic liver failure and prior liver insults. On the other hand, according to a February 2002 VA examination report, the impression included a history of liver transplant, most likely due to cirrhosis secondary to alcoholic liver disease. The examiner acknowledged a notation of previous heavy alcohol abuse and the presence of esophageal varices, which could account for the cirrhosis and liver failure requiring a transplant. Also of record is a February 2002 treatment record provided by Dr. Jeffers. Such physician opined that malaria did not lead to the veteran's liver transplant. He indicated that, to his knowledge, he was not familiar with chronic liver disease secondary to malaria. He stated that there is a possibility that the veteran had some residual damage from the malaria which may have been exacerbated by other factors. He also indicated that "Agent Orange may play a role in liver disease." A March 2005 VA examiner opined that there is no evidence that the veteran's liver disease was caused by malaria and stated that "[a]n extensive search of the literature revealed no causal relationship between malaria and chronic liver disease." Although at the time of the examination, the record did not contain evidence confirming that the veteran contracted malaria during service, the examiner acknowledged that malaria was prevalent in Vietnam during the applicable time period. The examiner indicated that the "exoerythrocytic forms of plasmodium vivax may persist in the liver of an infected patient for several weeks or months, but do not cause significant liver damage. If there is any acute damage, the liver has a great regenerative capacity, and there is no data to support the claim that severe and irreversible liver damage is caused by malaria (acute or chronic)." The examiner concluded that the veteran's alcohol consumption most likely caused his liver disease. A VA examiner, in June 2006, was asked to provide a medical opinion regarding the etiology of the veteran's malaria plasmodium falciparum. The examiner essentially agreed with the March 2005 VA examiner. In arriving at the opinion that the veteran's liver disability is not related to in-service malaria, the June 2006 examiner used the same rationale that was provided by the March 2005 VA examiner. In February 2007, a VA physician, Acting Chief of the Gastroenterology Section provided an opinion. The physician concluded that there is less than a 50 percent probability that the veteran's liver disability and subsequent liver transplant are related to his in-service diagnosis of malaria plasmodium falciparum. The physician noted that, after a review of the record, there was no evidence of significant liver disease at the time of infection during service. The physician further stated that although malaria from plasmodium falciparum can lead to a hepatocyte stage which can cause acute liver disease (hepatitis and jaundice) in rare cases, there is no substantial evidence to suggest that malaria from plasmodium falciparum can cause cirrhosis. The physician opined that the veteran's liver disease and the need for liver transplantation are most likely due to his alcohol consumption. The Board is inclined to give greater weight to the February 2007 VHA opinion rather than to the provided by Dr. Hershman, Dr. Shufflebarger, and Dr. Bash. First, the February 2007 examiner provided an opinion after an extensive review of the veteran's claims folder and provided supporting rationale. There is no indication that Dr. Hershman or Dr. Shufflebarger reviewed the veteran's claims folder, nor did they offer supporting rationale. Dr. Shufflebarger merely recites the veteran's history and does not offer an opinion. 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). While Dr. Bash indicated that he reviewed "a service medial record, post-service medical record, patient testimony, physician letters, and medical literature," there is no indication that he reviewed the entire claims folder. In his discussion, Dr. Bash refers only to the veteran's DD- 214, a January 2000 statement by the veteran; a March 1998 abdominal sonogram report; Dr. Garjian's October 1997 statement; Dr. Colsky's December 1997 statement; Dr. Hershman's May 1998 statement; a November 1998 polygraph report; and medical literature. As there is no indication that Dr. Bash reviewed the entire claims folder, his opinion is considered less-informed. Further, the Board notes that Dr. Bash supported his contention that the veteran's liver disability is related to in-service malaria by noting that "[t]he patient does not have medical record documentation of other risk factors for end-stage liver disease." That statement alone is evidence that Dr. Bash's opinion is less- informed because the evidence in the veteran's claims folder at the time he rendered the opinion clearly noted the veteran's history of alcohol abuse as a risk factor for liver disease. The record also reflects that Dr. Bash is a board certified radiologist, Dr. Herman is board certified in internal medicine and geriatrics, and Dr. Shufflebarger appears to specialize in spinal disabilities. The February 2007 VHA opinion that the veteran's liver disability is not related to in-service malaria, is by the Chief of Gastroenterology at a VA Medical Center, and confirms similar assessments rendered by three other physicians. Significantly, the Chief of Hepatology at the Miami VA outpatient clinic, Dr. Jeffers, indicated that to his knowledge, he was not familiar with chronic liver disease secondary to malaria (see February 2002 treatment record). Further, March 2005 and June 2006 VA physicians opined that there is no evidence that the veteran's liver disease was caused by malaria and stated that there is no causal relationship between malaria and chronic liver disease in the medical literature. The June 2006 physician noted that the liver has a great regenerative capacity and there is no data to support the claim that severe and irreversible liver damage is caused by malaria, acute or chronic. The March 2005 and June 2006 physicians both agreed that the veteran's alcohol consumption most likely caused his liver disease. The Board finds the collective opinions of these physicians outweigh the opinions rendered by Dr. Hershman, Dr. Shufflebarger, and Dr. Bash. The veteran does not contend that any disability, other than his liver disability, is a residual of in-service malaria. And as noted above, there is no evidence of residual disability. In sum, while the veteran contracted malaria during service, the preponderance of the evidence is against a finding that the veteran's liver disability, or any other disability, is a residual of in-service malaria. Current residuals of malaria have not been shown. Absent a current diagnosis, the veteran's service connection claim for residuals of malaria must be denied. See Brammer, supra. The preponderance of the evidence is against the veteran's service connection claim, and the reasonable doubt doctrine is not for application. See 38 U.S.C.A. § 5107(b) (West 2002 & Supp. 2006). Because the Board has denied the veteran's service connection claim for residuals of malaria, it necessarily follows that service connection for a liver disability, secondary to malaria, must also be denied. See 38 C.F.R. § 3.310. The veteran alternatively asserts that his liver disability is related to Agent Orange exposure while in the Republic of Vietnam. A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, and has a disease listed at 38 C.F.R. § 3.309(e) shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. In this case, the fact that the veteran had service in Vietnam is undisputed, and therefore he is afforded the presumption of Agent Orange exposure while serving in Vietnam. If a veteran was exposed to a herbicide agent during active military, naval, or air service, the following diseases shall be service-connected, if the requirements of 38 C.F.R. § 3.307(a) are met, even if there is no record of such disease during service: chloracne or other acneform diseases consistent with chloracne, Hodgkin's disease, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers, diabetes mellitus and soft- tissue sarcomas. 38 C.F.R. § 3.309(e). The Secretary of the Department of Veterans Affairs has determined that a presumption of service connection based on exposure to herbicides used in the Republic of Vietnam during the Vietnam era is not warranted for other disabilities. The National Academy of Sciences, after reviewing pertinent studies, did not feel that the evidence warranted altering its prior determination that there was inadequate or insufficient evidence of an association between exposure to herbicide agents and the subsequent development of any other disabilities. See Notice, 68 Fed. Reg. 27630 (2003). While the veteran is afforded the presumption of Agent Orange exposure while serving in Vietnam, the Board notes that liver disease, including cirrhosis, is not recognized by the Secretary as warranting a presumption of service connection. 38 C.F.R. § 3.309(e). Notwithstanding, even if a veteran is found not entitled to a regulatory presumption of service connection, the claim must still be reviewed to determine if service connection can be established on a direct basis. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994) (holding that the Veterans' Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2724, 2727-29 (1984), does not preclude a veteran from establishing service connection with proof of actual direct causation). Service medical records, to include a June 1969 separation examination report, are negative for a diagnosis pertinent to the liver. The first objective evidence of liver disability is a 1993 hospital report, dated more than two decades post- service. The record contains a February 2002 statement, in which a VA physician, Dr. Jeffers, noted that "Agent Orange may play a role in liver disease." The Board notes, however, that the use of the words "possible" "may" or "can be", as in this case, makes a doctor's opinion speculative in nature. See Bostain v. West, 11 Vet. App. 124, 127-28, quoting Obert v. Brown, 5 Vet. App. 30, 33 (1993) (medical opinion expressed in terms of "may" also implies "may or may not" and is too speculative to establish medical nexus). See also Warren v. Brown, 6 Vet. App. 4, 6 (1993) (doctor's statement framed in terms such as "could have been" is not probative); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) ("may or may not" language by physician is too speculative). Therefore, the Board finds Dr. Jeffer's opinion to be of low probative value due to its speculative nature. By contrast, the Board finds the March 2005 and June 2006 VA opinions to be the most probative. According to a March 2005 VA examination report, the examiner, after a review of the claims folder, specifically stated that the veteran's liver disease is not related to Agent Orange exposure. The examiner also noted that liver cirrhosis is not afforded a presumption of Agent Orange exposure. The June 2006 VA examiner further explained that the committee responsible for "VAO" concluded that there was inadequate or insufficient information to determine an association between exposure to Agent Orange and gastrointestinal and digestive disease, to include liver toxicity. The examiner noted that the committee's position has not changed through the years. The March 2005 and June 2006 VA opinions are not speculative in nature and were rendered following a thorough review of the claims folder. Based on the foregoing, the Board concludes that the preponderance of the evidence is against a finding that the veteran's liver disability is related to his military service, to include herbicide exposure. In sum, the veteran's liver disability, to include cirrhosis, is not a disability recognized by the Secretary as warranting a presumption of service connection based on herbicide exposure, thus, his service connection claim on a presumptive basis must be denied. Further, the preponderance of the evidence is against a finding that the veteran's liver disability is related to his military service, to include herbicide exposure. As such, the veteran's service connection claim for liver disability on a direct, presumptive, and secondary basis must be denied. The preponderance of the evidence is against the veteran's service connection claim, and the reasonable doubt doctrine is not for application. See 38 U.S.C.A. § 5107(b) (West 2002 & Supp. 2006). ORDER Claim of entitlement to service connection for residuals of malaria is denied. Claim of 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 Department of Veterans Affairs