Citation Nr: 0812963 Decision Date: 04/18/08 Archive Date: 05/01/08 DOCKET NO. 07-20 125 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for malaria. 2. Entitlement to service connection for hypertension (claimed as high blood pressure). 3. Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Patricia A. Talpins, Associate Counsel INTRODUCTION This matter comes before the Board of Veterans' Appeals ("BVA" or "Board") on appeal from a November 2006 rating decision of the Department of Veterans Affairs ("VA") Regional Office ("RO") in Nashville, Tennessee in which the RO denied the benefits sought on appeal. See also January 2007 rating decision (RO confirmed denial of service connection for the appellant's claims). The appellant, who had active service from September 1941 to October 1945, appealed that decision to the BVA. Thereafter, the RO referred the case to the Board for appellate review. The appellant testified at a hearing before the undersigned Veterans Law Judge in March 2008. At that time, the appellant's motion to advance his case on the Board's docket was granted. See 38 U.S.C.A. § 7107 (West 2002); 38 C.F.R. § 20.900(c) (2007); see also Board's ruling sheet dated in April 2008. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appellant's appeal has been obtained. 2. The record on appeal does not reflect that the appellant has a current diagnosis of malaria or a diagnosis of a medical disorder associated with residuals of malaria. 3. Hypertension was not manifested during service or within one year of separation from service, and is not shown to be otherwise related to military service. 4. Bilateral hearing loss was not manifested during service or within one year of separation from service, and is not shown to be causally or etiologically related to service. CONCLUSIONS OF LAW 1. Residuals of malaria were not incurred in or aggravated by active service, and may not be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2007). 2. Hypertension was not incurred in or aggravated by active service, and may not be presumed to have been so incurred or aggravated. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2007). 3. Bilateral hearing loss was not incurred in or aggravated by active service, and may not be presumed to have been so incurred or aggravated. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.385 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS A. The Veterans Claims Assistance Act With respect to the appellant's claims of entitlement to service connection for (1) malaria, (2) hypertension and (3) bilateral hearing loss, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2007). Prior to the adjudication of the appellant's claim, a letter dated in September 2006 fully satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The appellant was aware that it was ultimately his responsibility to give VA any evidence pertaining to his claims. The September 2006 letter informed the appellant that additional information or evidence was needed to support his service connection claims; and asked the appellant to send the information to VA. Pelegrini v. Principi, 18 Vet. App. 112 (2004)[Pelegrini II]. The appellant's available service medical records and VA treatment records have been obtained, to the extent possible. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In this regard, the Board observes that the appellant's service file contains only two pages of information. The remainder of the appellant's service records have been presumed destroyed. See July 2006 letter from the National Personnel Records Center. When service medical records are presumed destroyed, VA is obligated to search for alternative forms of medical records. Cuevas v. Principi, 3 Vet. App. 542 (1992). The United States Court of Appeals for Veterans Claims (the "Court") has held that in cases where a veteran's service medical records are unavailable, through no fault of the veteran, there is a "heightened duty" to assist the veteran in the development of the case. See generally McCormick v. Gober, 14 Vet. App. 39 (2000); O'Hare v. Derwinski, 1 Vet. App. 365 (1991). In this case, the RO requested the appellant's service medical records from the National Personnel Records Center ("NPRC") in St. Louis, Missouri in September 2006. In October 2006, NPRC informed the RO that the appellant's records were not on file at NPRC and were presumed to have been destroyed by a fire that took place at the NPRC Headquarters in July 1973. NPRC indicated in its reply that it was enclosing information obtained through alternative record sources (to include SGO's and hospital admission information) to assist the RO in adjudicating the appellant's claims. See request for information. Thus, while attempts to obtain the appellant's actual service medical records have been unsuccessful, certain evidence available via a check of alternative sources has already been associated with the claims file. As such, the Board finds that VA has fulfilled its heightened duty to assist the appellant in development of his claim in this regard. In addition to the foregoing, the Board observes that the appellant was afforded a VA audiological examination in November 2006 in connection with his bilateral hearing loss claim. 38 C.F.R. § 3.159(c)(4). However, the appellant was not afforded VA examinations in connection with his other claims. The Board finds that the RO was correct in determining that VA examinations were not necessary in regards to the appellant's claims of entitlement to service connection for malaria and hypertension in light of (1) the fact that the claims file does not contain any medical evidence indicating that the appellant currently has malaria or residuals of malaria that he allegedly contracted in service and (2) the lack of competent objective evidence indicating that the appellant developed hypertension in service. As such, VA examinations in regards to those claims are not presently warranted since any medical opinions obtained via these examinations would be entirely speculative in nature. Lastly, the Board notes for the record that the RO provided the appellant with an explanation of disability ratings and effective dates in its September 2006 VCAA notice. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Regardless, since the Board concludes below that the preponderance of the evidence is against the appellant's claims, any questions as to the appropriate disability rating or effective date to be assigned to those claims are rendered moot, and no further notice is needed. Id. B. Law and Analysis The appellant contends that he is entitled to service connection for malaria and hypertension on the basis that while serving in the South Pacific during World War II, he was hospitalized and received medical treatment for these conditions. See September 2006 statement in support of claim. In addition, he requests service connection for bilateral hearing loss on the basis that he was exposed to acoustic noise trauma during World War II. Id. While viewing the evidence in the light most favorable to the appellant in this case, the Board finds that the more persuasive and credible evidence does not support the appellant's claims of entitlement to service connection; and therefore unfortunately concludes that this appeal must be denied. Applicable law provides that service connection will be granted if it is shown that a veteran has a disability resulting from an injury or disease contracted in the line of duty or for aggravation of a pre-existing injury or disease. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2007). Service connection may also be granted for certain chronic diseases and tropical diseases (such as malaria, sensorineural hearing loss and hypertension) when such disease is manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. § 1137; 38 C.F.R. § 3.307, 3.309. In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, to prove service connection, the record must contain: (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances, lay testimony, of an in-service incurrence or aggravation of an injury or disease and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. Pond v. West, 12 Vet. App. 341 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995). The Board observes that for injuries alleged to have been incurred in combat, 38 U.S.C.A. § 1154(b) provides a relaxed evidentiary standard of proof regarding events that occurred during combat. See Collette v. Brown, 82 F. 3d 389 (1996). Specifically, satisfactory lay or other evidence that an injury or disease was incurred or aggravated in combat will be accepted as sufficient proof of service connection if the evidence is consistent with the circumstances, conditions or hardships of such service even though there is no official record of such incurrence or aggravation. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). However, the reduced evidentiary burden only applies to the question of service incurrence, and not to the question of either the existence of a current disability or nexus between that disability and service, both of which generally require competent medical evidence. See generally, Brock v. Brown, supra; Libertine v. Brown, 9 Vet. App. 521 (1996); Beausoleil v. Brown, 8 Vet. App. 459, 464 (1996). In addition, VA regulations provide that in each case where a veteran is seeking service connection for a disability, due consideration is also supposed to be given to the places, types, and circumstances of such veteran's service as shown by such veteran's service record, the official history of each organization in which such veteran served, such veteran's medical records, and all pertinent medial and lay evidence. See 38 U.S.C.A. § 1154(a). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event; or whether a preponderance of the evidence is against a claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Claim of entitlement to service connection for malaria In regards to his claim of entitlement to service connection for malaria, the appellant testified that he contracted malaria twice while in service; and that he had to be hospitalized for treatment during service on both occasions. See March 2008 BVA hearing transcript, pgs. 4-7. As discussed above, the majority of the appellant's service medical records are not contained in the claims file and have been presumed to be destroyed by a fire that took place at the NPRC Headquarters in July 1973. See Introduction above. The appellant's available service medical records and unit morning reports reveal that the appellant was hospitalized for approximately 25 days (from May 11, 1944 to June 5, 1944) while in service. However, these records do not indicate the reason for the appellant's hospitalization or that he was in fact diagnosed and/or treated for malaria during this period of time. The appellant does not dispute that his available service medical records do not corroborate his claim. He essentially argues, however, that the service records would support his claim if they were available; and that his claim should not be denied based upon his inability to met the second element of the service connection test (evidence of an in-service incurrence or aggravation of an injury or disease) in light of the fact that his service records were destroyed through no fault of his own. See December 2006 statement in support of claim. In addition, the appellant's representative has argued that VA should essentially concede that the appellant more likely than not contracted malaria in service on the basis that there were a lot of cases of malaria in the South Pacific during World War II. March 2008 BVA hearing, p. 3. While the loss of the appellant's service medical records through no fault of the appellant does raise VA's burden to assist the appellant in the development of his claim, it does not shift the burden to VA to disprove the claim as requested by the appellant. Appellant's December 2006 statement in support of claim. Case law on this issue provides that the legal evidentiary standard is not lowered for proving a claim for service connection in these situations, but rather the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the claimant is increased. See Russo v. Brown, 9 Vet. App. 46 (1996). Moreover, there is no presumption, either in favor of the claimant or against VA, arising from missing records. See Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005) (the Court declined to apply an "adverse presumption" where records have been lost or destroyed while in Government control which would have required VA to disprove a claimant's allegation of injury or disease in service in these particular cases). However, in terms of the representative's argument regarding the prevalence of malaria in the South Pacific during the appellant's period of service, the Board finds it conceivable that the appellant contracted the condition of malaria while serving in New Zealand in May 1944 and June 1944 since his available service records reveal that he was hospitalized for some medical disorder during this period of time and that his treatment lasted approximately 25 days. Regardless, even if the Board assumes for the sake of argument in this case that the appellant contracted malaria while in service, service connection in this case cannot be granted since there is no medical evidence of record indicating that the appellant has been currently diagnosed with malaria or with any medical disorder associated with residuals of malaria. See VA medical records dated from January 2001 to August 2006; March 2008 BVA hearing transcript, p. 6 (appellant testified that he did not think that he had any reoccurrences of malaria since separating from service). A review of the post-service medical records contained in the claims file reveals that the only reference to malaria in those records was made in terms of the appellant's prior medical history. See July 2006 VA medical records. Additionally, chest x-rays taken of the appellant in January 2001 revealed that he had mild to moderate changes of emphysema. See January 2001 VA medical records. Otherwise, his chest was found to be normal. Id. As set forth above, one of the elements necessary for service connection is medical evidence of a current disability. The Court has held that there can be no valid claim without proof of a present disability. Brammer v. Derwinski, 3 Vet. App. 223 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). The existence of a current disability is the cornerstone of a claim for VA disability benefits. See Degmetich v. Brown, 104 F. 3d 1328 (Fed. Cir. 1997). In the absence of competent medical evidence showing that the appellant presently has malaria or a disorder that has been associated by a medical professional with the residuals of malaria, there is no basis for the granting of direct service connection for this condition. In light of the lack of medical evidence indicating that the appellant was diagnosed with malaria within one year of separation from service, service connection on a presumptive basis for tropical conditions is also not available. Therefore, service connection for malaria must be denied. 2. Claim of entitlement to service connection for hypertension In this case, the appellant asserts that he began having problems with high blood pressure prior to being diagnosed with malaria in service; and that he was treated for hypertension while hospitalized in service. September 2006 statement in support; March 2008 BVA hearing transcript, pgs. 7-8. VA medical records contained in the claims file reveal that the appellant has a current diagnosis of hypertension, thereby meeting the first element of the service connection test. See July 2006 VA medical records. Unfortunately, however, the appellant's service medical records have been presumably destroyed and are not available to assist in supporting the appellant's claim. As such, the Board has considered all of the other evidence contained in the claims file to see if it supports the appellant's assertion that he developed hypertension while in service. A review of the appellant's available service medical records and unit morning reports reveal that he was hospitalized for approximately 25 days during May 1944 and June 1944. Although the Board assumed for the sake of argument above that the appellant's hospitalization may have been related to the contraction of malaria due to the prevalence of this illness in the South Pacific during World War II and the fact that the appellant was hospitalized for a significant period of time in New Zealand (a factor indicative of a serious illness), such an assumption is not warranted for the disorder of hypertension. In this regard, the Board observes that subsequent to his hospitalization, the appellant was discharged to duty in June 1944 where he remained until October 1945. See DD Form 214. It seems logical to the Board that if the appellant had been specifically diagnosed and treated for high blood pressure while hospitalized for a period of 25 days that he would have required follow-up treatment or monitoring for this condition throughout the remainder of his period of service and subsequent to his discharge from service. However, the appellant testified that he did not start receiving treatment or medication for his hypertension until approximately 2002, over 50 years after he separated from service. See March 2008 BVA hearing transcript, pgs. 7-9. In light of the lack of continuity of symptomatology regarding the appellant's hypertension from the time period surrounding his discharge from service until approximately 2002, the Board cannot find that the second element of the service connection test has been met in this case. In addition, the claims file lacks a medical nexus opinion between the appellant's currently diagnosed hypertension and his period of service. Even if such an opinion were associated with the claims file, the Board would unfortunately find it to be speculative in nature and of little probative value in light of the lack of evidence corroborating the appellant's assertion that he had high blood pressure in service. To the extent that the appellant offers his own opinion that his currently diagnosed hypertension began during his period of service, the Board finds his opinion to be unpersuasive since the evidence has not shown that he is qualified to offer an opinion that requires medical knowledge, such as a diagnosis of hypertension in service or a medical opinion as to the cause of his hypertension. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Therefore, the appellant's claim of entitlement to service connection for hypertension must be denied on both a direct and presumptive basis. 3. Claim of entitlement to service connection for bilateral hearing loss Lastly, the appellant requests service connection for bilateral hearing loss he contends may have developed as a result of acoustic trauma during service. March 2008 BVA hearing transcript, pgs. 10-11. In this regard, the appellant testified that he noticed that his hearing worsened during the 1950's and early 1960's. Id. He indicated that he was not exposed to excessive noise subsequent to his separation from service. Id., p. 11. As discussed above, generally to prove service connection, the record must contain: (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances, lay testimony, of an in-service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus or relationship between the current disability and the in-service disease or injury. Pond v. West, 12 Vet. App. 341, 346 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995). In cases involving claims of entitlement to service connection for hearing loss, the Court has held that the absence of evidence of a hearing loss disability in service is not fatal to a veteran's claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). The Court has also held that evidence of a current hearing loss disability and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection. See Hensley v. Brown, 5 Vet. App. 155 (1993). For the purposes of applying the laws administered by the VA, impaired hearing is considered a disability when a veteran's auditory thresholds (puretone decibel loss) in one of the frequencies 500, 1000, 2000, 3000, and 4000-Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the above-mentioned frequencies are 26 decibels or greater. Impaired hearing for VA purposes may also be found when a veteran's speech recognition scores, using the Maryland CNC Test, are less than 94 percent. See 38 C.F.R. § 3.385. In this case, the evidence shows the appellant has bilateral hearing loss that constitutes a current disability for VA purposes. See November 2006 VA examination report. In addition, the appellant's service personnel separation report reveals that his military occupation specialty was an artillery mechanic. See DD Form 214. Given the nature of the appellant's service duties as an artillery mechanic, the RO essentially conceded that the appellant was exposed to acoustic trauma during service. See November 2006 rating decision, p. 3. The Board finds the RO's determination to be correct in light of the fact that in each case where a veteran is seeking service connection for a disability, due consideration is supposed to be given to the places, types, and circumstances of such veteran's service as shown by such veteran's service record, the official history of each organization in which such veteran served, such veteran's medical records, and all pertinent medial and lay evidence. See 38 C.F.R. § 3.303. Applying this general rule to the facts of this claim, the Board finds that the appellant is entitled to an acknowledgement that he was exposed to acoustic noise trauma. As such, the first and second elements of the service connection test have been met in regards to this claim. Therefore, the sole question remaining for the Board to answer is whether the last element of the service connection test (medical evidence of a nexus between the current disability and the in-service disease or injury) has been fulfilled. Unfortunately, a review of the post-service medical records contained in the claims file fails to reveal medical evidence other than a history of hearing loss or medical nexus opinions supportive of the appellant's claim. VA medical records dated from January 2001 to August 2006. In light of the lack of medical evidence addressing the question of whether the appellant's exposure to acoustic trauma in service is related to his present hearing loss, the RO afforded the appellant a VA audiological examination that was performed in November 2006. At that time, a VA audiologist reviewed the appellant's claims file and medical records and performed an audiological examination. Thereafter, the audiologist essentially opined that the appellant's bilateral hearing loss was not as least as likely as not related to the events in service. In doing so, the audiologist acknowledged the lack of available service medical records and noted the absence of medical evidence dated prior to 2001 that showed the appellant experienced hearing loss. November 2006 VA examination report, p. 2. The audiologist noted that the appellant did not request service connection for hearing loss until 60 years after he separated from service; and that numerous other factors (such as heredity, disease processes, etc . . . ) could have affected the appellant's hearing during that period of time. Id. As such, he stated that it was impossible to determine without resorting to mere speculation that the appellant's present hearing loss is related to acoustic trauma in service in the absence of evidence that would support hearing loss identified closer to the appellant's separation from service. Id. The Board finds the November 2006 VA examination report to be dispositive in this case since it is the only competent medical evidence of record addressing the claimed relationship between the appellant's current hearing loss and his period of service. The Board observes that there is no medical evidence of record contradicting the VA audiologist's opinion. The only other opinion of record associating the appellant's hearing loss with his presumed noise exposure in service is that of the appellant. See March 2008 BVA hearing transcript. Unfortunately, the appellant's opinion as to the cause of his current hearing loss is insufficient evidence to rebut the VA medical opinion of record. Espiritu v. Derwinski, supra. Therefore, the Board finds the November 2006 VA medical opinion to be persuasive, credible and uncontroverted. As such, the third element of the service connection test not been fulfilled in this case. Absent such evidence, service connection on a direct basis for bilateral hearing loss must be denied. Service connection on a presumptive basis is also not warranted since the appellant's hearing loss appears to have been diagnosed for the first time in 2001, over 50 years after the appellant separated from service. C. Conclusion Therefore, the Board concludes that the preponderance of the evidence is against the appellant's claims of entitlement to service connection for malaria, hypertension and bilateral hearing loss for the reasons discussed above. In reaching this decision, the Board has considered the doctrine of reasonable doubt. However, as the preponderance of the evidence is against the appellant's claims, the doctrine is not applicable. See Gilbert v. Derwinski, 1 Vet. App. at 55. ORDER 1. Service connection for malaria is denied. 2. Service connection for hypertension is denied. 3. Service connection for bilateral hearing loss is denied. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs