Citation Nr: 1124232 Decision Date: 06/24/11 Archive Date: 06/29/11 DOCKET NO. 08-31 406 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Whether new and material evidence has been received to reopen a claim of entitlement to service connection for malaria. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs ATTORNEY FOR THE BOARD L. Cramp, Counsel INTRODUCTION The Veteran had active service from October 1966 to July 1968. This appeal comes before the Board of Veterans' Appeals (Board) from a September 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran failed to report for a Board hearing at the RO which was scheduled to be conducted in July 2010 and has offered no explanation as to why he was unable to appear. He has made no request for another hearing. Accordingly, the Board will proceed to a decision on this appeal as if the hearing request had been withdrawn. See 38 C.F.R. § 20.704(d) (2010) (failure to appear for a scheduled hearing treated as withdrawal of request). In September 2010, the Board remanded this appeal for additional evidentiary development. It has since been returned to the Board for further appellate action. FINDINGS OF FACT 1. In an unappealed November 1970 rating decision, the RO denied service connection for malaria. 2. The evidence associated with the claims file subsequent to the RO's November 1970 rating decision is cumulative of evidence previously of record. CONCLUSION OF LAW The criteria for reopening of the claim seeking service connection for malaria have not been met. 38 U.S.C.A. §§ 5108, 5103, 5103A, 5107, 7104 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.156 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Prior unappealed rating decisions may not be reopened absent the submission of new and material evidence warranting revision of the previous decision. 38 U.S.C.A § 5108 (West 2002); 38 C.F.R. § 3.156 (2010). "New" evidence means evidence "not previously submitted to agency decisionmakers." 38 C.F.R. § 3.156(a) (2010). "Material" evidence means "evidence that, by itself or when considered with previous evidence of record, related to an unestablished fact necessary to substantiate the claim." Id. In order to be "new and material" evidence, the evidence must not be cumulative or redundant, and "must raise a reasonable possibility of substantiating the claim," which has been found to be enabling, not preclusive. See Shade v. Shinseki, 24 Vet. App. 110 (2010). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1991). Historically, the RO initially denied a claim for malaria in November 1970. At the time of the November 1970 decision, the medical evidence of record consisted of service treatment records showing that the Veteran was treated in April 1968 for complaint of chills, fever, headaches, and upset stomach. A past history of malaria was noted. The diagnosis was malaria or questionable gastroenteritis. However, blood morphology results showed no malaria. On examination for separation in July 1968, he was found to be clinical normal regarding all systems. An October 1970 statement from the Veteran's private physician indicated that he had diagnosed the Veteran with malaria in January and February 1969 on a clinical basis but not by laboratory methods. He indicated that the Veteran treated with Aralen and recovered, so "I assume this was an accurate diagnosis." The RO denied the claim as there was no confirmed diagnosis of malaria either in service of after service. The Veteran did not appeal and the decision became final. The Veteran requested to reopen the previously denied claim in March 2007. Evidence received since the November 1970 decision includes private treatment records, which do not pertain to treatment for malaria, and additional statements from the Veteran and his representative, which are cumulative of statements made previously. Regarding the Veteran's assertion that he was recently treated for residuals of malaria, he reported on his VA Form 9 that he had had many recurrences of malaria since he left the service, but that the hospital told him that this was impossible. He reported that his doctor recently saw him for another recurrence and sent him to an infectious disease specialist who prescribed medicine to rid him of pathogens which cause malaria. He also reported that blood smears taken after these recurrences always test negative for malaria. A veteran is competent to report symptoms that he experiences at any time because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007) (when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a lay person is competent to identify the medical condition (noting that sometimes the lay person will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). As noted above, for purposes of reopening, the Veteran's statements are presumed credible. Here, however, his report of post-service symptomatology is cumulative of his previous assertions. Simply noting additional episodes of recurrence does not address the basis of the prior denial, which was that his post-service symptoms were not found to be associated with malaria. In addition, the Veteran is not relating a post-service diagnosis of malaria. He reported that blood smears always tested negative for malaria and that the hospital told him that a recurrence of malaria was impossible. The presumed fact that he was recently treated for symptoms and referred to an infectious disease specialist is simply not relevant to the basis of the prior denial, at which time it was acknowledged that he had been treated after service for symptoms initially believed to be malaria, but which were later determined by blood testing not to be malaria. Now, as then, the Veteran has asserted that blood tests did not show malaria. In sum, his assertions and contentions are cumulative of evidence previously considered and are not new and material evidence. Under these circumstances, the Board concludes that new and material evidence has not been submitted to reopen a claim for malaria. As such, the appeal is denied. As the Veteran has not fulfilled the threshold burden of submitting new and material evidence to reopen the finally disallowed claim, the benefit-of-the-doubt doctrine is not applicable. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). Finally, as provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must 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). When VCAA notice is delinquent or erroneous, the "rule of prejudicial error" applies. See 38 U.S.C.A. § 7261(b)(2) (West 2002). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. In claims to reopen based on new and material evidence, VA must both notify a claimant of the evidence and information that is necessary to reopen the claim and of the evidence and information that is necessary to establish entitlement to the underlying claim for the benefit that is being sought. Kent v. Nicholson, 20 Vet. App. 1 (2006). To satisfy this requirement, VA is required to look at the bases for the denial in the prior decision and to provide the claimant with a notice letter that describes what evidence would be necessary to substantiate those elements required to establish service connection that were found insufficient in the previous denial. In a March 2007 pre rating letter, the RO notified the Veteran of the evidence needed to substantiate his claim for service connection. This letter also satisfied the second and third elements of the duty to notify by delineating the evidence VA would assist him in obtaining and the evidence it was expected that he would provide. Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). The appellant has substantiated his status as a Veteran. He was notified of all other elements of the Dingess notice, including the disability-rating and effective-date elements of his claim, in the March 2007 letter. The March 2007 letter also informed the Veteran of the date and bases of the previous denial of his claim for service connection. He was also informed of the appropriate definitions of new and material evidence and of the evidence needed to substantiate the underlying claim. Therefore, the March 2007 letter provided the notice required by the Kent decision. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). VA will perform document gathering assistance even before claim is reopened. See Paralyzed Veterans of America v. Secretary of Veterans Affairs, 345 F.3d 1334, 1341 (Fed. Cir. 2003). In this case, VA obtained the Veteran's service treatment records, as well as all of the identified post-service private and VA treatment records for which authorization was provided. The Board remanded the claim in September 2010 noting that, on his October 2008 VA Form 9, he stated that he has had recurrences of malaria many times since returning from service, and that his private physician had recently seen him for another recurrence, and sent him to an infectious disease specialist who prescribed medicine to rid him of the pathogens which caused malaria. The Board directed that all reasonable efforts to obtain the private records from his private physician, Dr. R.S.F., should be made. In response to the remand, the Appeals Management Center (AMC) sent the Veteran a release and authorization form to complete and return, which was necessary to obtain medical records from R.S.F. Under 38 C.F.R. § 3.159(c)(1) (2010), the claimant must authorize the release of existing records in a form acceptable to the person, company, agency, or other custodian holding the records. The AMC sent the form to the Veteran's current address of record. The release was not returned by the U.S. Postal Service as undeliverable. However, he did not respond and did not provide the necessary authorization to obtain the records. A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). However, VA's duty to assist in developing the facts and evidence pertinent to a veteran's claim is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). It is the responsibility of veterans to cooperate with VA. See Caffrey v. Brown, 6 Vet. App. 377, 383 (1994); Olson v. Principi, 3 Vet. App. 480, 483 (1992). In this case, the Board finds that the AMC's efforts to obtain the records were reasonable, and the Veteran did not cooperate with those efforts. Accordingly, no further assistance is necessary, and the Board addressing the merits of the application to reopen is appropriate at this time. ORDER The application to reopen the claim seeking service connection for malaria is denied. ____________________________________________ L. HOWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs