Citation Nr: 1126571 Decision Date: 07/14/11 Archive Date: 07/21/11 DOCKET NO. 08-02 657 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a left elbow disability, to include as secondary to malaria. 2. Entitlement to service connection for a left wrist disability, to include as secondary to malaria. 3. Entitlement to service connection for a left shoulder disability, to include as secondary to malaria. 4. Entitlement to an increased rating for malaria, currently evaluated as noncompensably disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD J. Barone, Counsel INTRODUCTION Please note that this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). The Veteran had active service from September 1944 to March 1947. This matter comes before the Board of Veterans' Appeals (Board) from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran and his wife testified at a Travel Board hearing before the undersigned Veterans Law Judge in April 2010. A transcript of his hearing has been associated with the record. The appeal was remanded for additional development in September 2010. It has been returned to the Board for appellate consideration. The issues of entitlement to service connection for left elbow, wrist, and shoulder disabilities are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran does not have active malaria or any malaria residuals. CONCLUSION OF LAW The criteria for a compensable evaluation for malaria have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.88b Diagnostic Code 6304 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 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 and 3.326(a) (2010). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2010); 38 C.F.R. § 3.159(b) (2010); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and 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. VCAA notice should be provided to a claimant before the initial unfavorable RO decision on a claim. See Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). On March 3, 2006, the Court of Appeals for Veterans Claims (Court) issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 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. The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Id. at 486. A letter dated in September 2007 discussed the evidence necessary to establish a higher evaluation. The Veteran was asked to identify evidence supportive of his claims. The evidence of record was listed and the Veteran was told how VA would assist him in obtaining additional relevant evidence. This letter also discussed the manner in which VA determines disability ratings and effective dates. Letters of May 2008 and December 2008 advised the Veteran of the specific criteria under which malaria is evaluated. In July 2009 the RO advised the Veteran's congresswoman of the status of his claim. In September 2010 the Veteran was advised that the Appeals Management Center (AMC) would be developing additional evidence. He was told how he could receive general information about benefits and eligibility. The Board finds that the content of the notice provided to the Veteran fully complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. The Veteran has been provided with every opportunity to submit evidence and argument in support of his claim and to respond to VA notices. Further, the Board finds that the purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claims. Therefore, the record reflects that he was provided with a meaningful opportunity during the pendency of his appeal such that the preadjudicatory notice error did not affect the essential fairness of the adjudication now on appeal. With respect to VA's duty to assist, the Veteran's service treatment records, private records and VA treatment records have been obtained to the extent possible and associated with the record. The Veteran was afforded an opportunity to testify before the undersigned. The Veteran has been afforded a VA examination, and the Board finds that it was adequate in that it was performed by a neutral skilled provider who reviewed the Veteran's pertinent history, interviewed the Veteran, and conducted a complete physical examination prior to rendering his conclusions. The Veteran has not otherwise identified any additional evidence or information which could be obtained to substantiate the claims. The Board is also unaware of any such outstanding evidence or information. Therefore, the Board is also satisfied that VA has complied with the duty to assist requirements of the VCAA and the implementing regulations. For the foregoing reasons, it is not prejudicial to the appellant for the Board to proceed to a final decision in this appeal. Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R. Part 4. The Board attempts to determine the extent to which the Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. 38 C.F.R. §§ 4.1, 4.2 (2008); see also Francisco v. Brown, 7 Vet. App. 55 (1994). In Hart v. Mansfield, 21 Vet. App. 505 (2007), however, the Court held that "staged ratings" are appropriate for an increased rating claim when the factual findings show distinct time periods where the service- connected disability exhibits symptoms that would warrant different ratings. In this case the Board has concluded that the disability has not significantly changed and that a uniform evaluation is warranted for the period considered. The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Veteran's service-connected malaria is currently evaluated as noncompensable under the provisions of 38 C.F.R. § 4.88b, Diagnostic Code 6304. Under Diagnostic Code 6304, malaria is given a noncompensable evaluation when it is not active, or it is given a 100 percent rating when it is an active disease. Thereafter, residuals such as liver or spleen damage are evaluated under the appropriate system. 38 C.F.R. § 4.88b, Diagnostic Code 6304, Note. The diagnosis of malaria depends on the identification of the malarial parasites in blood smears. Relapses must also be confirmed by the presence of malarial parasites in blood smears. Service connection for malaria was granted in a May 1947 rating decision. A noncompensable evaluation was assigned. The Veteran requested a higher evaluation in August 2007. VA treatment records show that in December 2000 the Veteran provided a history of malaria diagnosed in 1946, followed by a prolonged hospitalization. In September 2004, the Veteran was seen by a VA provider. He reported that he had pain in his left upper quadrant which usually occurred while sitting and disappeared spontaneously without specific treatment. The provider indicated that the Veteran probably had splenic flexure syndrome causing sharp pain in the left upper quadrant. A VA examination was carried out in October 2007. The examiner noted that the Veteran was hospitalized in 1945 for malaria. The Veteran endorsed myalgia and arthralgia. He stated that he had experienced two to three relapses between 1945 and 1955 but that there were no records. There were no skin symptoms or mouth ulcers. There was no edema or swollen, stiff, or painful joints. There were no lymphatic or blood symptoms. There were no genitourinary or cardiac symptoms. The Veteran endorsed asthma. There were no neurologic or psychiatric symptoms, and no eye symptoms. The Veteran endorsed generalized pain in his muscles. Physical examination revealed no findings of malnutrition or anemia. The examiner indicated that it was unknown whether malaria was confirmed by laboratory findings of malarial parasites. There were no signs of splenomegaly, hepatomegaly, mental changes, or renal damage. There was no history of seizures. Following laboratory testing, the examiner noted that the disease was not currently present or active. He stated that the disease was not still in the convalescence period and that there were no signs of jaundice or anasarca. The diagnosis was status post malaria in 1945, not active. An additional VA examination was conducted in November 2010. The examiner reviewed the Veteran's history. Specifically, he noted that the Veteran was treated in Cebu, the Philippines in 1945, and that the associated records reflected a diagnosis of gastroenteritis, acute, cause undetermined; he also noted that three malaria smears were negative and that there was no documentation of malaria on that admission. The Veteran reported that he became ill on his return to the United States in 1946 and underwent treatment. The examiner stated that associated records indicated an admitting impression of probable malaria, and that an order was given to perform malaria smears if the Veteran had fever or chills; he indicated that the Veteran did not appear to have a fever during this episode of treatment and that no documentation of malaria was found during this episode of care. He stated that the discharge diagnosis was nasopharyngitis, acute, catarrhal, severe. The Veteran reported an additional episode of treatment at Ft. Rosencranz [sic] in 1946, during which he was told that his spleen might be enlarged or ruptured. The examiner noted that there was no documentation of this reported treatment. (The Board parenthetically notes that the examiner's comments regarding the records of treatment in service are a correct reflection of the evidence of record.) The Veteran denied any problems with malaria in the previous 10 years, and the examiner noted that the VA treatment records did not document any current diagnosis of or treatment for malaria, liver, or spleen issues. On physical examination, the examiner noted general symptoms of fatigue, malaise, exhaustion, myalgia, and arthralgia. He indicated that there were skin symptoms to include previous treatment for skin cancer, but that this was unrelated to malaria. There was no generalized edema. The Veteran endorsed exacerbations/remissions, stating that he had experienced several febrile illnesses after leaving service, but the examiner noted that there was no actual documentation of a medical diagnosis of malaria found in the file. The Veteran also endorsed gastrointestinal reflux disease symptoms. The examiner noted that there were no lymphatic or blood, genitourinary, or cardiac symptoms. The Veteran endorsed respiratory symptoms of cough and shortness of breath. Following physical examination, the examiner indicated that malaria was not confirmed by laboratory findings of malarial parasites. He noted that splenomegaly was not present, and there were no signs of mental changes or renal damage. He concluded that malaria was not currently present or active, and that it was not still in the convalescence period. There were no signs of jaundice or anasarca. No liver or spleen enlargement was detected. The examiner concluded that his examination revealed no objective evidence of malaria or residuals of malaria; he specified that there was no evidence of malaria related damage of the liver or spleen. He specified that there was no objective evidence of acute or chronic liver disease, and that liver function tests had been within normal limits. He also stated that the splenic flexure syndrome noted in 2004 had nothing to do with the spleen, but referred to intestinal gas in the colon, which had no relationship to malaria. Upon close consideration of the evidence, the Board has concluded that a compensable evaluation is not warranted for malaria. In that regard, the Board observes that while a lay witness is competent to testify as to the visible symptoms or manifestations of a disease or disability, his or her belief as to its current severity under pertinent rating criteria or the nature of the service-connected pathology is not probative evidence because only someone qualified by knowledge, training, expertise, skill, or education, which the Veteran is not shown to possess, may provide evidence requiring medical knowledge. Layno v. Brown, 6 Vet. App. 465, 470 (1994); Grottveit v. Brown, 5 Vet. App. 91, 92-93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). Here, the record contains competent medical evidence that is against a finding that the Veteran has active malaria or any ascertainable residuals of malaria such as liver or spleen damage. The medical evidence associated with the claims file during the pendency of this appeal is negative for any signs, symptoms or residuals of malaria. As there is no medical evidence of active disease or any residual disability, there is no basis to award a compensable rating. In light of the discussion above, the Board finds that the noncompensable evaluation assigned for the Veteran's malaria accurately depicts the severity of the condition for the entirety of the rating period on appeal, and there is no basis for higher staged ratings. See Hart. The Board has also considered whether this case should be referred for extraschedular consideration. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2010); see also Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet. App. 111 (2008), there is a three-step inquiry for determining whether a Veterans entitled to an extraschedular rating. First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the level of disability and symptomatology and is found to be inadequate, the Board must then determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. With respect to the initial inquiry posed by Thun, the Board has been unable to identify an exceptional or unusual disability picture with respect to the Veteran's service-connected malaria. The medical evidence fails to demonstrate symptomatology of such an extent that application of the ratings schedule would not be appropriate. In fact, as discussed in detail above, the symptomatology of the Veteran's malaria is specifically contemplated under the appropriate ratings criteria. Accordingly, the Board finds that the Veteran's disability picture has been contemplated by the ratings schedule. Since the available schedular evaluation adequately contemplates the Veteran's level of disability and symptomatology, the second and third questions posed by Thun become moot. Nevertheless, the Board will briefly note that the evidence in this case does not demonstrate any of the factors provided in the "governing norms" such as frequent hospitalization or marked interference with employment. See 38 C.F.R. § 3.321(b)(1) (2010). With respect to frequent hospitalizations, the evidence does not reflect that the Veteran has been hospitalized due to this service-connected disability. As for employment, there is no evidence that the Veteran's service-connected malaria markedly interferes with employment. There is nothing in the record to indicate that the service-connected disability causes impairment with employment over and above that which is contemplated in the current schedular ratings. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) [noting that the disability rating itself is recognition that industrial capabilities are impaired]. There is also no evidence in the medical records of an exceptional or unusual clinical picture, or of any other reason why an extraschedular rating should be assigned. In short, the evidence does not support the proposition that the Veteran's service connected disability presents such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards and warrant the assignment of an extraschedular rating under 38 C.F.R. § 3.321(b)(1) (2010). ORDER Entitlement to a compensable evaluation for malaria is denied. REMAND The Board again notes that this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). As noted in the Board's September 2010 remand, the Veteran seeks service connection for disabilities of the left wrist, elbow, and shoulder. Review of the claims file discloses that he has reported injuries in service to include a mortar attack and an incident on a landing craft which he claims caused his currently claimed disabilities. He argues that service connection is warranted on a direct basis. In the alternative, his April 2010 hearing testimony also includes his assertion that he has arthritis of his left wrist, elbow, and shoulder that has been aggravated by his service-connected malaria. In September 2010 the Board directed that a VA examination be conducted. The remand issued by the Board contained a discussion regarding the need for an opinion with respect to service connection for left elbow, shoulder, and wrist disabilities on both a direct and secondary basis. Unfortunately the Board's action paragraph included the direction to obtain an opinion regarding secondary service connection only. However, the Appeals Management Center correctly requested opinions on both bases. During the subsequent November 2010 examination, the examiner noted that diagnoses referable to the Veteran's left wrist and elbow were deferred due to non-completion of X-rays. He then concluded that there was no left wrist or elbow condition that was related to malaria. He did not offer an opinion regarding direct service connection. It is also unclear whether there is X-ray evidence of any diagnosable joint disability of the left wrist or elbow, and if so, whether the examiner's opinion might change as a result of a diagnosis. In a May 2011 brief, the Veteran's representative argued that the examination was inadequate for the purpose of deciding the Veteran's claim. The Board agrees. The examiner should be requested to review X-rays taken in conjunction with the November 2010 examination and to provide an informed opinion regarding both direct and secondary service connection. If X-rays were not taken in conjunction with the 2010 examination, an X-ray study should be carried out if it is considered necessary for the examiner's opinion on both the direct and secondary service connection questions. In light of the above discussion, additional development is required. Accordingly, the case is REMANDED for the following action: 1. Return the claims file to the physician who conducted the November 2010 examination for the purpose of obtaining an opinion on both direct and secondary service connection, with consideration of X-rays that were taken in conjunction with the November 2010 examination. If X-rays were not taken in conjunction with that examination they should be taken if needed to provide an opinion for the questions asked. If the examiner determines that an additional examination is necessary, such examination should be scheduled. If the examiner is not available then the Veteran should be scheduled for an examination by an examiner with appropriate expertise to provide the requested opinions. Following this action, as necessary, the examiner should review the claims file, to include the 2010 examination report and X-rays taken either in conjunction with the 2010 examination or as a result of this remand, and should provide an opinion as to whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent) that any currently present disability of the left wrist, elbow, or shoulder is related to any disease or injury in service, or was caused or aggravated by the service-connected malaria. The examiner should be advised that the term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. The complete rationale for all opinions expressed should be supported by a discussion of the relevant evidence of record. 2. Then readjudicate the Veteran's claim, to include consideration of the provisions of 38 C.F.R. § 3.310(a) and the holding in Allen v. Brown, 7 Vet. App. 439 (1995) in the adjudication of the claims referable to the Veteran's left wrist, elbow and shoulder. If the benefits sought on appeal remain denied, the Veteran and his accredited representative should be issued a supplemental statement of the case (SSOC) which addresses all relevant actions taken on the claims for benefits. The Veteran should be given the opportunity to respond. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). ____________________________________________ STEVEN L. COHN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs