Citation Nr: 1225349	
Decision Date: 07/20/12    Archive Date: 07/30/12

DOCKET NO.  09-19 545	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Baltimore, Maryland


THE ISSUES

1.  Entitlement to service connection for lymphoma (Waldenstrom's macroglobulinemia), due to ionizing radiation, for purposes of accrued benefits.  

2.  Entitlement to service connection for chronic renal failure, claimed as kidney damage, secondary to service-connected malaria, for purposes of accrued benefits.  

3.  Entitlement to an increased (compensable) evaluation for malaria, for purposes of accrued benefits.  


REPRESENTATION

Appellant represented by:	The American Legion


WITNESSES AT HEARING ON APPEAL

Appellant, the Veteran, and C. Bash, M.D.


ATTORNEY FOR THE BOARD

Christopher Maynard, Counsel


INTRODUCTION

The Veteran had active service from December 1943 to March 1946.  

This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a June 2008 decision by the RO which denied the benefits sought on appeal.  A hearing before the undersigned member of the Board was held in Washington, DC in September 2009.  

In January 2010, the Board denied the Veteran's claims, and he appealed that decision to the United States Court of Appeals for Veterans Claims ("Court").  In January 2011, the Court granted a Joint Motion for Remand and vacated the January 2010 Board decision.  The Board remanded the appeal for additional development in May 2011.  In August 2011, the Board was advised that the Veteran died in April 2011, and his appeal was dismissed by the Board in September 2011.  The Veteran's widow has since been substituted as the appellant.  See Veterans' Benefits Improvement Act of 2008, Pub.L. No. 110-389 § 212, 122 Stat. 4151 (2008) codified at 38 U.S.C.A. § 5121A.  

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011).  38 U.S.C.A. § 7107(a)(2) (West 2002).  


FINDINGS OF FACT

The evidence of record at the time of the Veteran's death showed no signs or symptoms of active malaria or any associated residuals.  


CONCLUSION OF LAW

The criteria for a compensable evaluation for malaria, for purposes of accrued benefits, are not met.  38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.159, 4.3, 4.31, 4.88b, Part 4, Diagnostic Code 6304 (2011).  


REASONS AND BASES FOR FINDING AND CONCLUSION

Before addressing the merits of the appellant's claim, the Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.159, 3.326; see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II); Dingess v. Nicholson, 19 Vet. App. 473 (2006).  

Prior to adjudication of the appellant's claim, a letter dated in November 2007, fully satisfied the duty to notify provisions.  See Quartuccio v. Principi, 16 Vet. App. 183 (2002); 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).  

To the extent that the notice in this case is deemed to be deficient, based on the communications from the appellant and her arguments before the Court, she clearly has actual knowledge of the evidence she is required to submit in this case and, it is reasonable to expect that she understands what is needed to prevail.  Under the circumstances of this case, the Board finds that the appellant is not prejudiced by moving forward with a decision on the merits of the increased rating claim.  

With respect to the duty to assist in this case, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  The Veteran's service treatment records (STRs) and all VA and private medical records have been obtained and associated with the claims file.  

Further, neither the appellant nor her representative have made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide this issue, and have not now argued that any error or deficiency in the accomplishment of the duty to notify and duty to assist has prejudiced her in the adjudication of her appeal.  See Shinseki v. Sanders, 129 S.Ct.1696 (2009).  

Based on a review of the claims file, the Board finds that there is no indication in the record that any additional evidence relevant to the issue to be decided herein is available and not part of the claims file.  See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007).  Therefore, the Board finds that duty to notify and duty to assist have been satisfied and will proceed to the merits of the appellant's appeal.  

Claim for Increase

The law applicable to accrued benefits provides that certain individuals may be paid periodic monetary benefits (due and unpaid) to which the veteran was entitled at the time of his death under existing ratings or based on evidence in the file or constructively of record at the time of his death.  38 U.S.C.A. § 5121(a) (West 2002 & Supp. 2010); 38 C.F.R. § 3.1000 (2011).  

Prior to his death in April 2011, the Veteran submitted a claim for, in part, an increased rating for malaria in August 2007, which had been evaluated as noncompensably disabling since 1946.  The current contention in this regard is essentially that the Veteran was entitled to an increased rating for this disability prior to his death, and that the appellant should be awarded the compensation for that increase that would have gone to the Veteran had he lived.  

Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity.  Separate diagnostic codes identify the various disabilities.  38 U.S.C.A. § 1155; 38 C.F.R., Part 4.  In rendering determinations, VA is to evaluate functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, and interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2.  Likewise, VA is to resolve any reasonable doubt regarding the degree of disability in favor of the claimant, and where there is a question as to which of two evaluations apply, assign the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating.  38 C.F.R. §§ 4.3, 4.7, 4.10, Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  

As indicated above, at the time of his death in April 2011, the Veteran was assigned a noncompensable evaluation for malaria under Diagnostic Code (DC) 6304, which provides for a 100 percent evaluation for active malaria.  The accompanying Note states that the diagnosis of malaria depends on the identification of the malarial parasites in blood smears.  If the veteran served in an endemic area and presents signs and symptoms compatible with malaria, the diagnosis may be based on clinical grounds alone.  Relapses must be confirmed by the presence of malarial parasites in blood smears.  Thereafter residuals such as liver or spleen damage are rated under the appropriate system.  38 C.F.R. § 4.88b, DC 6304 (2011).  

In this case, while the appellant believes that she is entitled to a compensable evaluation for residuals of malaria, there is no medical evidence to support that assertion.  None of the numerous medical reports of record make any mention of malaria other than by way of history since 1946.  Similarly, there has been no indication of required hospital treatment, or symptoms which are shown to be related to malaria.  While the Veteran was shown to have biliary obstruction and essential hypertension, these problems are associated with the lymphoma and/or medications taken for treatment of that disorder.  

The record also showed that the physicians who treated the Veteran for his chronic lymphoma from 1999 until his death in 2011, were aware of his history of malaria, but did not indicate or otherwise suggest that he had any symptoms indicative of a relapse of malaria.  In this regard, the Board notes that in April 2008, his treating hematologist (Dr. Lessin) opined that the Veteran's single episode of night sweats was unlikely related to relapsing malaria, and indicated that he would order a blood smear to look for malarial parasites if the Veteran had a recurrence of symptoms.  The record does not reflect any further complaints or symptoms associated with malaria or any recurrence.  

While a lay witness can 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).  

Based on the evidence of record, the Board finds that a compensable rating for malaria is not warranted.  The record does not contain competent medical evidence that the Veteran had active malaria or any ascertainable residuals of malaria such as liver or spleen damage.  All of the medical evidence associated with the claims file during the pendency of this appeal failed to reveal any signs, symptoms or residuals considered to be due to malaria.  As there was no medical evidence of active disease or any residual disability associated with malaria prior to the Veteran's death in 2011, there is no basis to award a compensable rating for purposes of accrued benefits.  

Under the circumstances, the Board concludes the noncompensable evaluation assigned for the Veteran's malaria at the time of his death was appropriate, and that a higher evaluation was not warranted for the purpose of accrued benefits.  

In light of the discussion above, the Board finds that the noncompensable evaluation assigned for the Veteran's malaria accurately depicted 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 v. Mansfield, 21 Vet. App. 505 (2007).  

Finally, the Board has also considered whether the case should be referred to the Director of the VA Compensation and Pension Service for extraschedular consideration under 38 C.F.R. § 3.321(b)(1).  The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice.  Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).  

With the absence of any symptoms compentently or credibly related to malaria, there is no basis for concluding the schedular criteria are inadequate to describe the disability.  In view of this, referral of this case for extraschedular consideration is not in order.   


ORDER

An increased rating for malaria, for purposes of accrued benefits is denied.  


REMAND

The appellant contends that her husband's (the Veteran) lymphoma (Waldenstrom's macroglobulinemia), was caused by exposure to ionizing radiation from the atomic bombs dropped on Hiroshima and Nagasaki on August 1945, while he was on the island of Okinawa, where he had arrived in April 1945 and departed in October 1945.  At a hearing in September 2009, the Veteran recalled that he saw dust particles on rocks while on patrol on Okinawa several days after the explosions, which he believed was contaminated with ionizing radiation.  He also submitted numerous articles on the subject of nuclear blasts, radiation exposure, weather conditions in the Pacific in 1945, and opinions from three private physicians to the effect that his Waldenstrom's macroglobulinemia was caused by radiation exposure in service.  Also of record is a letter dated in September 2009 from Professor Ernest Sternglass to the Veteran, to the effect Okinawa received levels of fallout similar to all of Japan in August 1945.  Parenthetically, the Veteran's lymphoma is a radiogenic disease under 38 C.F.R. § 3.311.  

VA Regulations provide, in pertinent part, that "in all claims" [emphasis added] in which it is established that a radiogenic disease first became manifest after service, and was not manifest to a compensable degree within any applicable presumptive period under 38 C.F.R. § 3.307 or § 3.309, and it is contended that the disease is a result of exposure to ionizing radiation in service, an assessment will be made as to the size and nature of the radiation dose or doses.  38 U.S.C.A. § 3.311(a).  

The regulations provide for specific development of claims based on participation in atmospheric testing and the occupation of Hiroshima and Nagasaki.  In all other claims involving radiation exposure, the regulations direct that a request will be made for any available records concerning the veteran's exposure, including but not limited to his Record of Occupational Exposure to Ionizing Radiation (DD Form 1141), if maintained, service medical records, and other records which may contain information pertaining to the veteran's radiation dose in service, and that all such records be forwarded to the Under Secretary for Health, who will be responsible for preparation of a dose estimate, to the extent feasible, based on available methodologies.  38 C.F.R. § 3.311(iii) (2011).  

The regulations provide further, that when it is determined that a veteran was exposed to ionizing radiation from, in this case, "other activities" and has a radiogenic disease, the case will be referred to the Under Secretary for Benefits for further consideration in accordance with applicable regulation.  38 C.F.R. § 3.311(b).  The Under Secretary for Benefits is charged with the duty to consider the claim and, if necessary, obtain an advisory opinion from the Under Secretary for Health.  Thereafter, the Under Secretary for Benefits should make a determination based on "sound scientific evidence" and should so inform the RO in writing.  

In light of the current evidence of record, and the lack of any development of dose estimates consistent with the procedures outlined above, the Board finds that additional development must be undertaken prior to further adjudication of the claim.  Accordingly, the case is REMANDED for the following action:  

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011).  Expedited handling is requested.)  

1.  The RO should undertake all appropriate development of the appellant's claim consistent with the procedures set out in 38 C.F.R. § 3.311, for claims based on exposure to ionizing radiation.  After all available records concerning the Veteran's radiation exposure have been obtained, the claims file should be forwarded to the Under Secretary for Health for a dose estimate concerning the Veteran's alleged ionizing radiation exposure in Okinawa in 1945.  Thereafter, the claims file should be forwarded to the Under Secretary for Benefits for review and an opinion.  

2.  After the requested development has been completed, the case should be reviewed, any additional development should be accomplished as may become indicated, and the claims re-adjudicated.  If the benefits sought on appeal remain denied, the appellant and representative should be furnished a Supplemental Statement of the Case and given the opportunity to respond thereto.  

Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if in order.  The Board intimates no opinion as to the ultimate outcome of this case.  The appellant need take no action unless otherwise notified.  The appellant has the right to submit additional evidence and argument on the 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. 2011).  




____________________________________________
MICHAEL E. KILCOYNE
Veterans Law Judge, Board of Veterans' Appeals




Department of Veterans Affairs