Citation Nr: 1234948 Decision Date: 10/09/12 Archive Date: 10/17/12 DOCKET NO. 09-03 499 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for malaria. 2. Entitlement to service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD A. Barone, Counsel INTRODUCTION The Veteran had active service from July 1990 to April 1992. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). This case was previously before the Board in June 2010, when it was remanded for additional development. The Board finds that there has been substantial compliance with the directives of the Board's June 2010 remand with regard to the malaria issue addressed with a final decision at this time. In accordance with the remand directives, the Veteran underwent a VA examination in February 2012 and the associated report addresses the questions in a manner presenting probative evidence and permitting informed appellate review in this case. Specifically, the VA examination determined that the Veteran does not have chronic malaria. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to ensure a total review of the evidence. The issue of entitlement to service connection for PTSD is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran does not have malaria. CONCLUSION OF LAW Chronic malaria was not incurred in or aggravated by the Veteran's active duty service, nor may malaria be presumed to have been incurred or aggravated by active service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2011). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (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. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2011). Duty to Notify Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). The notice requirements apply to all five elements of a service connection claim: 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. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided the appellant pre-adjudication notice by a letter dated October 2007. The notification complied with the specificity requirements of Dingess v. Nicholson, 19 Vet. App. 473 (2006) identifying the five elements of a service connection claim; and Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence. The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notice. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). Duty to Assist VA has obtained service treatment records and post-service VA treatment records; assisted the Veteran in obtaining evidence; and afforded the Veteran a VA examination in February 2012. The Board finds that the February 2012 VA examination report addressing the malaria issue presents a thorough and complete discussion of the pertinent history, current findings, and expert determinations informed by review of the claims file and direct examination of the Veteran such that the report presents adequate and probative evidence in this case. All known and available records relevant to the issue on appeal have been obtained and associated with the Veteran's claims file; and the Veteran has not contended otherwise. VA has complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the malaria issue at this time. Legal Criteria Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury or disease in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also 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). Additionally, for veterans who have served in the active service after December 31, 1946, service connection for malaria may be conceded on a presumptive basis when manifest to a degree of 10 percent or more within one year of discharge from service. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309(b). Analysis Malaria One of the issues before the Board involves a claim of entitlement to service connection for malaria. The Veteran's contention, as clarified in his October 2007 and August 2010 written statements as well as his discussion documented in a February 2012 VA examination report, is that he contracted malaria in late 1991 or early 1992 while deployed in Panama and working in the San Blas Islands. The Veteran testifies to recollections of being treated with prophylactic medication, Chloroquine, Primaquine, and Quinine. The Veteran testifies that he had a fever rising to 104 degrees together with lethargy, dyspnea, and dizziness. The Veteran denies being hospitalized, and asserts that he returned to duty when his condition improved within approximately four days (as reported to the VA examiner) or two weeks (as indicated in his August 2010 statement); the Veteran told the VA examiner that he returned to duty in four days but only returned to full physical training after two weeks. The Veteran described to the VA examiner that he experienced relapses in 1996 (while in a hospital following a motor vehicle accident), in 1999, and in 2006. The Veteran's August 2010 statement indicated that he recalled experiencing relapses in 1997 and 2004, with additional relapses following any prolonged outdoor exposure to heat. The Veteran's October 2007 written statement indicated that he experienced relapses "about once a year." Although the Veteran contends that he was diagnosed with malaria during his military service, the Veteran's service treatment records contain no documentation of any diagnosis or treatment for malaria. The Board notes that a February 1992 service medical examination report contains a full clinical evaluation and report of medical history, with no pertinent abnormalities noted and no suggestion of any current or past malaria. An April 1992 service treatment record from Fort Davis shows that the Veteran was treated at that time for a "prob URI" or a probable upper respiratory infection; these is no suggestion of malaria. The Veteran's service treatment records are precisely the place that the Veteran's claimed in-service malaria would be documented, but there is no suggestion of malaria in any of these records. The evidence in this case weighs against finding that the Veteran had been diagnosed with malaria during his military service. The Board acknowledges that there is some indication that the Veteran has worked as a paramedic, however this does not suggest the specialized medical training and expertise necessary to make a confirmed specific diagnosis of malaria. There is very little post-service medical evidence pertinently suggesting any problems with malaria. A private medical treatment note dated July 2006 refers to the Veteran presenting with current symptoms and a reported history of malaria in Panama in 1991. The July 2006 private medical note (possibly, but not clearly, from Dr. Finley of the Munday Clinic) shows an assessment of malaria symptoms ["sx"] followed with a prescription of medications including Quinine and Doxycycline. However, no diagnosis of malaria was objectively confirmed nor is there any documented laboratory testing or follow-up record otherwise indicating any objective diagnosis of malaria. There is no other post-service medical evidence showing treatment for or diagnosis of malaria. The Veteran's claim depends upon the evidence showing that he has, or has had, a medical diagnosis of malaria. However, the medical evidence of record does not contain any confirmed diagnosis of malaria at any time. The Board acknowledges that the Veteran is competent to report certain symptoms suggestive of illness, such as fever, dizziness, and fatigue. 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, 469-70 (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). While the Veteran may be competent to testify to his experience of potentially pertinent symptoms, a diagnosis of a chronic acquired disease such as malaria is a matter ultimately requiring specialized expertise. The Veteran's statements do not constitute competent evidence of a medical diagnosis or nexus opinion. Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). "Competent medical evidence" is, in part, that which is provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. 38 C.F.R. § 3.159(a). The Veteran has not shown, nor claimed, that he possesses the medical expertise that is required to render a competent opinion as to actual diagnoses and/or medical causation. Id; see also Grottveitt v. Brown, 5 Vet. App. 91, 93 (1993). This is not a situation where the diagnosis may be established by lay evidence: the Veteran is not reporting a contemporaneous diagnosis (there is no confirmed diagnosis of malaria); and he does not describe symptoms supporting a later diagnosis (malaria has never been diagnosed). See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Significantly, the February 2012 VA examination report concludes that the Veteran does not have malaria. The report also concludes that the available information does not indicate that he has ever had malaria. The February 2012 VA examiner reviewed the claims-file and conducted a thorough interview and examination of the Veteran. Details of the Veteran's discussion of pertinent history with the examiner have been summarized above. The examination form contains a note explaining that the diagnosis of malaria depends upon the identification of the malarial parasites in blood smears. Further, if a 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. Significantly, the examiner acknowledges that there would have been parasites and mosquitoes present in the area to cause malaria when the Veteran served in Panama, however the examiner found that the available information does not indicate that the Veteran ever actually contracted malaria. The examiner explains that "[t]he inservice taking of malarial prophylactic medication is not an indicator of an active infection with malaria parasites," and cites that the Veteran's service treatment records and separation examination present no evidence of a malarial infection or treatment. The examiner explains that the Veteran's report of recovering to resume duties in four days and training in two weeks is not consistent with malaria: "[t]his is a serious illness and it is less than likely the Veteran could have recovered enough in 4 days from a protozoan infestation to resume normal work duties." Concerning that the Veteran's claims post-service malaria relapses, the February 2012 VA examiner noted that there is no documentation of any treatment or diagnosis of malaria at any time, with the only suggestion of malaria coming in the July 2006 records showing treatment for possible malaria with Quinine and Doxycycline. However, the VA examiner reads this treatment note as showing that the Veteran was afebrile (a temperature of 96.8 degrees) and "there was not a sufficient leukocytosis [5,300 WBC] to indicate an infection." The VA examiner notes that the past private treating physician did not order tests for malaria and that there are no follow up notes after the initial treatment. The February 2012 VA examiner explained that the available information does not provide any clear indicator of an active infection with malaria parasites and the reported symptoms "are not unique to malaria and they alone cannot make the diagnosis of malaria." The VA examiner concludes that "[r]eview of the C-file shows only subjective evidence of a malarial infection." Significantly, the examiner conducted the appropriate testing for clinical detection of malaria and reported that "[c]urrent laboratory studies do no[t] indicate an infection or a malarial or ongoing infection.... There are no demonstrable ongoing sequelae or indication of previous infection with malaria." The Board has reviewed the complete claims-file and finds that the February 2012 VA examination report accurately and thoroughly accounts for the pertinent evidence of record concerning the Veteran's health and symptom history. The evidence of record does not otherwise present any significant complaints of, treatments for, or diagnosis of malaria. The Board acknowledges the Veteran's assertion that he contracted chronic malaria during his military service in Panama. While he is competent to testify as to his symptoms, he is not competent to diagnose and render a nexus opinion. See Barr v. Nicholson, 21 Vet. App. 303 (2007). In sum, based on the competent medical evidence of record, the Board must conclude that the Veteran does not have malaria and has not had chronic malaria during the pendency of this appeal. The Court has indicated that in the absence of proof of a present disability, there can be no valid claim for service connection. Brammer v. Derwinski, 3 Vet. App. 223 (1992). Thus, the Board finds that the preponderance of the evidence is against the Veteran's claim for service connection for malaria. As the preponderance of the evidence weighs against the claim, the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C.A. § 5107(b). ORDER Entitlement to service connection for malaria is not warranted. To this extent, the appeal is denied. REMAND With regard to the issue of entitlement to service connection for PTSD, the Board's prior June 2010 remand directed that the RO/AMC should attempt to verify the Veteran's several claimed stressors. During the processing of the June 2010 remand, the AMC took steps to attempt verification of stressors but found that none of the specific stressors were verified, as documented in a July 2012 formal finding memorandum. However, the Board finds that additional development is warranted with regard to some of the specified stressors. Significantly, the Board notes that a new May 2011 VA psychiatric examination report developed during the processing of the June 2010 Board remand diagnosed the Veteran with PTSD and expressly indicated that at least two of his key reported stressors would meet the DSM-IV stressor criteria. Specifically, the May 2011 VA examination report identified the event of the Veteran identifying his friend's dead body in Panama and the event of witnessing a grenade range accident killing two men during basic training as meeting the DSM-IV stressor criteria. Thus, verification of the occurrence of either of these reported stressors could be highly significant in this case. As documented in the claims file and summarized in the July 2012 memorandum, the AMC's request for stressor verification from the Joint Services Records Research Center was met with responses indicating that they could not locate unit records associated with the Veteran's service (specifically, they could not locate records for the 1097th Transport Company) and merely referred further inquiries to the U.S. Army Crime Records Center. The U.S. Army Crime Records Center responded to inquiry by stamping the words "No Record" on the stressor incident accounts forwarded to it. The Board is concerned that the efforts to verify the Veteran's claimed stressors have not exhausted reasonably available means or, at least, have not resulted in adequate explanation of the inability to conduct more meaningful research. In particular, the Veteran has cited the death of his friend "Irish" O'Neil (he is unsure of the spelling) in a motorcycle accident in Panama in early 1991. The Board believes that, even without finding records specific to the Veteran's unit, an attempt to research available information documenting the deaths of U.S. Army personnel in Panama would be appropriate and helpful in this case. The Board presumes, without any formal indication to the contrary, that service department records document the names of Army personnel who died in 1991 during deployment to Panama, and records likely document the circumstances of those deaths. If research of Army personnel deaths in Panama during 1991 reveals anyone with a last name of O'Neil (including under an alternative spelling) who died as a result of a motorcycle accident and who was attached to the Veteran's unit or location of service, such information could be highly pertinent to the Veteran's claim. The Veteran has also described witnessing the death of a serviceman and a drill sergeant while on a hand grenade range during basic training at Fort Dix, New Jersey, around the summer of 1990. Regardless of whether the Veteran's specific unit records may be located, the Board presumes without any formal indication to the contrary that the occurrence of a grenade training accident killing two men including a drill sergeant would be documented in some identifiable records. The fact that the incident was not documented at the U.S. Army Crime Records Center does not appear to adequately resolve the matter of inquiry, as it is not clear that this accident would have involved a criminal investigation. If documentation of all deaths during basic training at Fort Dix around the summer of 1990 includes deaths under the particular circumstances described by the Veteran, with a trainee and drill sergeant being killed during an accident on the grenade range, such information could be highly pertinent to the Veteran's claim. Additionally, the Board finds that additional development is warranted in connection with a change in the law since the Board's most recent June 2010 remand. There was an amendment to 38 C.F.R. § 3.304(f) effective from July 13, 2010. See 75 Fed. Reg. 39843 (July 13, 2010). This amendment eliminated the requirement for corroboration that the claimed in-service stressor occurred if a stressor claimed by the Veteran is related to the Veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA had contracted, confirms that the Veteran's symptoms are related to the claimed stressor, provided that the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service. The Veteran's statements describing in-service stressors include various references to stress from fear of hostile military activity. The Veteran has on multiple occasions (including in an August 2010 statement) described that a bullet shattered the windshield of a vehicle he was traveling in during service in Panama. An August 2010 statement cites stressor factors during service associated with the invasion of Panama involving "[c]ontinuous combat readiness recalls," "constant anticipation of combat conditions," and being deployed on December 20, 1990 for 16 hours on alert for an escaped enemy General in the jungle. In light of the recent amendment to 38 C.F.R. § 3.304(f), this claim and the Veteran's contentions raise the question of whether the places, types, and circumstances of the Veteran's service in Panama are consistent with his account of fear of hostile military activity. The Board observes, in passing, that a search of publicly available accounts on the internet reveals anecdotes and accounts of the Veteran's unit during the pertinent period in Panama that suggest plausibility of fear of hostile military activity; a determination informed by official service department information and resources is required. Finally, in light of the amendment to 38 C.F.R. § 3.304(f) and the additional development sought in this case, a new VA psychiatric examination would be helpful following completion of the other development directed at this time. The Board notes that the prior May 2011 VA psychiatric examination report cited some complexity in this case due to possible PTSD stressors before, during, and following service. The February 2012 VA psychiatric examination report did not resolve the cited complexity. If necessary, following the additional development in this case, a new VA examination report should make a determination as to whether the Veteran suffers from PTSD etiologically linked to an in-service stressor. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should make additional efforts to attempt to verify the Veteran's claimed PTSD stressors in this case. a) One of the Veteran's claimed stressors cites the death of his friend "Irish" O'Neil (he is unsure of the spelling) in a motorcycle accident in Panama in early 1991. Even without finding records specific to the Veteran's unit, an attempt to research available information documenting the deaths of U.S. Army personnel in Panama would be appropriate. The fact that the incident was not documented at the U.S. Army Crime Records Center does not appear to adequately resolve the matter of inquiry, as it is not clear that this accident would have involved a criminal investigation. The RO/AMC should solicit an official determination as to whether any Army personnel who died in 1991 during deployment to Panama had a last name of O'Neil (including under an alternative spelling), died as a result of a motorcycle accident, and was attached to the Veteran's unit or location of service. b) One of the Veteran's claimed stressors cites witnessing the death of a serviceman and a drill sergeant while on a hand grenade range during basic training at Fort Dix, New Jersey, around the summer of 1990. Regardless of whether the Veteran's specific unit records may be located, the occurrence of a grenade training accident killing two men including a drill sergeant would presumably be documented in some identifiable service department records. The fact that the incident was not documented at the U.S. Army Crime Records Center does not appear to adequately resolve the matter of inquiry, as it is not clear that this accident would have involved a criminal investigation. The RO/AMC should solicit an official determination as to whether any deaths at Fort Dix around the summer of 1990 were under the particular circumstances described by the Veteran, with a trainee and drill sergeant being killed during an accident on the grenade range. c) The Veteran's statements describing in-service stressors include various references to stress from fear of hostile military activity as contemplated by the recent amendment to 38 C.F.R. § 3.304(f). The RO/AMC should solicit an official determination as to whether the places, types, and circumstances of the Veteran's service in Panama are consistent with his account of fear of hostile military activity. A search of publicly available accounts on the internet reveals anecdotes and accounts of the Veteran's unit during the pertinent period in Panama that suggest plausibility of fear of hostile military activity; a determination informed by official service department information and resources is required. 2. Following the above, the RO should make a specific determination with respect to whether the Veteran was exposed to a verified stressor or stressors in service, and if so, the nature of the specific stressor or stressors. The RO must also make a specific determination as to whether the places, types, and circumstances of the Veteran's service in Panama are consistent with his account of fear of hostile military activity. 3. The RO/AMC should then schedule the Veteran for an examination by a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA had contracted, to determine the nature and likely etiology of his psychiatric disability/disabilities, and specifically whether he has PTSD related to his military service. It is imperative that the claims file be made available to the examiner for review in connection with the examination. The examiner should be informed of the details of any corroborated stressors. All acquired psychiatric disabilities diagnosed on examination should be clearly reported. Based on examination of the Veteran and review of the record, the examiner should then respond to the following: (a) If a diagnosis of PTSD is made, is it at least as likely as not (a 50% or higher degree of probability) that the PTSD is related to any corroborated stressor, or to fear of hostile enemy action? (b) As to any diagnosed acquired psychiatric disability other than PTSD, is it at least as likely as not (a 50% or higher degree of probability) that such acquired psychiatric disability(ies) is/are causally related to the Veteran's active duty service? The examiner should offer a rationale for all opinions given with reference to pertinent evidence. 4. After completion of the above, the RO should review the expanded record and readjudicate the appeal. If the issue on appeal remains denied, the RO should furnish the Veteran with an appropriate supplemental statement of the case and the case should be returned to the Board after the Veteran is afforded an 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. 2011). ______________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs