Citation Nr: 1310571 Decision Date: 04/01/13 Archive Date: 04/11/13 DOCKET NO. 10-18 786 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a skin disability claimed as jungle rot. 2. Entitlement to service connection for malaria. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD A.G. Alderman, Counsel INTRODUCTION The Veteran had active service from January 1943 to January 1950. This appeal comes before the Board of Veterans' Appeals (Board) from a January 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran provided testimony at a hearing at the RO before the undersigned Veterans Law Judge in February 2013. A transcript of the hearing has been associated with the claims file. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). FINDINGS OF FACT 1. The Veteran's skin disability had onset during service. 2. Malaria has not been present during the pendency of this claim. CONCLUSIONS OF LAW 1. Jungle rot was incurred in active service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). 2. The criteria for service connection for malaria have not been met. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided "at the time" that or "immediately after" VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that the Veteran was provided all required notice in a letter mailed in September 2008, prior to the initial adjudication of the claims. In addition, the evidence currently of record is sufficient to substantiate his claim for service connection for jungle rot. Although the evidence of record is not sufficient to substantiate the claim for service connection for malaria, the pertinent facts are not in dispute and the law is dispositive. There is no additional evidence that could be obtained to substantiate the malaria claim. Accordingly, no further action is required to satisfy VA's duty to assist the Veteran in the development of these claims. Legal Criteria Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Factual Background and Analysis The Veteran seeks service connection for malaria and a skin disability claimed as jungle rot. The evidence includes service treatment records which show he was treated for dermatitis of the right foot in December 1946. The January 1950 separation examination was negative for evidence of a skin disorder or malaria. Reports of VA examinations in July 1950 and November 1955 show normal skin. The July 1950 examination report also notes that the Veteran had malaria in 1945 but that he had not had a recurrence since then. In his August 2008 claim for service connection, the Veteran said he had malaria during service and that his first episode lasted over two weeks. He also stated that jungle rot had its onset during service and lasted forty years. In a September 2008 statement, he said that while stationed in the West Pacific Theater, he was required to take Atabrine and a salt tablet daily. He elected to discontinue taking Atabrine and take his chances with contracting malaria because the medicine was turning his skin yellow. Shortly thereafter he contracted malaria. He said he had a similar attack where he was bed-ridden for about a month but it was not as severe as the initial malaria attack. He attributed the jungle rot to the lack of water for bathing. Lesions were located on his legs from his knees down to his feet and lasted until the 1980s. In his April 2009 notice of disagreement, the Veteran reiterated his story and symptoms regarding the onset of malaria during service and said he had a similar episode several years ago. He also noted that while hospitalized for his nose, hernia and kidney surgeries during service, doctors observed his jungle rot. The lesions on his feet continued to be irritable for the next forty years until the lesions faded away. A May 2010 statement from the Veteran's wife states that the Veteran always wore socks which covered blackish-brown sores on his feet. He told her the spots were jungle rot and that he had had it since 1945 when he was stationed in New Guinea during the war. She also said that in February 2005, she observed the Veteran experiencing chills, a fever, and excessive sweating. She said his entire body hurt and he lost strength. He told her that his symptoms were the same as those he had during his initial malaria attack during service. In a May 2010 statement, the Veteran said he had his initial malaria attack in Manila and that medical facilities were not available. The commanding officer of his base called the hospital and described his symptoms. The doctor said he had malaria and recommended that he re-start Atabrine and sweat his symptoms out in bed. After returning to the United States, he had multiple surgeries at which times he showed his feet to several doctors. It was recommended that he continue using GI foot powder. He said he had the jungle rot until the early 1980s. He had his second malaria flare-up in February 2005. His symptoms were the same in February 2005 as those he had in service. He was bedridden for a month. In February 2013, the Veteran testified before the Board that his jungle rot started within a month of him being stationed in New Guinea in March 1945. He was told to use foot powder and bathe and change socks frequently. However, since he was a pilot flying from island to island, he was not able to bathe regularly and sometimes would not shower for three or four days. He reiterated that he sought treatment from doctors while hospitalized for surgeries during service. He said he currently has occasional extreme itching at night; however, the lesions have not reappeared. He testified that the current itching feels the same as the itching he experienced when jungle rot manifested as lesions during and after service. Regarding malaria, he described his duties during service and his exposure to mosquitoes while stationed overseas. He described the onset of symptoms during service and the second attack in 2005. He has not had any other recurrences of malaria since 2005. The Board has reviewed all of the evidence in the light most favorable to the Veteran and finds that service connection for jungle rot is warranted. The Veteran was treated for dermatitis of the feet in December 1946. He has consistently stated that he had jungle rot for at least 40 years after service, allegations supported by a statement from his wife whom also observed his symptoms. Recently, he indicated that while his lesions have not reappeared, the symptom of itching has returned. He claims that the itching is the same as the itching he had when the lesions were present. The Board has considered all of the Veteran's statements and testimony and finds that he is competent to report his symptoms of jungle rot as the symptoms are readily observed by lay persons. The Board also finds that the Veteran's testimony is credible. Therefore, based on the documented dermatitis in service, the Veteran's statements and testimony, and the statement from his wife, the Board finds that the Veteran should be given the benefit of the doubt that his jungle rot, or current skin condition manifesting as itching of the feet, had its onset during and has persisted since service. The Board could have chosen to remand this case for the purpose of affording the Veteran a VA examination to determine the nature and etiology of his claimed skin disorder; however, the Veteran is almost 90 years old and further delay of the appellate process for such an examination would be inappropriate under the circumstances in this case. For the claim seeking service connection for malaria, the Board finds the Veteran is competent to report his symptoms and experiences in service and in 2005. The Board also finds his testimony credible. However, while the Board does not doubt that the Veteran contracted malaria during service or that he had a second episode in 2005, there is no lay or medical evidence of the presence of this claimed disability during the period of this claim. "Congress specifically limits entitlement to service-connected disease or injury where such cases have resulted in a disability ... in the absence of a proof of present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Court has held that the requirement for service connection that a current disability be present is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim even though the disability resolves prior to the Secretary's adjudication of the claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Since the evidence fails to show the presence of malaria at any time during the pendency of the claim, the claim must be denied. ORDER Service connection for jungle rot is granted. Service connection for malaria is denied. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs