Citation Nr: 1314166 Decision Date: 04/29/13 Archive Date: 05/15/13 DOCKET NO. 08-29 370 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for malaria, to include the residuals of malaria. REPRESENTATION Appellant represented by: John S. Berry, Attorney ATTORNEY FOR THE BOARD E. D. Anderson, Counsel INTRODUCTION The Veteran served on active duty from January 1949 to January 1950 and from September 1950 to December 1951. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The Board previously denied entitlement to service connection for malaria in a December 2009 decision. A September 2011 Memorandum Decision by the United States Court of Appeals for Veterans Claims (Court) vacated this decision. The issue was remanded for further development consistent with the Court's opinion. In October 2012, the Board remanded this matter to the RO via the Appeals Management Center (AMC) in Washington, D.C. to afford the Veteran a VA medical examination. The action specified in the October 2012 Remand completed, the matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Veteran is seeking entitlement to service connection for malaria, to include the residuals thereof. The Veteran has presented competent evidence in the form of lay statements that he contracted malaria in service. He has testified that since that time, he has suffered from symptoms such headaches, cold sweats, nausea, fever, jaundice, and left upper quadrant pain which he attributes to malaria. In December 2012, the Veteran was afforded a VA examination to determine whether he currently suffered from either malaria or the residuals of malaria and, if so, whether it was at least as likely as not that the malaria condition is related to service. The December 2012 VA examiner concluded that the Veteran does not currently suffer from persistent malaria based on the results of blood tests; however, the examiner failed to address whether the symptoms the Veteran has described, such as headache, sweating, chills, nausea, and abdominal pain are caused by or related to a past bout of malaria. The Board notes that in its October 2012 Remand instructions, the examiner was asked to identify not only whether the Veteran currently suffers from malaria, but whether he suffers from any residuals of malaria. While the examiner addressed whether the Veteran currently suffers from malaria, he failed to address whether the Veteran suffers from any residual disability caused by malaria. The Veteran is entitled to substantial compliance with the terms of the Board's Remand. See Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, the Board finds that a remand is necessary to obtain an addendum to the December 2012 VA examination. The Board notes further that the December 2012 VA examiner indicated that the Veteran's had been scheduled for an abdominal ultrasound later in December 2012 because of his complaints of right and left upper quadrant pain and a tender palpable spleen. The examiner also reported that the Veteran had cancelled that testing. The examiner noted that the ultrasound was to determine whether the Veteran had an enlarged spleen that would have been consistent with persistent malaria or with splenic scarring in the remote past, possibly from malaria. However, in March 2013, the Board received a letter from the Veteran's representative, indicating that the Veteran was attempting to schedule an ultrasound examination in support of his claim, and that he had cancelled the previously scheduled one due to inclement weather. Although, at this time, the Board has no evidence that the requested ultrasound examination was ever rescheduled, the Board finds that the Veteran has presented good cause for the cancellation of the previously scheduled abdominal ultrasound, and as such, on remand another such diagnostic test should be scheduled. Therefore, the case is remanded for an abdominal ultrasound to be performed and then the case should be returned to the December 2012 VA examiner, who is asked to address the significance of the findings of the ultrasound report and to address the Veteran's reports of residual symptoms and explain whether it is at least as likely as not (fifty percent or greater) that these symptoms are caused by or related to a past bout of malaria. A rationale for this opinion should be provided. 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) (2012). Expedited handling is requested.) 1. Obtain any additional VA treatment records not of record, to include the results of any diagnostic testing performed. This should include the results of any ultrasound examination performed since March 2013. 2. If no abdominal ultrasound was performed since March 2013, reschedule the Veteran for an abdominal ultrasound to determine whether he has malaria or residuals thereof. 3. Once this is done, return the claims file to the physician who performed the December 2012 VA examination. In an addendum to his December 2012 VA examination report, the examiner is asked to review the abdominal ultrasound report requested pursuant to number 2 above, discuss the significance of any findings reported therein, and to consider the Veteran's complaints of symptoms such as headaches, chills, sweats, nausea, fever, jaundice and abdominal pain, which the Veteran attributes to his in-service malaria. The examiner is asked to opine whether it is at least as likely as not (fifty percent or greater) that the Veteran has malaria or residuals of past malaria and should specifically indicate whether the symptoms reported by the Veteran are caused by or related to a past bout of malaria. If additional testing or examination of the Veteran is necessary to respond to the above inquiry, such should be afforded the Veteran. A rationale for the examiner's opinion should be provided. 4. When the development requested has been completed, and the RO has ensured compliance with the requested action, this case should again be reviewed by the RO on the basis of the additional evidence. If the benefit sought is not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case, and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter 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. 2012). _________________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).