Citation Nr: 1317227 Decision Date: 05/24/13 Archive Date: 05/31/13 DOCKET NO. 10-02 772 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for malaria. 3. Entitlement to service connection for headaches. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Catherine Cykowski, Counsel INTRODUCTION The Veteran had active duty service from February 1946 to March 1947. This matter comes before the Board of Veterans' Appeals (Board) on appeal from October 2007 and June 2008 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. The Board notes that, in the prior Board remand in November 2012, the Board referred a new application to reopen service connection for anxiety. A memorandum on file dated in February 2013 reflects that the claim to reopen service connection for anxiety was referred to the AOJ for appropriate action. As such the issue is not currently before the Board. The Board previously remanded this matter for additional development in November 2012. The requested development included obtaining outstanding VA medical records and affording the Veteran a VA examination. The Board finds that the development requested in the November 2012 remand directive has been completed. 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 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. FINDINGS OF FACT 1. The Veteran's statements that he had malaria in service are credible. 2. There is a current diagnosis of inactive malaria and malaria was incurred in service. 3. The weight of the competent, credible, and probative evidence does not demonstrate that headaches are related to the Veteran's active military service. CONCLUSIONS OF LAW 1. The criteria for service connection for malaria are met. 38 U.S.C.A. §§ 1101, 1110, 1112, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 2. Headaches were not incurred or aggravated in service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist As provided for by VCAA, 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. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA 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 in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the AOJ, in this case the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 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, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Here, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in January 2007. That letter fully addressed the requisite notice elements. The letter informed the Veteran of what evidence was required to substantiate his service connection claims and of the Veteran's and VA's respective duties for obtaining evidence. The letter was submitted to the Veteran prior to the February 2008 rating decision on appeal. To the extent there exists any error by VA in providing the notice required by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)(1), such error was nonprejudicial, in that it did not affect the essential fairness of the adjudicatory process. Based on a review of the entire file, it is clear that the appellant and his representative have a full understanding and actual knowledge of the elements required to prevail on the claim. Moreover, neither the appellant nor his representative has raised allegations of prejudice resulting from any error on the part of VA. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009); see also Goodwin v. Peake, 22 Vet. App. 128 (2008). VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Attempts to obtain the Veteran's service treatment records from the National Personnel Records Center (NPRC) have been made. In April 2000, the NPRC informed the RO that the service treatment records are unavailable. The Board nevertheless recognizes that it has a heightened duty to explain its findings and conclusions because of the missing records and to carefully consider the benefit-of-the-doubt rule. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). VA outpatient treatment records and private treatment records identified by the Veteran have been obtained. The Veteran underwent adequate VA medical examinations for his claims. 38 U.S.C. § 5103A(d) and 38 C.F.R. § 3.159(c)(4). The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained the available relevant records, and has provided an adequate examination to the Veteran. Significantly, neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Analysis of Claims Service Connection Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship of nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Malaria and headaches are not "chronic diseases" listed under § 3.309(a); therefore, 38 C.F.R. § 3.303(b) does not apply to the claim for service connection for malaria or headaches. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be established for certain tropical diseases manifested to a compensable degree within a presumptive period following separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309(b) (2012). Malaria is a tropical disease with a presumptive period of one year. 38 C.F.R. § 3.307(b). In rendering a decision on appeal the Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). 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, 6 Vet. App. at 470; 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). Lay evidence can also be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (e.g., a broken leg), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The absence of contemporaneous medical evidence is a factor in determining credibility of lay evidence, but lay evidence does not lack credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr, 21 Vet. App. 303 ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms"). In rendering a decision on appeal the Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson, 7 Vet. App. at 39-40 (1994); Gilbert, 1 Vet. App. at 57 (1990). Service Connection for Malaria The Veteran contends that he contracted malaria during service and has had problems related to malaria since service. The Veteran had active duty service from February 1946 to March 1947. Service treatment records are not available for review. The Veteran's reported medical history of in-service malaria has been documented in post-service medical records. A private treatment record dated in June 1999 reflects that the Veteran reported a history of malaria at age 18 (the Veteran's approximate age during service). In a May 2001 letter, a private physician noted that the Veteran had a remote history of malaria which still caused recurring symptoms, such as occasional sweats and chills. There is also no evidence in the record that would tend to contradict the Veteran's assertions; therefore, the Board finds that the Veteran's contentions of malaria in service to be credible. In December 2012, the Veteran was afforded a VA examination. The Veteran reported that he had malaria when he was in service at age 18. The VA examiner noted that the diagnosis of malaria depends on the identification of the malarial parasites in the blood smears. The VA examiner noted that, 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. The VA examiner indicated that relapses must be confirmed by the presence of malarial parasites in blood smears. The VA examiner noted that the Veteran reported malaria during active service at the age of 18. The VA examiner noted that there were no service treatment records to review, as they were destroyed. The VA examiner indicated that it was therefore impossible to determine whether there was documentation of malaria in active military service or within one year of service. The VA examiner stated that the Veteran presented no new evidence that he had or currently has malaria. The VA examiner indicated that the Veteran claimed to have occasional chills and fever, but being that occasional chills and fever can be due to a multitude of different etiologies, it is not possible to state that the Veteran's chills and fevers are secondary to continued malaria. The VA examiner noted that the Veteran had not had any new evaluations for malaria (such as a peripheral blood smear obtained at the time of a fever to look for trypanosomes). The VA examiner diagnosed malaria and indicated that the status of malaria is inactive. The VA examiner indicated that the date that malaria became inactive is unknown. The VA examiner concluded that the Veteran does not have symptoms or residuals attributable to malaria. The VA examiner indicated that there was no medical evidence that the Veteran ever had malaria, particularly when he was in the active military service or within a year of separation. The VA examiner therefore opined that she could not definitively state that the Veteran has had malaria, and that if he did have malaria, it was related to the time he was in military service. The VA examiner concluded that it is less likely than not that current symptoms attributable to malaria had their onset during service or were causally related to any incident of service. Based upon the foregoing, the Board finds that there is credible evidence of malaria in service. The Board does not doubt the Veteran's credibility with regard to his report of in-service malaria, as he has been consistent in his report of in-service malaria in the post-service medical records. The December 2012 VA examination establishes a current diagnosis of inactive malaria. Therefore, based upon the credible evidence of malaria in service as well as the current diagnosis of inactive malaria, the Board concludes that the evidence establishes that malaria was incurred in service. § 3.303(d). Accordingly, service connection is warranted for malaria. 38 U.S.C.A. § 5107 ; 38 C.F.R. § 3.102 ; Gilbert, supra. Service Connection for Headaches The Veteran asserts that he was treated for headaches during service. In his claim, the Veteran indicated that he had headaches from 1947 to the present. The Veteran further alleges that headaches were present when he was treated for malaria during service. As indicated, the Veteran's service treatment records are not available. The Veteran is competent to report that he had headaches in service. Jandreau, supra. In a statement in support of his claim dated in October 2007, the Veteran reported that he had headaches during service and was treated with aspirin. The Veteran is competent to report that he had headaches during service and that he was treated with aspirin. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Although the Veteran has reported a history of headaches in service, the Board finds that the Veteran's statements regarding headaches in service, which were made for compensation purposes, are inconsistent with and outweighed by the Veteran's own more contemporaneous histories and findings reflected in post-service private and VA treatment records. See Caluza v. Brown, 7 Vet. App. 498 (1995) (in weighing credibility, VA may consider factors such as interest, bias, inconsistent statements, internal inconsistency, self interest, consistency with other evidence of record, and desire for monetary gain). VA treatment records reflect complaints of headache, but the records do not show that the Veteran ever reported a history of headaches in service. VA treatment records dated in February 1996 and June 1999 reflect that the Veteran reported headaches but did not report a specific time of onset of headaches. In June 2004, the Veteran reported consistently high blood pressure for three days and a slight headache. In November 2005, the Veteran was seen for evaluation of a headache for one week. Assessment was headaches, likely tension. Upon VA examination in December 2012, the Veteran reported a history of frontal headaches since the 1990's. Therefore, as the Veteran's statements regarding in-service headaches are inconsistent with the history reported in post-service treatment records and examination reports, the Board finds that his statements regarding headaches in service, while competent, are not credible. In addition, the lapse in time of 50 years from service separation until 1996 without any treatment or diagnosis for headaches is a factor that that may be considered regarding the claim for service connection, and weighs against the claim. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000); Mense v. Derwinski, 1 Vet. App. 354, 356 (1991). The Board finds that the weight of the lay and medical evidence does not demonstrate that a current headache disability is related to service. As indicated above, the Veteran's statements as to headaches in service are not found to be credible. The Veteran had a VA examination in December 2012. The Veteran reported that he was diagnosed with tension headaches in the 1990's. The Veteran reported that he began to have frontal headaches in the 1990's. The VA examiner noted, historically, that the Veteran had told other physicians that his headaches date to the time he was in active military service, but he told other physicians that his headaches began in the 1990's. The VA examiner opined that the Veteran's headaches are muscle contraction headaches. The VA examiner opined that these headaches are not related to military service, as the headaches occurred decades after separation, according to the history the Veteran gave. Furthermore, while the Veteran has asserted that a causal or etiological relationship between his headache disability and service exists, including to malaria treated in service, the Veteran, as a layperson, lacks the medical training to provide a competent medical opinion regarding the cause or etiology of his headaches; therefore, the Veteran's assertion of nexus of his currently diagnosed disability to service is afforded no probative value. See Jandreau, 492 F.3d 1372; Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Board concludes that the weight of the competent, probative and credible medical and lay evidence does not demonstrate that headaches were incurred in service or are otherwise related to service. The Board finds that a preponderance of the evidence is against the Veteran's claim for service connection for headaches, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application, and the claim must be denied. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for malaria is denied. Service connection for headaches is denied. REMAND Additional development is warranted with regard to the issue of service connection for PTSD. During the course of this appeal, the criteria for service connection for PTSD, and specifically verification of PTSD stressors, have changed. See 38 C.F.R. § 3.304(f) (2012). The amendment eliminates the requirement for corroborating that the claimed in-service stressor occurred "[i]f a stressor claimed by a 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 has contracted, confirms that the claimed stressor is adequate to support a diagnosis of [PTSD] and that the Veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service." Id. at 3.304(f)(3). For purposes of this paragraph, "fear of hostile military or terrorist activity" means that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. 38 C.F.R. § 3.304(f)(3) (2012), as added in 75 Fed. Reg. 39,843 -852 (July 13, 2010). The amended criteria apply to claims that were appealed to the Board on or after July 12, 2010. As the Veteran's claim was appealed to the Board in December 2011, the amendment is applicable to his claim. The Veteran has reported various stressors. In a statement dated in April 2008, the Veteran reported that snipers fired upon his base in Manila. In a statement dated in August 2009, the Veteran reported a stressful incident in service of seeing a soldier's body thrown overboard from the deck of a ship after the soldier hit his head and died. An October 2009 memorandum reflects that the RO concluded that there was a lack of information to verify that reported stressor. A VA mental health screening note dated in April 2010 reflects that the Veteran reported war-related trauma. He reported that he saw people shot and killed and that he lay among dead bodies to avoid being killed. A VA psychologist diagnosed PTSD. The Veteran's reported stressors of being fired upon by snipers and seeing people shot and killed are related to a fear of hostile military activity. 38 C.F.R. § 3.304(f)(3) requires a VA psychologist or psychiatrist to provide an opinion as to whether the veteran's claimed stressors are sufficient to support a diagnosis of PTSD, and given the Veteran's claimed stressors, a VA examination with a psychologist or psychiatrist is necessary to determine whether the Veteran's claimed stressors are sufficient to support his PTSD diagnosis. Accordingly, a remand is required for a VA examination. (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. Schedule the Veteran for a VA psychiatric examination. All necessary tests should be performed and the claims file reviewed. The examiner should obtain a complete history from the Veteran, including accurate account of any claimed stressor(s) from his service in Vietnam and of any reported "fear or hostile military or terrorist activity". The VA examiner should indicate whether the Veteran currently has PTSD according to DSM-IV criteria. With respect to the claimed stressor related to the Veteran's fear of hostile military activity, specifically sniper attacks and seeing people shot and killed, the examiner should state whether the stressor is adequate to support a diagnosis of PTSD and whether the Veteran's symptoms are related to the stressor. Fear of hostile military activity means that the Veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the Veteran or others, and the Veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. The examiner is requested to provide a complete rationale for any opinion expressed, based on the examiner's clinical experience, medical expertise, and established medical principles. If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 2. After the completion of the requested action, the claim for service connection for PTSD should be readjudicted. If the claim remains denied, the Veteran and his representative should be furnished an Supplemental Statement of the Case and afforded an opportunity to respond. The Veteran 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. 2012). ______________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs