Citation Nr: 1317362	
Decision Date: 05/28/13    Archive Date: 06/06/13

DOCKET NO.  05-38 175	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina


THE ISSUE

Entitlement to service connection for residuals of malaria.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESSES AT HEARING ON APPEAL

The Veteran and Ms. S.


ATTORNEY FOR THE BOARD

M. G. Mazzucchelli, Counsel




INTRODUCTION

The Veteran served on active duty from October 1966 to September 1970.

This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in December 2002 of a Department of Veterans Affairs (VA) Regional Office (RO).

In June 2008, the Veteran appeared at a hearing before the undersigned Veterans Law Judge.  A transcript of that hearing is in the Veteran's file.

This case was previously before the Board in August 2008, August 2011, and October 2012, when it was remanded for further development.


FINDING OF FACT

The Veteran does not have residuals of malaria.


CONCLUSION OF LAW

The criteria for service connection for residuals of malaria have not been met.  38 U.S.C.A. §§ 1110, 1112, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012).









REASONS AND BASES FOR FINDING AND CONCLUSION

Notice and Assistance

On receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 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. 

Letters dated in November 2002 and August 2007 satisfied the duty to notify provisions.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).  These letters also notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  The claim was subsequently readjudicated, most recently in a February 2013 supplemental statement of the case.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). 

The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notices.  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).

The Veteran's service treatment records and relevant VA and private medical treatment records have been obtained.  38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159.  Records of a disability determination from the Social Security Administration have also been obtained.  38 C.F.R. § 3.159 (c) (2). 





VA examinations were conducted in December 2008, October 2011, and December 2012.  Taken as a whole, the examination reports and medical opinions provide a sufficient basis for the Board's adjudication of the claim.  38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007).  

There is no indication in the record that any additional evidence, relevant to the issue decided, is available and not part of the claims file.  See Pelegrini v. Principi, 18 Vet. App. 112 (2004).  As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless.  See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). 

Service Connection

A Veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in line of duty in active service.  38 U.S.C.A. § 1110 (wartime service). 

Generally, to establish a right to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called "nexus" requirement.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 

Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service.  38 C.F.R. § 3.303(d). 

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).


The Veteran testified that he had chills, fevers, sweats, and fatigue during and after service.  The service treatment records do not show any complaint or finding of malaria.  In January 1970 he was seen with a viral upper respiratory infection, and a temperature of 102.4 degrees was noted.  The service separation examination in August 1970 noted normal findings.

Private medical records show that in September 2000 the Veteran was prescribed anti-malaria pills for a trip to the Philippines.  In January 2002, the impression was parasitic infection.  The Veteran filed his claim for service connection for malaria in March 2002.

In a March 2002 statement, a private physician stated that the Veteran had ongoing problems related to malaria, which he most probably encountered during his military service.  

On VA examination in December 2008, the Veteran reported that he had contracted malaria in Vietnam in 1969.  He reported that he had experienced chills and headaches at that time and for approximately one year after service.  He reported occasional night sweats presently.  The examiner stated that a malaria smear had been requested but apparently not completed.  She stated that there was no clinical or objective evidence to support a diagnosis of malaria.  In a follow-up statement dated in August 2009, the VA examiner again noted that no testing had been completed on the Veteran.  The VA examiner stated that the Veteran was less than likely as not had residuals of malaria.  No symptomatology to support a current active status of malaria." 

On VA examination in October 2011, the examiner noted the Veteran's reported history of a diagnosis of malaria in 1968 and his current complaint of chills, sweats, and fever.  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.  The examiner noted that the Veteran had not had a malarial smear, and that his episodes at night may be part of his posttraumatic stress disorder and not malaria-related.  He stated that the Veteran would be sent for a malarial smear which would be diagnostic.

A VA examination report dated in December 2012 noted that the Veteran had provided a history of having been diagnosed with malaria in the 1980s.  The examiner stated that malaria was inactive with no current symptoms and no residuals.  The examiner noted that a blood smear was negative for malaria and other blood borne parasites.  

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 an August 1970 service medical examination report contains a full clinical evaluation with no pertinent abnormality and no suggestion of malaria.  

The record contains no evidence that the Veteran has specialized medical training and expertise to diagnose malaria.

The first appearance of malaria in the record is in 2000, when the Veteran was given anti-malaria pills for a trip to the Philippines.  

The record does not contain a diagnosis of malaria that was objectively confirmed by laboratory testing.  The Veteran's claim depends upon the evidence showing that he has or has had a medical diagnosis of malaria.  The only blood smear testing of record, that noted by the December 2012 VA examiner, found no evidence of malarial parasites.



The Veteran is competent to report symptoms of fever, chills, and sweating.  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 about symptoms, a diagnosis of a malaria requires medical training or experience.  The Veteran's statements do not constitute competent evidence of a medical diagnosis or nexus opinion.  This is not a situation where the diagnosis may be established by lay evidence and the Veteran is not reporting a contemporaneous diagnosis as there is no confirmed diagnosis of malaria; and he does not describe symptoms supporting a later diagnosis (malaria has never been objectively identified).  See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).

The March 2002 private physician who stated that the Veteran had ongoing problems with malaria that were probably related to his service.  There is no indication that this opinion was based upon any laboratory findings or review of the medical record.  The Board is not bound to accept a medical opinion that is based on history related by the Veteran, where that history is based upon inaccurate facts.  Swann v. Brown, 5 Vet. App. 229, 233 (1993).  While the Board cannot reject the medical evidence solely because it is based on a history related by the Veteran, the critical question is whether the history is credible in light of all the evidence.  Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005); Coburn v. Nicholson, 19 Vet. App. 427, 432 (2006) (reliance on Veteran's statements renders a medical report not credible only if the Board rejects the statements of the Veteran).  In the absence of any confirmed diagnosis of malaria in service or for many years thereafter, the Veteran's statements regarding a history of such diagnosis are not credible, and the private physician's statement is not probative.





The VA examiners in December 2008 and in October 2011 stated that the Veteran's symptoms were not related to malaria, and the December 2012 VA examination report, which reviewed the blood smear findings, concludes that the Veteran did not have malaria.  

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.  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 of service connection for residuals of malaria.  As the preponderance of the evidence weighs against the claim, the benefit-of-the-doubt doctrine does not apply.  38 U.S.C.A. § 5107(b).


ORDER

Service connection for residuals of malaria is denied.



____________________________________________
George E. Guido Jr.
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs