Citation Nr: 1318569 Decision Date: 06/06/13 Archive Date: 06/11/13 DOCKET NO. 10-30 475 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona THE ISSUE Entitlement to service connection for malaria. REPRESENTATION Veteran represented by: Arizona Department of Veterans Services ATTORNEY FOR THE BOARD J.B. Freeman, Counsel INTRODUCTION The Veteran served on active duty from November 1970 to July 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision of the RO in Phoenix, Arizona, which, in relevant part, denied service connection for 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 insure a total review of the evidence. The Board remanded this issue in December 2011 and December 2012. It returns now for appellate consideration. FINDING OF FACT The Veteran does not have a current disability of malaria or any other non service-connected infectious disease. CONCLUSION OF LAW A malaria disability was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1101, 1110, 1131, 1154(b), 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant). The Board must assess the competency, credibility and probative weight of the relevant evidence, both lay and medical, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. See Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131. Service connection connotes many factors but basically means that the evidence establishes that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisted such service, was aggravated therein. 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Veteran has argued that his malaria symptoms were present during service and persistently present thereafter, presenting a prima facia case of direct service connection. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Malaria is a "tropical disease" under 38 C.F.R. § 3.309(b), entitled to certain presumptions of service connection. See 38 C.F.R. § 3.307(a)(4). Regardless of the theory of entitlement, service connection requires the existence of a current disability. See Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997). The requirement 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 subsequently resolves. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Veteran does not have the requisite medical experience, knowledge or training to qualify as a medical expert. Accordingly, he is not competent to diagnose any medical disorder or render an opinion as to the cause or etiology of any current disorder. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997). He may provide lay evidence. Lay persons are competent to provide opinions on some medical issues falling within the realm of common knowledge. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (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. See Jandreau, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran reported that his malaria began in 1972 in his July 2009 claim. A September 2009 statement indicates that he experienced "a weakness in [his] resistance as a result of having malaria." During a period of such weakness, he got "chills, shaking and fever." He could not remain warm during these episodes which lasted about 24 hours and occurred at least once a year. A statement received in February 2010 indicates that he went to sick call in 1975/76 complaining of fever and blood in his stool while stationed at Marine Corps Air Station (MCAS) Yuma, Arizona. He was told to take aspirin and go home. He felt the treatment was inadequate, so he went to a private doctor. The private doctor diagnosed him with a bleeding ulcer and sliding hiatal hernia and malaria. He took the test results to the clinic at MCAS Yuma to be included in his service treatment records. The Veteran's July 2010 Form 9 states that he believed that he was exposed to malaria while assigned to the U.S.S. America in the Gulf of Tonkin in 1972. He reasserted that he sought treatment while at MCAS Yuma, and that he was diagnosed by a private doctor at that time. He reported persistent attacks to the present time. The Veteran filed another statement in January 2011. He stated that he learned he had malaria in 1975. He claimed that the episodes of recurrence happened once every four or five years, but had increased in frequency to once or twice a year at the present. The Veteran's service treatment records bear out his contentions only partially. He was seen for vomiting with emesis and upset stomach on April 5, 1977, at the dispensary at MCAS Yuma. He was diagnosed with viral gastritis, possibly chronic, and mild Mallory-Weiss syndrome. An April 7, 1977, entry states that he had gone to a private doctor in Yuma and been diagnosed with an active duodenal ulcer by upper GI. He was seen for a follow-up visit on April 26, 1977. There was no mention of malaria at that time. Satisfactory lay or other evidence that an injury or disease was incurred or aggravated in combat will be accepted as sufficient proof of such if the evidence is consistent with the circumstances, conditions or hardships of such service even though there is no official record of such incurrence or aggravation. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). The Board finds that the evidence does not show that the Veteran engaged in combat with the enemy during active service. The Veteran has also not contended that he engaged in combat with the enemy during service. The Veteran's service personnel and treatment records do not indicate that he engaged in combat. Moreover, the incident of diagnosis and treatment as described by the Veteran occurred within the continental U.S. outside a period of war. The Board finds that the Veteran did not engage in combat with the enemy during active duty service. He cannot benefit from the combat presumption. 38 U.S.C.A. § 1154(b). The absence of evidence may not generally be considered as substantive "negative evidence". McLendon v. Nicholson, 20 Vet. App. 79, 85 (2006); see also Forshey v. Principi, 284 F.3d 1335, 1363 (Fed. Cir. 2002) (en banc) (Mayer, C.J., dissenting) (distinguishing between the existence of negative evidence and the absence of actual evidence and noting that "[t]he absence of actual evidence is not substantive 'negative evidence' "). In some situations, silence to a condition may be taken as proof that the doctor did not observe the symptom. Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011). Moreover, the absence of an entry in a record may be evidence against the existence of a fact if it would ordinarily be recorded. Fed. R. Evid. 803(7). The Veteran alleges that he sought treatment in-service after being treated for vomiting that resulted in a diagnosis of an ulcer and malaria. He reported that he returned to base and told a doctor about the diagnoses. The pertinent service treatment record does discuss the ulcer, but not malaria. A diagnosis of malaria is the type of information that would have been recorded had the doctor been aware of it. The service treatment records appear to be complete. The fact that there is no record of diagnosis or treatment for malaria is strong evidence that the Veteran was not in fact diagnosed with malaria during service. See Kahana, 24 Vet. App. at 438 (VA may use silence in the service treatment records as evidence contradictory to a veteran's assertions if the service treatment records appear to be complete and the injury, disease, or symptoms involved would ordinarily have been recorded had they occurred). This reduces the credibility of the Veteran's statements. The Veteran was seen for January 2012 and March 2013 VA examinations in connection with this claim. A malaria smear was performed in January 2012. The smear was interpreted as negative, providing highly probative negative objective medical evidence against the Veteran's predominant contention. The March 2013 opinion indicates that the Veteran does not have malaria at the present time. The examiner reviewed the Veteran's reported history, his service treatment records, and his VA treatment records. The examiner indicated that, based on the service treatment records which did not mention malaria and the lack of a current diagnosis of malaria, the Veteran's current condition was not likely etiologically related to his reported in-service treatment for malaria. In light of the foregoing, the Board finds that the preponderance of the evidence is against a finding that the Veteran has or ever had malaria. The Veteran's contention that he was exposed to malaria while aboard the America in 1972 is mere conjecture. He offers no supporting statement as to how he, as a lay witness, could know that he was exposed to a pathogen five years prior to treatment for related symptoms. He does not indicate that lay observable symptoms were persistent between exposure and diagnosis or that a medical professional has told him that he was exposed or even that malaria broke out among the America crew. The weight of the evidence is against a contemporaneous diagnosis of malaria in 1977. His service treatment records do describe many of his contentions but omit malaria when such a fact would have been recorded. The Board places greater weight on a contemporaneous report when the only lay report is 30 years after the incident in question. The Veteran's report that he was diagnosed with malaria is contradicted by the content of the contemporaneous medical evaluation. Finally, current medical evidence shows that he does not have malaria at the present time. In sum, the preponderance of the evidence is against a finding that the Veteran has or ever had malaria. The Board has also considered whether the Veteran is attempting to claim a different disability which he has misidentified as "malaria". When a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. See Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009). Despite his complaints of a recurrent disease, he has not received a diagnosis of any such recurrent disease. The Board also does not place significant weight on his account of persistent symptoms. He has stated that he had episodes which were four to five years apart in the beginning. Given initial treatment in April 1977, his first "recurrent" episode would have occurred sometime in the 1980's, well after his 1979 separation from service. These episodes are so far apart that the Veteran may not be describing persistent symptoms at all. He may be describing acute and transitory illnesses of a different etiology. No alternative diagnosis has been offered in spite of his being seen for VA examinations. The Board finds that the Veteran does not have an infectious disease disability which he has misidentified as malaria. In the absence of a current disability, service connection is not warranted. McClain, 21 Vet. App. at 321. As such, the Board finds that the preponderance of the evidence is against the Veteran's malaria claim. Consequently, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Duties to Notify and Assist VA has met all statutory and regulatory notice and duty to assist provisions as to the Veteran's claim for service connection. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and 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). 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. Compliance with the first element requires notice of the five service connection elements: (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. See 38 U.S.C.A. § 5103(a); see also Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006). An August 2009 letter fully satisfied the duty to notify provisions prior to initial adjudication of the Veteran's claim in October 2009. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records and VA medical records are in the file. No private medical records have been obtained. Although the Veteran has mentioned private treatment in 1977 during service, he has not indicated that records related to such treatment are available. The Veteran has at no time referenced outstanding, extant records that he wanted VA to obtain. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c); McLendon v. Nicholson, 20 Vet. App. 79, 81-82 (2006). If VA provides a claimant with an examination in a service connection claim, the examination must be adequate. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). The probative value of a medical opinion is derived from a factually accurate, fully articulated, and soundly reasoned opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 300 (2008). The Veteran was afforded a March 2013 medical examination to obtain an opinion as to whether he had malaria as a result of an in-service illness. The examiner concluded that the Veteran did not have and had never had malaria. This opinion was rendered by a medical professional following a thorough examination and interview of the Veteran and review of the claims file. The examiner obtained an accurate history and listened to the Veteran's assertions. The examiner laid a factual foundation and reasoned basis for the conclusions that were reached. Therefore, the Board finds that the examination is adequate. See Nieves-Rodriguez, 22 Vet. App. at 300. The Board is obligated by law to ensure that the RO complies with its directives; where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). The Board remanded this case in December 2011 and December 2012. In both remands, the Board instructed that the Veteran be seen for a VA examination to obtain a medical opinion as to whether he had malaria and whether any such malaria was related to service. The Veteran was originally seen for a January 2012 VA examination. The Veteran was seen again for a March 2013 VA examination. The report states that testing occurred in January 2012 and that the testing was negative for malaria. The examiner concluded that the Veteran did not have malaria either during service or at the present time. The Board finds that the RO complied substantially with December 2011 and December 2012 remand instructions. Further remand for additional development of the prior remand instructions is not warranted. See Stegall. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007). ORDER Entitlement to service connection for malaria is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs