Citation Nr: 1330240 Decision Date: 09/20/13 Archive Date: 09/25/13 DOCKET NO. 12-28 334 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUES 1. Entitlement to service connection for malaria. 2. Entitlement to service connection for malnutrition. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). 4. Basic eligibility for VA pension benefits. ATTORNEY FOR THE BOARD Megan C. Kral, Associate Counsel INTRODUCTION The appellant is a Veteran who had recognized service with the Philippine Scouts from May 1946 to April 1949. These matters are before the Board of Veterans' Appeals (Board) on appeal from a November 2010 rating decision of the Manila, Republic of the Philippines Department of Veterans Affairs (VA) Regional Office (RO) which denied service connection for malaria and malnutrition and denied a TDIU rating and a September 2011 administrative decision which found the Veteran was ineligible for VA pension benefits because he lacked qualifying service. The issue of entitlement to a TDIU rating is being REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if additional action on his part is required. 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). FINDINGS OF FACT 1. Malaria was not manifested in service or in the first postservice year, and it is not shown that the Veteran now has malaria or any residuals of such disease. 2. The Veteran is not shown to have a disability resulting from malnutrition in service. 3. The Veteran's sole recognized active service was with the "new" Philippine Scouts from May 1946 to May 1949. CONCLUSIONS OF LAW 1. Service connection for malaria is not warranted. 38 U.S.C.A. §§ 1110, 1112, 1113, 5107 (West 2002); 38 C.F.R. §§ 3.102 , 3.303, 3.307, 3.309 (2013). 2. Service connection for malnutrition is not warranted. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303 (2013). 3. The Veteran's active service is not qualifying service for VA pension benefits, and a threshold legal requirement for establishing entitlement to such benefits is not met. 38 U.S.C.A. §§ 101, 107, 1521 (West 2002); 38 C.F.R. §§ 3.1, 3.2, 3.3, 3.40, 3.41 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the claims of entitlement to service connection for malaria and malnutrition. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: (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 of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran was advised of VA's duties to notify and assist in the development of his service connection claims prior to their initial adjudication. An October 2010 letter explained the evidence necessary to substantiate the claims, the evidence VA was responsible for providing, and the evidence he was responsible for providing, and informed him of disability rating and effective date criteria. He has had ample opportunity to respond/supplement the record, and has not alleged that notice in this case was less than adequate. Regarding the claim for nonservice-connected pension, the United States Court of Appeals for Veterans Claims (Court) has held that the statutory and regulatory provisions pertaining to VA's duty to notify and assist do not apply to a claim if resolution of that claim is based on statutory interpretation, rather than consideration of the factual evidence. See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001). The critical facts in this case (i.e., the dates and nature of the Veteran's active service), are not in dispute. Consequently, resolution of the matter is wholly dependent on interpretation of the statutory and regulatory provisions pertaining to the nature of service that is necessary to establish basic eligibility for VA nonservice-connected pension benefits. Because no reasonable possibility exists that further notice or assistance would aid in substantiating this claim, any deficiencies of VCAA notice or assistance as to this claim are rendered moot. See 38 U.S.C.A. § 5103A; Wensch v. Principi, 15 Vet. App. 362, 368 (2001). The Veteran's available service treatment records (STRs) have been secured. The October 2010 VCAA letter asked the Veteran to provide an executed VA Form 21-4142, identifying and authorizing VA to secure postservice treatment records. He did not do so (he submitted some limited private treatment records). The RO did not arrange for a VA examination/opinion as to any of the claims decided herein. The Board has considered whether an examination is necessary. Absent any competent (medical) evidence suggesting that the Veteran has a diagnosis of malaria and/or a disability due to malnutrition, an examination to secure a medical nexus opinion is not necessary, as even the low standard in McLendon v. Nicholson, 20 Vet. App. 27 (2006), is not met. See 38 C.F.R. § 3.159(c)(4); Duenas v. Principi, 18 Vet. App. 512, 516 (2004). The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide these matters, and that no further development of the evidentiary record is necessary. See generally 38 C.F.R. § 3.159(c)(4). The Veteran has not identified any pertinent evidence that remains outstanding. VA's duty to assist is met. Legal Criteria, Factual Background, and Analysis The Board notes that is has reviewed all of the evidence in the Veteran's claims file, as well as in "Virtual VA", with an emphasis on the evidence relevant to these appeals. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claims. Service Connection Service connection may be established for disability due to disease or injury that was incurred in or aggravated by active service. 38 U.S.C.A. § 1110, 1131; 38 C.F.R. § 3.303, 3.304. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Certain tropical diseases, including malaria, may be service connected on a presumptive basis for if manifested within a specified period of time. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In order to establish service connection for a claimed disability, there must be evidence of a present disability; evidence of an in-service incurrence or aggravation of a disease or injury; and evidence of a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When all of 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 fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Veteran's only available STRs are a separation examination report dated in April 1949 and a dental report. In the service separation examination report it was noted that the Veteran's height was sixty inches and that his weight was 97 pounds. No abnormalities were documented, and it was noted the Veteran did not have any physical defects. It was also noted that he had the usual childhood diseases, but no family history of tuberculosis, malignancy, chronic mental or nervous disease, or other familial or hereditary diseases. In documents filed in support of his claims, the Veteran reported onset of the claimed disabilities in April 1998. The minimal postservice treatment records the Veteran has submitted include a September 2008 treatment record that is silent for complaints, treatment, or diagnosis of malaria and/or malnutrition. The initial threshold matter that must be addressed here (as in any claim seeking service connection) is whether or not there is competent evidence that the Veteran currently has (or during the pendency of the claim has had) the disabilities for which service connection is sought (malaria and malnutrition). In the absence of proof of such current disabilities there is no valid claim for service connection. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998), cert. denied, 526 U.S. 1144 (1999); Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997). There is no competent evidence of record that the Veteran has (or has had during the pendency of this claim) malaria or a disability due to malnutrition. As is noted above, the sparse treatment records he submitted provide no indication he has either such disability. Regarding his statement that he has malaria and malnutrition, the Board notes that while the Veteran is competent to provide evidence about complaints or symptoms he has experienced, he is not a medical professional and is not competent to establish by his opinion that his symptoms reflect that he has either of these claimed disabilities. Malaria is a disability that is diagnosed based on diagnostic studies and a disability due to malnutrition would involve an insidious process that requires medical expertise (and possibly diagnostic studies identifying a nutritional deficiency) for a diagnosis. While the Veteran may be competent to observe he is not robust or lacked nutrients in his diet during service, he is not competent to identify his slight weight, feebleness, or any other impairment as symptoms of a disability as due to nutritional deficit. See Layno v. Brown, 6 Vet. App. 465 (1994); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed, Cir. 2007). Without competent evidence of current malaria and malnutrition disabilities, there is no valid claim of service connection for such disabilities. See Brammer , 3 Vet. App. at 225. While the analysis does not need to proceed any further, the Board notes that the Veteran has indicated the claims disabilities began in 1998, weighing against them being service-related. The preponderance of the evidence is against these claims; therefore, the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The claims must be denied. Nonservice-connected Pension Benefits Persons with service in the New Philippine Scouts under Public Law 190, 79th Congress (New Philippine Scouts), shall not be deemed to have been in active military service with the Armed Forces of the United States for the purpose of establishing entitlement to nonservice-connected disability pension. 38 U.S.C.A. § 107 (b). Service in the Philippine Scouts of persons enlisted under section 14, Pub. L. 190,79th Congress (Act of October 6, 1945) (which includes all enlistments of Philippine Scouts in the Regular Army between October 6, 1945, and June 30, 1947, inclusive, i.e., new Philippine Scouts.) is included (qualifying service for compensation and dependency and indemnity compensation benefits but not for VA pension benefits. 38 C.F.R. § 3.40 (b). The service department has certified that the Veteran served in the Philippine Scouts from May 24, 1946 to April 16, 1949. It is not shown or alleged that he had any additional active service. As such service is not qualifying for VA nonservice-connected VA pension benefits, the Veteran does not meet the threshold legal requirement for such benefits. 38 U.S.C.A. §§ 107; 1521(j), 1541; 38 C.F.R. §§ 3.3, 40, 3.41. The Board is legally precluded from finding otherwise. See 38 C.F.R. § 20.101. Because the law is dispositive on this issue, the Veteran's claim must be denied because of the absence of legal merit or entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER Service connection for malaria is denied. Service connection for malnutrition is denied. Basic eligibility for nonservice-connected pension benefits is denied. REMAND VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the Veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. If there is only one such disability, it must be rated at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent. For those veterans who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a), total disability ratings for compensation may nevertheless be assigned when it is found that the service-connected disabilities are sufficient to produce unemployability; such cases should be referred to the Director, Compensation and Pension Service, for extraschedular consideration. 38 C.F.R. § 4.16(b). The Veteran contends that due to his service-connected disabilities (and age), he is unemployable. The Board notes that age is not a factor for consideration in determining entitlement to a TDIU rating. Since the Veteran perfected his appeal in this matter, a June 2013 rating decision has granted him service-connection for bilateral hearing loss disability. As such disability is rated only 40 percent disabling, it does not meet the 38 C.F.R. § 4.16(a) schedular requirements for a TDIU rating. However, the Veteran asserts that due to the disability, he is unable to work. A June 2013 examination notes that the Veteran can hardly understand spoken words and phrases, and that he has to rely on visual clues like lip and hand movements to be able to understand what is being said. Such findings raise a question as to whether the Veteran's claim should be referred for extraschedular evaluation. In Floyd v. Brown, 9 Vet. App. 88 (1996), the Court held that the Board does not have jurisdiction to assign an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance; however, "the regulation does not preclude the Board from considering whether referral to the appropriate first-line officials is required." Id. at 95. While the record suggests referral might be appropriate, additional development is necessary to determine whether this is actually so. Specifically, the record does not include a VA medical opinion regarding the impact of the Veteran's hearing on employability. An examination to secure a medical opinion that addresses this question is necessary. Accordingly, the case is REMANDED for the following: 1. The RO should arrange for the Veteran to be examined by a physician or audiologist to ascertain the impact of his hearing loss on his employability. The Veteran's claims file must be reviewed by the examiner in conjunction with the examination. Based on review of the record and examination of the Veteran, the examiner should provide an opinion that responds to the following: Is the impact of the Veteran's bilateral hearing loss on employability such that it renders him incapable of participating in any substantially gainful employment consistent with his education and occupational experience (but disregarding his age). Please identify the types of employment that would be precluded by his hearing loss and those (if any) that remain feasible despite the disabilities. 2. The RO should then arrange for any further development indicated, and decide whether or not the matter of the Veteran's entitlement to a TDIU rating warrants referral to the Director of Compensation and Pension for consideration of an extraschedular TDIU rating in accordance with the provisions of 38 C.F.R. § 4.16(b). If the determination is negative (or if the Director of Compensation and Pension denies an extraschedular TDIU rating) the RO should issue an appropriate supplemental statement of the case and afford the Veteran the opportunity to respond. The case should then be returned to the Board, if in order, for further review. The Veteran 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 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). ______________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs