Citation Nr: 1333257 Decision Date: 10/23/13 Archive Date: 10/24/13 DOCKET NO. 12-10 140 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to a compensable rating for malaria. REPRESENTATION Appellant represented by: South Carolina Office of Veterans Affairs ATTORNEY FOR THE BOARD C. Ozger-Pascu, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1970 to October 1971, including service in Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) which continued the current noncompensable evaluation for malaria. The Board notes that, in addition to the paper claims file, there is a paperless, electronic claims file associated with the Veteran's claim in Virtual VA. The Board has reviewed the documents contained therein as they are relevant to the issue on appeal. FINDINGS OF FACT 1. The Veteran was treated for malaria during service; he was service-connected for malaria in an October 1971 rating action and assigned a 10 percent evaluation from September 25, 1971 to September 25, 1972, after which a non-compensable evaluation was assigned. 2. The service-connected malaria is not shown to be currently active or productive of liver or spleen impairment. 3. The Veteran is not competent to indicate whether any current medical symptoms from which he suffers is a consequence of malaria. CONCLUSION OF LAW The criteria for a compensable evaluation for malaria are not met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 7104 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 3.326(a), 4.3, 4.7, 4.31, 4.88b, Part 4, Diagnostic Code 6304 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veteran seeks an increased rating for his service-connected malaria, which has been evaluated as noncompensably disabling since 1972. For the reasons explained below, the Board finds that a compensable rating is not warranted. The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance in developing the evidence necessary to establish an increased evaluation. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R §§ 3.102, 3.159, 3.326(a). 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, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). VA fulfills its duty to notify when it informs 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). Pelegrini v. Principi, 18 Vet. App. 112, 120-121 (2004). This notice should be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini, supra at Id. VA satisfied its notice requirements by a letter issued in February 2011. This letter was sent prior to the initial adjudication of the Veteran's claim and explained the evidence the Veteran was responsible for obtaining, the evidence VA would obtain on his behalf and how VA determines effective dates and disability ratings. VA satisfied its duty to assist when it obtained the Veteran's service treatment records and VA treatment records, which are associated with his claims file. The Veteran has not identified any other relevant, available treatment records that have not been obtained. VA provided the Veteran with an examination and related medical opinion addressing his malaria complaints. Although the February 2011 VA malaria examination report indicates that the Veteran's claims file was not reviewed, the Board finds that this does not constitute a prejudicial error. Here, an increase in the disability rating is at issue and the present level of the Veteran's service-connected disability is of primary concern. As it would not change the objective and dispositive findings made during the VA examination, review of the claims file was not required. See Snuffer v. Gober, 10 Vet. App. 400, 403-04 (1997); see also D'Aries v. Peake, 22 Vet. App. 97, 106 (2008). Therefore, the Board finds that the VA examination and medical opinion is sufficient for adjudicatory purposes. Compensable Rating for Malaria As noted above, the Veteran is seeking a compensable rating for malaria. He alleges that he has bouts of malaria biannually based on symptoms of malaise he experiences. He also contends that he has pneumonia more frequently as a result of his malaria-weakened system. When an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two valuations shall be assigned, the higher evaluation will be assigned of the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Staged ratings may be appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, the Board, when considering whether lay evidence is satisfactory, may properly consider any internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). The Veteran's service-connected malaria is evaluated pursuant to the criteria found at 38 C.F.R. § 4.88b, Diagnostic Code 6304 (2013). Under Diagnostic Code 6304, a 100 percent rating for malaria is assigned when there is an active disease process. Relapses must be confirmed by the presence of malarial parasites in blood smears. Thereafter, malaria is to be rated on the basis of residuals such as liver or spleen damage under the appropriate system. Where the Schedule does not provide a noncompensable evaluation, a noncompensable evaluation will be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. The Board has reviewed the Veteran's VA medical treatment records, found both in the claims file and in Virtual VA. The records are negative for a diagnosis of active malaria. There was an occasion in October 2010, where the Veteran reported experiencing nasal drip with sore throat in the morning which clears as the day progresses; an occasion where he was treated for a sinus infection in May 2011; he had pneumonia in October 2011. However, malaria was neither diagnosed nor indicated to be medically suspected in any treatment record. VA afforded the Veteran an examination in February 2011. At the examination, the Veteran reported that since his bout with malaria in 1971, he experiences fever, malaise and chills, approximately two times a year. These symptoms last for 2-4 days. He seeks medical care only half the time, however, because the rest of the time he self-treats. At the time of his VA examination he denied current symptoms. He reported having a fever of 101-102 sometime between December 2010 and January 2011, for which he was prescribed antibiotics. He indicated that he takes Amoxicillin and uses a Z-pack during his illness and that he misses approximately 8-10 days of work annually due to his symptoms. In addition, he reported recurrent pneumonia, approximately 7-8 times since service and that he gets sick easier than prior to his bout with malaria. The Veteran indicated that it is his belief these symptoms and condition are residuals of his service-connected malaria. On examination, no active malaria was described, nor was any spleen or liver damage identified. The examiner diagnosed the Veteran thus: MALARIA; per veteran history. He reports that he has exacerbations and remission of this condition with an estimated two outbreaks per year. The Veteran contends in a March 2011 Statement in Support of Claim that he was told that the malarial parasites will always be present in his system. Malaria, he contended, is characterized by flu-like symptoms, such as severe chills and fever, which he experiences twice a year. He stated that during those times he goes to a doctor and is given antibiotics and prescribed bed rest. In his August 2011 Notice of Disagreement, the Veteran insisted he had malaria because a VA physician told him that once he contracted it, he will always have malaria. He also stated that he has "systems of Malaria at least twice a year being as Malaria systems are similar to the flu." He maintained that prior to entering the military he did not have malaria and now he does. Despite the Veteran's contentions that he experiences "systems of malaria" twice a year, which he relates he is able to self-treat at least 50 percent of the time, the Veteran is not shown to be competent to diagnose his flu symptoms as active malaria. A diagnosis of malaria requires blood testing and the medical expertise to interpret the results; skills which the Veteran does not have. See Davidson, supra; see also 38 C.F.R. § 3.159(a)(1) (Competent medical evidence means evidence provided by a person who is qualified through education, training or experience to offer medical diagnoses, statements or opinions). The Veteran also is not reporting a contemporaneous medical diagnosis. Other than in service, the Veteran is not shown to have had active malaria nor is he describing symptoms that were later diagnosed as malaria by a medical professional. None of his treating medical providers, nor his VA examiner, diagnosed him with active malaria. Also, the Veteran has not reported any post-service disabilities involving the liver or spleen, and no record reveals findings of any such disability. Similarly, the Veteran's contentions of repeated bouts of pneumonia as a result of a weakened state caused by malaria are not the kind of assertions that a lay person is competent to make, since these too are medical conclusions. The VA examiner similarly did not conclude that the Veteran had active malaria because the examiner did not deem it necessary to order blood smears to test for malaria parasites. This is evident also by the fact that the diagnosis she provided is only based on the Veteran's reported history of malaria. The Veteran's lay contentions are also not supported by the record because VA treatment records show no evidence of active or recurrent episodes of malaria or any liver or spleen disorder. The Board does not question the Veteran's belief that he has active malaria resulting from service, and it may well be he has parasites that can cause malaria lying dormant in his system. However, the criteria for a compensable rating require either an active disease process, or a residual impairment to a system of the body as the liver or spleen. This is not indicated by any competent source. Accordingly, a compensable evaluation is not warranted. Extraschedular Consideration In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the veteran's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). If the RO or the Board finds that the schedular evaluation does not contemplate the Veteran's level of disability and symptoms, then either the RO or the Board must determine whether the Veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. Here, the record does not show any symptoms attributable to malaria, and thus, extraschedular compensation is not for consideration. ORDER A compensable evaluation for malaria is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs