Citation Nr: 1334070 Decision Date: 10/28/13 Archive Date: 11/06/13 DOCKET NO. 13-26 225 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to an initial compensable disability rating for service-connected malaria. 2. Entitlement to service connection for diabetes mellitus, type II. 3. Entitlement to service connection for residuals of cold weather injuries to the upper and lower extremities. REPRESENTATION Appellant represented by: Eric A. Gang, Attorney-at-Law ATTORNEY FOR THE BOARD S. M. Kreitlow INTRODUCTION The Veteran had active military service from February 1953 to February 1955. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. The Board notes that the Veteran's original claim also included a claim for service connection for posttraumatic stress disorder (PTSD). By rating decision issued in August 2013, service connection for a chronic adjustment disorder (claimed as PTSD) was granted and evaluated as 30 percent disabling effective September 13, 2010. To date, it does not appear that the Veteran has disagreed with either the disability rating or the effective date assigned. The Board notes, however, that the Veteran has one year from the date of notification of such decision, August 20, 2013 in this case, in which to submit a Notice of Disagreement should he wish to initiate an appeal. 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 residuals of cold weather injuries to the upper and lower extremities is addressed in the REMAND portion of the decision below and is REMANDED to the RO. FINDINGS OF FACT 1. The evidence fails to demonstrate that the Veteran has active malaria or that he has any functional impairment or residuals of the malaria he had in 1955. 2. The Veteran's malaria does not represent an exceptional disability picture. 3. The Veteran's diabetes mellitus, type II is not related to any injury, disease or event incurred during active service, nor did it manifest to a compensable degree within one year after discharge from active service. CONCLUSIONS OF LAW 1. The criteria for an initial compensable disability rating for service-connected malaria or residuals thereof are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A and 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7 and 4.88b, Diagnostic Code 6304 (2013). 2. Diabetes mellitus, type II was not incurred in or aggravated by service, nor may it be presumed so. 38 U.S.C.A. §§ 1110, 1112, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Initial Increased Rating for Malaria Duty to Notify and Assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are described in 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 and 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Upon receipt of a complete or substantially complete 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 notify the claimant and his or her representative, if any, of what information and evidence not already provided, if any, is necessary to substantiate, or will assist in substantiating, each of the five elements of the claim including notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Sufficient notice must inform the claimant (1) of any information and evidence not of record that is necessary to substantiate the claim; (2) of the information and evidence that VA will seek to provide; and (3) of the information and evidence that the claimant is expected to provide. Notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). For a claim seeking increased compensation for an already service-connected disability, 38 U.S.C.A. § 5103(a) requires, at a minimum, that VA notify the claimant that he/she must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment in order to substantiate the claim. Vazquez-Flores, 22 Vet. App. 37 (2008). VA must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation. Id. It is noted that, on September 4, 2009, the Federal Circuit vacated and remanded Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), and Schultz v. Peake, No. 03-1235, 2008 WL 2129773, at 5 (Vet. App. Mar. 7, 2008). Specifically, the Federal Circuit concluded that "the notice described in 38 U.S.C. § 5103(a) need not be veteran specific." In addition, the Federal Circuit determined that "while a veteran's 'daily life' evidence might in some cases lead to evidence of impairment in earning capacity, the statutory scheme does not require such evidence for proper claim adjudication." Thus, the Federal Circuit held, "insofar as the notice described by the Veterans Court in Vazquez-Flores requires the VA to notify a veteran of alternative diagnostic codes or potential 'daily life' evidence, we vacate the judgments." In this case, notice was sent to the Veteran in September 2010, prior to the initial adjudication of his claim for service connection. Although compliant notice as to the Veteran's increased rating claim was not sent to the Veteran, the Board notes that his claim was originally one for service connection for malaria, which was granted in the June 2011 rating decision. Thereafter, the Veteran disagreed with the noncompensable evaluation of this now service-connected disability. Consequently, since the Veteran's claim was initially one for service connection, which has been granted, the Board finds that VA's obligation to notify him was met as the claim for service connection was obviously substantiated. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). Therefore, any deficiency in either the timing or content of the notice given is not prejudicial to him. With respect to VA's duty to assist, VA is only required to make reasonable efforts to obtain relevant records that the Veteran has adequately identified to VA. 38 U.S.C.A. § 5103A(b)(1). All efforts have been made to obtain relevant, identified and available evidence, and VA has notified the Veteran of any evidence that could not be obtained. Neither the Veteran nor his attorney has indicated that there is additional available evidence relevant to the claim that has not been obtained by VA. The duty to assist includes providing a veteran a thorough and contemporaneous examination. Green v. Derwinski, 1 Vet. App. 121 (1991). The Veteran was afforded VA examination in November 2010. Significantly, the Board observes that he does not report that the condition has worsened since he was last examined, and thus a remand is not required solely due to the passage of time. See Palczewski v. Nicholson, 21 Vet. App. 174, 182-83 (2007); VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995). Furthermore, the report of this examination reflects that the examiner reviewed the Veteran's past medical history, recorded his current complaints, conducted appropriate physical examination, and rendered appropriate diagnosis consistent with the remainder of the evidence of record. The Board, therefore, concludes that the examination report is adequate for purposes of rendering a decision in the instant appeal. See 38 C.F.R. § 4.2; see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran and his representative have not contended otherwise. Thus, the Board finds that VA has satisfied its duties to inform and assist the Veteran. Additional efforts to assist or notify him would serve no useful purpose. Therefore, he will not be prejudiced as a result of the Board proceeding to the merits of his claim. Analysis Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C.A. § 1155. Separate diagnostic codes identify the various disabilities. Id. Evaluation of a service-connected disorder requires a review of the veteran's entire medical history regarding that disorder. 38 C.F.R. §§ 4.1 and 4.2. It is also necessary to evaluate the disability from the point of view of the veteran working or seeking work, 38 C.F.R. § 4.2, and to resolve any reasonable doubt regarding the extent of the disability in the veteran's favor, 38 C.F.R. § 4.3. If there is a question as to which evaluation to apply to the veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Veteran's claim for a higher evaluation is an original claim that was placed in appellate status by his disagreement with the initial rating award. In these circumstances, separate ratings may be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). Malaria is evaluated under Diagnostic Code 6304. 38 C.F.R. § 4.88b. Under this code, there is only one evaluation - a 100 percent evaluation - that is warranted for active malaria. The accompanying note states that the diagnosis of malaria depends on the identification of the malarial parasites in blood smears. Relapses must be confirmed by the presence of malarial parasites in blood smears. Thereafter residuals such as liver or spleen damage are rated under the appropriate system. In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 CFR § 4.31. The Veteran set forth his basic contentions in a September 2010 statement. Therein, he stated that, six months after service, he became ill with uncontrollable chills and fever. He was treated at a local hospital where the doctors were unable to establish a diagnosis. He was then referred to the VA hospital in Durham, North Caroline, with a temperature of 107 degrees and he was diagnosed with Asian Malaria. He stated that his family was told that he may never fully recover due to the fever and high temperature that lasted for such a long time, and he would always have side effects for the rest of his life, the basic concern was brain damage. He further stated that he has lived with fear of the malaria returning when he gets a cold, flu or severely chilled as the symptoms and feeling are the same which causes him stress, anxiety and feeling out of control and nervousness. VA record of hospitalization dated in August 1955, six months after the Veteran's discharge from active service, shows he was treated for malaria, plasmodium vavax. This record indicates the Veteran was hospitalized for 17 days and released on August 14, 1955 after achieving maximum health benefit (MHB). VA treatment records do not demonstrate diagnosis of or treatment for malaria although they do show the Veteran reported that he still feels he may have residuals of malaria because he has sweats and feels feverish (however, he admitted that he never takes his temperature at these times to confirm he has a fever). See October 25, 2010 Internal Medicine Outpatient Note. Other treatment records, however, only show the Veteran reported fear of a recurrence of his malaria, not that he has had such a recurrence. The Veteran underwent VA examination in November 2010. The examiner noted the Veteran's history of a diagnosis of plasmodium vivax infection/malaria in August of 1955 and the Veteran's report that he has not had any recurrence; received no recent treatment for malaria; and there is no current disease activity. The Veteran did, however, report that he still gets intermittent fever but no chills. He denied chest pain or shortness of breath, and his weight had been stable. He denied any side effects from the quinine when he received it. Physical examination was within normal limits. The examiner noted that a malaria smear conducted in October 2010 was negative. Consequently, the examiner's diagnosis was "Malaria in the past. This condition is resolved. No functional impairment or residual symptoms. The condition is not currently present." The Board finds that an increased evaluation is not warranted. The VA examination found there was no active disease and no functional impairment or residual symptoms. Additionally, the VA treatment records failed to show any residual damage such as to the liver and spleen. Thus, a 100 percent rating is not warranted; the disability picture is consistent with a noncompensable evaluation under Diagnostic Code 6304. In considering the merits of the claim, the Board acknowledges the Veteran's assertions that he has recurrent fevers and/or chills that he believes are residuals of his service-connected malaria. The Veteran is competent to report these symptoms, which are capable of lay observation. See Charles v. Principi, 16 Vet. App. 370, 374-75 (2002). He is not, however, considered competent to provide the opinion that those symptoms are indicative of active malaria or are residuals thereof, as that is an issue that requires specialized medical knowledge. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (noting that a layperson is not competent to identify medical conditions that require scientific, technical, or other specialized knowledge, such as in identifying bronchial asthma). Moreover, such lay statements, in this case, do not outweigh the probative medical evidence of record finding that there were no residuals of malaria and no active disease. The Board has considered the application of other diagnostic codes. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Such other potentially relevant diagnostic codes include those related to liver and spleen damage. See 38 C.F.R. § 4.114, Diagnostic Codes 7311, 7312; 38 C.F.R. § 4.117, Diagnostic Code 7707. The evidence shows that there is no liver or spleen damage. Accordingly, evaluations under these codes are not warranted. Furthermore, although the Veteran reported having occasional fever and/or chills, the evidence fails to demonstrate that those are residuals of his malaria. Consideration has also been given as to whether the noncompensable schedular evaluation is inadequate, thus requiring that the RO refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." 38 C.F.R. § 3.321(b)(1) (2012); Barringer v. Peake, 22 Vet. App. 242, 243-44 (2008) (noting that the issue of an extraschedular rating is a component of a claim for an increased rating and referral for consideration must be addressed either when raised by the veteran or reasonably raised by the record). An extra-schedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture with marked interference with employment or frequent periods of hospitalization that render impractical the application of the regular schedular standards. Floyd v. Brown, 9 Vet. App. 88, 94 (1996). An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Thun, 22 Vet. App. at 115-116. When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116. In this regard, the schedular evaluation in this case is not inadequate. A compensable rating is provided for manifestations of the service-connected residuals of malaria but the medical evidence reflects that those manifestations are not present in this case. Additionally, the diagnostic criteria adequately describe the severity and symptomatology of the Veteran's malaria residuals, as the criteria assess the presence of current residuals to the liver and spleen or active disease; there are no residuals. Furthermore, neither the VA examiner nor the Veteran's treating VA physician have opined that the Veteran's reported fevers and/or chills are in fact residuals of his malaria. Accordingly, the evidence fails to demonstrate that the Veteran's malaria represents an exceptional or unusual disability picture such that the rating schedule is not adequate to rate this disability. The Board finds, therefore, that the preponderance of the evidence is against finding that this issue need be referred for consideration of an extraschedular rating. The preponderance of the evidence is against the claim and the doctrine of reasonable doubt is not for application. See 38 C.F.R. § 38 C.F.R. § 3.102. II. Service Connection for Diabetes Mellitus, Type II VA's duties to notify and assist claimants in substantiating a claim for VA benefits are described in 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 and 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). Upon receipt of a complete or substantially complete 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 notify the claimant and his or her representative, if any, of what information and evidence not already provided, if any, is necessary to substantiate, or will assist in substantiating, each of the five elements of the claim including notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Dingess v. Nicholson, 19 Vet. App. 473 (2006). In the present case, notice was provided to the Veteran in September 2010, prior to the initial AOJ decision on his claim. The Board finds that the notice provided fully complies with VA's duty to notify. Likewise, the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claim. He was told it was his responsibility to support the claim with appropriate evidence and has been given the regulations applicable to VA's duty to notify and assist. Indeed, the Veteran submitted evidence in connection with his claim demonstrating actual knowledge of the need to support his claim with evidence. Thus the Board finds that the purposes behind VA's notice requirement have been satisfied, and VA has satisfied its "duty to notify" the Veteran, and any error in this regard is harmless. With respect to VA's duty to assist, VA is only required to make reasonable efforts to obtain relevant records that the veteran has adequately identified to VA. 38 U.S.C.A. § 5103A(b)(1). All efforts have been made to obtain relevant, identified and available evidence, and VA has notified the Veteran of any evidence that could not be obtained. Neither the Veteran nor his attorney of identified additional attainable evidence not already of record relevant to the claim. VA, therefore, has made every reasonable effort to obtain all records relevant to the Veteran's claim. 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. VA did not obtain a medical examination in relation to this claim for service connection because there is no evidence indicating that the Veteran's diagnosed diabetes mellitus, type II, may be the result of any event, injury or disease in service. 38 C.F.R. § 3.159(c)(4)(i)(C) (2012). Thus, the Board finds that VA has satisfied its duties to inform and assist the Veteran at every stage of this case. Additional efforts to assist or notify him would serve no useful purpose. Therefore, he will not be prejudiced as a result of the Board proceeding to the merits of his claim. Analysis Service connection means that the facts establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. § 1110, 1131; 38 C.F.R. § 3.303(a). Generally, in order to establish direct service connection for a disorder, there must be (1) medical evidence of the current disability; (2) medical, or in certain circumstances, lay evidence of the in-service incurrence of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. 38 C.F.R. § 3.303(a); See Walker v. Shinseki, 708 F.3d 1331, 1334 (Fed. Cir. 2013). Subsection (a) also refers to "each disabling condition...for which [a veteran] seeks a service connection" and states that "[d]eterminations as to service connection will be based on review of the entire evidence of record." Walker at 1334. A second way to establish direct service connection is set forth in § 3.303(b). In Walker, the Court of Appeals for the Federal Circuit (Federal Circuit) found that, unlike subsection (a), which is not limited to any specific condition, subsection (b) is restricted to chronic diseases. "If a veteran can prove a chronic disease 'shown in service,' and there are no intercurrent causes, the manifestations of the chronic disease present at the time the veteran seeks benefits establish service connection for the chronic disease. By treating all subsequent manifestations as service-connected, the veteran is relieved of the requirement to show a causal relationship between the condition in service and the condition for which disability compensation is sought. In short, there is no 'nexus' requirement for compensation for a chronic disease which was shown in service, so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease." Id. at 1335-36. In addition, the Federal Circuit found that subsection (b) provides a second route by which service connection can be established for a chronic disease, which is if "evidence of a chronic condition is noted during service or during the presumptive period, but the chronic condition is not 'shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned,' i.e., 'when the fact of chronicity in service is not adequately supported,' then a showing of continuity of symptomatology after discharge is required to support a claim for disability compensation for the chronic disease. Proven continuity of symptomatology establishes the link, or nexus, between the current disease and serves as the evidentiary tool to confirm the existence of the chronic disease while in service or a presumptive period during which existence in service is presumed." Id. at 1336. Furthermore, the Federal Circuit held that that the term "chronic disease" as set forth in subsection (b) is properly interpreted as being constrained by § 3.309(a) in that the regulation is only available to establish service connection for the specific chronic diseases listed in § 3.309(a) regardless of the point in time when a veteran's chronic disease is either shown or noted. Id. at 1336-39. Service connection may also be established for a current disability on the basis of a presumption under the law that certain chronic diseases manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C.A. §§ 1112, 1133 and 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307 and 3.309(a). Diabetes mellitus, type II, is such an enumerated chronic disease. In relevant part, 38 U.S.C.A. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability benefits. Medical evidence of a current disability and nexus is not always required to establish service connection. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). 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. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It would also include statements contained in authoritative writings such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See 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. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("Although interest may affect the credibility of testimony, it does not affect competency to testify."). The Board notes that the Veteran has made no arguments as to why he believes service connection for diabetes mellitus, type II, is warranted, except to check on his application that he is not seeking service connection as a result of herbicide exposure. Nevertheless, the Board notes that the Veteran's service would not qualify him for presumptive exposure under 38 C.F.R. § 3.307(a)(6)(iv) because his service was well before April 1, 1968, the date the presumption period begins. As to direct service connection, the service treatment records are silent for any evidence of symptoms of, treatment for or diagnosis of diabetes mellitus, type II. Separation examination report conducted in January 1955 is negative for any abnormal findings relating to the endocrine system and lab testing was negative. The earliest post-service treatment of record showing a diagnosis of diabetes mellitus, type II, is from December 2008. The Board acknowledges that these records do not indicate when the Veteran was diagnosed to have diabetes mellitus, type II, although a December 2008 Ophthalmology Clinic note shows the Veteran's Active Problem list that included the date his diabetes mellitus, type II was placed on the list, which was August 27, 2001. The Board notes that, since there are other problems listed as being put on the list prior to that date, then August 27, 2001 must be the date of diagnosis of his diabetes mellitus, type II. Thus, the evidence indicates that the Veteran's diabetes mellitus, type II, was diagnosed many years after the Veteran's discharge from service. Even more significantly, the Veteran has not reported having diabetes mellitus, type II, or even having symptoms consistent with it in service, continuously since service, or within one year of discharge from service. Consequently, the Board finds that service connection pursuant to 38 C.F.R. § 3.303(b) based upon chronicity in service or continuity of symptomatology after service is not warranted because the preponderance of the evidence fails to demonstrate that the onset of the Veteran's diabetes mellitus, type II, was either during his active service or until August 27, 2001, many years after service. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330 (Fed.Cir. 2000) (service incurrence may be rebutted by the absence of medical treatment for the claimed condition for many years after service). Furthermore, the Board finds that service connection pursuant to 38 C.F.R. § 3.303(a) based upon a totality of the evidence is not warranted because the preponderance of the evidence is against finding that the Veteran's current diabetes mellitus, type II, is related to his active service. The service treatment records are silent for any symptoms of, treatment for or diagnosis of diabetes mellitus, type II, and the VA treatment records indicate the onset of his diabetes mellitus, type II, was in August 2001, many years after his discharge from service. Such absence of medical evidence is negative evidence against the claim. See Forshey v. West, 12 Vet. App. 71, 74 (1998), aff'd sub nom. Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (noting that the definition of evidence encompasses "negative evidence" which tends to disprove the existence of an alleged fact); see also Maxson, 12 Vet. App. 453, aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint can be considered as a factor, along with other factors concerning the veteran's health and medical treatment during and after military service). Finally, the Board finds that presumptive service connection based upon a chronic disease is not warranted because, although diabetes mellitus, type II, is an enumerated chronic disease, the preponderance of the evidence is against finding that such chronic disease manifested to a compensable degree within one year of the Veteran's discharge from active service in February 1955. In fact, the VA treatment records indicate that the first diagnosis of diabetes mellitus, type II, was in August 2001, more than 45 years after service. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran's claim for service connection for diabetes mellitus, type II, on any theory of entitlement. The Board has considered the doctrine of reasonable doubt, but finds that the record does not provide an approximate balance of negative and positive evidence on the merits. Service connection is, therefore, denied. Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Entitlement to an initial compensable disability rating for service-connected malaria is denied. Entitlement to service connection for diabetes mellitus, type II, is denied. REMAND The Board finds that remand of the Veteran's claim for service connection for cold weather injuries to the upper and lower extremities is warranted for additional development, specifically a VA examination. Although the medical evidence of record fails to demonstrate treatment for or a diagnosis of residuals of cold weather injuries to the upper and lower extremities either in service or presently, the Veteran has stated that he has numbness and tingling in his hands and feet and that he was exposed to extreme cold and hot weather while serving in Korea, which are things he is competent to report. The Veteran's service records demonstrate he served in Korea from February 1954 to February 1955. Hence, it is clear he served there during the coldest months of the year in Korea. Furthermore, his service records show his military occupational specialty was Wireman and his description of his duties and what happened while serving in Korea do not appear to be inconsistent with the places, types and circumstances of his service. Consequently, the Board finds that the Veteran's report is sufficient enough to warrant providing him with a VA examination. See McLendon v. Nicholson, 20 Vet. App. 79, 83-84 (2006) (holding that a veteran is competent to testify to any medical symptoms he may have suffered in service, "and his testimony can be rejected only if found to be mistaken or otherwise deemed not credible"); accord Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006) ("While the lack of contemporaneous medical records may be a fact that the Board can consider and weight against a veteran's lay v," and while the Board "may . . . discount lay evidence when such discounting is appropriate," "the lack of such records does not, in and of itself, render lay evidence not credible"). Since the Board is remanding already and it appears from the record that he receives all his treatment at the VA Medical Center in East Orange, New Jersey, his VA treatment records should be updated since the last one is from more than two years ago. Accordingly, the case is REMANDED for the following action: (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. Associate with the Veteran's claims file his treatment records from the VA Medical Center in East Orange, New Jersey, since June 14, 2011. 2. After all additional available evidence has been obtained, schedule the Veteran for a VA cold weather injury examination. The claims file must be provided to and reviewed by the examiner, who must indicate in his/her report that said review has been accomplished. All necessary diagnostic tests and/or studies should be conducted. After reviewing the claims file and examining the Veteran, the examiner should first diagnose any present residuals of cold weather injuries found on examination, especially relating to the bilateral upper and lower extremities. If residuals of cold weather injuries are found on examination, the examiner should render an opinion as to whether it is at least as likely as not (i.e., at least a 50 percent probability) that they are related to exposure to cold weather incurred during the Veteran's service in Korea from February 1954 to February 1955. In rendering an opinion, the examiner must address the Veteran's statements as to a continuity of symptoms. The examiner should give a detailed explanation for the reasons for the opinion(s) provided. If the examiner determines that he/she cannot provide an opinion without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). (The agency of original jurisdiction should ensure that any additional evidentiary development suggested by the examiner be undertaken so that a definite opinion can be obtained.) 3. Finally, after ensuring all necessary development has been accomplished (including that the VA examination is adequate), the Veteran's claim should be readjudicated. If such action does not resolve the claim, a Supplemental Statement of the Case should be issued to the Veteran and his attorney. An appropriate period of time should be allowed for response. Thereafter, this claim should be returned to this Board for further appellate review, if in order. 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 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). ______________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs