Citation Nr: 1336866 Decision Date: 11/13/13 Archive Date: 11/26/13 DOCKET NO. 13-02 669 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for bilateral knee disorders. 2. Entitlement to service connection for fungus affecting the toes and ears. 3. Entitlement to an increased (compensable) disability rating for malaria. ATTORNEY FOR THE BOARD K. J. Kunz, Counsel INTRODUCTION The Veteran served on active duty from February 1943 to January 1946. This appeal comes before the Board of Veterans' Appeals (Board) from an April 2010 rating decision by the Philadelphia, Pennsylvania Regional Office (RO) of the United States Department of Veterans Affairs (VA). In that decision, the RO denied service connection for bilateral knee disorders and for fungus of the toes and ears. The RO continued a 0 percent, noncompensable disability rating for malaria. The Board has reviewed both the Veteran's paper claims file and the Veteran's file on the Virtual VA electronic file system, to ensure a total review of the evidence. 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 service connection for fungus affecting the skin and ears is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran's bilateral knee arthritis was first found many years after service, and is not causally related to or worsened by his malaria. 2. The Veteran does not have active malaria, nor liver damage, spleen damage, nor other disabling residual of malaria. CONCLUSIONS OF LAW 1. The Veteran's bilateral knee arthritis was not incurred or aggravated in service, may not be presumed to have been incurred in service, and is not proximately due to, the result of, or aggravated by service-connected disease or injury. 38 U.S.C.A. §§ 1110, 1112, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2013). 2. The Veteran's malaria does not meet the criteria for a compensable disability rating. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. Part 4, including §§ 4.1, 4.2, 4.7, 4.10, 4.88b, Diagnostic Code 6304 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) redefined VA's duty to assist a claimant in the development of a claim for VA benefits. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013). The notice requirements of the VCAA require VA to notify the Veteran of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has stated that the requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). Insufficiency in the timing or content of VCAA notice is harmless, however, if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). The RO provided the Veteran with VCAA notice in a February 2010 letter, issued before the April 2010 unfavorable decision on the claims on appeal. In that letter, the RO addressed the information and evidence necessary to substantiate claims for service connection and increased disability ratings. The RO informed the Veteran how VA assigns effective dates. The letter also addressed who was to provide the evidence. In a June 2013 letter, the RO provided the Veteran additional notice regarding evidence that he could submit or identify to support his claims. The Veteran's claim file (including information on paper and in electronic form) contains service treatment records, records of post-service treatment and examinations, and statements from the Veteran and persons who know him. The Veteran has had VA medical examinations that adequately address the claims that the Board is deciding at this time. Examinations were performed by qualified clinicians who reviewed the Veteran's claims file and provided findings and opinions relevant to those claims. The Board finds that the Veteran was notified and aware of the evidence needed to substantiate his claims, as well as the avenues through which he might obtain such evidence, and the allocation of responsibilities between the Veteran and VA in obtaining such evidence. The Veteran has actively participated in the claims process by providing evidence and argument. Thus, he was provided with a meaningful opportunity to participate in the claims process, and he has done so. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication nor to have caused injury to the Veteran's interests. See Pelegrini, 18 Vet. App. at 121. Therefore, any such error is harmless, and does not prohibit consideration on the merits of the claims that the Board is deciding at this time. See Conway, 353 F.3d at 1374, Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Bilateral Knee Disorders VA established service connection for malaria that was treated during the Veteran's service. The Veteran essentially contends that his service-connected malaria caused current disorders affecting both of his knees. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted for a disability which is proximately due to or the result of a service-connected disease or injury, or for aggravation of a non-service-connected disease or injury by a service-connected disease or injury. 38 C.F.R. § 3.310. Service connection for certain specifically listed chronic diseases, including arthritis, may be established based upon a legal presumption by showing that it manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309. The Court has explained that, in general, service connection requires (1) evidence of a current disability; (2) medical evidence, or in certain circumstances lay evidence, of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Under 38 C.F.R. § 3.303(b), if a chronic disease or injury is shown in service, subsequent manifestations of the same chronic disease or injury at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. For a showing of a chronic disorder in service, the mere use of the word chronic will not suffice; rather, there is a required combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. The provisions of 38 C.F.R. § 3.303(b) have been interpreted as an alternative means of establishing service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Nonetheless, service connection also may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Board must assess the credibility and weight of all the evidence, including the medical evidence, 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 Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 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 there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a claim, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. The Veteran sought service connection for malaria soon after service, and VA established service connection for malaria effective from around the time of the Veteran's separation from service. The Veteran's service treatment records are silent for complaints involving his knees. On examination of the Veteran in January 1946, for separation from service, the examiner found no musculoskeletal defects. The claims file does not contain any evidence that directly addresses the condition of the Veteran's knees during the year following his separation from service. In July 1948, the Veteran's private primary care physician wrote that the Veteran continued to have headaches and weakness residual to malaria. On VA examination in August 1948, the Veteran reported having frequent headaches and pain of the joints and lower back. He stated that since January 1946 he had experienced three or four more attacks of malaria. The examiner observed that the Veteran's gait was normal. The report of a VA medical examination of the Veteran in January 1949 does not reflect any complaints involving either knee. The examiner stated that the Veteran's gait was normal. The Veteran received private treatment for attacks of malaria in July 1951 and January to March 1965. In a January 2010 claim for VA compensation, the Veteran asserted that he had disability of the knees that was caused by malaria. On VA medical examination in March 2010, the examining physician reported having reviewed the Veteran's claims file. The Veteran stated that after service he experienced several episodes of malaria, the latest in 1965. He noted that during his malaria episodes he was very sick with fever and generalized pain. He expressed the belief that his current joint pain and swelling was residual to malaria. He stated that he had pain and swelling in both knees. He indicated that during malaria attacks he had joint pain. He reported that, beginning about 2005, he had increased pain, swelling, and weakness in his knees, and numbness of his lower legs, particularly severe in his feet. It was noted that the Veteran had a ten year history of diabetes mellitus. The examiner found in each of the Veteran's knees evidence of pain, stiffness, weakness, slow motion, swelling, tenderness, crepitus, limitation of motion, and pain with motion. The Veteran was unable to stand for more than a few minutes, and was unable to walk more than a few yards. He had a stiff, unsteady gait. X-rays showed in each knee markedly advanced degenerative joint changes. The examiner diagnosed severe degenerative arthritis in both knees. The examiner stated that the bilateral knee arthritis was most likely related to genetics and advancing age, and was not related to malaria. The examiner provided an opinion and explanation, as follows: It is not likely that the veteran's osteoarthritis of the knees is related to his past malaria. Malaria is not known as an etiology for osteoarthritis. Although some infectious diseases may be a factor in arthritis (example: disseminated gonococcal infection), these usually result in monoarthritis (one joint). Malaria is not one of those diseases known to lead to arthritis, and in this 87 y[ear] o[ld] veteran with bilateral knee osteoarthritis, the most likely factors are genetic predisposition and advancing age. The Veteran does not contend, and medical records do not show, that he had arthritis in his knees during service or the year following service. The preponderance of the evidence thus is against service connection for the current arthritis in his knees on a direct basis (as incurred in service), or on a presumptive basis. The physician who examined the Veteran in 2010 is competent to address questions of medical causation. That examiner provided a clear explanation for her opinion that it is not likely that the Veteran's malaria caused the arthritis in his knees. The examiner's opinion is persuasive. The Veteran has not asserted, and no evidence suggests, that residuals of malaria aggravate his knee arthritis. The preponderance of the evidence therefore is against service connection for knee arthritis as caused or aggravated by malaria. Malaria The Veteran is seeking a disability rating higher than the existing 0 percent rating for his service-connected malaria. VA assigns disability ratings by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule). 38 U.S.C.A. § 1155; 38 C.F.R. Part 4, including §§ 4.1, 4.2, 4.10. If two ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In determining the current level of impairment, the disability must be considered in the context of the whole recorded history, including service medical records. 38 C.F.R. § 4.2. The Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board will consider what ratings are warranted for the Veteran's malaria over all periods since his 2010 claim for an increased rating. The rating schedule provides for rating malaria as an active disease as 100 percent disabling. 38 C.F.R. § 4.88b, Diagnostic Code 6304. Relapses must be confirmed by the presence of malarial parasites in blood smears. After periods of active disease or relapses, malaria residuals such as liver or spleen damage are to be rated under the appropriate system. Id. The rating schedule at 38 C.F.R. §§ 4.114 and 4.117 (2013) provides for rating disorders of the digestive system, including the liver, and the hemic and lymphatic systems, including the spleen. In the Veteran's January 2010 claim, he asserted that his malaria disabled his knees. In the present decision, above, the Board addressed and denied the Veteran's appeal for service connection for knee disabilities, including as secondary to malaria. In addressing the appeal for a higher rating for malaria, the Board will consider any service-connected manifestations or residuals of malaria. During service the Veteran received treatment for malaria and jaundice. He sought service connection for malaria soon after service, and VA established service connection for malaria effective from around the time of the Veteran's separation from service. The RO initially assigned a rating of 10 percent for malaria residuals, and later reduced the rating to 0 percent. In July 1948, the Veteran's private primary care physician wrote that the Veteran continued to have headaches and weakness residual to malaria. On VA examination in August 1948, the Veteran reported having frequent headaches and pain of the joints and lower back. He stated that since January 1946 he had experienced three or four more attacks of malaria. The examiner did not find any liver or spleen dysfunction residual to malaria. On VA examination in January 1949, the Veteran reported that his most recent attack of malaria symptoms was in January 1948. He indicated that in the six months preceding the January 1949 examination he had not lost any time from work due to disabilities. The Veteran received private treatment for attacks of malaria, manifested by fever, spleen enlargement, and malaise, in July 1951 and January to March 1965. The Veteran had a VA examination in March 2010 to address manifestations and residuals of malaria. He stated that since March 1965 he had not experienced any episodes of fever related to malaria. He did not relate any current general symptoms, digestive symptoms, or lymphatic and blood symptoms. The examiner found that there were no signs of jaundice or anasarca. Laboratory testing was negative for malaria parasites. The examiner stated that malaria was not active or present in the Veteran, and that the Veteran's malaria was not in the convalescence period. On medical examination in 2010 the Veteran's malaria was not active. He did not have any current liver or spleen damage, disorder, or dysfunction related to his malaria, nor any other symptom or disability medically attributed to his malaria. In the absence of current active malaria or current residuals of malaria, the evidence does not provide any basis for a current compensable rating for the Veteran's malaria. When there is an exceptional disability picture, such that the rating schedule criteria do not reasonably describe a claimant's disability level and symptomatology, an RO may refer a case to the VA Under Secretary for Benefits or to the Director of the VA Compensation and Pension Service for consideration of an extraschedular rating. See 38 C.F.R. § 3.321(b)(1) (2013); see also Thun v. Peake, 22 Vet. App. 111, 115 (2008). Extraschedular ratings are limited to cases in which it is impractical to apply the regular standards of the rating schedule because there is an exceptional or unusual disability picture, with such related factors as frequent hospitalizations or marked interference with employment. 38 C.F.R. § 3.321(b)(1). The Veteran's malaria does not have any current manifestations or residuals that require frequent hospitalizations or that markedly interfere with his capacity for employment. He does not have any current malaria manifestations or residuals that are not addressed by the rating schedule. The rating schedule provides for higher ratings for malaria residuals that are more disabling. Therefore it is not necessary to refer the issue ratings for malaria for further consideration of extraschedular ratings. The Court has indicated that in claims for increased ratings the Board must consider whether the record indirectly raises the issue of unemployability. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran worked for many years as the owner-operator of a flower shop. He retired, based on his age, many years before the current malaria rating increase claim. He does not contend, and the assembled evidence does not raise a suggestion, that any service-connected symptoms or residuals of malaria make him unemployable. Thus, the record does not directly or indirectly raise the issue of unemployability due to malaria or other service-connected disabilities. ORDER Entitlement to service connection for left and right knee disabilities is denied. Entitlement to a compensable disability rating for malaria is denied. REMAND The Veteran contends that fungus affecting the skin and nails of his toes and the skin of his ears began during his service. His World War II service included service in the Philippines. The Veteran has not had a VA medical examination that addressed his claim of current skin and nail disorders related to service in a tropical setting. The Board will remand the issue for a VA examination of the Veteran's skin, with file review, findings and diagnoses regarding current disorders, and opinion as to the likely etiology of current disorders. 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. Schedule the Veteran for a VA skin examination to address the claim of service connection, including based on tropical service, for disorders of skin and nails, including at the feet and ears. Provide the examiner the Veteran's claims file and any relevant information from his Virtual VA electronic claims file for review. Ask the examiner to review the Veteran's files and examine the Veteran. Ask the examiner to provide diagnoses for any and all current disorders affecting the Veteran's skin and nails, including in the areas of his feet and ears. Ask the examiner to, for each such current disorder, provide an opinion as to whether it is at least as likely as not (a 50 percent or greater chance) that the disorder is related to disease, injury, or events during the Veteran's service, which included World War II service in tropical settings in the Philippines. Ask the examiner to explain the conclusions reached. 2. Thereafter review the expanded record and reconsider the remanded claims. If the remanded claim remains denied, issue a supplemental statement of the case and afford the Veteran and his representative an opportunity to respond. Thereafter, return the case to the Board for appellate review if otherwise in order. The Board intimates no opinion as to the ultimate outcome of the matter that the Board has remanded. The Veteran has the right to submit additional evidence and argument on that matter. 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). ______________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs