Citation Nr: 1342680 Decision Date: 12/24/13 Archive Date: 12/31/13 DOCKET NO. 12-15 745 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to service connection for malaria. REPRESENTATION Appellant represented by: Wisconsin Department of Veterans Affairs ATTORNEY FOR THE BOARD C. Samuelson, Associate Counsel INTRODUCTION The Veteran had active service from August 1959 until August 1965. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. FINDING OF FACT The Veteran was not diagnosed with or treated for malaria during service; and there is no post-service record of any diagnosis or treatment for malaria. CONCLUSION OF LAW The criteria for service connection for malaria have not been met. 38 U.S.C.A. §§ 1110, 1112, 1131, 1154, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist VA must provide claimants with notice and assistance in substantiating claims for benefits. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Proper notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). The notice requirements apply to all five elements of a service connection claim, including 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Notice must be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on the claim for VA benefits. 38 U.S.C.A. § 5103(a); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Board finds that VA has satisfied its duty to notify. Specifically, an October 2009 letter, sent prior to the initial unfavorable decision issued in December 2009, advised the Veteran of the evidence and information necessary to substantiate his service connection claim and establish a disability rating and an effective date. The same letter advised the Veteran of his and VA's respective responsibilities in obtaining the evidence and information. Relevant to the duty to assist, the Veteran's service treatment records and private treatment records have been obtained and considered. The Board notes that a VA Compensation and Pension examination was not done on the issue of service connection for malaria. Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of a diagnosed disability or symptoms of a disability; (2) establishes that the Veteran experienced an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period; and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, there is no contemporaneously written record of malaria during the Veteran's service and no diagnosis of malaria post-service. Remand for a VA examination is therefore not needed. The Board finds that all relevant facts have been properly developed, and all reasonable efforts were made by the VA to obtain evidence necessary to substantiate the Veteran's claims, and no further assistance to develop evidence is required. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of his claim. II. Service Connection Claim Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a). 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 symptomatology. 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 at 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). 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) (West 2002). 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, when considering whether lay evidence is satisfactory, the Board may also properly consider 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). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See Id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See Id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). Service connection for a disease is presumed to have been incurred in or aggravated by service even when there is no record of it during service if certain circumstances exist. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309. Applicable here are those for presumptive service connection for tropical diseases. 38 U.S.C.A. § 1112(a); 38 C.F.R. §§ 3.307(a), 3.309(b). First, the Veteran must have 90 days or more of active service during a period of war or after December 31, 1946. 38 U.S.C.A. § 1112(a); 38 C.F.R. § 3.307(a)(1). Second, the Veteran must have manifested a tropical disease such as malaria to a compensable degree either within one year from the date of separation from service or at a time when standard accepted treatises indicate that the incubation period commenced during service. 38 U.S.C.A. § 1101(4), 1112(a)(2); 38 C.F.R. §§ 3.307(a)(4), 3.309(b). Affirmative evidence rebutting in-service incurrence or aggravation of the disease must be taken into consideration even if these circumstances are met. 38 U.S.C.A. §§ 1113; 38 C.F.R. §§ 3.307(d), 3.309(b). The Veteran claims that he was treated for malaria while stationed in Vietnam from February 23, 1964 to June 28, 1964. He claims he has not had follow up treatment since that time. However, he reports several flare ups of the illness shortly after his discharge to the late 1970's (each getting less severe) and no additional flare ups that he is aware of since that time. In his notice of disagreement, the Veteran stated that while in service, at Saigon Hospital, he was told that he had malaria and may have a future relapse. He claims he was advised that he could never be a blood donor and to wait at least three years before getting married. He also claims that he was given an alcohol bath to help reduce his temperature. A review of the service treatment records shows that in April 1964, the Veteran had a temperature of 102.8 and the order stated "admit". However, there is no indication that the Veteran was diagnosed with malaria at that time, or any time during service. In his notice of disagreement, VA Form 9, and an additional statement in support of his claim dated July 2013, the Veteran argues that there are additional missing service treatment records which have not been reviewed. The Veteran believes there are additional medical records from the hospital in Saigon which would show that he was diagnosed with malaria in service, but the Veteran has been unsuccessful in locating these records. However, the Veteran's separation examination dated July 1965 shows no evidence of malaria or a history of malaria. Furthermore, in order to be considered for service connection, a claimant must first have a disability. In Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992), the Court noted that Congress specifically limited entitlement to service-connected benefits to cases where there is a current disability. In the absence of proof of a present disability, there can be no valid claim. Id. In this case, there is no evidence that the Veteran suffers from a current disability. A review of the Veteran's post-service private treatment records show no diagnosis of or treatment for malaria or a chronic condition related to malaria. To the extent that the claimant himself suggests that he had several flareups of malaria shortly after his discharge to the late 1970's, malaria is not a simple medical condition capable of lay observation or diagnosis. And it is not argued or shown that the claimant, as a lay person, is qualified through specialized education, training, or experience to diagnose malaria. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (providing that while the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). The Board consequently finds that the claimant's contention that he suffered from malaria post-service is not competent and is in turn of no probative value. See Jandreau v. Nicholson, 492 F.3d at 1377 (Fed. Cir. 2007). The Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for malaria. Therefore, his claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102, Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for malaria is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs