Citation Nr: 1342982 Decision Date: 12/26/13 Archive Date: 01/07/14 DOCKET NO. 08-29 370 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for malaria, to include residuals thereof. REPRESENTATION Appellant represented by: John S. Berry, Attorney ATTORNEY FOR THE BOARD M. Purdum, Counsel INTRODUCTION The Veteran served on active duty from January 1949 to January 1950 and from September 1950 to December 1951. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board previously denied entitlement to service connection for malaria in a December 2009 decision. A September 2011 Memorandum Decision by the United States Court of Appeals for Veterans Claims (Court) vacated this decision. The issue was remanded for further development consistent with the Court's opinion. Most recently, in April 2013, the Board remanded the issue for additional development. The file has now been returned to the Board for further consideration. A review of the Virtual VA paperless claims processing system reveals additional documents pertinent to the present appeal, specifically, updated VA treatment records. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a) (2) (West 2002). FINDING OF FACT The Veteran is not shown to have a current diagnosis of malaria, or residuals thereof. CONCLUSION OF LAW The requirements for service connection for malaria, including residuals thereof, are not met. 38 U.S.C.A. §§ 1101, 1110, 1131, 1154(b), 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2013); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claim for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his 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); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA 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 C.F.R. § 3.159(b)(1). Notice must be provided prior to an initial decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The VCAA notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of disability; (3) connection between service and the disability; (4) degree of disability; and (5) effective date of benefits where a claim is granted. Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). In a pre-adjudication letter dated in August 2007 the RO informed the Veteran of its duty to assist him in substantiating his claim under the VCAA, the effect of this duty upon his claim. In addition, this letter also informed him of how disability ratings and effective dates are assigned. See Dingess, 19 Vet. App. at 484. The Veteran has not asserted any deficiencies in the notice provided. The Board thus finds that the duty to notify the Veteran has been satisfied. The Board also finds that VA has satisfied its duty to assist the Veteran. A September 2007 response to the RO's request for records stated that the Veteran's service treatment records were "fire-related," or involved in a 1973 fire at the National Personnel Records Center (NPRC), and are therefore largely unavailable. However, copies of some service treatment records, including reports of medical history and examination conducted at the Veteran's entry into and separation from active service, were made available by the NPRC. In this case, however, it is significant that the threshold inquiry, whether there is evidence of current malaria, or residuals thereof, does not require review of the Veteran's service treatment records. The Veteran reported treatment for malaria immediately after separation from service in 1951; however, he reported that the private physician he saw at that time is deceased. In this case, again, it is significant that the threshold inquiry, whether there is evidence of current malaria, or residuals thereof, does not require review of the Veteran's private treatment records from 1951. The Veteran was afforded a VA examination in December 2012, and an addendum opinion was submitted in September 2013. Read together, considering results of the Veteran's abdominal ultrasound conducted after the December 2012 VA examination and before the September 2013 addendum opinion, the Board finds that there is an adequate medical opinion in the present appeal. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The examiner reviewed the Veteran's claims file, took into account the Veteran's statements, and performed a thorough evaluation, all of which allowed for a fully-informed evaluation of the claimed disability. In a November 2013 statement, the Veteran's attorney asserted that the September 2013 medical opinion was inadequate. Specifically, the attorney asserted that the examiner did not address the Veteran's right and left upper quadrant pain and tender spleen, as well as report of his lay-observable symptoms to include night chills and sweats, headache, and nausea. Review of the December 2012 VA examination report indicates that the Veteran presented with a tender spleen edge and complained of left upper quadrant pain once monthly and constant right upper quadrant pain. It appears that the examiner directed the Veteran to undergo abdominal ultrasound based on such findings. After reviewing the report of the March 2013 abdominal ultrasound, the examiner submitted his September 2013 addendum opinion that specifically found that the ultrasound revealed no hepato-spleno abnormalities. No abdominal abnormalities were noted. Thus, despite the attorney's assertion that the examiner did not consider the Veteran's tender spleen and complaints of upper quadrant pain, it is clear that he indeed considered such. The examiner ordered a specific test, based on the Veteran's symptoms of upper quadrant pain and findings of a tender spleen; and such test revealed no abnormalities. Also, there is no indication that the examiner did not consider the Veteran's complaints related to lay-observable symptoms, including, but not limited to, night chills and sweats, headache, and nausea. Again, based on the Veteran's physical presentation and complaints, including night chills and sweats, headache, and nausea, on examination in December 2012, certain diagnostic studies were conducted. Such decision is under the purview of the medical examiner. In essence, the Veteran presented for examination, provided his pertinent medical history, and the examiner, based upon such, with his medical expertise and results of diagnostic studies, determined that the Veteran did not have current malaria, including residuals thereof. There is no evidence that there remains another form of testing or examination that would reveal malaria, including residuals thereof. Additionally, the Board finds there has been substantial compliance with its most recent remand directives. The Court has recently held that "only substantial compliance with the terms of the Board's engagement letter would be required, not strict compliance." See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268 (1998)) violation when the examiner made the ultimate determination required by the Board's remand.) The record indicates that additional medical comment was obtained, pursuant to the Board's April 2013 remand directives. The RO later issued a Supplemental Statement of the Case (SSOC) in October 2013. See Stegall, supra, (finding that a remand by the Board confers on the appellant the right to compliance with its remand orders). Therefore, the Board will proceed to review and decide the claim based on the evidence that is of record consistent with 38 C.F.R. § 3.655 (2013). No useful purpose would be served in remanding this matter for more development. A remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit to the Veteran. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Service Connection The threshold requirement for the grant of service connection for any disability is that the disability claimed must be shown present. 38 U.S.C.A. §§ 1110, 1131. The Court has interpreted the requirement of current disability thus: Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C. §§ 1110, 1131. In the absence of proof of a present disability there can be no valid claim. Brammer, 3 Vet. App. 223, at 225. In this case, there is no current medical evidence showing a diagnosis of malaria, including residuals thereof. As there is no evidence establishing a current diagnosis of such, there cannot be a discussion as to whether there exists a medical nexus between active service and malaria, including residuals thereof. Thus, service connection for the same is not warranted. The Veteran's available service treatment records, certain entrance and separation reports of medical examination and history, are silent for complaint, treatment, or diagnosis of malaria. However, the Veteran has reported over the course of the appeal that he contracted malaria during active service, in Korea. The Veteran is competent to report his in-service experiences. See Layno v. Brown, 6 Vet. App. 465, 467-69 (1994) (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 the facts or circumstances and conveys matters that can be observed and described by a lay person). There is no evidence that the Veteran is not credible. Further, the Veteran is in receipt of the Combat Infantryman Badge, indicia of combat service. His lay statements as to in-service malaria, barring contradictory evidence, are probative evidence as to whether he contracted malaria during active service. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). Thus, the Board concedes that the Veteran contracted malaria during his active service. However, the issue in the present appeal, as discussed above, is whether the Veteran has a current disability, either current malaria, or current residuals of malaria. The current disability requirement for a service connection claim is satisfied if the claimant has a disability at the time the claim is filed or during the pendency of that claim. See McClain v. Nicholson, 21 Vet. App. 319 (2007). The Veteran's VA treatment records are silent for complaints, treatment, or diagnostic studies related to a diagnosis of malaria, including residuals thereof. On VA examination in December 2012, the examiner noted that the Veteran reported that he contracted malaria in Korea and received some treatment in service but suffered a relapse requiring additional treatment after discharge. He noted that the Veteran did not recall the type of malaria he contracted or the specifics of his treatment, however, he did recall, and such was corroborated by his daughter, that he had recurring night chills and sweats, headaches, nausea, and left upper quadrant pain since that time. He reported that currently, such symptoms have decreased to once per month, with the exception of constant right upper quadrant pain. The examiner noted that there was no evidence of "work-up" of such symptoms in the Veteran's VA treatment records. The examiner noted that the Veteran presented with a tender spleen edge. The examiner reported that the Veteran was scheduled for an abdominal ultrasound due to his upper quadrant pain and tender spleen, but he cancelled the appointment. The examiner concluded that there was no evidence of persistent malaria and reasoned that the malaria smear was negative, and his complete blood count (CBC) was normal. The Veteran underwent a VA abdominal ultrasound in March 2013 and the claims file was forwarded to the December 2012 examiner for an addendum opinion. In a September 2013 addendum opinion, the examiner specifically found that the ultrasound revealed no hepato-spleno abnormalities. No abdominal abnormalities were noted. He again opined that the Veteran did not have malaria or past residuals of malaria, and reasoned that the Veteran's malaria smear was negative, his CBC was normal except for a transient dip in platelets, his renal function was consistently greater than 60 estimated glomerular filtration rate (EGFR), and abdominal ultrasound revealed no hepato-spleno abnormalities. Statements dated in June 2007 of the Veteran's brother and a friend indicate that the Veteran had ongoing jaundice, chills, fever, cold sweats, hallucinations, memory loss, and hot flashes, and the Veteran has reported such during the course of the appeal. Again, the Veteran is competent to report his symptoms and his brother and friend are competent to report what they witnessed or heard from the Veteran as to his symptoms. Layno, 6 Vet. App. 465, at 467-69. There is no evidence that the parties are not credible in this regard. However, to the extent that the parties attribute such symptoms to malaria or otherwise assert that the Veteran has current malaria, including residuals thereof, the Board finds that they are not competent, as such is a complex medical question. There is no evidence that any party has the requisite medical expertise or training to determine the diagnostic studies required to diagnose malaria, including residuals thereof, or otherwise diagnose the same based on symptoms reported or observed. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although 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). Thus, the Board places greater probative weight on the objective medical findings, to include the VA examiner's December 2012 and September 2013 opinions. Based on the above, pursuant to 38 U.S.C.A. §§ 1110, 1131, since the Veteran does not have a current disability, in this case, malaria, including residuals thereof, for which service connection can be granted, the claim must be denied by operation of law. ORDER Service connection for malaria, including residuals thereof, is denied. ____________________________________________ S.L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs