Citation Nr: 1623461 Decision Date: 06/13/16 Archive Date: 06/29/16 DOCKET NO. 12-17 089 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for malaria. 2. Entitlement to service connection for multiple sclerosis. 3. Entitlement to an increased evaluation for sensory deficit of the left upper extremity, initially evaluated as 10 percent disabling prior to June 27, 2012, and 20 percent thereafter. 4. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. Jeng, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from June 1965 to June 1986. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a June 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia, which granted service connection for sensory deficit of the left upper extremity and assigned a 10 percent disability evaluation, and denied service connection for malaria and multiple sclerosis. Thereafter in an August 2013 rating decision, the RO increased the disability evaluation for sensory deficit of the left upper extremity to 20 percent disabling effective June 27, 2012, and also denied a TDIU. Since the RO did not assign the maximum disability rating possible, the appeal for a higher disability evaluation remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993) (noting that where a claimant has filed a notice of disagreement as to an RO decision assigning a particular rating, a subsequent RO decision assigning a higher rating, but less than the maximum available benefit does not abrogate the pending appeal). The Board has reviewed the documents in both the paper claims file and the electronic claims file in rendering this decision. The issue of service connection for peripheral neuropathy has been raised by the record in an April 2016 VA Form 21-526 Veteran's Application for Compensation and/or Pension but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2015). The issues of service connection for multiple sclerosis, an increased evaluation for sensory deficit of the left upper extremity, and a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT There is no current diagnosis of malaria. CONCLUSION OF LAW Malaria was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist In correspondence dated in November 2009, prior to the June 2011 decision, the RO satisfied its duty to notify the Veteran. See 38 U.S.C.A. § 5103(a) (West 2014); 38 C.F.R. § 3.159(b) (2015). Specifically, the RO notified the Veteran of information and evidence necessary to substantiate the claim; information and evidence that VA would seek to provide; and information and evidence that the Veteran was expected to provide. In a December 2012 letter, the RO notified the Veteran of the process by which initial disability ratings and effective dates are established as set forth in Dingess v. Nicholson, 19 Vet. App. 473 (2006). The claim was subsequently readjudicated in an April 2015 Supplemental Statement of the Case (SSOC). See Prickett v. Nicholson, 20 Vet. App. 370, 377-78 (2006) (noting that VA cured its failure to afford statutory notice to the claimant prior to an initial rating decision by issuing a notification letter after the decision, readjudicating the claim, and notifying the claimant of such readjudication in the statement of the case). VA has done everything reasonably possible to assist the Veteran with respect to his claim for benefits in accordance with 38 U.S.C.A. § 5103A (West 2014) and 38 C.F.R. § 3.159(c) (2015). All identified and available service and post-service treatment records have been secured. The Veteran's records from the National Naval Medical Center in Bethesda, Maryland, from July 1986 to present have not been found and all efforts to locate them were exhausted. Here, the RO attempted to obtain these records, documented the file with a memorandum of unavailability, and properly notified the Veteran of such unavailability in an April 2013 letter. As such, there is no prejudice to the Veteran in moving forward with a decision without such records. As the Board will discuss in detail in the analysis below, the Veteran was provided with VA examinations. A review of the VA examination reports reflects that the examiners reviewed the Veteran's past medical history, recorded his current complaints, conducted an appropriate evaluation of the Veteran, and rendered an opinion consistent with the remainder of the evidence of record. The Board concludes that the examination reports are adequate for purposes of rendering a decision in the instant appeal. See 38 CF.R. § 4.2 (2015); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c) (4) (2015); Barr, 21 Vet. App. at 312. For these reasons, the Board concludes that VA has fulfilled the duties to notify and assist the Veteran in this case. Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal. Service Connection Claim The Veteran essentially contends that he had malaria in service and should be service connected for such. Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Generally, service connection for a disability requires evidence of: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated by service. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third service connections elements is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Not all diseases that may be considered "chronic" from a medical standpoint qualify for the relaxed evidentiary standard under section 3.303(b). Rather, this subsection only applies to the specific chronic diseases listed in 38 C.F.R. § 3.309(a). Thus, if the claimant does not have one of the chronic diseases enumerated in section 3.309(a), then the more relaxed continuity-of-symptomatology standard does not apply, and medical nexus of a relationship between the condition in service and the present condition is required. In this case, malaria has not been found, as further discussed below. Review of the evidence shows that while the Veteran was treated during service for malaria (July 1970), there is no current evidence that he has malaria. A July 1985 Report of Medical History reflects a history of malaria that resolved without complications. The Veteran has been afforded multiple VA examinations. A May 2012 VA infectious examination report shows that the Veteran was not diagnosed with malaria. Additionally, an October 2010 examination report shows that the Veteran provided a history of being diagnosed with vivax malaria and non-vivax malaria, but he denied any current symptoms and indicated that the condition had resolved. Diagnostic testing reflected that test results were within normal limits. The examiner determined that there was no diagnosis of malaria because the condition had resolved, and there was no evidence of malnutrition, vitamin deficiency, or infection on evaluation. The Veteran, as a lay person, is competent to note what he experiences. See Layno v. Brown, 6 Vet. App. 465, 467-69 (1994). Indeed, the record shows that the Veteran was diagnosed with malaria during service but it resolved without any residuals. Moreover, the Veteran himself indicated that he has no current symptoms. Significantly, the medical evidence of record does not reflect that the Veteran currently has malaria. In any case, the question as to whether he has malaria is a complex medical question requiring laboratory findings. It is different from a disability capable of direct lay observation. See e.g. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). That is, appropriate testing is required to determine whether the Veteran has malaria. In the present case, there is nothing in the record to suggest that the Veteran has the appropriate training, experience, or expertise to render a medical diagnosis of malaria. See 38 C.F.R. § 3.159 (a) (1) (2015). While the Veteran is competent to report his previous medical history, the evidence of record, including his own statements, demonstrates that he does not have malaria. See Barr v. Nicholson, 21 Vet. App. 303 (2007). In this circumstance, the Board accords more weight to the current evidence that is negative for any findings of malaria. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C.A. §§ 1110, 1131; Degmetich v. Brown, 104 F.3d 1328, 1332 (1997) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). Evidence must show that the Veteran currently has the disability for which benefits are being claimed. Because the evidence does not show that the Veteran has had malaria at any time during the pendency of his claim, the Board finds that the Veteran is not entitled to service connection. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); but see Romanowsky v. Shinseki, 26 Vet.App. 289, 293 (2013) (holding that the Board must address recent pre-claim evidence in assessing whether a current disability exists, for purposes of service connection, at the time the claim was filed or during its pendency). ORDER Service connection for malaria is denied. REMAND The Veteran essentially contends that he has multiple sclerosis due to service; specifically, that he manifested symptoms (including optic neuritis) therein/shortly thereafter. Review of the evidence shows that the Veteran has a current diagnosis of multiple sclerosis and a March 1998 clinical record notes a history of optic neuritis in 1986. Additionally, service treatment records dated in June 1972 and January 1973 shows his complaints of left hand and finger tingling. As the Veteran has not yet been afforded an examination to determine the nature and etiology of his current multiple sclerosis, he should be provided such an examination on remand. With regard to the claim for an increased evaluation for sensory deficit of the left upper extremity, in his February 2016 informal hearing presentation the Veteran's representative indicated that the Veteran's disability is more severe than noted by VA, specifically contending that the Veteran's pain and sensory deficits were not acknowledged. The report from the most recent examination in January 2013 reflects moderate pain but does not show any sensory deficits (normal light touch/monofilament/position sense/vibration/cold sensation etc). Additionally, the report shows that EMG studies were not conducted. To afford the Veteran all benefit of the doubt, the Board finds that a contemporaneous examination is warranted. The issue of entitlement to a TDIU is inextricably intertwined with the claims being remanded. In other words, resolution of the above issues may impact the TDIU claim. See Smith (Daniel) v. Gober, 236 F.3d 1370, 1373 (Fed. Cir. 2001) (noting that where the facts underlying separate claims are "intimately connected," the interests of judicial economy and avoidance of piecemeal litigation require that the claims be adjudicated together); see also Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (finding that two or more issues are inextricably intertwined if one claim could have significant impact on the other). Action on the Veteran's TDIU claim is therefore deferred. On remand, any outstanding records should be obtained. Accordingly, the case is REMANDED for the following actions: 1. The AOJ should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for any of the claimed disabilities on appeal. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. 2. After any additional records are associated with the claims file, schedule the Veteran for a VA examination to determine the nature and etiology of his current multiple sclerosis. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and lay statements. It should be noted that the Veteran is competent to attest to observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should provide an opinion as to whether it is as least as likely as not (50 percent probability or greater) that current multiple sclerosis is causally or etiologically related to the Veteran's military service, including the notations of tingling therein, as well as the Veteran's competent statements as to having optic neuritis several months after service discharge, which was also reflected in clinical records. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2011). 3. The Veteran should be afforded a VA examination to ascertain the severity and manifestations of his sensory deficit of the left upper extremity. Any and all studies, tests, and evaluations, including EMG, deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file. The examiner should report all signs and symptoms necessary for rating the Veteran's disability under the rating criteria. In particular, the examiner should identify the nerve(s) affected and determine whether the impairment is mild, moderate, or severe. He or she should also state whether there is incomplete or complete paralysis. In addition, the examiner should state whether there is complete paralysis of the median nerve of either the minor or major hand, with the hand inclined to the ulnar side, the index and middle fingers more extended than normally, considerable atrophy of the muscles of the thenar eminence, the thumb in the plane of the hand (ape hand); pronation incomplete and defective, absence of flexion of index finger and feeable flexion of middle finger, cannot make a fist, index and middle fingers remain extended; cannot flex distal phalanx of thumb, defective opposition and abduction of the thumb, at right angles to palm; flexion of wrist weakened; pain with trophic disturbances. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 4. Review the examination reports to ensure that they are in complete compliance with the directives of this remand. If the reports are deficient in any manner, the AOJ must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 4. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claims must be readjudicated. If the claim remains denied, an SSOC must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The Veteran has the right to submit additional evidence and argument on the matters 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 2014). ______________________________________________ ANTHONY C. SCIRÉ, JR Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs