Citation Nr: 1639472 Decision Date: 09/30/16 Archive Date: 10/13/16 DOCKET NO. 11-11 012 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUE Entitlement to service connection for residuals of malaria. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. S. Kelly, Counsel INTRODUCTION The Veteran, who is the appellant, had active service from January 1964 to January 1966. This matter originally came before the Board of Veterans' Appeals (Board) on appeal of a rating decision of March 2010 of the Salt Lake City, Utah, Department of Veterans Affairs (VA) Regional Office (RO) that declined to reopen the Veteran's claim for service connection for residuals of malaria. This matter was previously before the Board in April 2014, at which time the Board reopened the previously denied claim of service connection for malaria and remanded the matter for further development. The requested development has been completed and the matter is now ready for appellate review. FINDING OF FACT The Veteran does not have malaria, or residuals thereof, of service origin. CONCLUSION OF LAW The criteria for service connection for malaria, or residuals thereof, have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Assist and Notify The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). Proper VCAA 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; (3) and that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). The Court has also held that that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159 (b) apply to all five elements of a service connection claim. Those five elements include: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). A December 2009 letter provided the Veteran with notice that informed him of the evidence needed to substantiate his claim. The letter also told him what evidence he was responsible for obtaining and what evidence VA would undertake to obtain. The letter further told him to submit relevant evidence in his possession. The letter also provided the Veteran with notice as to the disability rating and effective date elements of the claim. The Board finds that there has been substantial compliance with the assistance provisions set forth in the law and regulations. The record in this case includes service treatment records, VA treatment records, private treatment records, VA examination reports and opinions, and lay evidence. No additional pertinent evidence has been identified by the claimant. In conjunction with the April 2014 Board remand, the Veteran was requested to provide written authorization so that additional treatment records could be obtained from his private physician, Dr. B., to include any records that would show the dates of a diagnosis of malaria and the tests or studies showing the basis for that diagnosis. In May 2014, the Appeals Management Center, acting on behalf of the RO, requested that the Veteran provide the written authorizations necessary to obtain the records from Dr. B. To date, the Veteran has not responded to the request. The duty to assist in the development and the adjudication of a claim is not a one-way street. Wamhoff v. Brown, 8 Vet. App. 517, 522 (1996); Zarycki v. Brown, 6 Vet. App. 91, 100 (1993); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). As the Veteran has not replied, the Board is prevented from obtaining these records and has fulfilled its duty to assist. The Veteran was afforded VA examinations in conjunction with his claim in January 2010 and March 2011. While the Board notes that an additional VA examination was addressed in the April 2014 remand, it was only to be performed if additional records were obtained from Dr. B. Given the Veteran's lack of cooperation in obtaining these records, the additional VA examination was not performed. The Board finds that the VA examination reports of record are adequate because they were performed by medical professionals, were based on a thorough examination of the record, to include VA examinations and documented and considered the Veteran's complaints and symptoms, and included adequate opinions. Nieves-Rodriguez v. Peake, 22 Vet. App 295 (2008); see Barr v. Nicholson, 21 Vet. App. 303 (2007) (holding that VA must provide an examination that is adequate for rating purposes). Thus, the Board finds that no further examinations are necessary regarding the claim for service connection. The Veteran has been afforded a meaningful opportunity to participate effectively in the processing of the claim, including by submission of statements and arguments. He was also afforded the opportunity to appear at a personal hearing. Based upon the foregoing, the duties to notify and assist the Veteran have been met, and no further action is necessary to assist the Veteran in substantiating this claim. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. § 3.303(d). Generally, lay evidence is competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot); 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 be competent and sufficient evidence of a diagnosis 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. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Court held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Court has also stated, "It is clear that 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. The Veteran maintains that he developed and was treated for malaria while in service. He contends that he currently has malaria, or residuals thereof, related to his period of service. The Veteran maintains that he developed malaria while serving in Vietnam. Service treatment records reveal no complaints or findings of malaria. There were also no findings or notations of malaria, or malaria residuals, or treatment thereof, on his January 1966 service separation examination report. There were also no complaints, findings, or diagnoses of malaria, or residuals thereof, on the Veteran's January 1966 service separation report of medical history. On his initial application for compensation, received in February 1967, the Veteran reported having developed malaria in 1966. Treatment records associated with the record reveal that the Veteran was seen in at VA in June 1966, at which time he was noted to have served in a malaria zone. It was indicated at that time that the Veteran had been checked repeatedly for malaria with negative results always. It was noted that the Veteran felt feverish that morning and had a headache. Diagnostic testing performed at that time revealed no evidence of malarials. A diagnosis of "no disease" was rendered at that time. At the time of his January 2010 VA examination, the Veteran reported that that he was released from active duty in January of 1966 and then February or March of 1966, one week after he finished his antimalarials, he had a febrile illness. He indicated that he came into the VA but was told he was on the tail end of malaria and to go ahead and live through it and it would be gone in a day or two. He said he had no testing done at that time and that no treatment was given but that he was told it was malaria. The Veteran reported having had eight to ten attacks similar to that since he left service, the last one was in approximately spring of 2008. He noted that over the years he has always thought it was the flu and he would get high fever and chills, sweats, and weakness, but these episodes seemed much worse than the regular flu. He stated that they typically would last one to 1-1/2 weeks. He noted that during the last episode, approximately April of 2008 or maybe 2009, he was seen by a private doctor in Salt Lake City. The Veteran indicated that he was the only one who ever identified it. He stated that the doctor did testing for malaria and treated him with some sort of medication for it. At that time, he had a chest x-ray, that he stated showed some pneumonia, and recheck a couple months later showed granulomatous changes in that x-ray. He noted that he had been out of the country the preceding October about six months prior to this last episode. The Veteran stated that he was in Vietnam in 1966, and that after service he worked for the government and traveled multiple times to Cambodia, Laos, Thailand, Philippines, Korea, Japan, Egypt and Europe. He reported that he never took antimalarials with his trips. The Veteran stated that in between the above-mentioned attacks he would have no symptoms. The examiner indicated that as he did not have the claims folder he could not render an opinion with regard to malaria. He stated that he could not confirm a diagnosis of malaria and that there was no diagnosis at the time of the examination. In an April 2010 letter, the Veteran private physician, R B., M.D., stated please be aware the Veteran was treated for malaria in August 2008. An Infectious Disease specialist was consulted at that time. He contracted malaria while serving in the Army during the Vietnam War and has had symptoms on and off several times since, precipitated by fatigue. In conjunction with his claim, the Veteran was afforded a VA examination in March 2011. At the time of the examination, the examiner indicated that the Veteran's service treatment records were negative for any indication of a malarial disease. He noted that he did see one entry where the Veteran had a viral syndrome with a high fever but no diagnosis was given of malaria. The examiner stated that the Veteran told him that he was released from active duty military service in 1966 and was sent home with five weeks of medications for malaria. The Veteran reported that it was after he ran out of his medications that he had a recurrence and came to the VA. The examiner indicated that the diagnosis from the VA was listed as "no diagnosis" The examiner noted that the Veteran did have a lab slip from the VA hospital dated 06/18/1966 that stated, "No malarial parasites ." He also observed that the Veteran did have a letter from Dr B. stating that the Veteran had contracted malaria while in Vietnam, but did not provide the reasoning behind that diagnosis or offer proof in the form of positive lab test. The examiner stated that the Veteran told him that he has had recurrence of malarial attacks every 2-1/2 years since his service. He stated that he usually just treated these on his own and did not go into the hospital. He reported that he had never gone into the hospital and had blood smears to test for malaria. The examiner stated that it should be pointed out that the Veteran, after he left military service, worked for a defense contractor and travelled multiple times overseas to Cambodia, Laos, Thailand, the Philippines, Korea, Japan, Egypt, and Europe. He noted that the Veteran reported that he never took anti-malarials with his trips and that between his malarial attacks he had no symptoms and that he had no current symptoms. The examiner stated that after reviewing all the Veteran's service treatment records, he could not find any evidence that he ever had malaria, and therefore it was his opinion that that the Veteran did not have malaria or contract malaria while he was in Vietnam. There were also no current residuals of malaria. The examiner stated that the diagnosis of malaria was confirmed off blood smears during the active illness. He noted that the one smear that he had was in 1966 at the VA, and it stated that he had no malarial parasites. He indicated that the recurrence of malaria after contracting the disease was rare. The examiner noted that there were two species of malaria that do recur and to say that one was having recurrence, the first step was to do the blood smear and confirm that the Veteran had one of those particular species of malaria and then do a smear during the recurrence of the symptoms to confirm the disease. He noted that none of this had been done. The examiner indicated that he had to point out that over 90 percent of the recurrence rates occurred within the first thirty days and that recurrence rates past one year were exceedingly rare. The examiner noted that there was one lab test that could be done to retrospectively to diagnose malaria, which was called a malaria antibody or IgG. Unfortunately, the false-positive rate with this test was 18 percent. Also, it had to be confirmed that the individual was nonimmune prior to the event in question. The examiner stated that they did not know if the Veteran in this case had previous exposure to malaria prior to his experience in Vietnam, and, so, if this test came back positive 1) they would not know whether he was nonimmune prior to his service in Vietnam and 2) the other confounding factor was the Veteran's extensive overseas travel in which he may have come in contact with malaria. So they would not know whether the exposure was a false- positive or when the exposure took place. Therefore, the test was not ordered as it would not help determine whether he contracted malaria while serving in Vietnam. The examiner indicated that because he did not have confirmation the Veteran actually had malaria while in-service nor have confirmation of the specific species that could recur, it was his opinion that any current viral syndromes or illnesses were not caused by or a result of any malarial illness that the Veteran may have had while in Vietnam. He reported that no other precise clear specific diagnosis could be given based upon the data available and also the examination findings that day. The examiner indicated that the diagnoses noted above were stated precisely and were justified on the basis of examination and history. There were no other symptoms or treatments reported for the conditions evaluated. VA treatment records associated with the record reveal no findings of malaria or residuals thereof. As noted above, pursuant to the April 2014 remand, the Veteran was to provide written authorization to obtain treatment records from Dr. B. in an attempt to obtain any records showing the dates of diagnosis of malaria and the tests and studies forming the basis for that diagnosis. To date, the written authorizations have not been provided. Evidence contained in these records may have been beneficial to the Veteran's claim. After a review of all the evidence, lay and medical, the Board finds that the weight of the evidence is against the conclusion that the Veteran has malaria, or residuals thereof, that had its onset in service. Service treatment records are devoid of any complaints or findings of malaria or residuals thereof. Moreover, while the Veteran reported the onset of malaria in 1966 on his initial application for compensation in 1967, treatment records associated with the file reveal that the Veteran was seen at VA in June 1966, at which time it was noted that he had been previously tested for malaria, with no positive findings being made, and that diagnostic testing performed at that time had yielded negative results, with the examiner specifically indicating that there was "no diagnosis" at that time. There are also no recorded findings of malaria, or residuals thereof, in close proximity to service. The first notation of any findings of malaria is in the April 2010 note from the Veteran's private physician, Dr. B. wherein he indicated that the Veteran had been treated for malaria in August 2008, many years subsequent to service. As to the Veteran's belief that he currently has malaria, or residuals thereof, which is related to his period of service, the Board notes that although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, an opinion as to the etiology of the Veteran's current malaria, or residuals thereof, if present, and its relationship, if any, to his period of service falls outside the realm of common knowledge of a lay person. See Jandreau, 492 F.3d at 1377 n.4 (lay persons not competent to diagnose cancer). Some medical issues require specialized training for a determination as to diagnosis and causation, and such issues are therefore not susceptible of lay opinions on etiology. In the current case, there were no positive tests for malaria, with specific testing revealing no evidence of malaria in the months immediately following service. Service connection may also be granted when the evidence establishes a medical nexus between a claimed disability and the Veteran's period of service. When evaluating the weight of medical evidence, the Board is guided by the principle that the probative value of a medical opinion largely rests upon the extent to which such opinion is based upon a thorough evaluation of a veteran's medical history, including but not limited to the medical evidence contained in the claims file. See, e.g. Miller v. West, 11 Vet. App. 345, 348. The Board may examine the factual foundation of a medical opinion, including whether the physician had access to relevant information of record. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-304 (2008). It is the accuracy of the facts that are important, rather than the source of the information. A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). With regard to Dr. B's April 2010 opinion that the Veteran contracted malaria while serving in Vietnam, this is based upon the history provided by the Veteran, which is not supported by the evidence of record, as demonstrated by no findings of malaria in service and negative findings on malaria testing performed in close proximity to service. Moreover, as noted above, the Veteran was requested to provide written authorization to obtain treatment records from Dr. B. which would have supported this proposition and the Veteran has not supplied the requested authorizations. The Board is assigning greater probative value to the opinion rendered by the March 2011 VA examiner who opined that that the Veteran did not have malaria and did not contract malaria while he was in Vietnam. The examiner provided detailed rationale to support his opinion. There was no indication that the VA examiner was not fully aware of the Veteran's past medical history or that he misstated any relevant fact, or relied on any inaccurate fact. Moreover, the examiner addressed the April 2010 letter from Dr. B. when rendering his opinion. Thus, the Board finds the March 2011 VA examiner's opinion to be the most probative evidence of record. In sum, the preponderance of the evidence weighs against a finding that that the Veteran currently has malaria, or residuals thereof, that had its onset or is otherwise related to service. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. ORDER Service connection for malaria, or residuals thereof, is denied. ____________________________________________ K. Parakkal Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs