Citation Nr: 1756042 Decision Date: 12/05/17 Archive Date: 12/15/17 DOCKET NO. 13-16 394 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to service connection for anatomical loss of the right eye, to include as secondary to service-connected malaria. 2. Entitlement to an initial compensable rating for service connected malaria. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Giaquinto, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from April 1967 to November 1968, to include service in the Republic of Vietnam. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California in which the RO granted entitlement to service connection for malaria, assigning an initial noncompensable rating, and denied entitlement to service connection for anatomical loss of the right eye, secondary to malaria. The Veteran was scheduled for a videoconference hearing in October 2016, but did not appear. As a result, the Veteran's hearing request is deemed withdrawn. 38 C.F.R. § 20.704(d) (2017). In March 2017, the Board remanded this case to the RO to obtain any relevant, outstanding VA or private medical records and to afford the Veteran examinations for malaria and his right eye condition. The RO obtained all available medical records and the Veteran underwent examinations to evaluate malaria and the right eye condition. Accordingly, there has been substantial compliance with the Board's remand instructions. Stegall v. West, 11 Vet. App. 268 (1998). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (West 2012). FINDINGS OF FACT 1. The anatomical loss of the Veteran's right eye is not attributable to a service-connected disability. 2. The Veteran did not exhibit active malaria or any residuals of malaria, such as liver or spleen damage, during the appeal period. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for anatomical loss of the Veteran's right eye have not been met. 38 U.S.C. §§101, 1110, 1113, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.306, 3.310 (2017). 2. The criteria for a compensable rating for malaria have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.88b, Diagnostic Code 6304 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). II. Service Connection for Loss of the Right Eye Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303, 3.304 (2017). Service connection generally requires 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. Walker v. Shinseki, 701 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for a disability which is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a) (2017) . In addition, service connection may be established on a secondary basis for a disability which is aggravated by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Lay evidence is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). When a condition is capable of lay observation and may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature." Lay evidence can be competent and sufficient to establish a diagnosis when a layperson (1) is competent to identify the medical condition; or, (2) is reporting a contemporaneous medical diagnosis; or, (3) describes symptoms at the time which supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Although a lay person is competent in certain situations to provide a diagnosis of a simple condition, a lay person is not competent to provide evidence as to more complex medical questions. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107; 38 C.F.R § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. at 53 Analysis The Veteran has not claimed entitlement to service connection for the loss of his right eye on a direct basis, but as secondary to service-connected malaria. Specifically, the Veteran claims that in 2001, he had a malaria relapse that was marked by a dangerously high fever. The fever, in turn caused a stroke that ultimately resulted in atrophy of the right eye. The right eye later had to be removed due to complications. As will be discussed in more detail below, there are no medical records to confirm the Veteran's reports of prior relapses of malaria. However, the Veteran is competent to describe symptoms that he experienced and to report contemporaneous medical diagnoses. March 2002 records from Dr. S.C. show that the Veteran suffered a central retinal vein occlusion (CRVO) of the right eye in October 2000. Records from the date of the CRVO itself are not in the claims file. According to Dr. S.C.'s records, the CRVO caused poor vision and the Veteran received treatment at a retina medical group beginning in August 2001. After the condition worsened, the Veteran underwent an enucleation of the right eye in October 2003 and was fitted with an orbital implant. Medical records in post-operative follow-up appointments and beyond show only the Veteran's self-reported medical history of a stroke in the right eye. In September 2017, the Veteran underwent a VA Eye Conditions examination. After reviewing the file and examining the Veteran, the examiner concluded that it was less likely than not that the loss of the right eye was related to the Veteran's service-connected malaria. The examiner reported that the Veteran stated that his loss of vision was due to a stroke. However, the examiner noted the records from Dr. S.C. showing that the event was a CRVO. According to the examiner, "if the CRVO was the ischemic form of CRVO it is likely that [it] resulted in neovascularization." Despite the lack of eye care records from the incident itself, "it is reasonable to presume that the 'stroke' was actually a CRVO of the ischemic form. Though malaria can cause microvascular occlusions in the retina it is unlikely to cause occlusions of larger vessels and unlikely to do so in adults. Typically it occurs in children with severe cerebral malaria and the retinopathy in malaria has been found to herald a fatal outcome of the malaria in children. It is unlikely that malaria was the cause of the CRVO in this claimant's case." Medical Opinion Disability Benefits Questionnaire, September 25, 2017, p. 14. The examiner stated that for the same reasons, it was unlikely that malaria aggravated the right eye condition. Contrary to the opinion above, at a September 2017 Infectious Diseases examination, the examiner indicated that the Veteran had residuals attributable to malaria in the form of the loss of the right eyeball due to stroke. Pertinently however, in reporting the residuals, the examiner did not indicate whether this was his own medical determination or the history as reported by the Veteran. Even if this was his own medical determination, there was no subsequent discussion of the medical evidence the examiner relied upon to come to that conclusion, and any additional clinical explanation as to how the Veteran's eye problems were related to his malaria disability. The Board affords more probative weight to the reasoned conclusions of the Eye Conditions examiner, who provided medical explanations as to why the event in 2000 was an ischemic CRVO rather than a malaria-induced stroke, than it does to the opinion of the Infectious Diseases examiner, who provided little to no medical explanation in support of the medical finding. The conclusion from the Eye Conditions examination also supports the documented history from Dr. S.C.-history that, although not contemporaneous with the event, was closer in time and was used to initially diagnose the right eye condition. Although the Board has considered the Veteran's assertion that what he suffered was a stroke due to a malaria relapse, such a specific diagnosis requires medical expertise and is beyond the Veteran's competence as a layperson. Weighing the examiners' opinions and medical history, the preponderance of the evidence is against the claim of entitlement to service connection for loss of the right eye, secondary to malaria. As the preponderance of the evidence is against this claim, the "benefit of the doubt" rule is not applicable and the Board must deny the claim. See 38. U.S.C.A. §5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). III. Increased Rating for Malaria Pertinent Law and Regulations Disability evaluations are determined by the application of the facts presented to the VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt as to the degree of disability will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. Where an increase in the level of a disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate. See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a Veteran's service-connected disabilities. 38 C.F.R. § 4.14. Generally, separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not "duplicative of or overlapping with the symptomatology" of the other condition. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The Court has also held that within a particular diagnostic code, a claimant is not entitled to more than one disability rating for a single disability unless the regulation expressly provides otherwise. Cullen v. Shinseki, 24 Vet. App. 74 (2010). Malaria is rated under 38 C.F.R. § 4.88b, Diagnostic Code 6304. A schedular rating of 100 percent disabled is warranted for malaria as an active disease. This represents the only compensable rating level for malaria. The diagnosis of active malaria, to include relapses, depends on the identification of malarial parasites in blood smears. If the Veteran served in an area in which malaria is endemic and the Veteran presents signs and symptoms compatible with malaria, the diagnosis may be based on clinical grounds alone. Residuals of malaria, such as liver and spleen damage, should be rated under the Diagnostic Code for the affected system. 38 C.F.R. § 4.88b, Diagnostic Code 6304. Analysis In May 2013, the RO granted the Veteran's service-connection claim, and assigned an initial noncompensable rating effective January 3, 2011. The Veteran disagreed with the assigned initial rating, and perfected this appeal. The Veteran claims that he contracted malaria while serving in Vietnam in 1968 and had a relapse in 1969 that required hospitalization. He has provided multiple lay statements attesting to this narrative of events. Although records documenting the onset and initial relapse are not available, admissions records show that the Veteran was admitted to Long Beach VA Medical Center in 1969. The Veteran claims that, since service, he has had a total of four relapses, the most recent of which was around 2001. See, VA Form 9, December 19, 2013. There are no medical records pertaining specifically to the relapses, although the Veteran is competent to describe his recollection of his medical history. As noted above, the only compensable evaluation for malaria is a rating of 100 percent for active malaria. The question at issue, then, is whether the Veteran's malaria has been active at any point during the period on appeal. The Veteran, himself, has not alleged that he has had a relapse of malaria during the pendency of the claim. Medical records from Long Beach VA Medical Center from January 2012 to July 2017 only mention malaria with regard to the Veteran's self-reported medical history. In September 2017, the Veteran underwent a VA Infectious Diseases examination. There, the examiner diagnosed inactive malaria, noting that the disease became inactive in 2001. As discussed above, the examiner described the only residuals attributable to malaria to be loss of vision and right eyeball due to stroke; however, the Board has made a finding above that the probative evidence weighs against this finding. The examiner did not report any other residuals, to include liver or spleen damage. Diagnostic testing showed that a blood examination did not identify any malarial parasites. The examiner concluded that there was no change in the diagnosis as it had been established by VA and that the condition was quiescent. There is no indication that the Veteran suffered from active malaria at any time during the period on appeal (2011 to the present day). Medical records are silent for any relapse diagnoses during this time, and the Veteran does not so contend. Indeed, he has specified that his last relapse occurred in 2001. The September 2017 VA examination showed no evidence of malarial parasites in blood tests and the examiner diagnosed the condition as inactive. Considering that the Veteran's military service took place in an area where malaria was endemic, a classification of active malaria must either be based on identified malarial parasites in the blood or a diagnosis based on clinical grounds alone. The September 2017 examination showed evidence of neither criterion. Considering the totality of the claim, the preponderance of the evidence is against a finding that an initial compensable rating for service-connected malaria is warranted. As the preponderance of the evidence is against this claim, the "benefit of the doubt" rule is not applicable and the Board must deny the claim. See 38. U.S.C.A. §5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for loss of the right eye, secondary to malaria, is denied. Entitlement to an initial compensable rating for service-connected malaria is denied. ____________________________________________ V. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs