Citation Nr: 18140483 Decision Date: 10/03/18 Archive Date: 10/03/18 DOCKET NO. 15-22 361 DATE: October 3, 2018 ORDER A compensable rating for malaria is denied. An initial rating in excess of 30 percent for posttraumatic stress disorder (PTSD) is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran has active malaria. 2. The preponderance of the evidence is against finding that the Veteran’s PTSD manifested with occupational and social impairment with reduced reliability and productivity. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for malaria are not met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.88b, Diagnostic Code 6304. 2. The criteria for an initial rating in excess of 30 percent for PTSD are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.20, 4.126, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1966 to January 1968. Increased Rating Disability ratings are assigned in accordance with VA’s Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. 1. Malaria The Veteran contends that he has malaria and has undergone malaria treatment in 2014 at VA. The Veteran is currently rated for malaria under Diagnostic Code 6304, which provides a single 100 percent disability rating for an active disease. 38 C.F.R. § 4.88b, Diagnostic Code 6304. In pertinent part, a note for Diagnostic Code 6304 provides that relapses must be confirmed by the presence of the malaria parasite in blood. Id. During the April 2014 VA infectious disease examination, the Veteran reported that he has episodes of reoccurrence of malaria resulting in him feeling woozy and tired, but having no fevers. These episodes last for 1 - 2 days and occur once a month. He reported that during these episodes he recuperates at home and does not see a doctor and has not been tested for malaria. The examiner reported that the Veteran contracted malaria in Vietnam and was treated with Quinine (an antimalarial drug) and was ill for several weeks. After his separation from service, he had a reoccurrence of malaria 1 - 2 months later and again was treated with Quinine. The examiner found that malaria was inactive and that the Veteran had no symptoms or residuals attributable to malaria. The examiner stated that she could not opine that since 1968 that the Veteran had reoccurrences of malaria. She stated that his reported symptoms were not characteristic of malaria and there was no laboratory proof to support that during his episodes the malaria parasite was present. VA treatment records from June 2014 indicated that the Veteran complained of flare-ups of malaria, which he described as flu-like symptoms. The VA doctor stated that it was “very unlikely” that the Veteran had malaria, since it is not endemic, and he did not prescribe and antimalarial drug. Other VA treatment records associated with the claims file show a diagnosis of “history of malaria,” and there is no indication that the Veteran had active malaria or underwent malaria treatment during the appeal period. The Board finds that the Veteran does not have active malaria to warrant a compensable rating under Diagnostic Code 6304. The Board finds that the most probative evidence of record is the April 2014 VA examination, as it is the only medical opinion of record. Consequently, the Board adopts the opinion of the VA examiner, who ultimately found that the Veteran’s symptomology is not indicative of malaria. Moreover, the Board reads the April 2014 VA examination report as indicating that the absence of laboratory proof further solidified the examiner’s opinion that the Veteran did not have active malaria, as there was no correlation between an active infestation and the Veteran’s reported episodes. Neither the Veteran nor his representative has presented or identified any contrary medical opinion or treatment that supports that he has active malaria. VA adjudicators are not free to ignore or disregard the medical conclusions of a VA physician, and are not permitted to substitute their own judgment on a medical matter. Colvin v. Derwinski, 1 Vet. App. 171 (1991); Willis v. Derwinski, 1 Vet. App. 66 (1991). The August 2018 Informal Hearing Presentation contends that the April 2014 VA examiner should have conducted blood testing to determine the presence of malaria parasites, and therefore the VA examination was inadequate. The Board disagrees. There is no issue with the adequacy of the April 2014 VA examination for not conducting blood tests, because there was no pathology to warrant more sophisticated testing. The VA examiner, based on her review of the record and in person examination of the Veteran, determined that there was no indication of active malaria. The Board will not substitute its own judgment or the lay judgment of the Veteran’s representative in determining whether subsequent testing was appropriate given the Veteran’s condition at the time of examination by a medical professional. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (holding that “BVA panels may consider only independent medical evidence to support their findings”). Moreover, this argument does not outweigh the fact that the evidence does not suggest active malaria during the appeal, as the VA treating clinician in July 2014 also found that the Veteran having active malaria was unlikely. Diagnostic Code 6304 directs that residuals such as liver or spleen damage be rated under the appropriate system. Review of the relevant evidence, to include VA examinations, does not reflect evidence of any such residuals. The Board acknowledges the Veteran’s sincere belief that he has reoccurrences of malaria. However, the Veteran is only competent to provide statements of his symptoms that are observable to his senses. He is not competent to diagnose malaria or determine which conditions are reoccurrences of malaria as it is an infectious disease affecting complex systems of the body best understood by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony “falls short” in proving an issue that requires expert medical knowledge). Accordingly, the Veteran’s lay statements in this regard are not competent evidence of active malaria during the appeal. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Accordingly, the Board finds that the preponderance of the evidence is against the assignment of a compensable rating. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. PTSD The Veteran contends that his PTSD warrants a higher rating. The Veteran’s PTSD is rated under Diagnostic Code 9411 as 30 percent disabling. See 38 C.F.R. § 4.130. Diagnostic Code 9411 provides a 30 percent rating is warranted when there is occupation and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactory, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A that 70 percent rating is warranted for occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and/or inability to establish and maintain effective relationships. A 100 percent rating is warranted for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and/or memory loss for names of close relatives, own occupation, or own name. When evaluating a mental disorder, the frequency, severity, duration of psychiatric symptoms, length of remissions, and the Veteran’s capacity for adjustment during periods of remission must be considered. 38 C.F.R. § 4.126(a). Further, when evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign a rating solely on the basis of social impairment. 38 C.F.R. § 4.126(b). Ratings are assigned according to the manifestation of particular symptoms, but the use of a term “such as” in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). When determining the appropriate disability rating to assign, the Board’s primary consideration is a Veteran’s symptoms, but it must also make findings as to how those symptoms impact a Veteran’s occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013); Mauerhan, 16 Vet. App. at 442. Because the use of the term “such as” in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Mauerhan, 16 Vet. App. at 442; see also Sellers v. Principi, 372 F.3d 1318, 1326-27 (Fed. Cir. 2004). Nevertheless, all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the Veteran’s impairment must be “due to” those symptoms, a Veteran may only qualify for a given disability by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. Based on review of the medical evidence, the preponderance of evidence is against finding that the Veteran’s symptoms more closely approximated the 50 percent rating criteria due to the lack of symptoms such as flat affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks; difficulty understanding complex commands; impaired judgment; impaired abstract thinking; disturbances in mood and motivation; and difficulty in establishing and maintaining effective relationships. Review of the claims file is not suggestive of symptoms corresponding to the higher rating criteria. Throughout the appeal, based on VA treatment records and the April 2014 VA PTSD examination, the Board finds that the Veteran’s symptoms amounted to anxiety and chronic sleep impairment. Overall, the April 2014 VA examiner found occupational and social impairment due to mild or transient symptoms. Additionally, of note, the VA treatment records from April 2014 and June 2014 reported that the Veteran endorsed nightmares, startle responses, hypervigilance, intrusive thoughts about Vietnam, and avoiding situations that reminded him of Vietnam. Thus, after review of the evidence of record, to include the Veteran’s lay statements, the Board finds that the service-connected PTSD does not more nearly approximate the severity contemplated by a 50 percent rating. See 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411. The Veteran is competent to give evidence of symptoms observable by his senses, and the Board finds him credible as to his statements regarding his symptoms. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board notes that the Veteran’s symptoms of memories of war, anxiety, hypervigilance, and sleep impairment are adequately contemplated by the 30 percent rating under Diagnostic Code 9411. There also is no indication that the Veteran experienced symptomology associated with the 70 and 100 percent rating criteria. The Veteran reported a good relationship with his wife, which was a marriage of over 40 years. Objective findings reported that the Veteran demonstrated appropriate grooming and hygiene. The Veteran’s thinking was generally goal directed. His voice and speech were within normal limits. His memory and concentration were generally intact. His mood was generally good and his energy level varied depending on medical or physical issues. There were no issues with orientation, perceptual disturbances, panic attacks, ongoing depression, and psychomotor behaviors. The Board is aware that June 2014 VA treatment records noted that the Veteran reported having thoughts of taking his life, which occurred two or more years ago (i.e., after his second DUI) with no plan. However, clinical judgment was that the Veteran’s risk of suicide was low. Consequently, the Board does not find that suicidal thoughts were with such frequency, duration, and severity to warrant a higher rating. The Board has carefully considered this symptom, but finds that this single notation does not reflect that the disability is of greater severity than currently rated. See Bankhead v. Shulkin, 29 Vet. App. 10 (2017),   Considering the overall impact of the Veteran’s psychiatric symptoms, to include the frequency, duration, and severity of the Veteran’s reported symptoms and those listed in the medical records, the Board finds that the 30 percent rating contemplates the level of severity experienced by the Veteran. Accordingly, the Board finds that the preponderance of the evidence is against the assignment of an initial rating in excess of 30 percent. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Dellarco, Associate Counsel