Citation Nr: 18155029 Decision Date: 12/03/18 Archive Date: 12/03/18 DOCKET NO. 16-59 626 DATE: December 3, 2018 ORDER A compensable rating for malaria is denied. REMANDED Entitlement to a rating in excess of 30 percent for anxiety disorder (previously rated as posttraumatic stress disorder (PTSD)), is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT The Veteran did not have active malaria or any residuals at any time during the pendency of the appeal. CONCLUSION OF LAW The criteria for a compensable rating for malaria have not been met at any time during the pendency of the appeal. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.326, 4.1, 4.2, 4.31, 4.88b, Diagnostic Code 6304 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The veteran had active service from October 1969 to September 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from the June 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). As a procedural matter, following the issuance of the September 2016 statement of the case, additional VA medical records were associated with the claims file; however, these VA treatment records indicate that the Veteran has a history of malaria and has self-reported symptoms of recurrent malaria; however, these determinations were already reviewed and considered in previously obtained VA treatment records; as such, their contents are essentially duplicative of previously considered VA treatment records. Further, the Board notes that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) stated that a claim for a TDIU due to service-connected disability is part and parcel of an increased rating claim when such claim is raised by the record. The medical discussed below pertaining to the Veteran’s PTSD disability suggests that the Veteran may be unable to obtain or maintain substantially gainful employment. See February 2016 VA psychiatric examination report (where the Veteran stated that he was unable to work due to concertation issues and his heart disability). In light of the Court’s holding in Rice, the Board considers the TDIU claim as part of his pending increased rating claim and has accordingly listed the raised TDIU claim as an issue on appeal. The Board notes that the Veteran filed a notice of disagreement (NOD) with respect to an October 2015 rating decision that denied entitlement to service connection for sleep apnea and assigned a temporary total rating for ischemic heart disease with a 10 percent rating following the temporary total rating. In April 2017, the RO acknowledged receipt of the NOD and is taking additional action. This situation is distinguishable from Manlincon v. West, 12 Vet. App. 238 (1999), where a NOD had not been recognized. As such, the Board finds that a remand for the issuance of a statement of the case for these issues in not necessary at this time. Finally, the Board notes that in a November 2018 informal hearing presentation, the Veteran’s representative listed entitlement to an increased rating for hearing loss among the issues on appeal. Service connection for hearing loss was granted in a September 2016 rating decision which awarded an evaluation of 10 percent. No notice of disagreement with this decision is of record, and there is no other indication in the record of an intent to appeal this rating beyond the November 2018 informal hearing presentation. The issue is therefore outside the Board’s jurisdiction and will not be addressed further in this decision. Rating Claim for Malaria—Laws and Analysis Disability ratings are determined by the applications of the VA’s Schedule for Rating Disabilities. 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 service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321 (a), 4.1. The Veteran contends that a higher (compensable) rating is warranted for malaria because it is more severe than contemplated by the current noncompensable rating. The Veteran maintains that he has recurring symptoms of malaria, including fever and chills. The RO has evaluated the disability under DC 6304. Pursuant to DC 6304, a 100 percent rating for malaria is assigned when there is an active disease process. Relapses must be confirmed by the presence of malarial parasites in blood smears. Thereafter, malaria is to be rated on the basis of residuals such as liver or spleen damage under the appropriate system. In his October 2016 VA Form 9, the Veteran indicated that he suffered at least two to three attacks of malaria each year. The Veteran submitted medical records in support of his claim. These records, received in October 2016, are dated in January 1972 and show that the Veteran was admitted to the hospital in 1972 and was diagnosed with malaria. Notably, however, this is outside the current appeal period. Post-service VA treatment records reflect the Veteran’s self-reports of recurring malaria; however, there is no diagnosis of active malaria during the appeal period. In a July 2012 VA note, the VA physician noted that she was doubtful that a malaria smear test would be positive as the Veteran’s symptoms could be caused by many other viruses/infections. In a December 2012 VA infectious disease consult note, the Veteran indicated that he had spells of fatigue, nausea, and sweats a couple times a year. The VA physician indicated that it was “highly unlikely” that the Veteran had biannual relapses so many years out. The Veteran ultimately underwent a blood test in February 2016. At that time, the plasmodium antigen test was negative and “malaria inactive” was noted. After review of the record, the clinical evidence does not reflect any relapses during the appeal period. Specifically, there is no evidence that the Veteran was ever hospitalized for a relapse of malaria, nor is there evidence that a relapse was confirmed by the presence of malarial parasites in blood smears during the appeal period. The Board also considered the Veteran’s statements regarding his complaints regarding his claimed, recurrent malaria symptoms. As a lay person, the Veteran is competent to relate observable symptoms that may be associated with active malaria disorders, such as fever, nausea, and sweating, but he does not have the requisite medical knowledge, training, or experience to be able to diagnose active malaria. See Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011) (recognizing ACL injury is a medically complex disorder that requires a medical opinion to diagnose and to relate to service or differentiate from in-service symptoms and diagnosis). Malaria is a medically complex medical issue because it requires specialized testing to diagnose (such as blood tests), and manifest even observable symptomatology that may overlap with other disorders. Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (holding that rheumatic fever is not a condition capable of lay diagnosis). For these reasons, the medical evidence does not support a compensable rating. REASONS FOR REMAND Psychiatric Disability The Veteran is currently in receipt of a 30 percent rating for anxiety disorder (previously granted as PTSD). The Veteran was afforded a VA psychiatric examination in February 2016. At that time, the examiner indicated that the Veteran did not meet the DSM-5 criteria for PTSD. Moreover, the examiner noted that the he was unable to determine if the Veteran met the criteria for other mental disorders as the Veteran “was not cooperative with this exam.” Test results were noted to indicate that the Veteran was feigning symptoms. In his October 2016 VA Form 9, the Veteran indicated that his psychiatric disability had worsened and that he had been receiving regular treatment at VA every 45 days and that he was soon scheduled to attend another session with his psychiatrist. For these reasons, the Board finds that the Veteran should be afforded another VA psychiatric examination to evaluate the current severity of his disability. TDIU The issue of entitlement to a TDIU is intertwined with the claim being remanded and referred. See Harris v. Derwinski, 1 Vet. App 180, 183 (1991). Thus, adjudication of the TDIU claim is deferred. The matters are REMANDED for the following actions: 1. Obtain and associate with the claims file any additional medical evidence that may have come into existence but has not been associated with the record. 2. Schedule the Veteran for a VA examination to determine the current severity of his psychiatric disability. The claims folder must be made ie available to, and be reviewed by, the examiner in conjunction with the examination, and that review must be noted on the examination report. All tests deemed necessary should be conducted and the results reported in detail. 3. After completing the above, and any other development deemed necessary, readjudicate the appeal. If any benefit sought remains denied, provide an additional supplemental statement of the case to the Veteran and his representative, and return the appeal to the Board. J. GALLAGHER Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Casadei, Counsel