Citation Nr: 20047085 Decision Date: 07/14/20 Archive Date: 07/14/20 DOCKET NO. 07-30 549 DATE: July 14, 2020 THE ISSUE Entitlement to service connection for malaria. ORDER Entitlement to service connection for malaria is denied. FINDINGS OF FACT The Veteran does not have active malaria or any residuals of malaria affecting a body system, and there is no evidence the claimed disability results in functional loss. CONCLUSION OF LAW For the entire appeal period, the criteria are not met for a compensable disability rating for malaria. 38 U.S.C. §§ 1155, 5103A, 5107(b) (2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.7, 4.88b, Diagnostic Code 6304 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active military service from February 1966 to June 1969. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a December 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In January 2019, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a Travel Board hearing located at the RO in San Antonio, Texas. A copy of the transcript has been associated with the claims file. The Board notes that the Veteran’s original claims file has been lost. VA has made multiple attempts at reconstructing the procedural documents in the file, but not all documents relating to the Veteran’s service and past VA claims have been located, notably the Service Treatment Records (STRs). This matter was last before the Board in May 2019, at which time it was remanded to inform the Veteran that he may submit any STRs in his possession, and to afford the Veteran a VA examination in order to determine the nature and etiology of any claimed malaria or residuals thereof. As will be discussed below, the Board finds that there has been substantial compliance with its remand directives and the issue is once again before the Board. See Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to service connection for malaria. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Generally, service connection requires: (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 or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). In addition, service connection may be established on a secondary basis for a disability which is shown to be proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Establishing service connection on a secondary basis requires evidence sufficient to show that a current disability exists and that the current disability was either caused by or aggravated by a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). The threshold requirement for service connection to be granted is competent evidence of the current existence of the claimed disability. See Degmetich v. Brown, 104 F.3d 1328 (1997); Brammer v. Derwinski, 3 Vet. App. 223 (1992) (stating that “[i]n the absence of proof of a present disability there can be no valid claim”). The United States Court of Appeals for the Federal Circuit has stated that “‘disability’ in [38 U.S.C] § 1110 refers to the functional impairment of earning capacity.” See Saunders v. Wilkie, 886 F.3d 1356 (2018). It was also stated in that case that “pain in the absence of a presently-diagnosed condition can cause functional impairment.” It was additionally stated in Saunders that “to establish a disability, the Veteran’s pain must amount to a functional impairment. To establish the presence of a disability, a Veteran will need to show that her pain reaches the level of a functional impairment of earning capacity.” VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154 (a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran’s lay statements. Id. Further, a negative inference may be drawn from the absence of complaints for an extended period. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff’d sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Furthermore, in determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert, 1 Vet. App. at 49. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the benefit of the doubt will be given to the Veteran. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. The Veteran claims that he was hospitalized and diagnosed with malaria while in service and suffers residuals in the form of trouble breathing and aches and joint pain in the summer months. See January 2019 hearing transcript. As noted above, the Veteran’s STRs are missing. In its May 2019 remand directives, the Board directed the RO to notify the Veteran of missing STRs or military personnel records, to include the DD-214, and to ask him to submit any missing records in his possession. In a November 2019 Subsequent Development Letter, VA informed the Veteran that if he had any of the above documents, he could submit them. No such documents were subsequently obtained from the Veteran. In order to determine the nature and etiology of the Veteran’s claimed malaria and/or residuals thereof, the Board remanded this matter in a May 2019 decision in order to afford the Veteran a VA medical examination. The Veteran received a VA examination in February 2020. The VA examiner acknowledged that the Veteran’s reports of a diagnosis of malaria in service and noted the Veteran’s reported symptoms. However, after an in-person examination and review of the complete record, the VA examiner found no current diagnosis of an infectious disease, and no diagnosis of malaria in the case file. Furthermore, the examiner found that the Veteran did not currently have residual symptoms attributable to malaria. Overall, the Board finds that the evidence of record did not show that the Veteran’s reported symptoms of aching, shortness of breath, and joint pain reached the level of functional impairment of earning capacity, as outlined in Saunders. No information was provided as to this issue during the extensive appeal period by the Veteran or his representative. As noted, Saunders stated that “[t]o establish the presence of a disability, a Veteran will need to show that her pain reaches the level of a functional impairment of earning capacity.” Upon review, the Board finds that such was not shown in this case. In sum, the evidence of record did not demonstrate a diagnosis of malaria or residuals thereof. The threshold requirement for service connection to be granted is competent evidence of the current existence of the claimed disability. The evidence of record does not show a malaria disability and without this the claim cannot succeed. As such, the Board finds that the Veteran does not have a current malaria disability that was incurred in or aggravated by the Veteran’s active service. The Board accordingly concludes that the criteria for entitlement to service connection for a malaria have not been met and, to this extent, the Veteran’s claim therefore must be denied. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Michael A. Pappas Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. E. Geary, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.