Citation Nr: 21013000 Decision Date: 03/08/21 Archive Date: 03/08/21 DOCKET NO. 16-36 434 DATE: March 8, 2021 ORDER Service connection for the cause of the Veteran’s death is denied. FINDING OF FACT 1.The Veteran died in November 1978, due to probable cardiac asystole, due to increasing coronary insufficiency, due to coronary arteriosclerosis, with chronic obstructive lung disease listed as a condition contributing to the cause of death. 2.At the time of the Veteran's death, service connection had not been established for any disabilities. 3.The Veteran's fatal probable cardiac asystole, coronary insufficiency, coronary arteriosclerosis, and chronic obstructive lung disease did not manifest during service or within his first post-service year, and is not etiologically related to service, including the malaria he contracted in, and was treated for, in service. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran's death have not been met. 38 U.S.C. §§ 1310, 5107(b); 38 C.F.R. §§ 3.102, 3.312. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from November 1941 to August 1945. He died in November 1978. The appellant is his surviving spouse. In July 2017, the appellant testified at a videoconference hearing at the Regional Office (RO) before the undersigned Veterans Law Judge. In November 2017, the Board issued a decision that denied the claim for service connection for the cause of the Veteran’s death. The appellant appealed that decision to the United States Court of Appeals for Veterans Claims (Court). By August 2018 Order, the Court granted the parties Joint Motion for Partial Remand (JMPR), vacating the November 2017 Board decision in part and remanding the case to the Board for action consistent with the JMPR. Thereafter, in June 2019, the Board issued a decision denying the claim. The appellant appealed that decision to the Court. By March 2020 Order, the Court granted the parties Joint Motion for Remand (JMR), thereby vacating the June 2019 Board decision, and remanding the case to the Board for action consistent with the JMR. In December 2020, the Board remanded this matter for further development. 1. Entitlement to service connection for the cause of the Veteran's death The appellant seeks service connection for the cause of the Veteran's death, based on a theory that his in-service malaria caused or substantially contributed to his death. In a claim dated in October 2013, the appellant reported that the Veteran was diagnosed with malaria in service, and that the Veteran’s family told her that they almost lost him during service due to malaria attacks. She also indicated that after separation from service, the Veteran “continued to have attack (sic) which included fevers and night sweats which would soak [their] linens”. To prevail on the issue of entitlement to service connection for the cause of the Veteran's death, the evidence must show that a disability incurred or aggravated by service caused or contributed substantially or materially to cause the Veteran's death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. The service-connected disability will be considered as the principal (primary) cause of death when such disability, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b). A contributory cause of death is inherently one not related to the principal cause. In determining whether a service-connected disability contributed to death, it must be shown that it contributed substantially or materially; that it combined to cause death; that it aided or lent assistance to the production of death. It is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection. 38 C.F.R. § 3.312(c). Service treatment records (STRs) show the Veteran was treated for malaria in service. In April 1943, his diagnosis was malarial fever, tertian, recurrent. In October 1943, the diagnosis was malarial fever, tertian, recurrent, plasmodium vivax demonstrated, and an ECG at that time was assessed as normal. A death certificate lists the Veteran’s cause of death as probable cardiac asystole, due to increasing coronary insufficiency, due to coronary arteriosclerosis, with chronic obstructive lung disease as a condition contributing to the cause of death. In a VA medical opinion obtained in May 2016, the VA examiner opined that it was less likely than not that the Veteran’s in-service malaria caused or substantially and/or materially contributed to his death. The examiner noted that medical records from Dr. O., the Hines and West Los Angeles VA Medical Centers (VAMCs), and the Providence Tarzana Regional Medical Center were not available for review, but that it was nonetheless less likely than not that the P. vivax malaria contracted by the Veteran in 1943 substantially or materially contributed to his death in 1978, from coronary disease complicated by chronic obstructive pulmonary disease (COPD), some 35 or more years after the initial infection. The examiner acknowledged that malarial infections could cause death, but explained, according to Harrison’s Textbook of Internal Medicine, that almost all deaths from malaria were caused by P. falciparum, and not P. vivax as in this Veteran’s case, and that almost all deaths occurred in or around the acute infectious phase, and not 35 or more years later. The examiner opined there was no evidence to support a chronic cardiac condition such as was seen in this Veteran as having been caused by a P. vivax malaria infection 35 or more years earlier. The examiner also acknowledged that pulmonary complications such as adult respiratory distress syndrome (ARDS) could occur as result of malaria, but stated they were more likely in adults with severe falciparum malaria, not P. vivax as in this Veteran’s case, and not 35 or more years later. The examiner also recognized that episodes of relapse could occur in malaria, but indicated these relapses typically occurred within months. The examiner observed that a relapse referred to reactivation of liver hypnozoites weeks to months after the initial treatment and thus represented failure of hypnozoiticidal treatment (if administered), while reinfection referred to new infection transmitted via mosquito exposure. The examiner opined that if a recrudescence and/or relapse had occurred, it would be less likely than not that this would impact the Veteran’s clinical status 35 or more years later. The examiner further stated that if the Veteran were to have been re-infected with malaria around or near the time of his death in 1978, this would be unassociated to the non-falciparum malarial infection he acquired in 1943. At the July 2017 Board hearing, when asked by her representative whether the Veteran continued to have “severe complications regarding his malaria disease that he suffered in service”, the appellant responded “yes”. Further, when asked by her representative to explain some of the complications the Veteran suffered from, the appellant responded “night sweats, constant pain, where he would get up in the middle of the night” and that the Veteran “would cry from it”. She further stated, “it was that way every night”. The appellant also testified that the Veteran started seeing a private cardiologist a couple of years before he died, and when asked if the “cardiologist ever share[d] with him or you that the malaria he suffered from in service complicated his current diagnosis”, she responded that the cardiologist “did say that it could be a result of it”. Finally, she testified that the Veteran never went to VA for treatment and only got private care, and that she had contacted the doctor to try to get the records, but he had passed away and the records were shredded. The appellant submitted correspondence dated in September 2017 from a private physician, Dr. G.D.G., who opined that “[t]he attached papers establish that there is a link between malaria and cardiovascular and/or coronary artery/cardiac disease”. Dr. G.D.G. noted that on review of service medical records there was no evidence that the decedent had malaria while in service, and that the “evidence” appeared solely to be the comments of the VA physician presumably based on the decedent’s verbal history, with no medical record of treatment or presence of condition. The appellant also submitted an excerpt from the Journal of Infectious Diseases, titled “Lung Injury in Uncomplicated and Severe Falciparum Malaria: A Longitudinal Study in Papua, Indonesia”. In a July 2020 statement in support of claim (VA From 21-4138), the appellant’s representative cited to the Center for Disease Control and Prevention (CDC) website regarding malaria, arguing that this evidence demonstrated the appellant’s account of the Veteran’s malaria symptoms years after service was supported by factual information. The representative also provided excerpts from articles from the National Center for Biotechnology Information (NCBI), including "Evidence and Implications of Mortality Associated with Acute Plasmodium vivax Malaria" and "Are respiratory complications of Plasmodium vivax malaria an underestimated problem?". The Board notes that neither of these sources address the situation where mortality or respiratory complications occurs over 30 years after treatment for malaria. Finally, the representative submitted an excerpt from Science Daily titled “NIAID Doctor Successfully Treats Longest Case of Malaria Infection On Record”, which discusses a mild case of malaria that smoldered in a 74 year old woman for decades before being correctly diagnosed and successfully treated. The representative noted on this document that the Veteran “had 10 known recurrences or flare-ups on active duty” and stated that this was “proof that a malaria case can last 35+ years untreated”. The representative claimed that in light of this evidence, the May 2016 VA examiner “ignored relevant and available clinical research” and therefore the VA examiner’s opinion “should not carry any more or less weight than the evidence provided by Dr. G.D.G.”, and that at best a balance of evidence existed which would be in favor of the appellant. In a December 2020 opinion a VA examiner opined, based on the body of current medical knowledge and the evidence of record, that it was less likely than not that the Veteran’s in-service malaria either caused or contributed substantially or materially to the cause of his death. For rationale, the examiner noted that the “medical record [was] silent for the Veteran’s risk factors for atherosclerosis and COPD”, and that a review of the medical literature revealed that P. vivax generally had an uncomplicated course when treated; that relapses were not uncommon but were understood to be limited to a handful of years at most (appellant’s submitted case study notwithstanding); that cardiovascular disease and COPD were very common causes of death; and that the risk factors for cardiovascular disease were fairly well understood to include elevated LDL cholesterol, hypertension, smoking, insulin resistance/diabetes, obesity, lack of physical activity, older age, and family history. The examiner indicated that “[i]n order to opine definitively on whether the Veteran’s in-service malaria either caused or contributed substantially or materially to the cause of his death one would have to weigh this risk against the presence of other known risks for cardiovascular disease and COPD”. The examiner further indicated that “[i]n the absence of that data, I am left to opine on the likelihood that relapsing malaria substantially damaged the Veteran’s heart and lungs without evidence of substantially damaging other organ systems more typically affected by untreated malaria to include the hematologic system, liver, kidneys and spleen”. The examiner found that if malaria was responsible for the Veteran’s reported symptoms of night sweats and constant pain, that “multiple organ systems would surely be involved”, and that the “chances of relapsing malaria causing such a pattern of damage [was] not only highly speculative but also highly unlikely”. Where the record contains both positive and negative evidence, it is the responsibility of the Board to weigh the credibility and probative value of the evidence, and determine where to give credit and where to withhold the same and, in so doing, the Board may accept one opinion and reject others. Evans v. West, 12 Vet. App. 22, 30 (1998). The Board is mindful that it must have plausible reasons, based upon medical evidence in the record, for favoring one medical opinion over another. Id. The Board must account for the evidence it finds persuasive or unpersuasive, and provide reasons for rejecting material evidence favorable to the claim. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). After reviewing the record, the Board finds that the VA examiner’s opinions from May 2016 and December 2020 are the most probative and persuasive opinions of record. In that regard, these opinions included a review of the claims folder, which included the appellant’s contentions, citations to specific relevant items in the claims folder and to pertinent external medical reference tools and literature, and supporting rationale. The Board acknowledges that the 2020 VA examiner opined as to the likelihood that relapsing malaria substantially damaged the Veteran’s heart and lungs, and indicated that in order to render a definitive opinion as to whether in-service malaria caused or contributed to the cause of his death, this risk would have to be weighed against the presence of other known risks for cardiovascular disease and COPD. In that regard, the Board notes that a VA examiner is expected to give some assessment of probability, as opposed to a definitive statement of the cause of the disabilities. As long as the examiner is able to state that a link between a disability and an in-service injury or disease is "less likely than not," or "at least as likely as not," he or she can and should give that opinion; there is no need to eliminate all lesser probabilities or ascertain greater probabilities. See Jones v. Shinseki, 23 Vet. App. 388, 391 (2010). Moreover, this is not a situation where the information cited by the examiner – the Veteran’s risk factors for cardiovascular disease and COPD – might be procurable through VA's duty to assist, as the record shows the RO attempted to, but was unable to obtain, any treatment records for the Veteran prior to his death. Thus, the VA examiner’s inability to provide a definitive opinion does not diminish the probative value of the opinion rendered. The Board therefore concludes that because the 2016 and 2020 VA examiner’s opinions are well-reasoned, and based on an objective, independent review of the relevant evidence, they are entitled to more probative weight. On the other hand, the Board finds that the opinion from Dr. G.D.G. is basically conclusory and without supporting rationale. While Dr. G.D.G. refers to “attached papers,” the only paper attached to his medical opinion was an excerpt from the Journal of Infectious Diseases, titled “Lung Injury in Uncomplicated and Severe Falciparum Malaria: A Longitudinal Study in Papua, Indonesia.” The Board finds that this excerpt alone does not address this Veteran’s specific history, particularly as Dr. G.D.G. notes there was no evidence that the decedent had malaria while in service, and also does not explain how the attached excerpt provides support for the medical opinion. The Board therefore concludes that the May 2016 and December 2020 VA examiners’ opinions outweigh and are more persuasive than Dr. G.D.G.’s opinion, and provide the most probative evidence of record with respect to the Veteran’s diagnosed cause of death and the etiology of such. As for the appellant’s testimony regarding the Veteran’s cardiologist stating that the Veteran’s heart condition could be related to malaria, the JMPR observed that although the Board noted this testimony in its prior decision, it did not address whether it was competent or credible, or otherwise consider it in its analysis. The Board has thus considered this testimony anew and finds that although the appellant is competent to relay what she was told by a cardiologist and the Board finds her credible as there is no reason to question her account of what the cardiologist told her, this nevertheless constitutes indirect evidence concerning what the cardiologist purportedly said and is much more general in nature than the VA medical opinions detailed above. See Jandreau v. Nicholson, 492 F.3d 1372; see also Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (holding that the Board has the “authority to discount the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence”). Specifically, unlike the VA examiners’ opinions, there is no explanation or rationale provided for the cardiologist’s opinion. Additionally, the Board notes that the cardiologist’s opinion, if it was accurately and precisely told by the appellant, is too speculative to support the claim as the clinician apparently used the term “could”, which also implies it could not be related. The Board notes that the appellant indicated in an October 2013 statement that the Veteran’s family told her they almost lost him during service due to malaria attacks, and that after service, he “continued to have attack (sic) which included fevers and night sweats which would soak [their] linens”. Additionally, she testified, in response to a question as to whether the Veteran continued to have severe complications regarding malaria after service, that he had “night sweats, constant pain, where he would get up in the middle of the night . . . he was in pain every night . . . “he would cry from it”. Also, when asked if the Veteran ever related to her it was “complications of his --his malaria that he suffered from in service”, the appellant responded that he mentioned it was “a result of . . . the malaria that he had”. The Board finds her testimony as to witnessing the Veteran’s night sweats and constant pain and speaking to him about these symptoms to be competent and credible. The appellant’s veracity in this regard is not in question. Rather, what is in question is the appellant’s conclusion, even though based on the Veteran’s statements, that his night sweats and constant pain were complications and/or attacks of the malaria he was treated for inservice. Determining the related complications and symptoms of malaria is a complex medical question which is outside the competence of a non-medical expert. It does not appear the appellant (or the Veteran) have a background in medicine or a related field, such that either could be recognized as having medical expertise upon which to base an opinion. Based on the May 2016 and December 2020 VA examiners’ probative and persuasive opinions, the Board finds that the Veteran’s cause of death is not related to malaria, which he contracted in and was treated for in service. In light of the above, the evidence is not in equipoise; rather, the preponderance of the evidence is against a finding that the Veteran’s cause of death was related to malaria. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Since the evidence is not in equipoise and instead is against the claim, the appellant is not afforded the benefit of the doubt. The Board remains sympathetic to the appellant’s loss of her husband but may not go beyond the factual and competent medical evidence presented in this claim to provide a favorable determination. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Casula 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.