Citation Nr: 21024482 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 14-06 158 DATE: April 22, 2021 ORDER Entitlement to VA non-service-connected disability pension benefits is denied. Entitlement to service connection for malaria, to include residuals thereof, is denied. Entitlement to service connection for hypertension is denied. Entitlement to service connection for arthritis is denied. FINDINGS OF FACT 1. The Veteran had certified active service from May 1946 until April 1949 with the new Philippine Scouts. 2. The preponderance of the evidence is against finding that the Veteran currently suffers from a disability associated with malaria. 3. Hypertension is not shown to have been chronic in service or manifested to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease. 4. The Veteran’s current arthritis is not shown to have been chronic in service or manifested to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for basic eligibility for non-service-connected disability pension benefits are not met. 38 U.S.C. §§ 101, 107, 1521; 38 C.F.R. §§ 3.3, 3.6. 2. The criteria for service connection for residuals of malaria are not met. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for service connection for hypertension are not met. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 4. The criteria for service connection for arthritis are not met. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had recognized service as a Philippine Scout from May 1946 to April 1949. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from Department of Veterans Affairs (VA) Regional Office (RO) rating decisions issued in January 2013 and July 2017. In February 2015, the Veteran testified at a Board hearing. The Board notes that the Veterans Law Judge (VLJ) who conducted the hearing is no longer available to participate in the adjudication of the Veteran’s claim. In April 2019 correspondence, the Veteran was offered an opportunity to have another Board hearing. However, in July 2019, the Veteran declined a second Board hearing. In June 2015, March 2020 and January 2021, the Board remanded the Veteran’s claims. Notably, in the March 2020 decision, the Board reopened the Veteran’s claims on appeal and remanded them for the RO to consider the merits of the claims in the first instance. The Board finds that substantial compliance with the prior remands has been accomplished. Substantial compliance with a remand order, not strict compliance, is required. See Donnellan v. Shinseki, 24 Vet. App. 167, 176 (2010); Dyment v. West, 13 Vet. App. 141, 147 (1999). Therefore, the Board may proceed forward with adjudicating the Veteran’s claims without prejudice to him. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). The Board notes that the Veteran’s service records (both medical and personnel) have been sought multiple times but they are unavailable and were presumably lost in a fire at the National Personnel Records Center in 1973. When a veteran’s records are unavailable through no fault of his own, there is a heightened obligation for VA to assist the veteran in the development of his claim. See O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992). In cases where records once in the hands of the government are lost, the Board has a heightened obligation to explain its findings and conclusions and to carefully consider the benefit-of-the-doubt rule. O’Hare, supra. In part, such a heightened duty obligates VA to advise a Veteran to submit alternative forms of evidence in support of his claim. See Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005); Dixon v. Derwinski, 3 Vet. App. 261 (1992). The Board’s analysis has been undertaken with this heightened duty in mind. 1. Entitlement to VA non-service-connected disability pension benefits The Veteran is seeking VA non-service-connected disability pension benefits. He essentially contends that his service in the Philippine Scouts with the United States Army constitutes service with the Armed Forces of the United States and meets the criteria to entitle him to pension benefits. Unfortunately, his military service with the Philippine Scouts is not qualifying service for basic eligibility for non-service-connected disability pension benefits. The law authorizes the payment of a non-service-connected disability pension to a veteran of wartime service who has the requisite service and who is permanently and totally disabled. 38 U.S.C. §§ 1502, 1521. To establish basic eligibility for VA pension benefits, it is required, in part, that the individual in respect to whom pension is claimed be a veteran who had active military, naval, or air service. See 38 U.S.C. §§ 101(2), (24), 1521(a), (j); 38 C.F.R. §§ 3.1, 3.6. The term veteran is defined as a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable. 38 U.S.C. § 101(2). Active military, naval, and air service includes active duty. Active duty is defined as full-time duty in the Armed Forces. 38 C.F.R. § 3.6(a), (b). The Armed Forces consists of the United States Army, Navy, Marine Corps, Air Force, and Coast Guard, including their Reserve components. 38 C.F.R. § 3.1. Service in the United States Armed Forces in the Far East, including service with the recognized guerrillas, the Commonwealth Army of the Philippines (Regular Philippine Army), or service with the New or Special Philippine Scouts under Public Law 190, 79th Congress (Act of October 6, 1945), is recognized service for certain VA purposes. See 38 U.S.C. § 107; 38 C.F.R. § 3.40. However, such persons shall not be deemed to have been in active military service with the Armed Forces of the United States for the purpose of establishing entitlement to non-service-connected pension benefits. See 38 U.S.C. § 107; 38 C.F.R. § 3.40; 59 Stat. 538 (Armed Forces Voluntary Recruitment Act of 1945, Public Law 190, 79th Congress). All enlistments and reenlistments of Philippine Scouts in the Regular Army between October 6, 1945, and June 30, 1947, inclusive, were made under the provisions of Pub. L. 190 as it constituted the sole authority for such enlistments during that period. 38 C.F.R. § 3.40(b). The Court of Appeals for Veterans Claims (Court) determined in Tagupa v. McDonald, 27 Vet. App. 95 (2014), that verification of service must be provided directly from the service department. The Board notes that after the Tagupa decision, the Department of the Army and National Archives and Research Administration (NARA) signed a Memorandum of Agreement (MOA) in January 2016 that gave the responsibility of verifying military service to the National Personnel Records Center (NPRC). The MOA has been added to the claims file. As such, the Board finds that all required procedures have been followed to verify the Veteran’s service. In the present case, the Veteran has submitted his discharge certificate (WD AGO 53) and his Separation Qualification Record along with other records that show his military service with the United States Armed Forces as part of the Philippine Scouts from May 1946 to April 1949. He also submitted a certification of his military service by the NPRC issued in July 2008 showing the same type and period of service. Therefore, the evidence of record establishes that the Veteran’s service was only with the new Philippine Scouts as he did not enter into active duty until May 1946. Therefore, the Veteran is not eligible for VA non-service-connected disability pension benefits as his type of service does not qualify him for benefits under 38 U.S.C. Title 15. The Board acknowledges that, in May 1949 (one month after his discharge from the Philippine Scouts), the Veteran reenlisted with the Philippine Commonwealth Army, Philippine Constabulary, with which it appears he served until at least November 1975. However, such service does not qualify him for any VA benefits as it was after July 1, 1946. See 38 U.S.C. § 107(a). In summary, based on the available evidence regarding the Veteran’s service, the provisions of 38 U.S.C. § 107 and 38 C.F.R. § 3.40 are dispositive in this matter. As the Veteran did not have the type of qualifying service required to confer eligibility for death pension benefits, the claim must be denied because of the absence of legal merit or the lack of entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426 (1994). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). When a veteran is assigned to tropical areas during service, service connection may also be granted for certain tropical diseases, such as malaria and dengue fever, when such disease is manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. That an injury or event occurred in service alone is not enough. There must be chronic disability resulting from that injury or event. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). 2. Entitlement to service connection for residuals of malaria The Veteran contends that he had malaria starting in June 1949. Whether he was hospitalized at that time is unclear due to inconsistent reports his made. He further reported he was later hospitalized in 1950 for a recurrence of malaria. He asserts that service connection is warranted because the onset of malaria was within six months of his discharge from active service. The Veteran submitted a statement from his spouse in August 1997 in which she reported he suffered from “malaria fever” in early 1949. She stated that he refused to be confined in the hospital, so they confined him in his quarters. He took tablets of Atabrine, which they had many bottles of because they were given to their family by doctors at an evacuation center. She stated he recovered after some months, but his sickness continued, and she did not understand what kind of sickness he was suffering from. Although the Veteran gave names of individuals who reportedly took care of him while he was suffering from malaria in June 1949, he did not provide sufficient information for VA to seek information from them as he did not provide addresses and was not even sure that they were still alive. See Correspondence received in July 1975 and May 1976 and the Veteran’s notice of disagreement from April 1976. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current diagnosis of malaria, or residuals thereof, and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Veteran’s service treatment records are not available. Thus, the NPRC searched daily sick reports and found the Veteran’s name listed in March 1949. This record reflects that the Veteran reported to sick call on March 31, 1949 and was returned to duty the same day. The nature of the sickness is not noted. A May 1949 medical certificate indicates that the Veteran was examined on April 8, 1949, immediately prior to his release from active service, and that laboratory results revealed a negative chest X-ray, a positive Kahn test, and a positive urine examination. It stated that the Veteran was suffering from malaria. However, later in May 1949 the Veteran underwent a physical examination for the entrance into the Regular Philippine Army, Philippine Constabulary. The examination report indicates that laboratory results revealed a negative Kahn test and no report of symptoms or diagnosis of malaria, or its residuals, is noted. The Veteran was found to be physically fit for service. Therefore, this examination directly contradicts the findings reported on the May 1949 medical certificate that the Veteran was suffering from malaria in April 1949. Despite the Veteran’s reports of treatment for malaria, he has not provided any medical evidence to support that he was formally diagnosed with malaria by a medical professional. In fact, except for the May 1949 medical certificate, the Veteran medical records do not demonstrate any findings of or treatment for malaria or its residuals. The Veteran’s retirement examination in October 1974 is negative for any reports or findings of malaria or residuals relating thereto. In addition, the Veteran underwent VA examination in May 1998 as a result of which the examiner determined that there was no objective evidence of malaria, and no residual disability therefrom, at the time of examination. The examiner stated that a malaria smear was negative, and an ultrasound of the liver and spleen were normal. The examiner noted the Veteran’s report that he had malaria from 1952 to 1958 but remarked that this was when he was no longer in active service. Furthermore, his spouse’s August 1997 statement appears to be inconsistent with a finding that the Veteran had a formal diagnosis of malaria and treatment therefor in June 1949. She reported that the Veteran refused to be hospitalized and thus was confined in his quarters. She also appears to state that the medication he took was not prescribed directly to him but was given to the family. Finally, she stated that the Veteran continued to get sick and questioned what type of illness would cause that indicating her uncertainty that the Veteran’s illness was malaria, which in turn indicates that the Veteran’s condition had not been diagnosed by a physician to be from malaria. While the Veteran and his spouse believes he has or has had malaria, they are not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education and the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. Moreover, while the May 1949 medical certificate indicates the presence of malaria in April 1949, the May 1949 enlistment examination, as well as the Veteran’s own statements as to onset, contradict that statement. Furthermore, there is no competent medical evidence demonstrating that the Veteran currently suffers from malaria or that he has any residuals of malaria. The May 1998 VA examination demonstrates via objective medical testing that the Veteran does not have malaria or residuals thereto. Hence, the Veteran’s claim of service connection for malaria must fail as there is no sufficient factual showing that he currently has any disability or disease arising from malaria. The lay assertions that he had a diagnosis of malaria in 1949 are not competent or credible given the opposing evidence. Moreover, the medical evidence showing that he does not currently have malaria, or any residuals thereof, is more probative and persuasive. Accordingly, the Board concludes that the preponderance of the evidence is against finding that malaria was incurred in or aggravated by service and may not be presumed to have been incurred during service. In this case, despite volumes of documents, there is a remarkable absence of competent evidence that the Veteran currently has malaria or residuals thereto. In the absence of a current disability, there is no basis for the grant of service connection. 3. Entitlement to service connection for hypertension The Veteran contends that his hypertension was incurred during active service from 1946 to 1949. See e.g., June 1989 Correspondence. He also stated that he was hospitalized for a brief time in January 1949 suffering from headache, back pain, and essential hypertension with subsequent treatment for hypertension in 1950 and 1973. See July 1975 Correspondence. However, at the Board hearing held in January 2015, the Veteran testified that he did not have any treatment in service but after service in 1975 to 1976. The Veteran has a current diagnosis of hypertension as evidenced by medical records from October 1974. Hypertension is an enumerated condition under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331. However, hypertension was not shown to be chronic in service, to have manifest to a compensable degree within a presumptive period, or to be noted in service with attributable continuity of symptomatology. Despite the Veteran’s contentions, there is no record of elevated blood pressure readings and/or a diagnosis of hypertension during service or within one year thereafter. At the May 1949 enlistment examination for the Philippine Constabulary, the Veteran’s blood pressure was 120/80, which is considered normal. No diagnosis is noted and there was no indication he was on medication for elevated blood pressure at that time. Rather, the first available medical evidence of him having hypertension is from October 1974, decades after his discharge from active service. A VA Medical Certificate dated that month shows the Veteran reported a one-year history of headaches and pains on the nape. His blood pressure was 150/100 and a diagnosis of essential hypertension was rendered, but no treatment is noted. In addition, at his October 1974 examination for retirement from the Philippine Constabulary, his sitting blood pressure was 130/80. The examiner noted that he had a history of essential hypertension since 1973 but that it was asymptomatic. It is not noted whether he was on medication at that time. Subsequent medical evidence shows he continued to carry a diagnosis of hypertension. Furthermore, on VA examination in May 1998, it was confirmed that he currently has hypertension although he was not taking any medication for it. The examiner opined that it is not at least as likely as not that the Veteran’s hypertension was etiologically related to his service as there is no record of increased blood pressure during such service. Although the VA examiner relied upon the lack of in-service evidence for his opinion even though the service records are essentially missing, the Board does not find that this opinion is completely void of probative value as the opinion is consistent with the other medical evidence of record. Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012). As the opinion is merely lacking in detail, it may be given some weight based upon the amount of information and analysis it contains. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). “VA is not permitted to completely ignore even an ‘inadequate’ opinion or examination, whether it is in favor or against a veteran’s claim.” Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012). Considering that the Veteran has not submitted any opposing medical opinion, the Board finds this medical opinion probative to the question of a nexus between the Veteran’s current hypertension and his military service, especially when considered with the other evidence of record. The Veteran has only provided his own unsubstantiated opinion that he had hypertension while on active duty. While the Veteran is generally competent to report having experienced symptoms of hypertension, when they started and how long they lasted, he is not competent to provide a diagnosis in this case or to determine that these symptoms were manifestations of hypertension as the Veteran has not demonstrated the necessary medical expertise. The issue is medically complex, as it requires specialized medical education and the ability to interpret complicated diagnostic medical testing. Jandreau, 492 F.3d at 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to competent and credible medical evidence, which establishes that the Veteran’s hypertension did not manifest until many years after service. In sum, the preponderance of the evidence is against finding that hypertension was present during the Veteran’s active duty service, or that hypertension became manifest to a compensable degree within the year after the Veteran’s separation from service. Therefore, service connection for hypertension is not warranted. 4. Entitlement to service connection for arthritis The Veteran contends that his arthritis was incurred during active service from 1946 to 1949. See e.g., June 1989 Correspondence. In contrast, he has also reported that his “illness” began in June 1949 after his discharge from active service. See May 1976 Correspondence. He further reported in this statement that the illness was accompanied by swelling and inability to move his ankle joint. He sought medical attention and was given “Indocid” tablets, when he took for approximately four weeks before his symptoms subsided. He stated he had a recurrence later in 1949 or 1950 at which time he was hospitalized, which involved not only his ankle joint but his knees and shoulders. However, at the Board hearing held in January 2015, the Veteran testified that he did not have any treatment in service but after service in 1975 to 1976. The Veteran has a current diagnosis of both gouty arthritis and degenerative osteoarthritis of the bilateral hips and lumbosacral spine as evidenced by his medical records and VA examination in May 1988 and addendum report in March 1999. Arthritis is an enumerated condition under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331. However, arthritis, whether gout or osteoarthritis, was not shown to be chronic in service, to have manifest to a compensable degree within a presumptive period, or to be noted in service with attributable continuity of symptomatology. Despite the Veteran’s contentions, there is no record of treatment for or a diagnosis of any form of arthritis during service or within one year thereafter. At the May 1949 enlistment examination for the Philippine Constabulary, no musculoskeletal defects were noted and there was no indication he was on medication for arthritis at that time. Rather, the first available medical evidence of him having a diagnosis of arthritis is from October 1973, decades after his discharge from active service. X-rays taken in October 1973 of the lumbosacral spine shows an impression of “osteoarthritis, hypertrophic, degenerative,” but no other treatment records are available. An October 1974 VA Medical Certificate shows the Veteran complained of intermittent iliac pains and numbness of the left lower extremity, but no physical findings. It was noted he was taking anti-rheumatic tablets that gave him relief of the iliac pain. The impression was questionable arthritis. In that same month, he was noted to have osteoarthritis since 1973 on examination for the Philippine Constabulary, which was noted to be asymptomatic. Medical certificates from a private hospital show the Veteran was confined starting in January 1975 until January 1976 for treatment of gouty arthritis. On X-ray examination in February 1975, he was again noted to have hypertrophic osteoarthritis of the lumbosacral spine, but X-rays of the bilateral knees were normal. In June 1979, the Veteran underwent an orthopedic evaluation for purposes of his service with the Philippine Constabulary. The report indicates the Veteran complained of intermittent multiple joint pains secondary to gouty arthritis and lumbosacral pains aggravated by cold weather and physical exertion. He reported the onset of this condition to be 10 years ago. It was noted that he had not been taking any medication except for aspirin for his pain. Physical examination was essentially unremarkable with no tenderness or pain noted, especially of the knees or lumbosacral region. The impression was gouty arthritis. Subsequent medical evidence shows he continued to carry a diagnosis of both gouty arthritis and osteoarthritis. He was also noted in March 2012 to have rheumatoid arthritis, but this is the only note showing such a diagnosis. Furthermore, on VA examination in May 1998, he was diagnosed to have osteoarthritis of the bilateral hips and the lumbosacral spine. The examiner initially opined that it was as likely as not that the Veteran’s arthritis was etiologically related to his active service without a rationale. The RO asked that the opinion be clarified, and in a March 1999 addendum to the examination, the examiner opined that the Veteran’s arthritis was not in any way etiologically related to his active service. The examiner stated that the Veteran had gouty arthritis and degenerative osteoarthritis of the hips and lumbosacral spine with no objective evidence of post-traumatic arthritis in the affected joints. The Board finds that the clarification from the examiner is more probative than his initial statement as the clarification is more consistent with the other evidence of record. Although the VA examiner’s medical opinion may lack specificity, the Board does not find that this opinion is completely void of probative value as the opinion is consistent with the other medical evidence of record. Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012). As the opinion is merely lacking in detail, it may be given some weight based upon the amount of information and analysis it contains. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). “VA is not permitted to completely ignore even an ‘inadequate’ opinion or examination, whether it is in favor or against a veteran’s claim.” Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012). Considering that the Veteran has not submitted any opposing medical opinion, the Board finds the VA examiner’s medical opinion probative to the question of a nexus between the Veteran’s arthritis and his military service, especially when considered with the other evidence of record. The Veteran has only provided his own unsubstantiated opinion that he had arthritis during or within one year of his active duty. While the Veteran is generally competent to report having experienced symptoms of arthritis such as pain and swelling, as well as when his symptoms started and how long they lasted, he is not competent to provide a diagnosis in this case or to determine that these symptoms were manifestations of arthritis as the Veteran has not demonstrated the necessary medical expertise. The issue is medically complex, as it requires specialized medical education and the ability to interpret complicated diagnostic medical testing. Jandreau, 492 F.3d at 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to competent and credible medical evidence, which establishes that the Veteran’s arthritis did not manifest until many years after service. In sum, the preponderance of the evidence is against finding that arthritis was present during the Veteran’s active duty service, or that arthritis, whether gouty arthritis or osteoarthritis, became manifest to a compensable degree within the year after the Veteran’s separation from service. Therefore, service connection for arthritis is not warranted. M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S.M. Kreitlow 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.