Citation Nr: 21028116 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 16-39 177 DATE: May 10, 2021 ORDER Entitlement to a compensable rating for the service-connected malaria is denied. FINDING OF FACT The preponderance of the evidence shows that Veteran did not have active malaria or associated residuals at any time during the pendency of the appeal. CONCLUSION OF LAW The criteria for a compensable rating for malaria were not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.88b, Diagnostic Code 6304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from May 1969 to December 1970, including in the Republic of Vietnam. He was awarded the Bronze Star Medal with the "V" device and the Purple Heart Medal. He died in July 2020. The appellant is his surviving spouse and has been substituted as the claimant for the purposes of processing the appeal seeking a compensable rating for the service-connected malaria to completion. 38 U.S.C. § 5121A. The appeal comes before the Board of Veterans' Appeals (Board) on appeal from a September 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. The Board remanded the matter for additional development in November 2018. REFERRED The issue of entitlement to service connection for the cause of the Veteran's death has been raised by the record and is referred to the Agency of Original Jurisdiction (AOJ) for adjudication. Significantly, the Veteran's death certificate indicates metastatic bladder cancer was the immediate cause of death. As noted above, the Veteran served in the Republic of Vietnam during the Vietnam War, and is therefore presumed to have been exposed to herbicide agents. The National Defense Authorization Act for Fiscal Year 2021, Pub. L. No. 116-283, amended 38 U.S.C. § 1116(a)(2) to include bladder cancer among the list of diseases presumptively associated with exposure to herbicide agents. Accordingly, the issue of entitlement to service connection for the cause of the Veteran's death due to the bladder cancer should be adjudicated by the AOJ. Entitlement to a compensable rating for malaria. Prior to his death, the Veteran contended his service-connected malaria warranted a compensable rating because he occasionally still experienced residual episodes of chills and sweats. The Board notes it appears the Veteran initially believed the September 2015 decision that denied a compensable rating for the service-connected malaria also found he had not had malaria during service. The Board wants the appellant to be aware that VA recognizes the Veteran incurred malaria in service. Accordingly, the Board will consider whether a compensable rating is warranted from when the Veteran filed his claim for increase in February 2015 based on the evidence of record. Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. When rating the Veteran's service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Separate higher or lower compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as "staged" ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). Regulations require that where there is a question as to which of two evaluations is to be applied, 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. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, including degree of disability, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. When all of the evidence is assembled, 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 fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). During the pendency of the appeal, the criteria for rating infectious disease were amended. See Final Rule, Schedule for Rating Disabilities; Infectious Diseases, Immune Disorders, and Nutritional Deficiencies, 84 Fed. Reg. 28227 (June 18, 2019). Prior to August 11, 2019, 38 C.F.R. § 4.88b, Diagnostic Code 6304 held active malaria warranted a 100 percent rating; inactive malaria did not receive a compensable rating. 38 C.F.R. § 4.88b (2018). The diagnosis of malaria had to be confirmed by the presence of malarial parasites in blood smears. Thereafter, residuals of malaria, such as liver or spleen damage, were to be rated under the appropriate system. Id. The amended Diagnostic Code 6304 directs the rater to evaluate the malaria under the General Rating Formula, which provides a 100 percent rating for active disease. After the active disease has resolved, a 0 percent rating is assigned for infection. Any residual disability of the infection is rated within the appropriate body system. 38 C.F.R. § 4.88b (2019). Two notes were also added to Diagnostic Code 6304: Note 1: The diagnosis of malaria, both initially and during relapse, depends on the identification of the malarial parasites in blood smears or other specific diagnostic laboratory tests such as antigen detection, immunologic (immunochromatographic) tests, and molecular testing such as polymerase chain reaction tests. Note 2: Rate under the appropriate body system any residual disability of infection, which includes, but is not limited to, liver or splenic damage, and central nervous system conditions. With the above criteria in mind, the Board finds that at no time during the pendency of the appeal do the Veteran's medical records show evidence of active malaria or any disorder that had been identified as a residual of malaria. The Veteran was provided VA malaria examinations in July 2015 and September 2019, and both examiners opined the Veteran's malaria was inactive and without symptoms, residuals, or any related conditions. Malarial smears obtained as part of each examination were negative. The Board recognizes the Veteran believed the malaria still caused occasional episodes of sweats and chills, but because he was a layperson, he was not competent to opine on the etiology these symptoms, which is a medically complex question. See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (2007). The Board also recognizes the Veteran's representative previously argued the July 2015 examination was inadequate for rating purposes, but as found above, none of the medical evidence indicates the malaria was active during the period on appeal or that there were other residuals or associated conditions. Therefore, as the minimum requirements for a compensable rating for malaria were not met, the appeal must be denied. The Board and VA thank the appellant for the Veteran's service. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board William A. Skowronski, 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.