Citation Nr: 22018013 Decision Date: 03/27/22 Archive Date: 03/27/22 DOCKET NO. 16-46 524 DATE: March 27, 2022 REMANDED Entitlement to service connection for malaria residuals is remanded. Entitlement to service connection for a dental disorder, claimed as micro-fractured teeth, is remanded. REASONS FOR REMAND The Veteran served honorably in the United States Air Force from July 1966 to June 1970. Notably, he contends that he served in combat in Vietnam. His DD 214 reflects that he was awarded (among other decorations and medals) the Republic of Vietnam Gallantry Cross with Palm and the Vietnam Service Medal with Four Bronze Service Stars. In October 2021, the Veteran testified before a Board of Veterans' Appeals (Board) Veterans Law Judge (VLJ) at a virtual hearing. A transcript of the hearing is of record. In a February 2022 letter, the Veteran was notified that the VLJ who conducted his hearing was no longer employed at the Board. He was offered an opportunity to testify at a hearing before a different VLJ and was notified that if he did not respond within 30 days the Board would assume he did not want another hearing and proceed accordingly. To date, the Veteran has not responded, nor given any other indication that he desires another hearing. Thus, the Board will proceed in addressing the claims. Outstanding Federal Records The Veteran contends that there are outstanding medical records in federal custody which are relevant to his claims. He testified as to these records at his Board hearing, and in October 2021 correspondence he identified Luke Air Force Base, Kessler Air Force Base, and McChord Air Force Base as potentially being in possession of relevant records. Pursuant to the duty to assist, VA must obtain the claimant's service medical records and, "if the claimant has furnished the Secretary information sufficient to locate such records, other relevant records pertaining to the claimant's active military, naval, or air service that are held or maintained by a governmental entity." 38 U.S.C. § 5103A(c)(1)(A). Here, in light of the Veteran's testimony and statements regarding the precise locations and dates of the missing records, the Board finds that additional efforts must be undertaken to obtain them. 1. Entitlement to service connection for malaria residuals The Veteran contends that he contracted malaria while serving in Vietnam. He specifically testified that he was diagnosed with the disease in service, and that he has suffered recurrences of malaria regularly since that time. On review, his service treatment records do not corroborate an in-service malaria diagnosis. However, these records show that the Veteran received treatment on several occasions for flu-like symptoms, including a December 1968 treatment note indicating his reports of malaise, low fever, and chills, and a December 1969 note documenting treatment for flu. In July 2016, the Veteran was afforded a VA infectious diseases examination. The examiner acknowledged the December 1968 and December 1969 service treatment records indicating flu-like symptoms but noted that the Veteran's January 1970 separation examination report was negative for malaria. Without further discussion, the examiner opined that there was "insufficient evidence to warrant a diagnosis of malaria." The Board finds that the July 2016 VA examination and opinion is inadequate. The Veteran is competent to report his in-service diagnosis. He is also competent to report subsequent recurrences of malaria (given his reports of being told of his diagnosis by medical professionals). See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). On review, the July 2016 VA examiner's opinion did not meaningfully address the Veteran's assertions in this regard. An updated VA examination and opinion is needed. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (once VA undertakes to provide an examination or obtain a medical opinion, it must ensure that the examination or opinion is adequate). 2. Entitlement to service connection for a dental disorder, claimed as micro-fractured teeth The Veteran contends that he fractured his teeth in service after jumping into a bunker when his position came under mortar fire. He described getting dental treatment shortly after his discharge from service and claims that he was told by his dentist that he suffered microfractures during combat incidents. The Board notes that dental disabilities that may be awarded compensable disability ratings are set forth under 38 C.F.R. § 4.150. These disabilities include chronic osteomyelitis or osteoradionecrosis of the maxilla or mandible, loss of the mandible, nonunion or malunion of the mandible, loss of the maxilla, nonunion or malunion of the maxilla, limited temporomandibular motion, loss of the ramus, loss of the condyloid or coronoid processes, loss of the hard palate, and loss of teeth due to the loss of substance of the body of the maxilla or mandible and where the lost masticatory surface cannot be restored by suitable prosthesis, when the bone loss is a result of trauma or disease but not the result of periodontal disease. 38 C.F.R. § 4.150, Diagnostic Codes (DCs) 9900-9916. The Veteran was afforded a VA dental examination in July 2016. The report documented partial acquired loss of teeth 8, 9, 10, 13, 17, 18, and 29-32 due to caries as well as non-restorable teeth 2, 5, 6, 7, 11, 12, 14, 15, 19, and 21 due to caries. The examiner acknowledged that the Veteran had tooth 17 extracted while on active duty; however, the examiner concluded there was no evidence of fracture in service. As such, it was unlikely that the Veteran's current dental problems were service-related. The Board finds that an additional examination and medical opinion is needed prior to final adjudication of this matter. Notably, the Veteran provided specific testimony at his Board hearing claiming that he fractured his teeth in service during combat. His assertions were clear and unambiguous, and given his combat service VA is obligated to accept them as credible. See 38 U.S.C. § 1154(b). The July 2016 VA examiner's finding that there is "no evidence" of in-service fracture elides the Veteran's assertions entirely. Rather, the examiner appears to rely solely on the absence of contemporaneous medical records corroborating the claimed in-service fracture. This renders the opinion inadequate. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent regardless of the lack of contemporaneous medical evidence). Thus, a remand is warranted. See Barr, supra. The matters are REMANDED for the following action: 1. Undertake all necessary steps to attempt to obtain outstanding medical records pertaining to the Veteran that remain in federal custody, to include records identified by the Veteran in his October 2021 correspondence from Luke Air Force Base, Kessler Air Force Base, and McChord Air Force Base. Notify the Veteran of all attempts to obtain these records. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his claimed malaria residuals. The clinician must respond to the following: (a) Clarify whether the Veteran has an active diagnosis of malaria. If necessary, ensure the appropriate testing is performed. Specifically consider the Veteran's lay statements in support of his claim, including those provided at his October 2021 Board hearing. (b) Opine as to whether any current malaria residuals began in active service or are otherwise related to active service. Specifically discuss the Veteran's contention that he was diagnosed with malaria in service and has suffered recurrences regularly thereafter. The clinician is advised that the Veteran is competent to report symptoms, treatment, events, and injuries, including those that occurred in service, and that his assertions must be taken into account, along with the other evidence of record, in formulating the requested medical opinions. 3. Schedule the Veteran for an examination with an appropriate clinician to determine the nature and etiology of his claimed dental disorder, to include micro-fractured teeth. The clinician must opine as to the following: (a) Whether the Veteran has, or has had, any compensable dental disability at any time during the pendency of the claim or recent to the filing of the claim. See 38 C.F.R. § 4.150, DCs 9900-9918. (b) If the Veteran is diagnosed with any compensable dental disability, opine as to whether it began in active service or is otherwise related to an in-service injury, event, or disease. The clinician should expressly address whether such disability stems from in-service dental trauma, which the Veteran described as fracturing his teeth during combat. The clinician is advised that the Veteran is competent to report symptoms, treatment, events, and injuries, including those that occurred in service, and that his assertions must be taken into account, along with the other evidence of record, in formulating the requested medical opinions. J. LEE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Minot, 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.