BVA9500578 DOCKET NO. 93-09 517 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Manila, Philippines THE ISSUES 1. Entitlement to service connection for residuals of malaria. 2. Entitlement to service connection for hearing loss. REPRESENTATION Appellant represented by: Eugene P. Dolan, Attorney WITNESSES AT HEARING ON APPEAL Appellant, his spouse, daughter, and L. Masankay, M.D. ATTORNEY FOR THE BOARD Robert E. O'Brien, Counsel INTRODUCTION The service department has certified that the veteran had recognized periods of active service from November 1941 to April 1942 and from August 1945 to January 1946. From April 9, 1942 to August 14, 1945, he was in no casualty status. (See AGUZ Form 632. ) Evidence of record reveals the veteran's claims folder was sent to the Newark, New Jersey, Regional Office (RO) on temporary transfer from the Manila VARO in September 1990 for the purpose of a hearing which had been requested apparently on behalf of the veteran in May 1989. That hearing was held at the Newark VARO in November 1990. The claims folder indicates that the hearing transcript and the hearing officer's decision were forwarded to the Manila RO. A May 1992 communication from an official at the Manila RO indicates that it had made repeated unsuccessful requests to the Newark RO for a return of the claims folder since May 1991. A search of their file room and hearing office records reportedly turned up nothing. Thereafter, a nationwide search for the veteran's records was conducted to no avail. Accordingly, the claims folder was reconstructed in 1992. CONTENTIONS OF APPELLANT ON APPEAL The veteran and his representative essentially maintain that the veteran's loss of hearing and residuals of malaria should be service-connected. It is asserted that he contracted malaria and sustained hearing loss as a result of his participation in the infamous "death march", on the way back from the Bataan Peninsula. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the record supports a grant of service connection for residuals of malaria. It is also the decision of the Board that the appellant has not met the initial burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim of service connection for hearing loss is well grounded. FINDINGS OF FACT 1. The veteran's malaria, for which he received treatment in 1942, is most likely related to the circumstances, conditions and hardships of his active service. 2. The veteran's claim of service connection for hearing loss is not meritorious on its own or capable of substantiation. CONCLUSIONS OF LAW 1. Resolving the benefit of the doubt in the veteran's favor, residuals of malaria were incurred during his active military service. 38 U.S.C.A. §§ 1110, 1154, 5107(b) (West 1991). 2. The veteran has not submitted evidence of a well-grounded claim with regard to service connection for hearing loss. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Service Connection for Residuals of Malaria The veteran has submitted a well-grounded claim within 38 U.S.C.A. § 5107(a) as to this issue. That is, the Board finds that he has presented a claim of service connection for malaria residuals which is plausible. The Board sincerely regrets the fact that the veteran's original claims folder is not available and that the folder has had to be rebuilt. Accordingly, the Board will review the available evidence of record in light of the fact that the claims folder has been completely reconstructed, to the extent possible. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by wartime service. 38 U.S.C.A. § 1110. In this case, the September 1989 statement of the case reflects the evidence which was of record when the claims folder was available, including a certificate from Dr. Augusto L. Gregorio, dated August 25, 1947, showing that the veteran had received treatment from him from May 1942 to August 1945 for "malignant tertian type of malaria." Reference was also made in the statement of the case to processing affidavits dated in August and October 1945 and a report of physical examination dated in December 1945. These records reportedly showed no indication of the presence of malaria or any other illness for that matter. Nevertheless, the law also provides that, in the case of any veteran who engaged in combat with the enemy in active service with the military, naval, or air organization of the United States during a period of war, campaign, or expedition, the Secretary shall accept as sufficient proof of service connection of any disease or injury alleged to have been incurred in or aggravated by such service, satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardship of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service and, to that end, shall resolve every reasonable doubt in favor of the veteran. Service connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary. 38 U.S.C.A. § 1154. In this case, the Board has for consideration the certificate from Dr. A. Gregorio reporting treatment for malaria between 1942 and 1945 on the one hand and the processing affidavits in August 1945 and October 1945 showing no wounds or illnesses incurred in service. Nevertheless, the aforementioned August and October 1945 Affidavits for Philippine Army Personnel reveal that the veteran participated in various engagements with the enemy on Bataan up to April 9, 1942 when he was captured by the Japanese Imperial Army. He is reported to have "[j]oined the 'death march', escaping a few days later, at which time he was unemployed as a civilian. It is recognized in this case that the hardships incurred by the veteran during service, particularly his involvement in the defense of Bataan and the subsequent infamous "death march", are reasonably consistent with the development of malaria. In order to deny service connection for residuals of malaria in this case, given the nature and circumstances of the veteran's combat service, there would have to be clear and convincing evidence that the malaria was not of service origin. Although there is some evidence to support the premise that the veteran did not have malaria during service, such evidence is not deemed clear and convincing in this case, particularly in view of the subsequent medical certificate from Dr. Gregorio. Also in support of his claim is the credible testimony of the veteran's spouse who described his physical condition ("like a skeleton", "very yellowish", and "always chilly") upon his return from service in 1942. Accordingly, resolving all benefit of the doubt in the veteran's favor, the undersigned believes it highly probable that any current residuals of malaria must have had their origin during his active service. II. Service Connection for Hearing Loss The threshold question with regard to this issue is whether the claim is well-grounded in accordance with the provisions of 38 U.S.C.A. § 5107(a). A well-grounded claim is a plausible claim; that is, one which is meritorious on its own or capable of substantiation. Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). Additionally, there must be more than a mere allegation; rather, the claim must be accompanied by evidence justifying a belief by a fair and impartial individual that the claim is plausible. Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992). As will be explained below, the Board finds that the claim with regard to service connection for hearing loss is not well grounded. The veteran contends that he has hearing loss which is attributable to his World War II service. As indicated above, the facts in this case (i.e., that his original VA claims folder was apparently lost due to no fault on his part) requires a heightened consideration of the evidence specified in the summary of evidence set forth in the September 1989 statement of the case, because at that time the RO had before it the complete, actual documentation relative the issues on appeal. (The March 1993 supplemental statement of the case is not so useful as it was issued by the RO after the claims folder had required reconstruction.) Reference was made in the statement of the case to the submission by the veteran of a report of audiometric examination showing moderate to severe sensorineural hearing loss. However, the date of the examination was not indicated and there is no credible medical evidence of record regarding the etiology of any hearing loss the veteran might have. At the RO hearing in November 1990, one of the individuals testifying on the veteran's behalf was a physician, who stated she was related to the veteran as his sister-in-law. It was her opinion that the beginning of the veteran's hearing loss came during World War II, but she further stated that she had never treated the veteran as a patient. Her testimony was rather vague and speculative, and would not justify a belief by a fair and impartial individual that the claim was well grounded, particularly in light of the negative service evidence and the fact that when asked what type of deafness was caused by too much quinine, she responded: "I don't know." She noted that the veteran did not begin using a hearing aid or any other type of device to assist him in his hearing until 1970, a time many years remote from his service discharge. As such, the evidence which is available fails to support the veteran's contentions, and the veteran's sister-in-law's vague statements, standing alone, do not constitute "evidence" which would justify a belief by a fair impartial individual that the claim of service connection for hearing loss is plausible. Id., at 611. The veteran's statements and testimony that his hearing loss is due to exposure to the loud roar of artillery is not competent evidence. Espiritu v. Derwinski, 2 Vet.App. 492 (1992). In Espiritu, the United States Court of Veterans Appeals (the Court) held that a lay person cannot provide probative evidence as to matters which require specialized medical knowledge acquired through experience, training, or education. Id. at 494. The Court has further held that "where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence to the effect that the claim is 'plausible' or 'possible' is required." Grottveit v. Brown, 5 Vet.App. 93 (1993). Therefore, as the veteran's claim for service connection for hearing loss is determined not to be factually well grounded, it must be dismissed. To do otherwise and handle the case on the merits at this time would be inappropriate because it would require the veteran in the future to overcome the inertia of an earlier, adversely adjudicated claim. Indeed, purported adjudications of claims which are not well grounded are a nullity in contemplation of law. Grivois v. Brown, 6 Vet.App. 136, 140 (1994). ORDER Service connection for residuals of malaria is granted. The claim of entitlement to service connection for hearing loss is dismissed. J.F. GOUGH Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.