Citation Nr: 0000561 Decision Date: 01/07/00 Archive Date: 01/11/00 DOCKET NO. 98-18 881 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for residuals of malaria. 2. Entitlement to service connection for residuals of a left eye injury. 5. Entitlement to service connection for residuals of a left shoulder injury. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Stephen L. Higgs, Associate Counsel INTRODUCTION The veteran served on active duty from October 1951 to October 1954, and from July 1956 to June 1959. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in May 1998 by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. FINDINGS OF FACT 1. The claim for service connection for residuals of malaria is not plausible. 2. The claim for service connection for residuals of a left eye injury is not plausible. 3. The claim for service connection for residuals of a left shoulder injury is not plausible. CONCLUSIONS OF LAW 1. The claim for service connection for residuals of malaria is not well grounded. 38 U.S.C.A. §§ 1110, 1131, 5107(a) (West 1991); 38 C.F.R. §§ 3.303 (1999). 2. The claim for service connection for residuals of a left eye injury is not well grounded. 38 U.S.C.A. §§ 1110, 1131, 5107(a) (West 1991); 38 C.F.R. §§ 3.303 (1999). 3. The claim for service connection for residuals of a left shoulder injury is not well grounded. 38 U.S.C.A. §§ 1110, 1131, 5107(a) (West 1991); 38 C.F.R. §§ 3.303 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Analysis The veteran's service medical records have been lost or destroyed, possibly in the fire at the National Personnel Records Center in 1973. The veteran's claims file, which by the veteran's testimony included claims in the 1950s and early 1990s, was apparently lost by the RO at some time between 1990 and 1997. The RO has made multiple attempts to obtain the veteran's service medical records and his prior claims file. In the Board's view, remanding this case for additional attempts to obtain the claims file would be futile. The threshold question that must be resolved with regard to a claim is whether the veteran has presented evidence of a well-grounded claim. See 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet. App. 78, 81 (1991). A well-grounded claim is a plausible claim that is meritorious on its own or capable of substantiation. See Murphy, 1 Vet. App. at 81. An allegation of a disorder that is service connected is not sufficient; the veteran must submit medical evidence in support of a claim that would "justify a belief by a fair and impartial individual that the claim is plausible." See 38 U.S.C.A. § 5107(a); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). The quality and quantity of evidence required to meet this statutory burden of necessity will depend upon the issue presented by the claim. Grottveit v. Brown, 5 Vet. App. 91, 92-93 (1993). If the veteran has not presented a well-grounded claim, his appeal on the pertinent issues must fail and there is no duty to assist him further in the development of the claim. 38 U.S.C.A. § 5107(a). See Epps v. Gober, 126 F.3d 1464 (1997). In order for a claim to be well-grounded, there must be competent evidence of a current disability (a medical diagnosis); of incurrence or aggravation of a disease or injury in service (lay or medical evidence); and of a nexus between the in-service injury or disease and the current disability (medical evidence). Caluza v. Brown, 7 Vet. App. 498 (1995); 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Where the determinant issue involves a question of medical diagnosis or medical causation, competent medical evidence to the effect that the claim is plausible or possible is required to establish a well-grounded claim. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Lay assertions of medical causation cannot constitute evidence to render a claim well- grounded under 38 U.S.C.A. § 5107(a); if no cognizable evidence is submitted to support a claim, the claim cannot be well-grounded. Id. Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of a preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C.A. §§ 1110, 1131 (West 1991). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). A disorder may be service connected if the evidence of record, regardless of its date, shows that the veteran had a chronic disorder in service or during an applicable presumptive period, and that the veteran still has such a disorder. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488 (1997). Such evidence must be medical unless it relates to a disorder that may be competently demonstrated by lay observation. Savage. If the disorder is not chronic, it may still be service connected if the disorder is observed in service or an applicable presumptive period, continuity of symptomatology is demonstrated thereafter, and competent evidence relates the present disorder to that symptomatology. Id. When, after consideration of all evidence and material of record in a case before the VA with respect to benefits under laws administered by the Secretary, there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. This is not to be construed, however, as shifting from the claimant to the Secretary the burden of establishing that the claim is well grounded. 38 U.S.C.A. § 5107. In cases where the veteran's service medical records have been lost or destroyed, the cases do not establish a heightened "benefit of the doubt," but do establish a heightened duty of the Board to consider the applicability of the benefit of the doubt, to assist the claimant in developing the claim, and to explain its decision. See Ussery v. Brown, 8 Vet. App. 64 (1995). The case law does not lower the legal standard for proving a claim for service connection but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the appellant. Russo v. Brown, 9 Vet. App. 46, 51 (1996). Service Connection for Residuals of Malaria The veteran contends that he incurred malaria in service in Alaska in 1952 or 1953, and that he continues to have malaria or residuals of malaria, to include sleeping problems, tinnitus, bilateral hearing loss, and dizziness. A VA report of hospitalization dated in June 1997 reflects that the veteran was referred to be treated for extensive daytime sleepiness on a daily basis for the past several years. By history, the veteran had a long history of bilateral ear infections related to malaria experienced 30 years prior in Vietnam with resultant chronic bilateral decreased hearing acuity, tinnitus and positional vertigo. After four days of hospitalization, including oximetry and sleep studies, the diagnosis was hypersomnia and chronic dizziness versus vertigo. The final diagnosis at discharge was hypersomnia. The veteran's claim for service connection, received in June 1997, indicates that the veteran was treated in service for malaria in 1952, in Alaska. VA records of treatment in October 1997 reflect a diagnosis of narcolepsy, and of vertigo probably secondary to labyrinthitis. According to VA records of treatment in October 1997, the veteran had some respiratory events during a sleep study, at a rate of less than 5 per hour, with no treatment indicated except that the veteran was to sleep on his side with the aid of tennis balls in a sock pinned to the back of his pajama top at shoulder blade level. VA records of treatment in October 1997 and November 1997 reflect that the veteran was receiving continuing medication for long-time vestibulopathy. He was also diagnosed as having asthma, esophageal spasms, bilateral high frequency sensorineural hearing loss and bilateral tinnitus. November 1997 records show that the veteran gave a history of having had gonorrhea as well as having had malaria, that autoimmune disease was suspected as a possible cause of his vertiginous episodes, and that it was suspected that his hearing loss may be a luetic deafness. In light of these findings, studies were ordered. The subsequent medical records indicate that these studies were negative. A November 1997 record includes an assessment of "vestibulopathy probably related to quinine treatment." In November 1997 the veteran was noted to have shown by ENG a vestibulopathy characterized by a 25 percent unilateral weakness on the left. The treating physician wanted to see the veteran back in 6 months to repeat the testing to see how consistent it was with the original ENG. The physician noted that the veteran may be a candidate for vestibular neurectomy if he shows a persistent and significant unilateral weakness. According to VA treatment records, the follow-up testing completed in June 1998 yielded normal results. Calorics resulted in a 10 percent unilateral weakness to the left, which was not considered to be clinically significant. All other subtests were within normal limits. VA records of treatment in April 1998 show that the veteran complained of a severe "buzzing" sound in his ears at all times. The treating physician was seeing the veteran for the first time and had no paper record before him. The veteran indicated he had undergone sleep studies which showed he had narcolepsy. He had done heavy road construction until he had had retired one year prior. The examiner's impression was narcolepsy by history, tinnitus, and what sounded to the physician like an anxiety disorder, probably a generalized anxiety disorder. During the veteran's February 1999 RO hearing, he testified that he was diagnosed with malaria while on active duty in Alaska. He said that the doctors in Alaska thought he had contracted malaria while in Arkansas. He said that subsequently doctors told him they thought he had contracted malaria in Alaska, where conditions were poor. He said that in the past he had been turned away from giving blood because of his history of having had malaria. He said his current problems related to malaria were sleepiness, dizziness, roaring of the ears and problems hearing. He said that in the 1950s his ears were flushed as treatment for these symptoms. He said he was currently on a sleep disorder medicine. He said he was treated with quinine when he had malaria in service. He said that during service he lost a great deal of weight and became very weak and nervous as a result of the malaria. The veteran indicated that one doctor had told him that his sleeping problems could be related to the medication he was treated with for malaria. The veteran said he was treated with quinine for the malaria. The veteran testified that his current medications were a sleep disorder medicine, and a heart tablet. In analyzing whether the claim for service connection for residuals of malaria is well grounded, the Board first notes that the first medical history in the record, given during a hospitalization which began on June 9, 1997, reflects that the veteran gave a history of bilateral ear infections related to malaria experienced 30 years ago in Vietnam. This would not have been during a period of active service, and the medical history does not indicate he contracted malaria during a period of active service. On June 10, 1997, apparently while still hospitalized, the veteran signed his first claim for service connection for malaria, indicating he contracted malaria in 1952 in Alaska. Since that time, the veteran's contention has been that he contracted malaria in 1952 or 1953 in Alaska. During his February 1999 RO hearing he stated that he believed he was treated for malaria in Alaska in 1953, and assented that he thought he contracted malaria well over a year after arriving in Alaska, although remembering that far back was difficult; but also testified that military doctors told him they thought he contracted the malaria during the beginning of his period of active service in Arkansas. Also in the hearing, he said the mosquitoes were deadly and conditions were very bad in Alaska, although he also stated that his doctors in Alaska told him they thought he contracted the malaria in Arkansas. He said that in subsequent years doctors told him they thought he contracted malaria in Alaska, not Arkansas. Neither his RO hearing transcript nor any medical evidence of record describes treatment of malaria or residuals thereof from the 1960s to the 1980s. In any event, there is no medical evidence of record that the veteran was treated for malaria in Alaska in 1952. The Board finds that there is no competent medical evidence of inservice incurrence of malaria, a condition which is beyond lay observation and requires medical observation and expertise for diagnosis. The "medical nexus" prong required for a well grounded claim is also not satisfied. To the extent the history given by the veteran during his June 1997 hospitalization is interpreted as a physician's opinion that the veteran has residuals of malaria, it reflects that the veteran contracted malaria approximately eight years after his period of active service, and in Vietnam rather than Alaska. Thus, it does not relate the incurrence of malaria to the veteran's period of active service. As noted above, a November 1997 record includes an assessment of "vestibulopathy probably related to quinine treatment." The Board acknowledges the history given in the same document of the veteran relating tinnitus and vertigo largely unabated over the last 40 years to malaria with quinine treatment in the 1950s. Crossed out in this area is a question mark with what appears to be the beginning of the word malaria, which to the Board underscores the treating physician's likely hesitance to incorporate this history in his diagnostic impression. Similarly, an October 1997 record of treatment includes a diagnosis of "chronic vestibulopathy -- uncertain of etiology," notwithstanding the history as given by the veteran of vestibulopathy since the 1950s after being treated for malaria with quinine. In sum, the Board has examined all medical evidence of record, and concludes that none of the evidence constitutes a competent medical "nexus" opinion relating inservice malaria or treatment thereof with a current disability. Since there is no competent medical evidence of inservice incurrence of malaria (the diagnosis of which requires medical expertise), and no competent medical evidence relating a current disability to inservice malaria, the claim for service connection for residuals of malaria must be denied as not well grounded. Caluza; Epps. Left Shoulder Injury VA records of treatment in April 1998 show that the veteran was seen for right shoulder and arm pain from an on-the-job injury the previous year. During his February 1999 RO hearing, the veteran testified that he had a left shoulder disability as a result of inservice activities. He said that while in service he played tackle football in a European league, where he injured his shoulder and may have dislocated it. He said he received physical therapy for the shoulder during service. He said he was treated for shoulder problems during his second period of service, when he began to have more problems with it. He said he played football during his first period of service, also. He said it began to hurt all the time during his second period of service. He said that currently his shoulder was just weak. He said the only treatment he was receiving for it was pain relievers. He said that he boxed during service and could not jab because of the shoulder. He said that recently he had turned down cortisone shots as treatment for the shoulder. The Board has thoroughly reviewed all medical evidence of record. There is no medical "nexus" evidence of link between an inservice left shoulder injury and a current left shoulder disability. Nor is there evidence of a current left shoulder disability. Accordingly, the claim for service connection for residuals of a left shoulder injury must be denied as not well grounded. Caluza; Epps. The Board has considered the fact that the veteran's service medical records have been lost or destroyed; however, lacking any evidence that the veteran has a current left shoulder disability which is a residual of the type of inservice injury which the veteran describes, the Board must deny the claim for service connection for residuals of left shoulder injury as not well grounded. Left Eye Injury During the veteran's February 1999 RO hearing, he testified that he had injured his eye in service, at Fort Chafee, Arkansas, during rifle drills. He said an elbow or a rifle butt hit him in the eye during rifle drills. He said this resulted in a small knot in the area of the eye, and that his eye would not stop watering. He testified that when he sought treatment during service he was told that there was nothing they could do for the eye. He said that he still had watering, but since surgery conducted by a VA physician in 1997 his eye condition had improved greatly. He said that from his time of discharge in 1954 until surgery in 1997 his symptoms were continuous and unchanged. He indicated he first sought treatment for his eye problems after service in 1980, from a Dr. Pruit. He said Dr. Pruit referred him to the VA physician who performed the surgery in 1997. He said that the physician who performed the surgery told him that his problem was due to a long process of discoloration as his eye continued to water over the years. VA records of medical treatment dated in July 1997 reveal that the veteran underwent surgery for a nasal lacrial duct obstruction of the left eye. The anesthesia notes reflect a pre-surgery diagnosis of stenosis of the duct. The Board has thoroughly reviewed medical evidence of record and can find no competent medical evidence of a link between the claimed inservice eye injury and a current left eye disability. Accordingly, the claim for service connection for residuals of a left eye injury must be denied as not well grounded. Caluza; Epps. The Board has considered the fact that the veteran's service medical records have been lost or destroyed; however, lacking any evidence that the veteran has a current left eye disability which is a residual of the type of injury which the veteran describes, the Board must deny the claim for service connection for residuals of left eye injury as not well grounded. Requirements to Well Ground Claims The Board acknowledges the veteran's assertions that the claimed current disabilities were a result of malaria, an inservice shoulder injury, and an inservice eye injury. However, the veteran, as a lay person, is not competent to provide medical opinions, so that his assertions as to medical diagnosis or causation cannot constitute evidence of a well-grounded claim. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992); Grottveit. The Board further acknowledges the veteran's assertions that physicians have told him that the claimed disabilities were a result of malaria, an inservice shoulder injury, and an inservice eye injury. The Board notes, however, that a statement about what a doctor told a lay claimant does not constitute the required medical evidence for a well-grounded claim. See Franzen v. Brown, 9 Vet. App. 235, 238 (1996); Robinette v. Brown, 8 Vet. App. 69, 77 (1995) ("we hold here that the connection between what a physician said and the layman's account of what [the physician] purportedly said, filtered as it was through a layman's sensibilities, is simply too attenuated and inherently unreliable to constitute 'medical' evidence"). The veteran is advised that a written medical opinion that he currently has the current claimed current disabilities, and that they are a result of a disease or injury incurred during his period of active service, would be required to well ground his claims. Robinette v. Brown, 8 Vet. App. 69, 79-80 (1995). In light of the loss of the veteran's service medical records and prior claims file, the Board has carefully considered whether the benefit of the doubt might favor the veteran in each of the claims adjudicated in this action. However, there is no evidence which meets or approximates the type of evidence required to well ground the veteran's claims; there is not is an approximate balance of positive and negative evidence regarding the merits of any issue material to the determination of the matters at hand. 38 U.S.C.A. § 5107; Caluza; Epps. ORDER Evidence of a well grounded claim for service connection for residuals of malaria not having been submitted, the appeal with respect to this issue is denied. Evidence of a well grounded claim for service connection for residuals of a left eye injury not having been submitted, the appeal with respect to this issue is denied. Evidence of a well grounded claim for service connection for residuals of a left shoulder injury not having been submitted, the appeal with respect to this issue is denied. MILO H. HAWLEY Acting Member, Board of Veterans' Appeals