BVA9502987 DOCKET NO. 91-17 627 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for strongyloidiasis. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C.M. Flatley, Counsel INTRODUCTION The veteran had active service from September 1942 to November 1945 and from March 1948 to June 1953. The Board of Veterans' Appeals (Board) notes that the veteran initially appealed from a November 1988 rating decision of the Houston, Texas regional office. The RO in Waco, Texas, was also involved in the development of the veteran's case through at least November 1992. For reasons which will become clear in the decision below, the issue of entitlement to service connection for hearing loss will be addressed in the REMAND section at the conclusion of this decision. In a statement from the veteran received in July 1994, he maintains that benefits awarded under 38 C.F.R. § 4.30 (1994) in 1990 were never received. The matter is referred to the RO for appropriate action. CONTENTIONS OF APPELLANT ON APPEAL In essence, the veteran contends that he experienced symptoms of strongyloidiasis in service, particularly subsequent to hospitalization in 1943 during World War II. It has also been noted that he was stationed in areas consistent with the development of the disorder. The veteran maintains that he has attempted to obtain treatment to identify the disorder since service. Further, it is asserted that although he had been experiencing symptoms of the disorder since service, his strongyloidiasis was not identified until after service. The veteran maintains, therefore, that entitlement to service connection is warranted. 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 files. 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 evidence of record is in relative balance with respect to the issue of service connection for strongyloidiasis. FINDING OF FACT Strongyloidiasis had its onset during service. CONCLUSION OF LAW With reasonable doubt resolved in favor of the veteran, strongyloidiasis was incurred during the veteran's period of active service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 1991); 38 C.F.R. §§ 3.102, 3.303(d) (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION Review of the record indicates that the veteran has submitted a well-grounded claim. 38 U.S.C.A. § 5107(a). The Department of Veterans Affairs (VA) therefore has a duty to assist the veteran in the development of facts pertinent to his claim. 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet.App. 78, 81-82 (1990). In this regard, we note that the veteran's service medical records have been obtained and that post-service VA and non-VA clinical data have been associated with his claims folder. Upon review of such material, the Board concludes that the veteran has been adequately assisted in the development of his case and that the evidence currently of record provides an adequate basis upon which to address the merits of his claim. The Board notes that it may be that certain documents once contained in the claims file were removed from the file and possibly destroyed by a former Board employee. A December 2, 1993, Board remand refers to an examination report, dated April 6, 1992, which in turn refers to treatment at the Wichita, Kansas, VA Medical Center treatment indicated in October 1991 and February 1992. In the remand, it was stated that these reports were not of record. In the rating decision, dated August 6, 1992, it was noted that outpatient treatment records from July 11, 1988, to April 15, 1992, and hospital records from October 28, 1991, to November 5, 1991, had been received from the VA Medical Center in Wichita. A copy of the hospital report of October 28, 1991, through November 5, 1991, was added to the record on January 21, 1994. The April 6, 1992, reference to the veteran' s having been on oral medical medications at home in February 1992 is not specifically documented elsewhere. The Board recognizes that there is a heightened obligation to explain findings and conclusions and to consider carefully the benefit of the doubt rule in cases, such as this, in which records are presumed to have been or were destroyed while the file was in the possession of the government. O'Hare v. Derwinski, 1 Vet.App. 365, 367 (1991). Under these circumstances, it is not possible for the Board to absolutely guarantee the integrity of the claims folder. The Board, however, does believe that the appeal may proceed without prejudice to the veteran. Strongyloidiasis The record establishes that during his period of active service, the veteran was stationed in areas including Alabama, Florida, and Mississippi, and he reportedly traveled to destinations such as Guam, Japan, and Wake Island. Subsequent to service, the record indicates that the veteran lived in a variety of states, including Alabama, Kansas, Oklahoma, and Texas. In pertinent part, the veteran's service medical records show that he sought treatment intermittently for a variety of complaints, including nausea and abdominal pain. In January 1944, for example, he was hospitalized for observation due to abdominal pain; no disease was found. It was noted that "allergic-looking" welts had been present across the left lower quadrant at the time of the pain which were "unexplained." A history of hospitalization in December 1943 for hemorrhoidectomy was also noted. Evaluation led to the conclusion that the veteran's pain was probably associated with constipation. In March 1944, the veteran complained of bloody stools; tenderness in both lower quadrants was noted on examination. Laboratory studies conducted in April 1944 showed no parasites or ova. An upper gastrointestinal series revealed that the duodenal cap was slightly irritated and was otherwise normal. A barium enema revealed that the distal colon was somewhat hypertonic and was otherwise normal. In March 1949, multiple pigmented moles were noted, and in June 1950 and May 1953, symptomatology led to diagnoses of acute gastritis and acute bronchitis, respectively. On examination in June 1953 for separation from service, a three- week history of a cough and blood-streaked sputum was reported; increased bronchial breathing over the right lower lobe posteriorly led to a diagnosis of mild chronic bronchitis. Relevant post-service evidence of record includes a report of the veteran's October 1953 VA examination, which reflects complaints of pain through the chest and expectoration of blood. No lung pathology was found. Routine examinations thereafter through 1962 associated with the veteran's reserve status revealed no pertinent abnormalities. Complaints of headache with nausea and vomiting and a history of similar episodes on at least two occasions, including in 1950, accompanied by eye symptomatology at that time, were noted during VA hospitalization in January 1955. During hospitalization, stool examination was negative for ova or parasites. Evaluation led to a discharge diagnosis of migraine headaches, cause unknown. Reports from the Newman Memorial Hospital include a radiology report dated in 1968 which reflects a finding of pneumonitis in the right lower lobe. An entry made during hospitalization in June 1972 shows the veteran's report of intermittent hives and urticaria, relieved by Benadryl. Fulguration of three verrucae on the back was noted. Fulguration of several verrucae on the left arm was noted in September 1973. The veteran's complaints thereafter include, in April 1974, intermittent allergies upon eating seafood and in July 1976, a "bearing down" sensation; examination on the latter occasion revealed no evidence of urinary tract disease. Skin symptomatology is noted thereafter, as demonstrated in a March 1979 letter from Phyllis E. Jones, M. D., who wrote that on examination in February 1979, no lesions were present to demonstrate the chronic dermatitis that the veteran had described; he reportedly accurately described larva migrans. No skin lesions were present on a separate private examination shortly thereafter. Relevant post-service data also include a July 1982 letter to the veteran from the VA's Chief of Medical Service, then at a VA facility in Tacoma, Washington, which reflects that stool specimens sent from the veteran to the physician contained strongyloides parasites. He was advised to take Mebendazole. A July 1982 follow-up letter from this VA physician to a private physician reflects that the veteran had been found to have Strongyloides Stercoralis and chronic strongyloidiasis. An August 1988 letter from the same VA physician, written without review of the veteran's records, mistakenly characterizes him as a former prisoner of war and reflects that the veteran had experienced recurrent skin eruptions with hives and gastrointestinal complaints for 40 years following his "captivity" and that the disorder was not correctly identified until eight years before during the veteran's participation in a study of chronic strongyloidiasis. Medication, it was noted, was administered and subsequent examination revealed that the parasite was eliminated from the stool and skin and gastrointestinal symptoms of infection had been eliminated. It was noted that the veteran had been cured following treatment. The physician stated that chronic strongyloidiasis infection was acquired during World War II. Thereafter, the evidence of record, including VA outpatient reports dated in 1988, a July 1988 VA hospitalization report and U.S. Air Force Base Hospital outpatient records dated from 1985 to 1989 reflects references to strongyloidiasis, including its presence for many years, and varied diagnostic impressions such as pre-cancerous skin lesions, the presence of rheumatoid nodules or possible strongyloid nodules, and cyst, rule out strongyloidiasis. A letter dated in April 1990 from the aforementioned VA physician, noted in 1990 to be Chief of the VA's Medical Service in Wichita, Kansas and a Professor and Vice-Chairman of the Department of Internal Medicine, University of Kansas School of Medicine, reflects that the veteran experienced strongyloidiasis for many years and that it went untreated and unrecognized for many years prior to 1982; he reported that the veteran had experienced symptoms for forty years. It was further reported that it was difficult to determine whether the veteran was cured, as no laboratory test was sensitive or specific enough to so determine. In September 1991, the physician wrote that the veteran had a "just claim" for strongyloidiasis. Medical literature submitted by the veteran in May 1990 generally shows that the clinical effects of strongyloidiasis infection in order of severity of infection include local itchy rash and transient pneumonitis, itchy erythematous tracks, epigastric pain, and diarrhea. A transcript (T.) of the veteran's personal hearing conducted in May 1990 is of record. The veteran essentially described his history of symptomatology associated with strongyloidiasis. T. at 2-5. A November 1991 VA outpatient report and a November 1991 VA hospitalization report reflect recurrence of strongyloidiasis. On the latter occasion, it was noted that the veteran had strongyloidiasis since 1943. The discharge diagnosis was strongyloidiasis, chronic and recurrent. In an April 1992 letter from Gopal R. Guttikonda, M.D., it was noted that the veteran served in some areas during service which are susceptible to strongyloidiasis and that subsequent to hemorrhoid surgery in 1943, the veteran experienced red streaks, swelling across his stomach, and severe pain. The veteran's post-1943 symptomatology was reviewed. Evaluation led to diagnostic impressions of history of strongyloidiasis infection and no evidence of any diffuse or focal cerebral dysfunction to suggest parasitic infection of the brain. The examiner commented that veteran's gastrointestinal and pulmonary symptoms were more commonly brought about by causes other than strongyloidiasis. Subsequent to review of the veteran's history and complaints, VA examination completed in May 1992, in pertinent part, led to a diagnosis of strongyloides infestation with anxiety. On VA examination in March 1994, the veteran's history of recurrent episodes of nausea and abdominal pain since 1982 was noted. A stool specimen associated with the examination was unable to be evaluated. The diagnosis was chronic strongyloidiasis infection. An May 1994 addendum to the examination report reflects that the diagnosis should have read chronic strongyloidiasis infection to be ruled out. Pertinent law and regulations in this case provide that entitlement to service connection may be allowed for a disability which is incurred in or aggravated by the veteran's period of active service. 38 U.S.C.A. §§ 1110, 1131. Determinations of service connection are based on a review of the entire evidence of record. 38 C.F.R. § 3.303. The Board stresses that VA law also provides that when, after consideration of all of the evidence and material of record in an appropriate case before the VA, 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 veteran. 38 U.S.C.A. § 5107(b). Corresponding regulations state that it is the defined and consistently applied policy of the VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, such doubt will be resolved in favor of the veteran. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. It is not a means of reconciling actual conflict or contradiction in the evidence; as noted above, the veteran is required to submit evidence sufficient to justify a belief in a fair and impartial mind that the claim is well- grounded. Mere suspicion or doubt as to the truth of any statements submitted, as distinguished from impeachment or contradiction by evidence or known facts, is not a justifiable basis for denying the application of the reasonable doubt doctrine. 38 C.F.R. § 3.102. In its discussion of the "benefit of the doubt" rule cited above, the United States Court of Veterans Appeals (Court) has emphasized that when the rule is applicable, the veteran need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail; entitlement need not be established "beyond a reasonable doubt," by "clear and convincing evidence," or by a "fair preponderance of the evidence." Gilbert v. Derwinski, 1 Vet.App. 49, 54 (1990). The preponderance of the evidence must be against the claim before benefits may be denied. Id. The record establishes multiple findings of strongyloidiasis. An etiologic relationship to service must be established, however, in order for the veteran to prevail, and in this regard, the record in this case presents evidence both in favor and against the veteran's claim. First, there is no precise clinical identification of evidence of strongyloidiasis in service or for many years thereafter, and the initial diagnosis of strongyloidiasis was made many years after service. In addition, as noted by a recent VA examiner, other causes may exist for many of the veteran's symptoms. On the other hand, however, a diagnosis of strongyloidiasis was made subsequent to the veteran's participation in a specialized study of veterans suspected of having the disorder conducted by the Chief of Internal Medicine at a VA facility, who is also a vice chairman of a department at a medical school. The record indicates that the physician who conducted the study conducted substantial research and testing of individuals suspected of having the disorder. Significantly, the VA physician leading the study concluded that symptoms which the veteran had experienced for approximately forty years were manifestations of strongyloidiasis. The Board points out that the physician's conclusion in this respect was based at least in part on a history provided by the veteran. Review of such history by the Board, however, and the clinical data, reflects a clinical picture of the veteran's disorder generally consistent with medical literature submitted by the veteran, and reflects that symptoms arguably associated with strongyloidiasis were recorded on many occasions in service. The VA physician's letters clearly place the onset of strongyloidiasis during service. There is scant comparable authority to the contrary in the record. In light of the VA physician's expertise in the matter, the Board is of the opinion that the physician's opinion must be accorded substantial weight. The Board acknowledges that the evidence of record is not overwhelmingly in favor of the veteran's claim, but there is no legal requirement that it must. The dispositive consideration in this appeal is the absence of any sound rationale justifying a conclusion that the preponderance of the evidence is against the claim. Under these circumstances, the claim may not be disallowed. ORDER Entitlement to service connection for strongyloidiasis is granted. REMAND Without reaching the question of whether the claim is well- grounded, the Board notes that, with respect to his claim of service connection for hearing loss, the veteran has alleged during the current appeal period that the disability was incurred in service or, in the alternative, is the result of strongyloidiasis; both matters have been adjudicated and the former issue was fully developed and certified for appellate review. In light of the Board's allowance of service connection for strongyloidiasis, however, the veteran's claim referable to secondary service connection has become inextricably intertwined with the direct service connection issue before the Board. See Harris v. Derwinski, 1 Vet.App. 180 (1991). We conclude, therefore, that additional development is warranted. As such, this case is REMANDED for the following: The RO should address the issue of service connection for hearing loss as secondary to the veteran's strongyloidiasis. Any appropriate development in this regard may be undertaken. If the veteran's claim remains in a denied status, he and his representative should be provided with a supplemental statement of the case. Reasonable response time should be allowed. The case should then be returned to the Board, if in order, after compliance with customary appellate procedures. No action is required of the veteran until he is so informed. The Board intimates no opinion as to the ultimate decision warranted, pending completion of the requested development. JOHN E. ORMOND 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. With regard to the hearing loss issue, we note that under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1994).