BVA9506035 DOCKET NO. 91-35 064 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Manila, Philippines THE ISSUE Entitlement to service connection for residuals of parasitic worms (helminthiasis), including ascariasis. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD R. P. Harris, Counsel INTRODUCTION The appellant served on active duty from November 1941 to July 1942 and February 1945 to June 1946. He was a prisoner of war of the Japanese Government from April to July 1942. This matter came before the Board of Veterans' Appeals (Board) on appeal from a November 1990 rating decision of the Manila, Philippines, Regional Office (RO) that, in part, denied entitlement to service connection for ascariasis. In a decision rendered July 29, 1992, the Board, in part, denied service connection for residuals of parasitic worms (helminthiasis), including ascariasis. Thereafter, the appellant appealed the Board's July 29, 1992, decision to the United States Court of Veterans Appeals (Court). In a decision rendered December 14, 1993, the Court affirmed the Board's July 29, 1992, decision in part with respect to the issues of service connection for post-traumatic osteoarthritis, residuals of a shell fragment wound of the left foot with traumatic neuritis, and anemia on a direct incurrence basis. However, the Court vacated that part of the decision which had denied on the merits service connection for malnutrition, residuals of avitaminosis, and a psychiatric disability on the grounds that these claims had not been well grounded. Additionally, the Court vacated that part of the decision which had denied service connection for residuals of parasitic worms (helminthiasis), including ascariasis, and remanded that issue to the Board for readjudication consistent with its decision. [citation redacted]. In April 1994, the Board remanded the case to the RO for additional medical development, and to readjudicate the issue of service connection for residuals of parasitic worms (helminthiasis), including ascariasis. In January 1995, the Board referred the case for an independent medical expert (IME) opinion, to resolve medical controversy regarding the approximate date of onset of the appellant's parasitic worm infestation and the degree of probability that it represents a disease related to military service or prisoner-of-war internment versus intercurrent disease endemic to his place of residence. An IME opinion was rendered later that month, and a copy was forwarded to the appellant's representative. In February and March 1995, the representative responded in writing that he had no further argument or evidence to present, except for a letter from appellant submitted therewith. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends, in essence, that he has suffered from parasitic worm disorder since military service; and that although the Philippines, his residence, is a tropical region where sanitation is generally inadequate, sanitation facilities have been adequate at his particular locale. His representative argues that a recent Department of Veterans Affairs (VA) medical opinion supports the claim. It is requested that consideration be provided to regulatory provisions for proving service connection, where the veteran was in combat or a former prisoner of war. It is also requested that the benefit of the doubt doctrine be applied. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered the evidence and material of record in the appellant'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 preponderance of the evidence is against allowance of service connection for residuals of parasitic worms (helminthiasis), including ascariasis. FINDINGS OF FACT 1. All available, relevant evidence necessary for disposition of the appeal has been obtained by the RO. 2. Chronic helminthiasis, including ascariasis, was not present during service, was initially medically shown more than four decades after service, and is a disease endemic in the Philippines, the region in which the appellant resides. The parasitic worm disorder is unrelated to his military service/prisoner-of-war internment, and is due to intercurrent disease. CONCLUSION OF LAW Chronic residuals of helminthiasis, including ascariasis, were not incurred in or aggravated by the appellant's active service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 1991); 38 C.F.R. §§ 3.303, 3.304(d),(e), 3.307, 3.309 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION In its December 14, 1993, decision, the Court implicitly determined that the appellant's claim for service connection for a parasitic worm disorder is "well grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991), and remanded that issue to the Board for readjudication. In April 1994, the Board remanded the case, in part, for an examination of the appellant by a specialist in tropical diseases for the purpose of determining whether residuals of parasitic worms were currently manifested, and if so, the etiology thereof. However, a VA examination by an internal medicine physician, not a tropical disease specialist, was conducted in June 1994; it was unclear whether the physician reviewed the entire claims folder; and his medical opinion appeared inherently contradictory. Consequently, the Board referred the case for an IME opinion. The IME opinion rendered in January 1995 as to the etiology of the appellant's parasitic worm disorder, together with the other clinical evidence of record, is adequate for a fair and well- reasoned decision of this service connection issue on appeal. Relying on the evidence of record, the Board will provide reasons and bases for its decision and apply the material facts to applicable laws and regulations. Thus, the Board concludes that the duty to assist the appellant in the development of facts pertinent to his claim as contemplated by the provisions of 38 U.S.C.A. § 5107(a) has been satisfied. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131. In pertinent part, when the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303. Satisfactory lay or other evidence that an injury or disease was incurred or aggravated in combat will be accepted as sufficient proof of service connection if the evidence is consistent with the circumstances, conditions or hardships of such service even though there is no official record of such incurrence or aggravation. 38 C.F.R. § 3.304(d). Where disability compensation is claimed by a former prisoner of war, omission of history or findings from clinical records made upon repatriation is not determinative of service connection, particularly if evidence of comrades in support of the incurrence of the disability during confinement is available. Special attention will be given to any disability first reported after discharge, especially if poorly defined and not obviously of intercurrent origin. The circumstances attendant upon the individual veteran's confinement and the duration thereof will be associated with pertinent medical principles in determining whether disability manifested subsequent to service is etiologically related to the prisoner of war experience. 38 C.F.R. § 3.304(e). The fact that the appellant did not report a history of intestinal parasitic infection until more than three and a half decades after service, when he completed a medical history in 1983, and checked a box on a form alleging infestation with worms during prisoner-of-war captivity, does not exclude the possibility of helminthiasis during captivity, given the nature of prisoner-of-war internment, but does relate to the credibility of his allegations. While an affadavit he completed during service, as well as affadavits by fellow servicemen and statements by private physicians, describe the appellant's medical condition during or as a result of prisoner-of-war internment, they make no reference to worm infection. In its December 14, 1993, decision, the Court specifically related that no mention of Ascaris ova, helminthiasis, or other worm infestation was contained in the appellant's discharge medical examination; that the first indication of record that he had been infected with worms was a 1983 test which revealed ova and parasites; and that in 1990 a blood and feces test had found "Ascaris lumbricoides ova." These judicially-determined findings are considered as finally settled. See Browder v. Brown, 5 Vet.App. 268, 270 (1993), referring to the doctrine of "law of the case." As the Court pointed out in its December 14, 1993, decision, helminthiasis, when manifest to a degree of 10 percent or more in a former prisoner of war who was interned for not less than 30 days, is presumed service connected. 38 U.S.C.A. § 1112(b)(4). However, such presumptions of service connection are rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. § 1113; 38 C.F.R. § 3.307(d). Under 38 C.F.R. § 3.307(d), presumed service connection is rebuttable by "residence during the period in question in a region where the particular disease is endemic." Concerning the character of the evidence necessary to rebut the presumption of service connection of a disease listed in 38 C.F.R. § 3.309, the Court referred to the provisions of 38 C.F.R. § 3.307(d), which state, in pertinent part: "any evidence of a nature usually accepted as competent to indicate the time of existence of inception of disease, and medical judgment will be exercised in making determinations relative to the effect of intercurrent injury or disease." Thus, a crucial issue for resolution concerns whether there is competent evidence of record that rebuts the lifetime presumption of service connection for helminthiasis provided the appellant as a former prisoner of war. It should be pointed out that appellant lacks the medical expertise to offer an opinion regarding medical relationships or diagnoses. Espiritu v. Derwinski, 2 Vet.App. 492, 494 (1992). The positive competent evidence includes the June 1994 report of VA examination by an internal medicine physician. Ascaris lumbricoides ova and Giardia lamblia were identified on laboratory study and diagnosed; and the physician opined that it was probable that this problem was related to military service/prisoner-of-war internment. However, the evidentiary value of this opinion is minimal, if any, since he also opined that the appellant's parasitism could be chronic, but that it was virtually impossible to approximate the date of onset thereof. Thus, his statements appear inconsistent with each other. The evidentiary weight accorded his opinion is additionally reduced by the uncertainty whether he actually reviewed the entire claims folder prior to rendering his opinion, or merely relied upon the unsubstantiated history given by the appellant on that examination of abdominal symptoms since 1943. As stated in Gilbert v. Derwinski, 1 Vet.App. 49 (1990), "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." The negative evidence far outweighs the positive, and includes the January 1995 IME opinion regarding the etiology of the appellant's parasitic worm disorder. Significantly, the IME opinion stated that the entire folder, laboratory data, and all pertinent information regarding the case had been reviewed, and the following conclusions reached: (1) The first clinical documentation of heminthiasis (ascariasis) was in August 1990, (2) that Ascaris is endemic to the Philippines and quite possibly he had been infested many times in his life, (3) that the fact that Giardia was shown in 1994, but not in 1990, clearly indicates the appellant continues to ingest soil or water contaminated with parasitic organisms despite his contention as to sanitation of his locale, and (4) that the probability that his Ascaris infection in 1990 represented disease related to military service/prisoner-of-war internment was unequivocably zero, since any infection occurring in the 1940's period in question would have resolved. With respect to this last conclusion, he specified that this was based upon medical literature documenting that the life span of the parasitic adult worm was no longer than one year, and therefore, infection cannot persist more than one year in the absence of reinfection. The independent medical expert is entirely independent of the VA and the appellant, is a recognized expert in infectious diseases, and appears to have rendered a more comprehensive, reasoned medical opinion. The credibility of the evidence in this case has been particularly crucial in our determination. As the Court has stated in Smith v. Derwinski, 1 Vet.App. 235, 237 (1991), "determination of credibility is a function for the BVA." Thus, the Board finds that the IME opinion, which unequivocably denied any relationship between the appellant's parasitic worm disorder and his military service/prisoner-of-war internment (but rather medically attributed his current parasitic worm disorder to intercurrent, postservice reinfection from disease that is endemic to the Philippines), constitutes a more credible, persuasive piece of evidence than the equivocal June 1994 opinion by an internal medicine physician, which was based upon unsubstantiated history provided by appellant. Based upon this weighing of the evidence, the Board concludes that the presumption of service connection for helminthiasis is rebutted by "residence during the period in question in a region where the particular disease is endemic." 38 U.S.C.A. § 1113; 38 C.F.R. § 3.307(d). It should be added that since service connection is not warranted for helminthiasis, the subissue of anemia secondary to helminthiasis is moot. Since the preponderance of the evidence is against allowance of this appeal, the benefit of the doubt doctrine is inapplicable. 38 U.S.C.A. § 5107(b) (West 1991). ORDER Service connection for residuals of parasitic worms (helminthiasis), including ascariasis, is denied. HOLLY E. MOEHLMANN 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.