Citation NR: 9733363	
Decision Date: 09/30/97		Archive Date: 10/02/97
DOCKET NO.  94-25 441	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Juan, 
Puerto Rico


THE ISSUES

1.  Entitlement to an increased rating for benign recurrent 
cholangitis, status post cholecystectomy with adjustment 
disorder, currently evaluated as 30 percent disabling.

2.  Whether new and material evidence has been received to 
reopen a claim of entitlement to service connection for 
residuals of meningitis and encephalitis.


REPRESENTATION

Appellant represented by:	Octavio A. Diaz-Negron, 
Attorney-at-Law


WITNESSES AT HEARING ON APPEAL

Appellant and his wife


ATTORNEY FOR THE BOARD

Daniel R. McGarry, Associate Counsel



INTRODUCTION

The veteran had active service from January 1970 to January 
1972.

This matter came before the Board of Veterans’ Appeals 
(Board) on appeal from a rating decision in which the 
regional office (RO) denied entitlement to an increased 
rating for benign cholangitis, status post cholecystectomy 
with adjustment disorder, and determined that no new and 
material evidence had been received to reopen claims of 
entitlement to service connection for meningitis and 
encephalitis.

The issue of entitlement to an increased rating for benign 
recurrent cholangitis, status post cholecystectomy with 
adjustment disorder is addressed in the remand portion of 
this decision.


CONTENTIONS OF APPELLANT ON APPEAL

The veteran contends that his disability from benign 
cholangitis, status post cholecystectomy with adjustment 
disorder has worsened and warrants a disability rating in 
excess of 30 percent.  He also contends that he has current 
disability from residuals of meningitis and encephalitis.  
Implied in his contentions is the assertion that he has 
submitted new and material evidence to reopen the claims of 
entitlement to service connection for residuals of 
encephalitis and meningitis.


DECISION OF THE BOARD

The Board, in accordance with the provisions of 38 U.S.C.A. 
§ 7104 (West 1991 & Supp. 1997), 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 veteran has submitted new 
and material evidence to reopen claims of entitlement to 
service connection for encephalitis and meningitis.


FINDINGS OF FACT

1.  In a decision dated in July 1985, the Board denied 
entitlement to service connection for meningitis and 
encephalitis.

2.  Since the Board’s July 1985 decision, the veteran has 
submitted evidence which tends to prove that the veteran may 
have residual disability from the viral meningeal 
encephalitis which he incurred during his active military 
service.


CONCLUSION OF LAW

New and material evidence has been received to reopen the 
claims of entitlement to service connection for meningitis 
and encephalitis.  38 U.S.C.A. §§ 5108, 7104 (West 1991); 
38 C.F.R. § 3.156 (1996).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Service medical records show that the veteran was 
hospitalized in March and April 1970 for treatment of viral 
meningeal encephalitis.  He was hospitalized again from April 
to June 1971 and from November 1971 to January 1972 for 
treatment of symptoms diagnosed as hepatitis.  After his 
separation from service, the veteran was hospitalized in 
October 1972 for treatment of benign intrahepatic cholestasis 
and chronic ethanol abuse.  He was granted entitlement to 
service connection for hepatitis by an April 1973 rating 
decision which awarded a 10 percent disability rating.  In 
April 1985, the veteran underwent a cholecystectomy.  The 10 
percent rating was continued by an October 1986 rating 
decision, but the diagnosis was changed to benign recurrent 
cholangitis, status post cholecystectomy.  In a report of 
neuropsychiatric examination dated in December 1987, a VA 
psychiatrist concluded that the veteran had disability from 
adjustment disorder which was secondary to his service 
connected disability from his liver disorder.  In February 
1988, the veteran was granted entitlement to service 
connection for benign recurrent cholangitis, status post 
cholecystectomy, with adjustment disorder, and was awarded a 
30 percent disability rating.

The Board denied entitlement to service connection for 
meningitis and encephalitis in a July 1985 decision.  That 
disallowance of the claim was final as to the evidence then 
of record.  The claim can be reopened only with the 
submission of new and material evidence.  38 U.S.C.A. 
§§ 5108, 7104; 38 C.F.R. § 3.156.

In considering whether a claim may be reopened, a two-step 
analysis must be performed.  First, the Board must determine 
whether the evidence submitted in support of reopening the 
claim since the last final disallowance of the claim is new 
and material.  If the Board determines that the veteran has 
produced new and material evidence, the claim is deemed to be 
reopened and the case must then be evaluated on the basis of 
all the evidence.  Manio v. Derwinski, 1 Vet.App. 140 (1991).  
See also Glynn v. Brown, 6 Vet.App. 523 (1994).

The United States Court of Veterans Appeals (the Court) has 
held that new and material evidence is evidence which creates 
a “reasonable possibility” of an allowance.  New evidence is 
that which is more than merely cumulative of other evidence 
already of record.  The Court has defined material evidence 
as that which is relevant and probative of the issue at hand.  
Colvin v. Derwinski, 1 Vet.App. 171 (1991).  The Court 
elaborated that evidence is “material” when it creates a 
reasonable possibility (assuming its credibility) of changing 
the result when viewed in the context of all evidence, both 
old and new.  If new and material evidence has not been 
submitted, the Board does not need to address the merits of 
the claims.  Sanchez v. Derwinski, 2 Vet.App. 330 (1992).  
For the limited purpose of determining whether to reopen a 
claim, the Board must generally accept the new evidence as 
credible and entitled to full weight.  Justus v. Principi, 
3 Vet.App. 510 (1992).

A determination of the materiality of new evidence requires 
two inquiries.  First, is such evidence “probative” of the 
issues at hand (that is, each issue that was a specified 
basis for the last final disallowance)?  Second, if it is new 
and probative, then, in light of all of the evidence of 
record, is there a reasonable possibility that the outcome of 
the claim on the merits would be changed?  See Evans v. 
Brown, 9 Vet.App. 273 (1996).  Evidence is probative when it 
tends to prove or disprove an alleged fact and the absence of 
such evidence was a specified basis for the last final 
disallowance.  Id.  The Board’s July 1985 disallowance was 
based on the lack of evidence that the veteran had current 
disability from meningitis or encephalitis.

Since the Board’s July 1985 decision which denied entitlement 
to service connection for meningitis and encephalitis, the 
veteran underwent a neuropsychological examination in June 
1993 to determine if he had residual disability from the 
meningoencephalitis which he incurred during his active 
military service.  In his report of that examination, the 
examiner indicated that the veteran’s performance on 
psychological tests was suggestive of some slight to mild 
mental deficits that may be associated not only to a history 
of meningoencephalitis but also to alcohol dependence and 
chronic liver disease.

The Board finds that the evidence described immediately above 
is new and material.  It was not of record at the time of the 
Board’s July 1985 decision and it is probative of whether the 
veteran has current disability from the viral meningeal 
encephalitis which he incurred during his active military 
service.  Such evidence creates a reasonable possibility of 
an allowance of the claim of entitlement to service 
connection for residuals of meningitis and encephalitis.  The 
claim is reopened.


ORDER

New and material has been presented, and therefore, the 
veteran’s claim of entitlement to service connection for 
residuals of meningitis and encephalitis is reopened.


REMAND

The Board, in the above decision has reopened the veteran’s 
claim of entitlement to service connection for meningitis and 
encephalitis.  However upon review of the evidence, the Board 
is of the opinion that a remand is necessary.  

The June 1993 VA neuropsychological examination indicated 
that the veteran had mild mental deficits that were 
associated with his history of meningoencephalitis and with 
alcohol dependency.  As such, the Board finds that an 
examination to determine the likelihood that the veteran’s 
mental deficits are attributable to the viral meningeal 
encephalitis that he incurred during his active service is 
necessary prior to further appellate review of this issue.

Additionally, the RO has determined that the veteran’s benign 
cholangitis, status post cholecystectomy, with anxiety 
reaction is one disability, the neuropsychiatric aspects of 
which cause the predominantly disabling symptomatology.  
38 C.F.R. § 4.126(d) (1996).  However, the veteran has 
asserted that his somatic symptoms have worsened and warrant 
a higher rating.  During the August 1996 VA examination, the 
examiner noted that the veteran had diffuse, non-specific 
abdominal discomfort, intolerance to fatty food, occasional 
nausea and vomiting, moderate pain, anorexia, and generalized 
weakness and malaise.  The examiner recorded diagnoses of 
chronic lever disease, status post benign recurrent 
cholestasis since 1972, status post cholecystectomy for 
gallstones, alcohol abuse, and recently diagnosed hepatitis 
C.  The Court has held that where disabilities are manifested 
by distinct and separate symptomatology, such disabilities 
should be assigned separate ratings.  See Esteban v. Brown, 6 
Vet.App. 259 (1994).  Accordingly, a remand is necessary for 
the RO to consider whether separate ratings are assignable to 
the veteran’s disability from benign cholangitis and his 
secondary neuropsychiatric disability.

A report of a VA psychiatric examination dated in August 1996 
indicated that the veteran had an anxiety disorder with 
depressive features.  The veteran has submitted reports from 
private psychiatrists which indicated that he had a 
disability from schizophrenia, schizoaffective disorder, and 
severe major depression.  The Board is of the opinion that a 
remand is necessary for an examination to determine whether 
the veteran has a neuropsychiatric disability from 
schizophrenia, schizoaffective disorder, and major 
depression.  If such disabilit(ies) exist, it will be 
necessary to determine whether such diagnos(es) represent a 
progression of the prior diagnosis, or development of new and 
separate conditions.  38 C.F.R. § 4.125(b) (1996).

Pursuant to this remand, the RO will be scheduling VA 
examinations.  The veteran is hereby notified that it is his 
responsibility to report for the examinations and to 
cooperate in the development of the issues on appeal, and 
that the consequences of failure to report for a VA 
examination without good cause may include denial of his 
claims.  38 C.F.R. §§ 3.158 and 3.655 (1996).

Accordingly, the case is REMANDED to the RO for the following 
development:

1.  All pertinent VA and private medical 
treatment records subsequent to October 
1996, should be obtained and associated 
with the claims file. 

2.  The veteran should be afforded VA 
psychiatric and neuropsychological 
examinations to identify and evaluate his 
neuropsychiatric disabilities.  The 
examiners should express opinions 
regarding whether his neuropsychiatric 
symptoms are separate and distinct from 
his somatic symptoms.  They should also 
express opinions whether the diagnoses of 
schizophrenia, schizoaffective disorder, 
and major depression are correct.  If so, 
they should express an opinion whether 
such diagnoses represent a progression of 
the veteran’s service-connected 
neuropsychiatric disorder or development 
of new and separate conditions.  The 
examiners should also express an opinion 
whether the veteran’s mental deficits are 
the result of the viral meningeal 
encephalitis which he incurred during his 
active military service, and, if so, what 
portion of such disability is 
attributable to the in-service disease as 
opposed to his chronic alcohol 
dependence.  All indicated tests and 
diagnostic studies must be performed.  
The claims folder should be reviewed by 
the examiners before the examinations.  
The examiners should comment as to the 
following:  does the veteran have 
occupational and social impairment with 
occasional decrease in work efficiency 
and intermittent periods of inability to 
perform occupational tasks (although 
generally functioning satisfactorily, 
with routine behavior, self-care, and 
conversation normal), due to such 
symptoms as depressed mood, anxiety, 
suspiciousness, panic attacks (weekly or 
less often), chronic sleep impairment, 
mild memory loss (such as forgetting 
names, directions, recent event)?  Does 
the veteran exhibit:  difficulty in 
understanding complex commands; 
impairment of short- and long-term 
memory; impaired judgment; disturbances 
of motivation and mood; or difficulty in 
establishing and maintaining effective 
work and social relationships?  The 
examiners should then specify as to which 
of the psychiatric disorders cause the 
symptomatology as noted above. 

3.  The RO should review the claims 
folder and ensure that all of the 
foregoing development actions have been 
conducted and completed in full.  If any 
development is incomplete, appropriate 
corrective action is to be implemented.  
Specific attention is directed to the 
examination reports.  If the reports do 
not include all test reports, special 
studies, or fully detailed descriptions 
of all pathology or adequate responses to 
the specific opinions requested, the 
reports must be returned to the examiners 
for corrective action.  38 C.F.R. § 4.2 
(1995). “If the [examination] report does 
not contain sufficient detail it is 
incumbent upon the rating board to return 
the report as inadequate for evaluation 
purposes.”  Green v. Derwinski, 1. 
Vet.App. 121, 124 (1991); Abernathy v. 
Principi, 3 Vet.App. 461, 464 (1992); 
Ardison v. Brown, 6 Vet.App. 405, 407 
(1994).

4.  The RO should then adjudicate the 
issue of entitlement to service 
connection for residuals of meningitis 
and encephalitis.  Furthermore, the RO 
should again review the record and 
reevaluate the veteran’s service-
connected benign recurrent cholangitis, 
status post cholecystectomy with 
adjustment disorder.  If the benefits 
sought on appeal remain denied, the 
veteran and his representative, should be 
furnished a supplemental statement of the 
case and given the opportunity to respond 
thereto.

This claim must be afforded expeditious treatment by the RO.  
The law requires that all claims that are remanded by the 
Board or by the Court for additional development or other 
appropriate action must be handled in an expeditious manner.  
See The Veterans’ Benefits Improvements Act of 1994, Pub. L. 
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. 
§ 5101 (West Supp. 1997) (Historical and Statutory Notes).  
In addition, VBA’s ADJUDICATION PROCEDURE MANUAL, M21-1, Part 
IV, directs the regional offices to provide expeditious 
handling of all cases that have been remanded by the Board 
and the Court.  See M21-1, Part IV, paras. 8.44-8.45 and 
38.02-38.03.  No action is required by the veteran until he 
receives further notice.  



		
	JOY A. MCDONALD
	Acting Member, Board of Veterans' Appeals

NOTICE OF APPELLATE RIGHTS:  Under 38 U.S.C.A. § 7266 (West 
1991 & Supp. 1996), 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, 102 Stat. 4105, 4122 (1988).  The date 
that appears on the face of this decision constitutes the 
date of mailing and the copy of this decision that you have 
received is your notice of the action taken on your appeal by 
the Board of Veterans’ Appeals.  Appellate rights do not 
attach to those issues addressed in the remand portion of the 
Board’s decision, because a 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) 
(1996).
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