Citation Nr: 9905938 Decision Date: 03/03/99 Archive Date: 03/11/99 DOCKET NO. 97-23 655 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Whether the 10 percent evaluation assigned for coccidioidomycostic meningitis in September 1996 was proper. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Kelli A. Kordich, Associate Counsel INTRODUCTION The veteran served on active duty from August 1984 to May 1988 and from January 1991 to June 1991, and was on active duty for training in July 1995. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a September 1996 rating decision of the Department of Veterans' Affairs (VA) Regional Office in Cleveland, Ohio (RO) which granted service connection and assigned the veteran a 10 percent evaluation for coccidioidomycostic meningitis effective July 30, 1995. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. Symptoms of the veteran's coccidioidomycostic meningitis are not nearly constant, do not restrict routine daily activities by less than 25 percent of the pre-illness level, or wax and wane, resulting in periods of incapacitation of at least two but less than four weeks total duration per year. CONCLUSION OF LAW The September 1996 assignment of an evaluation of 10 percent for coccidioidomycostic meningitis was proper, and the criteria for an evaluation in excess of 10 percent have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.1-4.14, 4.20. 4.27,4.88a, 4.88b, Diagnostic Code 6399- 6354 (1998). REASONS AND BASES FOR FINDINGS AND CONCLUSION A claimant for benefits under a law administered by the VA has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well-grounded. 38 U.S.C.A. § 5107(a) (West 1991). An allegation that a service-connected disability has become more severe is sufficient to establish a well-grounded claim for an increased evaluation. See Caffrey v. Brown, 6 Vet.App. 377, 381 (1994); Proscelle v. Derwinski, 2 Vet.App. 629, 632 (1992). Accordingly, the Board finds that the veteran's claim for a higher rating based upon an alleged increased severity of his service-connected disability is well grounded within the meaning of 38 U.S.C.A. § 5107(a). Once a claimant presents a well-grounded claim the VA has a duty to assist him in developing facts which are pertinent to the claim. In this case the Board finds that all relevant facts have been developed, and that all evidence necessary for equitable resolution of the issue on appeal is of record. Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule) to the veteran's current symptomatology. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § Part 4 (1998). The Board reviews the extent to which a service-connected disability adversely affects the veteran's ability to function under the conditions of ordinary daily life. The Board then assigns a rating which, as far as practicable, is based upon the extent to which the current disability impairs the veteran's earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10. If two evaluations are potentially applicable the higher evaluation will be assigned if the disability appears to approximate more closely the criteria required for that rating. Otherwise, the Board will assign the lower rating. 38 C.F.R. § 4.7. The veteran was granted service connection for coccidioidomycostic meningitis by a rating decision in September 1996. The RO assigned a 10 percent evaluation from July 30, 1995 by analogy to chronic fatigue syndrome under Diagnostic Code 6399-6354, based on a private hospitalization report showing that the veteran was admitted in August 1995 for fungal meningitis and discharged in September 1995 after improvement, and on a March 1996 VA examination report disclosing a history of coccidioidomycosic meningitis and continued private treatment for symptoms controlled by medication. In June 1997, the veteran filed a notice of disagreement with the initial evaluation assigned for his coccidioidomycostic meningitis. The Board notes that during the pendency of the veteran's appeal, the rating criteria pertinent to systemic diseases were changed. However, no substantive changes were made to the language of 38 C.F.R. § 4.88b, Diagnostic Code 6354, pursuant to which the veteran's 10 percent evaluation is assigned. That Diagnostic Code provides that a 10 percent evaluation is warranted for debilitating fatigue, cognitive impairments (such as inability to concentrate, forgetfulness, confusion), or other signs and symptoms which wax and wane but result in periods of incapacitation of a least one but less than two weeks total duration per year, or; symptoms controlled by continuous medication. A 20 percent evaluation requires nearly constant symptoms that restrict routine daily activities by less than 25 percent of the pre-illness level, or; which wax and wane, resulting in periods of incapacitation of a least two but less than four weeks total duration per year. A 40 percent evaluation is warranted when routine daily activities are restricted to less than 50 to 75 percent of the pre-illness level resulting in periods of incapacitation of at least four but less than six weeks total duration per year. A 60 percent evaluation requires routine daily activities restricted to less than 50 percent, resulting in periods of incapacitation of at least six weeks a year. A 100 percent evaluation is warranted for symptoms so severe as to restrict routine daily activities completely and which may occasionally preclude self-care. A January 1998 opinion from Cynthia A. Gustaferro, M.D., indicates that she first saw the veteran in August 1995, for an eosinophilic meningitis subsequently diagnosed as coccidioides meningitis. Shortly thereafter the veteran was admitted to Mt. Sinai Medical Center and it took several months for his spinal fluid to return to normal. Since that time, he has been on medication as a prophylaxis against relapse. Dr. Gustaferro indicated that the veteran's condition requires lifelong Diflucan suppression, and that his current symptoms include: exhaustion, fatigue, headaches, occurring three times monthly, irritability, dry skin, occasional nausea, occasional constipation, and diminished stamina. During a March 1998 VA examination, the veteran reported he was doing all right and was symptom free except for some headaches. He indicated that when the weather was warm he felt fatigued. He informed the examiner that he was working full-time as a sales representative. On examination the veteran was described as well developed. Headaches were reported to be relieved by aspirin. The examiner indicated that the veteran denied having any easy fatigability and that the veteran claimed to be doing just fine. The diagnosis following the examination was a history of coccidioidomycosis meningitis treated in August 1995, currently symptom free on a maintenance does of Diflucan to prevent a recurrence of meningitis. The examiner concluded that the veteran was asymptomatic. Based on the above evidence, the Board finds that the RO properly assigned the veteran an evaluation of 10 percent for coccidioidomycostic meningitis in September 1996. A higher evaluation is not warranted under Diagnostic Code 6354 because symptoms of the coccidioidomycostic meningitis have not been shown to be nearly constant, to restrict routine daily activities by less than 25 percent of the pre-illness level, or to wax and wane, resulting in periods of incapacitation of two or three weeks total duration per year. Rather, since his examination in 1996, the veteran's condition has been shown to be nearly asymptomatic due to medication; contrary to Dr. Gustaferro's opinion that the veteran currently has numerous symptoms, the veteran has admitted that he is symptom free. The Board has also considered whether a higher evaluation for the veteran's disability could possibly be assigned under 38 C.F.R. § 4.124a, Diagnostic Code 8019 for "Meningitis, cerebrospinal, epidemic." However, that Diagnostic Code only provides two specific ratings, a 100 percent evaluation for an active febrile disease and an evaluation based on residuals, with a minimum 10 percent evaluation. In the absence of any neurological residuals in the veteran's case, or apparently any other ratable residuals, an evaluation under this Diagnostic Code does not appear to provide for a higher evaluation for the veteran's disability. ORDER The 10 percent evaluation assigned for coccidioidomycostic meningitis in September 1996 was proper, and an evaluation in excess of 10 percent is denied. RAYMOND F. FERNER Acting Member, Board of Veterans' Appeals Department of Veterans Affairs