Citation Nr: 0813077 Decision Date: 04/21/08 Archive Date: 05/01/08 DOCKET NO. 05-40 482 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to compensation under 38 U.S.C. § 1151 for cryptococcal meningitis with residual vision changes as the result of VA treatment in 1991. 2. Basic eligibility to nonservice-connected disability pension. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Tanya A. Smith, Counsel INTRODUCTION The veteran served on active duty from January 1960 to March 1962. This case comes to the Board of Veterans' Appeals (Board) on appeal of a September 2004 rating decision rendered by the Columbia, South Carolina, Regional Office (RO) of the Department of Veterans Affairs (VA). FINDINGS OF FACT 1. Resolving all reasonable doubt in favor of the veteran, his residual vision changes from cryptococcal meningitis were the result of negligence on the part of VA in furnishing medical treatment in 1991. 2. The veteran did not serve on active duty during a period of war; his active service from January 1960 to March 1962 did not include service in the Republic of Vietnam during the period beginning February 28, 1961. CONCLUSIONS OF LAW 1. The criteria for compensation under the provisions of 38 U.S.C. § 1151 for residual vision changes from cryptococcal meningitis as the result of VA treatment in 1991 have been met. 38 U.S.C.A. § 1151 (West 2002); 38 C.F.R. § 3.361 (2007). 2. The requirements for nonservice-connected disability pension have not been met. 38 U.S.C.A. §§ 101(12), (24), 1501, 1521 (West 2002); 38 C.F.R. §§ 3.1, 3.2, 3.3 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2007) redefined VA's duty to assist the veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2007). In light of the fully favorable finding with regard to the issue of entitlement to compensation under 38 U.S.C. § 1151, the Board finds that no further discussion of VCAA compliance is necessary. Also, the RO will have the opportunity to provide the veteran with notice of the effective-date element of his claim when effectuating the Board's grant. As for the pension claim, as explained below, the pertinent facts in this case are not in dispute and the law is dispositive. Consequently, there is no additional evidence that could be obtained to substantiate the claim. Accordingly, no further development of the record is required under 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2007). See Manning v. Principi, 16 Vet. App. 534, 542 (2002); VAOPGCPREC 5-04. II. Entitlement to Compensation under 38 U.S.C. § 1151 Under 38 U.S.C.A. § 1151, compensation shall be awarded for a qualifying additional disability or a qualifying death of a veteran in the same manner as if such additional disability or death were service-connected. A disability or death is a qualifying additional disability or qualifying death if it was not the result of the veteran's willful misconduct and it was caused by hospital care, medical or surgical treatment, or examination furnished the veteran under any law administered by the Secretary, either by a Department employee or in a Department facility, and the proximate cause of the disability or death was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the hospital care, medical or surgical treatment, or examination; or an event not reasonably foreseeable. See 38 U.S.C.A. § 1151 (West 2002); 38 C.F.R. § 3.361 (2007). The veteran filed his claim for compensation under the provisions of 38 U.S.C. § 1151 in June 2004. Because the claim was filed after October 1, 1997, the version of 38 U.S.C. § 1151 in effect prior to October 1, 1997 [requiring only that additional disability be "the result of" VA hospital care, medical or surgical treatment, or examination] is not applicable. See VAOPGCPREC 40-97 (providing that all Section 1151 claims which were filed after October 1, 1997 must be adjudicated under the statutory provisions currently in effect, which essentially require a showing of negligence or fault on the part of VA or that the claimed condition is due to an event not reasonably foreseeable.) The veteran contends that he is entitled to compensation under 38 U.S.C. § 1151 for residual vision impairment from cryptococcal meningitis as the result of VA treatment in 1991. There is favorable and unfavorable medical evidence as to whether the veteran sustained an additional disability as the result of negligence on the part of VA in furnishing medical treatment. The Board must therefore weigh the credibility and probative value of these opinions and in so doing may favor one medical opinion over the other. See Evans v. West, 12 Vet. App. 22, 30 (1998) (citing Owens v. Brown, 7 Vet. App. 429, 433 (1995)). The Board must account for the evidence it finds persuasive or unpersuasive and provide reasons for rejecting material evidence favorable to the claim. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). In a May 2004 letter Dr. R.H. of the South Carolina Heart Center maintained that the veteran was misdiagnosed initially as having AIDS but that he actually had cryptococcal meningitis and that, subsequently, he became blind during hospitalization. In an April 2005 letter Dr. R.H. reported that he believed the veteran became blind while under the care of the VA hospital as a direct result of a prolonged course of his fungal infection which was due to a misdiagnosis. Dr. R.H. maintained that had there been an earlier diagnosis this might have prevented blindness. A May 2006 VA examination report and a June 2006 addendum show the examiner opined that it was more likely than not that the veteran's diagnosis of cryptococcal meningitis was delayed by the fact that a lumbar puncture was not performed on his previous two VA emergency room visits prior to October 1991. The examiner, however, stated that he could not definitively comment as to whether the delay in diagnosis was directly responsible for the veteran's current level of functional impairment. A July 2006 VA examination report shows the examiner reported that the diagnosis of cryptococcal meningitis in a patient who was immunocompetent like the veteran was not very easy to make since the risk factors of acquiring this disease, such as AIDS, lymphocytic malignancy, organ transplant, corticosteroid therapy, diabetes mellitus, or sarcoidosis, were not present in the veteran. The examiner stated that a delay in the final diagnosis sometimes was understandable since this diagnosis was actually made by doing a spinal puncture. It was noted this was not a benign procedure as the procedure itself had some risk involved. The examiner concluded that he could find no gross evidence of negligence in the management of the veteran by VA. In the judgment of the Board, an additional medical opinion was warranted by the medical complexity involved in this appeal. 38 U.S.C.A. § 7109(a) (West 2002); 38 C.F.R. § 20.901(d) (2007). In October 2007, the Board obtained an opinion from an independent medical expert, Dr. M.B. Dr. M.B. thoroughly discussed specific details centering on the chronology of events that led to the lumbar puncture and the veteran's subsequent diagnosis of cryptococcal meningitis in October 1991. Dr. M.B. concluded that the veteran's vision loss was the result of VA's failure to timely and properly treat his cryptococcal meningitis. Dr. M.B. maintained that the situation was worsened by the fact that the veteran's admission to the hospital was delayed and that no opening pressure was obtained at the time of the lumbar puncture. Dr. M.B. explained that blindness could result as a complication of cryptococcal meningitis, which normally occurred in the setting of increased intracranial pressure. Dr. M.B. noted that an opening pressure was either not obtained or was not documented when the lumbar puncture was performed. The Board finds that Dr. M.B.'s opinion is the most comprehensive. The VA examiners did not address the very significant observation made by Dr. M.B. that no opening pressure was recorded in connection with the lumbar puncture. In addition to being comprehensive, Dr. M.B.'s opinion is also based on sound medical principles with a supporting rationale. For these reasons, the Board finds his opinion more persuasive than the other medical opinions of record, and thus, the Board accords his opinion the greatest evidentiary weight. The Board finds that all reasonable doubt should be resolved in the veteran's favor and that his blindness resulted from VA's failure to provide proper treatment. Accordingly, the Board concludes that the veteran is entitled to compensation under 38 U.S.C. § 1151 for residual vision changes from cryptococcal meningitis as the result of VA treatment in 1991. III. Basic Eligibility - Pension VA shall pay to each veteran of a period of war who meets the service requirements and who is permanently and totally disabled from nonservice-connected disability not the result of the veteran's willful misconduct, pension at a prescribed rate. 38 U.S.C.A. § 1521(a) (West 2002); 38 C.F.R. § 3.3(a)(3) (2007). A veteran meets the service requirements if he or she served in the active military, naval, or air service (1) for 90 days or more during a period of war, (2) during a period of war and was discharged or released from such service for a service- connected disability, (3) for a period of 90 consecutive days or more and such period began or ended during a period of war, or (4) for an aggregate of 90 days or more in two or more separate periods of service during more than one period of war. 38 U.S.C.A. § 1521(j) (West 2002); 38 C.F.R. § 3.3(a)(3) (2007). The term "period of war" includes the Vietnam era. 38 U.S.C.A. § 1501(4) (West 2002); 38 C.F.R. §§ 3.1, 3.2 (2007). The Vietnam era is defined as the period beginning on February 28, 1961, and ending on May 7, 1975, for veterans who served in the Republic of Vietnam during that period. 38 U.S.C.A. § 101(29)(A) (West 2002); 38 C.F.R. § 3.2(f) (2007). In all other cases, the wartime period for the Vietnam era is defined as beginning on August 5, 1964, and ending on May 7, 1975. 38 U.S.C.A. § 101(29)(B) (West 2002); 38 C.F.R. § 3.2(f) (2007). The veteran's DD Form 214 indicates that he served on active duty from January 1960 to March 1962 and that he did not have service in the Republic of Vietnam during the period beginning February 28, 1961. Thus, the veteran does not have qualifying service for VA nonservice-connected disability pension benefits. As the law in this case, and not the facts, is dispositive of the issue, the veteran has not stated a claim on which relief may be granted. Accordingly, as a matter of law the claim must be denied. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER Entitlement to compensation under 38 U.S.C. § 1151 for residual vision changes from cryptococcal meningitis as the result of VA treatment in 1991 is granted. Basic eligibility to nonservice-connected disability pension is denied. ____________________________________________ T. L. Douglas Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs