Citation Nr: 0814382 Decision Date: 05/01/08 Archive Date: 05/12/08 DOCKET NO. 06-15 756 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES Entitlement to service connection for spinal meningitis, to include arthritis. REPRESENTATION Veteran represented by: Missouri Veterans Commission ATTORNEY FOR THE BOARD Raven D. Perry, Associate Counsel INTRODUCTION The veteran served on active duty in the United States Army from June 1953 to May 1958. This case comes to the Board of Veterans' Appeals (the Board) on appeal from a March 2005 rating decision of the Department of Veterans Affairs Regional Office (RO) in St. Louis, Missouri which denied the veteran's claim for entitlement to service connection for residuals of spinal meningitis to include arthritis as a secondary condition. The appeal is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. VA will notify the appellant if further action is required. REMAND The veteran served during the Korean War. The veteran's complete service medical records (SMRs) are not associated with the claims file and there is indication from the National Personnel Records Center (NPRC) that they were destroyed in a fire in July 1973. The only SMR located was the veteran's March 1958 separation exam report which does not indicate any diagnosis of spinal meningitis or any residual thereof. However, the veteran reports being hospitalized for spinal meningitis for a period of seventy- eight days in 1953. He further reports that he continues to experience complications as a residual of the meningitis, to include arthritis as a secondary condition. See Veteran's Claim for Compensation and/or Pension. There is no indication that a VA examination was ever administered. VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2007); 38 C.F.R. § 3.159 (2007). The duty to assist a claimant includes obtaining an examination and medical opinion when necessary to make an adequate determination. See Duenas v. Principi, 18 Vet. App. 512 (2004). In McLendon v. Nicholson, 20 Vet. App. 79 (2006), the Court discussed the steps to be taken in determining whether a VA examination is necessary prior to final adjudication of a claim. According to McLendon, in disability compensation claims, VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualified, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. 38 U.S.C.A. § 5103A(d)(2), 38 C.F.R. § 3.159(c)(4)(i). The Court in McLendon observed that the third prong, which requires that an indication that the claimant's disability or symptoms "may be" associated with the established event, is a low threshold. McLendon, 20 Vet. App. at 83. In this case, the veteran's statements of July and August 2004 provide competent evidence of persistent or recurrent disease or disability, and of a continuity of symptomatology since service. The Board also notes that the veteran as a lay person is not competent to diagnose spiral meningitis; however, he is competent to report having been hospitalized in service, and to describe the symptoms he experienced at that time. In a statement received in August 2004, he also clearly articulated experiencing continuous symptoms from the time of his in-service hospitalization to present. The Board finds there is insufficient competent medical evidence on file for the Secretary to make a decision on the issues of service connection for residuals of spinal meningitis. The veteran has not been afforded a VA medical examination with respect to these claims, including a medical nexus opinion, and there is otherwise no competent medical opinion on these issues. However, the veteran's lay contentions appear sufficient to warrant obtaining such an examination. See Charles v. Principi, 16 Vet. App. 370 (2002) (Holding that under 38 U.S.C.A § 5103A(d)(2), VA was to provide a medical examination where, the claimant had been diagnosed to have tinnitus, and had proffered competent lay evidence that he had had continuous symptoms of the disorder [i.e., ringing in the ears] since his discharge). To ensure that VA has met its duty to assist the claimant in developing the facts pertinent to the claim, the case is REMANDED for the following action: 1. The AOJ should schedule the veteran for a VA examination, by an appropriate specialist, to determine the nature and etiology of the veteran's claimed residuals of spinal meningitis, to include arthritis claimed as secondary to meningitis. The examiner should be provided the full and accurate relevant history of the appellant's disability to include the veteran's hospitalization in-service. The examiner should offer an opinion as to whether the veteran's persistent or recurrent symptoms are at least as likely as not (50 percent or greater probability) related to (caused or aggravated by) an in-service disease or disability, to include the alleged spinal meningitis. For any diagnosis regarding arthritis, the examiner should offer an opinion whether such is at least as likely as not (50 percent or greater probability) related to (caused or aggravated by) any identified meningitis. A complete rationale should be provided for any opinions given. If the requested medical opinions cannot be given, the examiner(s) should state the reason why. 2. Following completion of the above development, the AOJ should readjudicate the claims for service connection of residuals of spinal meningitis as well as arthritis secondary to spinal meningitis. If service connection is not granted, an appropriate supplemental statement of the case should be issued. The veteran and his representative should be afforded an opportunity to respond to the supplemental statement of the case before the claims folder is returned to the Board. The purpose of this remand is to fulfill VA's duty to assist in further developing the veteran's claims by obtaining a VA medical examination and medical nexus opinion. The veteran is advised that failure to cooperate by not reporting for examination may result in the denial of the claims. 38 C.F.R. § 3.655 (2007). The Board intimates no opinion, either legal or factual, as to the ultimate disposition warranted in this case, pending completion of the above. The appellant and his representative have the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2002 & Supp. 2007). _________________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. 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) (2007).