Citation Nr: 0814454 Decision Date: 05/01/08 Archive Date: 05/12/08 DOCKET NO. 03-15 248A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Whether new and material evidence has been submitted to reopen the claim of service connection for arthritis secondary to service-connected meningitis with thoracic outlet syndrome. 2. Entitlement to service connection for arthritis secondary to service-connected meningitis with thoracic outlet syndrome. 3. Entitlement to service connection for a disability manifested by numbness of the hands, neck, and legs, stiffness and pain of the elbows, neck, and shoulders, a calcium growth on the right shoulder, a neck tic, and a low back disability, all secondary to service-connected meningitis with thoracic outlet syndrome. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. Layton, Associate Counsel INTRODUCTION The veteran served on active duty from June 1969 to June 1971. By rating action in May 1985, the RO denied service connection for arthritis secondary to service-connected meningitis with thoracic outlet syndrome. The veteran and his representative were notified of this decision and appealed to the Board. The Board denied the veteran's claim in May 1986, and the veteran did not appeal that decision. This matter comes before the Board of Veterans Appeals (Board) on appeal from a December 2002 decision by the RO which, in part, denied service connection for the claimed disabilities now at issue on appeal. Personal hearings at the RO were held in June 2003 and May 2004. A video conference hearing before the undersigned member of the Board was held in March 2005. The Board remanded the claims for additional development in September 2005. The issues of service connection for arthritis secondary to service-connected meningitis with thoracic outlet syndrome and service connection for a disability manifested by numbness of the hands, neck, and legs, stiffness and pain of the elbows, neck, and shoulders, a calcium growth on the right shoulder, a neck tic, and a low back disability, all secondary to service-connected meningitis with thoracic outlet syndrome are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. All relevant evidence necessary for the equitable disposition of the issue on appeal was obtained. 2. In a May 1985 rating decision the RO denied entitlement to service connection for arthritis secondary to service- connected meningitis with thoracic outlet syndrome; that determination has become final. 3. Evidence received since the May 1985 rating decision is neither cumulative nor redundant of the evidence of record and relates to an unestablished fact necessary to substantiate the claim of service connection for arthritis secondary to service-connected meningitis with thoracic outlet syndrome. CONCLUSION OF LAW As new and material evidence has been received, the claim for service connection for arthritis secondary to service- connected meningitis with thoracic outlet syndrome is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION The provisions of the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), and as interpreted by the United States Court of Appeals for Veterans Claims (hereinafter "the Court") have been fulfilled by information provided to the veteran by correspondence dated in August 2005. Because of the favorable outcome in this appeal of the issue of new and material evidence to reopen the claim for service connection for arthritis secondary to service-connected meningitis with thoracic outlet syndrome, any deficiency in the initial notice to the veteran of the duty to notify and duty to assist in claims involving new and material evidence is harmless error. Law and Regulations VA law provides that a claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2007). The Court has held that the credibility of evidence must be presumed for the purpose of deciding whether it is new and material. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held, however, that evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the Board. Anglin v. West, 203 F.3d 1343 (2000). The Board, in the first instance, must rule on the matter of reopening a claim. The Board has a responsibility to consider whether it is proper for a claim to be reopened, because reopening is jurisdictional. Jackson v. Principi, 265 F.3d 1366 at 1369 (Fed. Cir. 2001) and Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). Factual Background and Analysis In a May 1985 rating decision the RO denied entitlement to service connection for arthritis secondary to service- connected meningitis with thoracic outlet syndrome. It was noted, in essence, that the medical evidence of record failed to show that the veteran's arthritis was secondary to his meningitis. The veteran appealed the decision to the Board, and in a May 1986 decision, the Board denied the appeal and it became final. The evidence received since the May 1985 rating decision includes additional statements from the veteran, transcripts of hearings held at the RO, a transcript of a videoconference hearing before the undersigned Veterans Law Judge, private treatment records, and VA medical records including a neurology examination which provided a nexus between the veteran's current arthritis and his service-connected meningitis. This evidence is neither cumulative nor redundant and raises a reasonable possibility of substantiating the claim. Therefore, the claim must be reopened and re-adjudicated on the merits. ORDER New and material evidence having been submitted, the claim for entitlement to service connection for arthritis secondary to service-connected meningitis with thoracic outlet syndrome is reopened. REMAND In reviewing the file, the Board finds that the current medical evidence of record is confusing and somewhat contradictory, and is insufficient to render a fair and impartial decision as to the medical issues on appeal. The veteran contends that all of his claimed disabilities are related to meningitis that he had in service. He testified that he had all of the same symptoms when he had meningitis in service and that they have been present ever since. Service connection was established for meningitis with thoracic outlet syndrome by rating action in May 1977, based on a diagnosis rendered on VA examination in April 1977. Thus, service connection is protected. 38 C.F.R. § 3.957. However, several VA doctors have opined subsequently, in essence, that the veteran never had thoracic outlet syndrome, and that there is no relationship between thoracic outlet syndrome and meningitis. (See September 1984 and November 2002 VA medical examination reports and a January 1999 VA neurology report.) Additional diagnoses of record include bilateral carpal tunnel syndrome, myofascial pain syndrome, cervical spondylosis and stenosis, and Lhermitte's phenomenon. Degenerative changes in the cervical spine were first noted in 1981, a growth on the right shoulder was first noted in the early 1980's, a neck tick and spina bifida occulta L5-S1 were first shown in 1977, and chronic low back problems were first shown after an industrial accident in 1985. On prior remand from the Board, the veteran was scheduled for VA examinations to determine if it was more likely than not that any of his claimed disabilities were secondary to his service-connected meningitis. An orthopedic examiner stated that it was as least as likely as not that the veteran's cervical spondylosis, hypertrophic osteoarthritic changes, degenerative joint disease of the lumbosacral spine, bilateral shoulder condition, and bilateral elbow conditions were not secondary to meningitis. (See January 2007 VA orthopedic examination report.) A neurologic examiner indicated that the veteran's disabilities involving the neck, neck tic, low back, thoracic outlet syndrome, photophobia, and cervical spine degeneration were at least as likely as not due to the meningitis. (See January 2007 VA neurology examination report.) The RO scheduled the veteran for an additional examination to reconcile the contradictory VA medical examination opinions. The examiner indicated that the veteran's cervical spondylosis, photophobia, degenerative osteoarthritis of the thoracic and lumbosacral spine, and first degree separation AC joint were not due to meningitis. He also stated that the veteran had residuals of cerebrospinal meningitis, meningococcemia type with residual left neck tic, photophobia, and migraine headaches. (See April 2007 VA medical examination report.) However, the examiner did not discuss the prior inconsistent medical opinions, and he did not provide adequate reasons and bases for his opinions. Given the medical complexity of this case and the inconsistent medical opinions of record, the Board finds that another VA examination should be undertaken by a joint panel consisting of both an orthopedist and a neurologist to determine the nature and etiology of the claimed disabilities and discuss their relationship with the veteran's service- connected meningitis. In light of the discussion above, it is the decision of the Board that further development is necessary prior to appellate review. Accordingly, the claim is REMANDED to the RO for the following action: 1. The veteran should be afforded a VA examination by a medical panel consisting of an orthopedist and a neurologist to identify any disorders attributable to the service-connected meningitis. The claims folder must be made available to the examiners for review, and a notation to the effect that this record review took place should be included in the report. All appropriate testing should be undertaken in connection with the examination. The physicians should render a consensus opinion as to whether it is at least as likely as not that any identified disability involving the veteran's hands, neck, legs, elbows, shoulders, including a calcium growth on the right shoulder, neck tic, and low back disability are proximately due to, the result of, or being aggravated by the service-connected meningitis. The examiners are requested to identify any disabilities that are symptoms of thoracic outlet syndrome. The physicians should provide a complete rationale and basis for all opinions offered. The physicians should also include a discussion of the prior VA medical opinions of record from January 2007 and April 2007. If the physicians are unable to make any determination, they should so state and indicate the reasons. It would be helpful if the examiners included a discussion of meningitis and the possible residuals, including the expected timeframe for the onset of residual symptoms, particularly as it pertains to this case. 2. The veteran must be given adequate notice of the date and place of any requested examination. A copy of all notifications must be associated with the claims folder. The veteran is hereby advised that failure to report for a scheduled VA examination without good cause shown may have an adverse effect on his claim. 3. Following completion of the foregoing, the RO must review the claims folder and ensure that all of the foregoing development has been conducted and completed in full. In particular, the RO should determine whether the examiners have responded to all questions posed. If not, the reports must be returned for corrective action. 38 C.F.R. § 4.2 (2007). 4. After the requested development has been completed, the RO should review and adjudicate the merits of the claim based on all the evidence of record and all governing legal authority, including VCAA and implementing regulations, and any additional information obtained as a result of this remand. This should include consideration of whether any disability of the hands, neck, legs, elbows, shoulders, including a calcium growth on the right shoulder, neck tic, and low back disability are proximately due to or the result of, or being aggravated by a service-connected disability. The provisions of Allen v. Brown, 7 Vet. App. 439 (1995) should be considered. 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. Additionally, the RO should consider the provisions of 38 C.F.R. § 4.124a and undertake any actions deemed necessary concerning potential allowances that may or may not arise from the development of these claims. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim 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 Supp. 2005). ______________________________________________ RENÉE M. PELLETIER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs