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