Citation Nr: 1040144 Decision Date: 10/26/10 Archive Date: 11/01/10 DOCKET NO. 02-06 850A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for residuals of spinal meningitis. 2. Entitlement to service connection for a ventral hernia, to include as secondary to the residuals of spinal meningitis. 3. Entitlement to service connection for rheumatoid arthritis of the feet bilaterally, to include as secondary to the residuals of spinal meningitis. REPRESENTATION Appellant represented by: Ezio Borchini, Attorney at Law WITNESSES AT HEARING ON APPEAL Appellant, his spouse, and Dr. Craig Bash ATTORNEY FOR THE BOARD B. R. Mullins, Associate Counsel INTRODUCTION The Veteran had active service from January 1955 to January 1958. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2000 rating decision of the Department of Veterans Affairs Regional Office (RO) in St. Petersburg, Florida, denying the claims currently on appeal. These claims were subsequently denied by the Board in an August 2008 decision. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). Pursuant to a Joint Motion for Remand, a September 2009 Order of the Court remanded the claims back to the Board for readjudication. In December 2007, the Veteran testified at a hearing at the RO in St. Petersburg, Florida before a Veterans Law Judge that is no longer with the Board. He was subsequently afforded a new hearing at the VA Central Office Washington, D.C. in September 2010 before the undersigned Veterans Law Judge. Written transcripts of both hearings have been prepared and incorporated into the evidence of record. The issue of entitlement to a total disability rating based on individual unemployability (TDIU) has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 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 contends that he is entitled to service connection for the residuals of spinal meningitis, a ventral hernia, to include as secondary to abdominal muscle weakening due to spinal meningitis, and rheumatoid arthritis of the feet, to include as secondary to spinal meningitis. However, additional evidentiary development is necessary before appellate review may proceed on these matters. The Veteran was afforded VA examinations for his claimed disabilities in April 2008. These examinations have been deemed insufficient for VA rating purposes, as the examiner possibly relied, in part, on the fact that there was no evidence of the claimed disabilities during active military service. However, the Veteran's service treatment records were lost in a fire at the National Personnel Records Center so it is unclear what evidence was relied on in reaching this conclusion. The only surviving record is a January 1958 transfer examination that notes all systems to be normal at the time of discharge. Therefore, the Veteran should be afforded the opportunity to appear for new VA examinations. The examiners must take into consideration the lay evidence provided by the Veteran, his wife, and his associates. Furthermore, the examiners should consider the private etiological opinions of record, including the August 2005 opinion of Dr. Roque and the January 2010 opinions (and September 2010 testimony) of Dr. Bash. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be scheduled for a VA examination(s) before an appropriate specialist(s) regarding his claim of entitlement to service connection for residuals of spinal meningitis. The Veteran's claims file and a copy of this remand must be provided to the examiner for review upon examination. The examiner is asked to offer an opinion as to whether it is at least as likely as not that the Veteran suffers from any chronic residuals of spinal meningitis, to include restless leg syndrome. The examiner should consider the lay evidence of record in support of the Veteran's claim, as well as the private medical opinions from Dr. Roque in August 2005 and Dr. Bash in January 2010. A complete rationale for any opinion offered must be provided. 2. The Veteran should also be scheduled for a VA examination(s) before an appropriate specialist(s) regarding his claim of entitlement to service connection for a ventral hernia. The Veteran's claims file and a copy of this remand must be provided to the examiner for review upon examination. The examiner is asked to opine as to whether it is at least as likely as not that the Veteran suffers from a ventral hernia that manifested during, or as a result of, active military service, or, that is secondary to spinal meningitis (assuming the Veteran is found to suffer from residuals of spinal meningitis). The examiner should consider the lay evidence of record in support of the Veteran's claim, as well as the private medical opinions from Dr. Roque in August 2005 and Dr. Bash in January 2010. A complete rationale for any opinion offered must be provided. 3. Finally, the Veteran should be scheduled for a VA examination(s) before an appropriate specialist(s) regarding his claim of entitlement to service connection for rheumatoid arthritis of the feet, bilaterally. The Veteran's claims file and a copy of this remand must be provided to the examiner for review upon examination. The examiner is asked to opine as to whether it is at least as likely as not that the Veteran's arthritis manifested during, or as a result of, active military service, or, that is secondary to spinal meningitis (assuming the Veteran is found to suffer from residuals of spinal meningitis). The examiner should consider the lay evidence of record in support of the Veteran's claim, as well as the private medical opinions from Dr. Roque in August 2005 and Dr. Bash in January 2010. A complete rationale for any opinion offered must be provided. 4. After completion of the above, the claims should be reviewed in light of any new evidence. If the claims are not granted, the Veteran and his representative should be furnished an appropriate supplemental statement of the case (SSOC) and be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. The Veteran 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. 2010). _________________________________________________ J. A. MARKEY 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) (2010).