Citation Nr: 1301110	
Decision Date: 01/10/13    Archive Date: 01/16/13

DOCKET NO.  10-40 365	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Denver, Colorado


THE ISSUE

Entitlement to service connection for residuals of aseptic meningitis/encephalitis other than paralysis of the left diaphragm (to include gastrointestinal, cardiac, low back, prostate, and sleep disabilities, a lung disease, and hypertension), to include as secondary to service-connected paralysis of the left diaphragm.


REPRESENTATION

Appellant represented by:	Colorado Division of Veterans Affairs


WITNESSES AT HEARING ON APPEAL

The Veteran, F.L., and R.H.




ATTORNEY FOR THE BOARD

B. Elwood, Associate Counsel


INTRODUCTION

The Veteran served on active duty from August 1965 to August 1967.

This matter initially came before the Board of Veterans' Appeals (Board) from a June 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado.  In that decision, the RO denied service connection for residuals of aseptic meningitis and encephalitis.

In a September 2011 statement (VA Form 21-4138), the Veteran requested a hearing before a Decision Review Officer (DRO) at the RO.  In September 2011, he withdrew his DRO hearing request and an informal hearing conference with a DRO was conducted at that time in lieu of a formal hearing.  A report of that conference has been associated with the Veteran's claims folder.

The Veteran testified before the Board at a February 2012 videoconference hearing.  A transcript of that hearing has been associated with his claims folder.

In March 2012, the Acting Chairman of the Board granted a motion to advance this appeal on its docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).

In April 2012, the Board remanded this matter for further development.

The Veteran's initial service connection claim referred to both meningitis and encephalitis and both the agency of original jurisdiction (AOJ) and the Board have previously characterized the issues on appeal as separately being entitlement to service connection for residuals of aseptic meningitis and entitlement to service connection for residuals of encephalitis.  As explained below, however, the evidence indicates that the Veteran was only treated for meningitis in service and he has acknowledged that his service connection claim is based on a single in-service disease (which the evidence reflects as being meningitis).  Thus, the Board has recharacterized the issue as a single claim of service connection for residuals of aseptic meningitis/encephalitis other than paralysis of the left diaphragm.

In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim.  The documents in this file have been reviewed and are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal.

The issue of service connection for residuals of aseptic meningitis/encephalitis other than paralysis of the left diaphragm, gastrointestinal and cardiac disabilities, and a lung disease (to include low back, prostate, and sleep disabilities and hypertension) is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1.  The Veteran's current gastrointestinal disability is the result of his service-connected paralysis of the left diaphragm.

2.  The Veteran's current lung disease is the result of his service-connected paralysis of the left diaphragm.

3.  The Veteran's current cardiac disability is the result of his service-connected paralysis of the left diaphragm.


CONCLUSIONS OF LAW

1.  The criteria for service connection for a gastrointestinal disability are met.  38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2012).

2.  The criteria for service connection for a lung disease are met.  38 U.S.C.A. §§ 1110, 5107(b); 38 C.F.R. §§ 3.303, 3.310.

3.  The criteria for service connection for a cardiac disability are met.  38 U.S.C.A. §§ 1110, 1111, 5107(b) (West 2002); 38 C.F.R. §§ 3.303, 3.304(b), 3.310 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veterans Claims Assistance Act of 2000 as amended (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).  

As the Board is granting the claim of service connection for residuals of aseptic meningitis/encephalitis other than paralysis of the left diaphragm (to include gastrointestinal and cardiac disabilities and a lung disease), the claim is substantiated, and there are no further VCAA duties at this time.  Wensch v. Principi, 15 Vet App 362, 367-68 (2001); see also 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance).

Analysis

Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.  Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303.

Service connection is also provided for a disability which is proximately due to, the result of, or aggravated by a service-connected disease or injury.  Allen v. Brown, 7 Vet. App. 439 (1995); 38 C.F.R. § 3.310.  VA, however, has amended 38 C.F.R. § 3.310 to clarify that it will not concede aggravation unless certain additional conditions are met.  38 C.F.R. § 3.310(b).  Because service connection is not being granted on the basis of aggravation by a service-connected disability, it is not necessary to determine which version of the regulation is applicable in this case.

Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology.  Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999).  Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology.  Savage, 10 Vet. App. at 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b).

In relevant part, 38 U.S.C.A. § 1154(a) (West 2002) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).

The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional."  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence").

"Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology."  Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991)).  Once evidence is determined to be competent, the Board must determine whether such evidence is also credible.  See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")).

Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).  

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

In this case, medical records reflect that the Veteran has been diagnosed as having various gastrointestinal and cardiac disabilities and lung diseases.  For example, a January 2012 letter from Eric Stevens, M.D, a February 2012 letter from Zenon L. Zecala, M.D., and a July 2012 VA examination report include diagnoses of malrotation of the upper intestinal tract, chronic and organoaxial nonobstructive volvulus with reflux, bloating, constipation, diarrhea, and hemorrhoids, aortic valve insufficiency with congestive heart failure, and restrictive lung disease with atelactasis.  Thus, current disabilities have been demonstrated.

Service treatment records reveal that the Veteran reported a history of rheumatic fever on a September 1964 report of medical history for purposes of entrance into service.  A veteran, however, will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated.  38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b).

The Veteran is competent to report a history of rheumatic fever prior to service.  See Jandreau, 492 F.3d at 1376-77; Buchanan, 451 F.3d at 1336.  A veteran's report of history, however, even when related by a medical professional, without an independent basis in the record, is insufficient to rebut the presumption of soundness.  Miller v. West, 11 Vet. App. 345 (1998).

There is no other evidence of any pre-existing problems due to rheumatic fever, including cardiac problems, and the Veteran's September 1964 entrance examination was normal other than for scars and vision problems.  Thus, the Board concludes that the evidence is not clear and unmistakable that any rheumatic fever related problems, including a cardiac disability, existed prior to service and the Veteran was therefore presumed sound.  38 U.S.C.A. § 1111.

Service treatment records also include July and August 1967 reports of treatment for headaches, chills, fever, photophobia, neck stiffness, lethargy, malaise, sore throat, and mild upper respiratory infection.  Diagnoses of aseptic meningitis were provided.  At the time of his August 1967 separation examination, the Veteran had completely recovered from aseptic meningitis and, if present, he was asymptomatic at the time.  

Although the Veteran claimed service connection for residuals of encephalitis, there is no evidence of any complaints of or treatment for encephalitis in the Veteran's service treatment records and various medical professionals have explained that he did not experience encephalitis in service.  Moreover, he acknowledged during the February 2012 hearing that his claim is based on the single in-service incident of treatment for meningitis described above.  He contends that his current gastrointestinal, lung, and cardiac problems are either directly related to his meningitis in service or are related to his now service-connected paralysis of the left diaphragm.

There are conflicting medical opinions as to the etiology of the Veteran's current gastrointestinal, lung, and cardiac problems.  The Board, therefore, must weigh the credibility and probative value of this evidence, 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, 29-40 (1994).

In a September 2010 letter, Dr. Zecala essentially opined that the Veteran's current gastrointestinal and cardiac disabilities and lung disease (diagnosed as a history of gastric vulvulus secondary to persistent organoaxial rotation of the stomach with functional gastrointestinal complications of bloating, constipation, diarrhea, and hemorrhoids; congestive heart failure with diastolic dysfunction; and restrictive lung disease) were caused by his now service-connected paralysis of the left diaphragm (identified as left phrenic nerve paralysis and an elevated left hemi-diaphragm).  He generally explained that the Veteran's elevated left hemi-diaphragm, which was caused by paralysis of the left phrenic nerve, caused his abdominal contents to be pushed up into the chest and encroach on the heart and left lung.  As a result, he experienced increasing shortness of breath on exertion and gastrointestinal symptomatology such as bloating, constipation, and occasional diarrhea and hemorrhoids.

Dr. Zecala further explained generally that even though there was no literature to support his conclusion that the Veteran's phrenic nerve paralysis and elevation of the left hemi-diaphragm affected his aortic valve and caused congestive heart failure, he believed that forty-five to fifty years of hydro-mechanical stress on an already assaulted rheumatic fever aortic valve caused severe aortic insufficiency.  Lowering the diaphragm to its normal position would improve the pulmonary function by decompressing the lung, would prevent frequent episodes of atelectasis and pneumonia, and would improve the hemodynamics of the heart by allowing it to migrate to its normal horizontal position and function more efficiently and by reducing the hydromechanical stress to the aortic valve.  In addition, it would lower the gastrointestinal contents to the abdomen and would significantly improve the Veteran's gastrointestinal symptoms.

With respect to the Veteran's aortic insufficiency and congestive heart failure, Dr. Zecala explained that although rheumatic fever can affect the aortic valve, it almost always causes fibrosis and stenosis of the valve, and the aortic valve disease is usually accompanied by mitral insufficiency.  The Veteran, however, seemed to have a more pure form of aortic insufficiency.  It was plausible that a diseased rheumatic fever valve could be stretched and made severely insufficient under a long-standing hydromechanical pressure caused by an opening of the angle between a vertical heart and the aorta.  It stood to reason that the Veteran's vertical heart position was caused by the contents of the abdomen pushing its way into the chest and displacing the heart to the right and opening the degrees in the angle between the heart and the aorta.  The consequence of this position would be to increase the hydromechanical force on the valve and, over time, deform it and produce aortic insufficiency and congestive heart failure.

As for the Veteran's restrictive lung disease, Dr. Zecala reasoned that it was caused by the elevation of the left hemi-diaphragm, scarring of the lung tissues, frequent atelactasis, and pneumonia.  Such symptoms resulted in the worsening of his shortness of breath and fatigue.  Also, with regard to the Veteran's gastrointestinal symptoms, the abnormal position of the left hemi-diaphragm caused a displacement of the intestines to an abnormal position which resulted in a crimping of the abdominal contents, organs, and vessels.  This created a condition which caused constipation, bloating, pain, discomfort, diarrhea, and hemorrhoids.

In his January 2012 letter, Dr. Stevens opined that the Veteran's paralyzed left diaphragm gave rise to multiple other problems, including restrictive lung disease, malrotation of the upper intestinal tract, and aortic insufficiency.  He reasoned that there was ample documentation in medical literature of complications of diaphragm paralysis, such as the gastrointestinal, lung, and cardiac problems experienced by the Veteran.

In his February 2012 letter, Dr. Zecala opined that the Veteran's paralysis of the hemidiaphragm caused eventration of the diaphragm, displacement of the heart, and abdominal pathology.  This opinion was based on a review of medical literature.

In a February 2012 letter, Peter C. Smith, M.D., essentially opined that the Veteran's service-connected paralysis of the left diaphragm caused his current cardiac disability.  Specifically, he reported that there were references in medical literature to a paralyzed hemidiaphragm causing eventration of abdominal contents into the chest cavity.  Thus, he opined that the eventration of abdominal contents into the Veteran's chest cavity caused his current cardiac disability.  He further explained that X-rays showed extensive amounts of bowel extending into the Veteran's left chest cavity and that the bowel was displacing the heart to the right.  This caused distortion and subsequent failure of the aortic valve.  Overall, it appeared that the Veteran's viral meningitis caused damage of the phrenic nerve, which thereby caused extensive eventration of his abdominal contents into the chest cavity.  Further, the eventration displaced the heart and caused aortic valve failure.

Moreover, Dr. Smith opined that the Veteran's service-connected paralysis of the left diaphragm caused chronic respiratory issues; however, no further explanation or reasoning for this opinion was provided.

The physician who conducted the July 2012 VA examination opined that the Veteran's current cardiac disability (identified as aortic valve insufficiency, status post bioprosthetic aortic valve replacement), was not the result of his phrenic nerve paralysis or elevated left diaphragm.  He reasoned that isolated aortic regurgitation from rheumatic fever without aortic stenosis was no more than 10 to 20 percent of rheumatic valve aortic valvular disease.  Surgery, however, had revealed that the Veteran had severe specific diffuse valve destruction.  This factor, combined with the fact that the Veteran had a history of prior rheumatic fever accompanied by a transient heart murmur, was pathognomonic of prior rheumatic carditis and valvulitis with acute rheumatic fever between the ages of 9 and 10 and aortic valve involvement following the natural progression of its course.  This cardiac problem was neither related to nor aggravated by any other conditions, including a left paralyzed diaphragm.  Moreover, both the Veteran's cardiovascular surgeon and his cardiologist diagnosed him as having a rheumatic aortic valve.

As for the Veteran's restrictive lung disease, the examiner essentially initially opined that the disease was, at least in part, caused by the service-connected paralysis of the left diaphragm.  Specifically, he opined that the 3 identified causes of the disease were a paralyzed left diaphragm, kyphoscoliosis, and possibly postpolio syndrome/post polio-like syndrome of West Nile sequelae.  The Veteran's restrictive pulmonary defect due to phrenic nerve paralysis was likely to be a slowly-changing or static condition, accounting for no more than an approximately 20 to 30 percent total decline in his vital capacity.  The diaphragmatic component of the restrictive lung disease included the residual of the goretex graft of the plication procedure and also likely an element of chronic atelectasis of the left lower lobe, which had been stable and documented on multiple chest images for several years.  Such residuals, however, had a negligible impact on his current symptoms or pulmonary function values.  

On the other hand, the Veteran's kyphoscoliosis and neuromuscular disease were both anticipated to be dynamic (as opposed to static), more rapidly progressive, and unaffected by the diaphragm plication procedure.  Thus, the portion of the restrictive pulmonary disease post-diaphragmatic plication was negligible based on the documented improvement in the Veteran's initial December 2011 pulmonary function tests which were done postoperatively.  The examiner concluded that the progression of the Veteran's current restrictive pulmonary disease was nearly entirely due to the nondiaphragmatic conditions of kyphoscoliosis, postpolio syndrome, and/or West Nile virus syndrome.

In apparent contradiction to the initial opinion that the Veteran's current lung disease was, at least in part, caused by his service-connected paralysis of the left diaphragm, the examiner proceeded to explain that a series of pulmonary function tests revealed a restrictive process and a fairly rapid, unstable, and progressive restrictive defect.  Thus, the restrictive defect was not likely (less likely as not) due to the paralyzed diaphragm.  Following his diaphragmatic plication, it was documented by a series of pulmonary function tests that this component of the Veteran's lung problems was surprisingly well improved when initially checked postoperatively, which would be expected to be an enduring stable improvement.  The documented loss of the postplication improvement in pulmonary function tests, however, was further evidence that the other underlying conditions that caused the Veteran's restrictive pulmonary disease were the predominant illnesses, remained active impairments, and likely ("more likely than not") accounted for his ongoing progressive disease.

Further, with respect to the Veteran's diagnosed gastrointestinal disability (identified as chronic organoaxial nonobstructive volvulus with residual of minimal reflux and bloating syndrome, hernia, recurrent acute alcoholic pancreatitis, chronic pancreatic atrophy, colonic polyps, and diverticula), the examiner opined that the chronic organoaxial nonobstructive volvulus with residual of minimal reflux and bloating syndrome was the result of the service-connected left diaphragmatic disability.  He explained that the predominant etiologies of chronic organoaxial nonobstructive volvulus were diaphragmatic defects (such as a paraesophageal hernia), diaphragmatic hernias, and/or eventration of the diaphragm.  The only such problem that was experienced by the Veteran was eventration of the diaphragm which was apparently related to poor fixation of the stomach due to laxity or absence of gastric ligaments.  The common gastrointestinal symptoms related to diaphragmatic paralysis, although discussed in pediatric literature with regard to congenital diaphragmatic disease, included gastrointestinal reflux and gaseous dyspepsia or a functional bloat syndrome.  The Veteran experienced these symptoms.  

Also, the symptoms and findings of heartburn and esophageal reflux/esophagitis were likely ("as likely as not") a result of the organoaxial volvulus.  The Veteran's major abdominal morbidities and hospitalizations, however, had all been related to his other diagnosed gastrointestinal disabilities, and any gastrointestinal symptoms related to the organoaxial volvulus (including heartburn and bloat) would be mild, nearly incidental, and most often controlled with medication like prilosec and dietary adjustments such as abstinence from alcohol and tobacco.  Thus, the nonobstructive volvulus was considered to be the result of his service-connected left diaphragmatic disability, although medical literature often reflected that this disability was often asymptomatic unless there was obstruction (which was not the case with regard to the Veteran).

The examiner further opined that the other diagnosed gastrointestinal disabilities (including hernia) were not likely ("less likely than not") a result of the Veteran's volvulus disability, service-connected diaphragmatic disability, or aseptic meningitis in service.  This opinion was based on the fact that intraabdominal pressures were known to vary widely with patient position, weight, and routine events of life such as coughing, bearing down during bowel movements, and heavy lifting.  Movement of a paralyzed diaphragm may passively move in the opposite direction of the normally innervated contralateral diaphragm, but there was no documentation that it generated higher pressures than those that occurred with normal physiology, meaning intraabdominal pressures within the peritoneal cavity.  Although intraluminal pressures do increase when there is gut obstruction, multiple studies and clinical examinations of the Veteran had not shown any evidence of such large bowel, small bowel, or gastric outlet obstructions.  Thus, there was no evidence that the midline ventral hernia or the left lower inguinal hernia were directly caused by abnormal movement of a floppy, paralyzed left diaphragm.  Also, as for the ventral midline hernia, the common finding of a laxity from weakness at the site of prior surgical interruption (known as an incisional hernia), was a common iatrogenic cause of such a condition.  This was unrelated to the Veteran's diaphragm.

Dr. Smith's February 2012 opinion pertaining to the Veteran's current lung disease is of minimal probative value because it is not accompanied by any specific explanation or reasoning.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed).

The July 2012 opinion concerning the Veteran's current lung disease is also entitled to limited probative weight because it is, at best, confusing and contradictory.  Although the examiner initially opined that the Veteran's restrictive lung disease was, at least in part, caused by the service-connected paralysis of the left diaphragm, he then reasoned that the restrictive defect was not likely due to the paralyzed diaphragm.

Dr. Zecala's September 2010 and February 2012 opinions, Dr. Smith's February 2012 opinion pertaining to the Veteran's cardiac disability, and the July 2012 opinions concerning the Veteran's gastrointestinal and cardiac disabilities are all accompanied by specific rationales that are not inconsistent with the evidence of record.  Therefore, these opinions are entitled to substantial probative weight.  See id.

At the very least, the evidence is in relative equipoise as to whether the Veteran's current gastrointestinal and cardiac disabilities and lung disease are the result of his service-connected paralysis of the left diaphragm.  Resolving all reasonable doubt in his favor, the Board concludes that the criteria for service connection for the currently diagnosed gastrointestinal and cardiac disabilities and lung disease have been met.  38 U.S.C.A. §§ 1110, 5107(b); 38 C.F.R. §§ 3.303, 3.310.


ORDER

Entitlement to service connection for a gastrointestinal disability is granted.

Entitlement to service connection for a lung disease is granted.

Entitlement to service connection for a cardiac disability is granted.


REMAND

Once the Secretary undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, he must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided.  Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).

The July 2012 VA examination report reflects that the Veteran has been diagnosed as having a current low back disability, namely kyphoscoliosis, status post bilevel and bilateral lumbar hemilaminectomies for lumbar disc disease.  The examiner who conducted the examination opined that this disability was not the result of the Veteran's left phrenic nerve paralysis, paralyzed left hemidiaphragm, or aseptic meningitis.  He reasoned that there was no supportive medical literature to suggest that phrenic nerve paralysis and diaphragmatic paralysis on the left could lead to kyphoscoliosis.  Also, excluding the 80 percent of kyphoscoliosis cases occurring idiopathically during childhood, among the remaining 20 percent of cases there were causes such as Paget disease, spinal fractures, and spinal tumors.  The Veteran did not experience any of these problems.  In the absence of any other recognized conditions for the acquired kyphoscoliosis, the disability was likely ("more likely than not") caused by his prior laminectomies resulting in ligamentous instability, in addition to the greater than 40 percent likelihood of the neuromuscular condition of postpolio syndrome involving the paraspinal muscles which caused asymmetric muscle weakness, or a post West Nile virus polio-like syndrome.

The July 2012 opinion is inadequate because it is limited to whether the Veteran's current low back disability was caused by his meningitis in service or his service-connected paralysis of the left diaphragm; however, service connection may also be granted for a disability that is aggravated by a service-connected disability and no opinion was provided as to any possible aggravation.  38 C.F.R. § 3.310.

Moreover, medical records reflect that the Veteran has been diagnosed as having other disabilities that may be attributed to his meningitis in service or his service-connected paralysis of the left diaphragm.  Such disabilities include prostate and sleep disabilities and hypertension.  The July 2012 examiner did not acknowledge or discuss such evidence and did not otherwise provide any opinions as to the etiology of any such disabilities.  An adequate medical opinion must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two.  See Nieves-Rodriguez,  22 Vet. App. at 304.
VA regulations provide that where an examination report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes.  38 C.F.R. § 4.2 (2012); see 38 C.F.R. § 19.9 (2012).  Where the Board makes a decision based on an examination report which does not contain sufficient detail, remand is required "for compliance with the duty to assist by conducting a thorough and contemporaneous medical examination."  Goss v. Brown, 9 Vet. App 109, 114 (1996); Stanton v. Brown, 5 Vet. App. 563, 569 (1993).

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  Expedited handling is requested.)

1.  Schedule the Veteran for a VA examination to determine the nature and etiology of any current residuals of meningitis/encephalitis other than paralysis of the left diaphragm, gastrointestinal and cardiac disabilities, and a lung disease.  All indicated tests and studies should be conducted.

The claims folder, including any relevant records contained in the Virtual VA system, must be sent to the examiner for review.

The examiner should answer all of the following questions:

(a)  Is it at least as likely as not (50 percent or greater probability) that the Veteran's current low back disability (any low back disability diagnosed since October 2009) had its onset in service, had its onset in the year immediately following service, is related to the Veteran's meningitis in service, or is otherwise the result of a disease or injury in service? 

(b)  Is it at least as likely as not (50 percent or greater probability) that the Veteran's current low back disability (any low back disability diagnosed since October 2009) was caused (in whole or in part) by his service-connected paralysis of the left diaphragm, gastrointestinal disability, cardiac disability, and/or lung disease?

(c)  Is it at least as likely as not (50 percent or greater probability) that the Veteran's current low back disability (any low back disability diagnosed since October 2009) was aggravated (made worse as shown by comparing the current disability to medical evidence created prior to any aggravation) by his service-connected paralysis of the left diaphragm, gastrointestinal disability, cardiac disability, and/or lung disease?

If the Veteran's current low back disability was aggravated by a service-connected disability, the examiner should also indicate the extent of such aggravation by identifying the baseline level of disability.  This may be ascertained by the medical evidence of record and also by the Veteran's statements as to the nature, severity, and frequency of his observable symptoms over time.

(d)  Is it at least as likely as not (50 percent or greater probability) that any current prostate disability (any prostate disability diagnosed since October 2009) had its onset in service, is related to the Veteran's meningitis in service, or is otherwise the result of a disease or injury in service? 

(e)  Is it at least as likely as not (50 percent or greater probability) that any current prostate disability (any prostate disability diagnosed since October 2009) was caused (in whole or in part) by the Veteran's service-connected paralysis of the left diaphragm, gastrointestinal disability, cardiac disability, and/or lung disease?

(f)  Is it at least as likely as not (50 percent or greater probability) that any current prostate disability (any prostate disability diagnosed since October 2009) was aggravated (made worse as shown by comparing the current disability to medical evidence created prior to any aggravation) by the Veteran's service-connected paralysis of the left diaphragm, gastrointestinal disability, cardiac disability, and/or lung disease?

If any current prostate disability was aggravated by a service-connected disability, the examiner should also indicate the extent of such aggravation by identifying the baseline level of disability.  This may be ascertained by the medical evidence of record and also by the Veteran's statements as to the nature, severity, and frequency of his observable symptoms over time.

(g)  Is it at least as likely as not (50 percent or greater probability) that any current sleep disability (any sleep disability diagnosed since October 2009) had its onset in service, is related to the Veteran's meningitis in service, or is otherwise the result of a disease or injury in service? 

(h)  Is it at least as likely as not (50 percent or greater probability) that any current sleep disability (any sleep disability diagnosed since October 2009) was caused (in whole or in part) by the Veteran's service-connected paralysis of the left diaphragm, gastrointestinal disability, cardiac disability, and/or lung disease?

(i)  Is it at least as likely as not (50 percent or greater probability) that any current sleep disability (any sleep disability diagnosed since October 2009) was aggravated (made worse as shown by comparing the current disability to medical evidence created prior to any aggravation) by the Veteran's service-connected paralysis of the left diaphragm, gastrointestinal disability, cardiac disability, and/or lung disease?

If any current sleep disability was aggravated by a service-connected disability, the examiner should also indicate the extent of such aggravation by identifying the baseline level of disability.  This may be ascertained by the medical evidence of record and also by the Veteran's statements as to the nature, severity, and frequency of his observable symptoms over time.

(j)  Is it at least as likely as not (50 percent or greater probability) that any current hypertension (any hypertension diagnosed since October 2009) had its onset in service, had its onset in the year immediately following service, is related to the Veteran's meningitis in service, or is otherwise the result of a disease or injury in service? 

(k)  Is it at least as likely as not (50 percent or greater probability) that any current hypertension (any hypertension diagnosed since October 2009) was caused (in whole or in part) by the Veteran's service-connected paralysis of the left diaphragm, gastrointestinal disability, cardiac disability, and/or lung disease?

(l)  Is it at least as likely as not (50 percent or greater probability) that any current hypertension (any hypertension diagnosed since October 2009) was aggravated (made worse as shown by comparing the current disability to medical evidence created prior to any aggravation) by the Veteran's service-connected paralysis of the left diaphragm, gastrointestinal disability, cardiac disability, and/or lung disease?

If any current hypertension was aggravated by a service-connected disability, the examiner should also indicate the extent of such aggravation by identifying the baseline level of disability.  This may be ascertained by the medical evidence of record and also by the Veteran's statements as to the nature, severity, and frequency of his observable symptoms over time.

In formulating the above opinions, the examiner must acknowledge and comment on any low back, prostate, sleep, and hypertension diagnoses provided since October 2009 and all previous opinions provided as to the etiology of the Veteran's disabilities.

The examiner must provide reasons for each opinion given.

If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what if any additional evidence would be necessary before an opinion could be rendered.

The absence of evidence of treatment for low back, prostate, sleep, or hypertension problems in the Veteran's service treatment records cannot, standing alone, serve as the basis for a negative opinion.

The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions.

If the examiner rejects the Veteran's reports, he or she must provide a reason for doing so.

2.  After conducting any additional indicated development readjudicate the issue on appeal.  If any benefit on appeal remains denied, the AOJ should issue a supplemental statement of the case.  Thereafter, the case should be returned to the Board, if in order.
 
The Veteran has the right to submit additional evidence and argument on the matter 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 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. 2012).



______________________________________________
JAMES L. MARCH
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs