Citation Nr: 1312458 Decision Date: 04/15/13 Archive Date: 05/02/13 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 an abdominal disability, to include diastasis recti and ventral hernia, to include as secondary to the residuals of spinal meningitis. 3. Entitlement to service connection for a bilateral foot disability, to include rheumatoid arthritis of the feet bilaterally, to include as secondary to the residuals of spinal meningitis. REPRESENTATION Appellant represented by: Ezio E. Borchini, Attorney and Representative WITNESSES AT HEARING ON APPEAL The Veteran, his spouse, and Dr. Craig Bash ATTORNEY FOR THE BOARD M. Harrigan Smith, 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. The RO readjudicated these claims after the Veterans Claims Assistance Act of 2000 (VCAA) was passed, and again denied the claims in a January 2002 rating decision. The 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 (TB hearing). He was subsequently afforded a new hearing at the VA Central Office Washington, D.C. in September 2010 before the undersigned Veterans Law Judge (CO hearing). 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). The Board remanded this case in October 2010 for additional development; it is again before the Board for further appellate review. The Court held that a claimant's identification of the benefit sought does not require any technical precision. See Ingram v. Nicholson, 21 Vet. App. 232, 256-57 (2007) ("It is the pro se claimant who knows that symtoms he is experiencing and that are causing him disability...[and] it is the Secretary who know the provisions of title 38 and can evaluate whether there is a potential under the law to compensate an averred disability based on a sympathetic reading of the material in a pro se submission.") A claimant may satisfy this requirement by referring to a body part or system that is disabled or by describing symtoms of the disability. Brokowski v. Shinseki, 23 Vet. App. 79, 86-87 2009); see also Clemons v. Shinseki, 23 Vet. App. 1, 5 2009) (to the effect that, when determining the scope of a claim, the Board must consider "the claimant description of the claim; the symtoms the claimant describes; and the information the claimant submits or that the Secretary obtains in support of that claim"); Robinson v. Nicholson, 21 Vet. App. 545, 552 (2008) (to the effect that the Board is required to consider all issues raised either by the claimant or the evidence of record); 38 C.F.R. § 3.159(c) (2012). The Veteran has filed claims for entitlement to service connection for ventral hernia and for rheumatoid arthritis of his feet. However, as the record reflects that he has also been disagnosed with diastatis recti and hammertoes in both feet, his claims have been recharacterizes on the title page of this decision. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issue of a bilateral foot disability, to include rheumatoid arthritis of the feet bilaterally, as secondary to the residuals of spinal meningitis 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. FINDING OF FACT The Veteran's diastasis recti had its onset during active duty. CONCLUSION OF LAW The criteria establishing service connection for diastasis recti have been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012) redefined VA's duty to assist a Veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The VCAA is not applicable where further assistance would not aid the appellant in substantiating his claim. Wensch v. Principi, 15 Vet App 362 (2001); see 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"); see also VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (holding that 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). In view of the Board's decision, which constitutes a full grant of the benefit sought on appeal, further assistance is unnecessary to aid the Veteran in substantiating his claim. Service Connection - Laws and Regulations Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. A current disability must be present for a valid service connection claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999) (complaints of pain alone do not meet the current disability threshold); Evans v. West, 12 Vet. App. 22, 31-32 (1998). More recently, the Court has held that the current disability requirement is satisfied when a claimant has a disability at the time of filing the claim or during the pendency of that claim, even if the disability has since resolved. McLain v. Nicholson, 21 Vet. App. 319 (2007). 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"). 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 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Service connection - ventral hernia, to include as secondary to the residuals of spinal meningitis The Veteran has claimed that he had a ventral hernia that was incurred on active duty. At his hearings, the Veteran has contended that he felt a pop in his abdomen while doing sit-ups in service, and that, subsequently, every time he bent over or sat up, his whole stomach would "come up, about the size of a football." He testified that he began to seek treatment shortly after service, but that doctors had told him that surgery would be essentially ineffective. The Veteran's service treatment records are presumed to have been destroyed in the 1973 fire at the National Personnel Records Center. The Veteran was notified of this in an October 2000 letter. Destruction of service treatment records does not create a heightened benefit of the doubt, but only a heightened duty on the part of VA to consider the applicability of the benefit of the doubt, to assist the claimant in developing the claim, and to explain its decision. Cromer v. Nicholson, 19 Vet App 215 (2005); Russo v. Brown, 9 Vet. App. 46, 51 (1996). A separation examination is part of the record of evidence; however, the Veteran has consistently stated that he did not have an examination when he left service in January 1958. See March 2000 notice of disagreement, December 2007 TB hearing testimony, letter from Veteran dated in June 2008, September 2010 CO hearing testimony. In a statement from the Veteran's private attorney dated in September 2010, the Veteran specifically noted that the examination on file was the wrong height and weight, and did not show the dental work he received while on active duty. In addition, he submitted letters from two fellow soldiers who were discharged at the same time who also contend that they did not have separation examinations. Private medical records show that the Veteran was diagnosed with diastasis recti, with weakness in abdominal wall muscles and no hernia, in April 1991. There are several conflicting medical opinions in the claims file. In this regard, the Board must assess the credibility and probative value of evidence, and, provided that it offers an adequate statement of reasons or bases, the Board may favor one medical opinion over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wood v. Derwinski, 1 Vet. App. 190 (1991). In an August 2005 statement, the Veteran's private physician, R.R., M.D., opined that the Veteran had a ventral hernia which was more likely than not related to the strain of physical training and straining the abdominal muscles in service. However, while in the Veteran's favor, this opinion does not include a rationale and, as such, is not probative as to whether the Veteran's disability was related to service. The Court has found that a medical opinion must support its conclusions with analysis. Stefl v. Nicholson, 21 Vet.App. 120, 124 (2007). "Neither a VA medical examination report nor a private medical opinion is entitled to any weight in a service-connection or rating context if it contains only data and conclusions [without reasoning or rationale]." Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 304 (2008). The Veteran was provided with a VA examination in April 2008. The examiner found that the Veteran had a ventral hernia that was less likely as not caused by or a result of his active service. The examiner noted that, based on medical record review and his clinical experience, there was no evidenc to support a ventral hernia condition after discharge. He noted that the Veteran's service treatment records were not available, and that there was no way to objectively determine if he had a problem in this region during active duty. As this examiner relied, at least in part, on the absence of service treatment records to support his opinion that the Veteran's ventral hernia was not related to service, this opinion does not have any probative value in this instance. A January 2010 opinion from a private physician, C.N.B., M.D. reflects his opinion that the Veteran's ventral hernia was incurred during his active duty service. He found that his hernia was most likely due to his abdominal weakness secondary to his spinal meningitis, as his records did not contain a more likely etiology. This private physician also testified as to his opinion at the Veteran's CO hearing in September 2010. While this opinon did not provide a thorough analysis, it tends to support the Veteran's claim. Upon VA examination in May 2011, the Veteran was found to have diastasis recti. The examiner opined that the Veteran's diastatis recti was not secondary to his in-service spinal meningitis, as a review of the current medical literature was silent for meningitis as a common cause for diastasis recti. Additionally, the examiner noted that diastasis recti was not a hernia, but was often confused with and misdiagnosed as an epigastric hernia. He noted that these abdominal wall protrusions occur due to a widened band of non-contractile fascia or tendon normally present between the rectus muscles. When an individual with diastasis recti strains, as is the case when doing a sit-up, an elongated bulge in the upper abdomen will appear, likened to a football in shape. In a Febuary 2012 addendum, the examiner found that, without the Veteran's service treatment records, it was clearly impossible to establish whether or not the Veteran;s diastasis recti manifested or was a result of service without resort to mere speculation. The examiner noted that, in men, the most common causes of diastasis recti included a history of vigorous straining exercises such as sit-ups or weightlifting. With regard to whether the Veteran's diastasis recti is related to his spinal meningitis, the examiner noted that, while a history of meningitis as an etiology to diastasis recti was with the realm of medical possibility, it failed to meet the more likely as not standard, in his opinion. With regard to whether the Veteran's diastasis recti was a direct manifestation of his active duty, the examiner noted the existence of the January 1958 separation examination, and that this record was silent for any mention of diastasis recti. In addition, the examiner noted that there was no lay evidence to support the Veteran's claim that diastasis recti had its onset in service. therefore, the examiner conlsuded that the Veteran's diastasis recti was lessl likely than not directly related to his active duty service. In providing his opinion, this VA examiner relied, in part, on the results of the January 1958 VA examination, ostensibly showing that the Veteran did not have an abdominal disability when he left service; however, the Veteran has provided consistent, credible statements and sworn testimony that he did not undergo a separation examination when he was discharged from active duty. As such, the Board finds that reliance on this examination report is not warranted. In addition, this examiner based his negative opinion on his obseravation that there was a lack of lay evidence relating his current abdominal disability to service. However, at his hearings, the Veteran testified that, while on active duty, he stomach would bulge in the shape of a football when he sat up. As the examiner did not consider this testimony, his opinion with regard to the etiology of the Veteran's diastatis recti is not of probative value. The Board finds that, based on the competent, credible evidence of record, service connection for diastasis recti is warranted. The medical evidence of record has shown that diastasis recti can be the result of extensive straining exercises such as sit-ups, and that it would manifest by the abdomen rising in the shape of a football when straining, such as when sitting up. The Veteran has testified that, while in service, that he felt a pop when doing sit-ups and that, subsequently, his stomach would rise in the shape of a football when he sat up. The Veteran is competent to report what he can observe and feel through the senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994). In addition, as there is no competent, credible evidence to contradict his statement, the Board finds that it is credible. As the Veteran has provided credible lay statements of his in-service symptoms that have been related to a diagnosis of diastatis recti by medical evidence, the Board finds that service connection is for diastatis recti warranted. ORDER Service connection for an abdominal disability, diagnosed as diastasis recti, subject to the laws and regulations governing the payment of monetary benefits. REMAND At his CO hearing and his May 2011 VA examination, the Veteran contended that, while on active he was forced to wear ill-fitting boots for three years, causing him pain and discomfort. He claimed that he currently has a bilateral foot disorder due to extensive marching in these boots. The Veteran was afforded a VA examination in May 2011, to determine whether he had rheumatoid arthritis of the feet that was related to a claimed in-service bout of spinal meningitis. The examiner did not find that the Veteran had a diagnosis of rheumatoid arthritis of the feet, but did diagnose bilateral hammertoes. However, as the Veteran had not claimed entitlement to service connection for bilateral hammertoes, the examiner did not offer a nexus opinion as to whether this bilateral foot disability was as likely as not related to service, specifically to wearing ill-fitting boots during extensive activity. The Board notes that it is well established that when VA adjudicates a claim, it must consider all theories of entitlement to a benefit raised by the claimant or reasonably raised by the record. See Robinson v. Peake, 21 F.3d. 545, 553 (Fed. Cir. 2008) (explaining that the Board need not consider all possible theories of entitlement in order to render a valid opinion and errs only when it fails to address a theory of entitlement raised by the claimant or reasonably raised by the record). As such, on remand, the Veteran's claims file should be returned to the VA examiner who performed the May 2011 examination in order to obtain a medical opinion as to whether his bilateral hammertoes are related to service. The examiner should be informed that, based on the Veteran's statements noted above, his separation examination report, dated in January 1958, should not be considered in rendering his opinion. With regard to the Veteran's claim for entitlement to residuals of spinal meningitis, the Veteran was provided with a VA examination in May 2011. The examiner provided an opinion as to whether the Veteran's restless leg syndrome was related to spinal meninigitis, but concluded that an opnion as to whether the Veteran had any other residuals of spinal meningitis was past his expertise. He advised that the Veteran should be evaluated by a neurologist or neuropschiatrist for this opinion. The claims file contains an opinion from a VA neurologist provided in April 2012. However, this examiner did not examine the Veteran, but merely reviewed the records, contradicting the advice of the May 2011 examiner. In addition, the opinion only considered whether the Veteran's restless leg syndrome was related to service, and did not address the question of whether the Veteran had any other disabilities related to spinal meningitis. As such, further examination is necessary. Finally, the examiner who provided the May 2011 examination also completed a January 2013 Disability Benefits Questionnaire (DBQ). The examiner opined that, based on statements in the record from the Veteran, his wife and friends, it was more likely than not that the Veteran had viral meningitis, which would almost certainly not have resulted in any expected residual complications; however, other than citing to the lay statements in the record, the examiner did not provide any rationale for his opinion that the Veteran had viral spinal meningitis. This examiner also partially relied on the separation examination in the claims file dated in September 1958; however, the Veteran has provided credible statements that he was not provided with a separation examination. As such, in rendering a further opinion, this examination report should not be taken into consideration with the evidence of record. 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. The Veteran's claims file should be provided to the May 2011 VA examiner who examined the Veteran's feet to determine the etiology of bilateral hammertoes. If further examination or testing is needed, this should be undertaken. The claims folder, including this remand, must be sent to the examiner for review; consideration of such should be reflected in the completed examination report or in an addendum. The examiner should opine as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's bilateral hammertoes were caused by or are etiologically related to any incident of active duty, to include wearing tight, ill-fitting boots during training exercises. A January 1958 separation examination is part of the record; however, the Veteran has provided credible evidence that he did not in fact undergo an examination at the time of discharge. As such, this examination report should not be considered evidence against his claim. The examiner must provide reasons for each opinion. 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 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, the examiner should provide a reason for doing so. 2. The Veteran's claims file should be provided to the May 2011 VA examiner who examined to provide the following clarification for his opinions in the May 2011 examination report and the January 2013 DBQ. If further examination or testing is needed, this should be undertaken. The examiner should provide a detailed rationale for his opinion that based on statements in the record from the Veteran, his wife and friends, it was more likely than not that the Veteran had viral meningitis, which would almost certainly not have resulted in any expected residual complications. In addition, the examiner should be informed that the January 1958 separation examination, which is part of the record should not be considered evidence against his claim, and asked to opine as to whether this would change his opinion regarding whether it is at least as likely as not (50 percent probability or more) that the Veteran's restless leg syndrome is related to service, to include his in-service spinal meningitis. 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. 3. Schedule the Veteran for a VA examination by a neurologist or neuropschiatrist to determine whether the Veteran has any current residuals of in-service spinal meningitis. All indicated tests and studies should be conducted. The claims folder, including this remand, must be sent to the examiner for review; consideration of such should be reflected in the completed examination report or in an addendum. The examiner should opine as to whether it is at least as likely as not (50 percent probability or more) that the Veteran has any current residuals of an in-service bout of spinal meningitis. A January 1958 separation examination is part of the record; however, the Veteran has provided credible evidence that he did not in fact undergo an examination at the time of discharge. As such, this examination report should not be considered evidence against his claim. The examiner must provide reasons for each opinion. 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 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, the examiner should provide a reason for doing so. 4. 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 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. 2012). ______________________________________________ J.A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs