Citation Nr: 1319508 Decision Date: 06/17/13 Archive Date: 06/27/13 DOCKET NO. 09-29 743 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for residuals of spinal meningitis. ATTORNEY FOR THE BOARD R. Casadei, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from September 1968 to June 1969. This matter comes on appeal before the Board of Veterans' Appeals (Board) from a December 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which, in pertinent part, denied the claim to reopen service connection for spinal meningitis. The RO initially denied service connection for spinal meningitis in a prior December 1970 rating decision. In a December 2010 decision, the Board affirmed the RO's denial of the application to reopen a service connection claim for spinal meningitis. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In a March 2012 memorandum decision, the Court vacated that part of the December 2010 Board decision that determined that new and material evidence had not been submitted sufficient to reopen a service connection claim for spinal meningitis, and remanded it for further proceedings consistent with the Court's decision. In a September 2012 remand, the Board found that the Veteran had not receive adequate notice of the December 1970 decision which denied service connection for spinal meningitis, and therefore, finality had not attached to that decision. The Board accordingly recharacterized the previous claim to reopen service connection for spinal meningitis, as a claim of entitlement to service connection. In September 2012 the Board remanded the issue on appeal for further evidentiary development, namely, the agency of original jurisdiction (AOJ) was requested to obtain outstanding in-service medical records and to obtain a VA examination. The Board notes that the Veteran submitted additional evidence in April 2013. The Veteran has not waived his right to initial consideration of this evidence by the agency of original jurisdiction AOJ. See 38 C.F.R. § 20.1304(c) (2012) (providing that any pertinent evidence accepted directly at the Board must be referred to the AOJ for initial review unless this procedural right is waived by the appellant). As the claim must be remanded for further development, the AOJ will have an opportunity to consider this additional evidence in the first instance. The claim for service connection for residuals of spinal meningitis is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. REMAND The Veteran essentially contends that his in-service episode of spinal meningitis resulted in damage to his frontal lobes, which in turn, resulted in emotional disorders and a chronic problem with episodes of rage. See statement by Veteran dated April 2013 and August 2009. The Board notes that the Veteran is currently rated as 70 percent disabled for service-connected bipolar disorder. Pursuant to the September 2012 Board remand, the Veteran was to undergo a VA examination to determine (1) whether spinal meningitis was incurred during service; (2) if spinal meningitis was incurred in service, all current diagnosis related to spinal meningitis were to be identified; and (3) an opinion was to be given as to the etiology of any currently diagnosed disability. The Veteran underwent a VA examination in September 2012. The VA examiner stated that a review of the Veteran's claims file and military records revealed no clinical mention or notation of the Veteran having had or been treated for meningitis. Accordingly, the VA examiner opined that spinal meningitis was less likely than not incurred in or caused by service. Records added to the claims file subsequent to the September 2012 VA examination included in-service treatment records from the Martin Army Hospital in Fort Benning, Georgia, which clearly demonstrated that the Veteran was hospitalized and treated for meningitis in February 1969, within the Veteran's active service period. Accordingly, the RO requested an addendum opinion in order to consider the newly obtained in-service medical evidence. In the February 2013 VA addendum opinion, the VA examiner noted that newly obtained records indicated that the Veteran was hospitalized from February 1969 to April 1969 and was diagnosed with meningitis due to neisseria meningitides group C. The VA examiner noted that the Veteran was treated and cured and was discharged to duty with a temporary U3 profile. The Board finds that the September 2012 VA examination report and February 2013 addendum opinion are not responsive to the September 2012 remand request and the Board finds that an additional opinion is needed. Stegall v. West, 11 Vet. App. 268, 271 (1998) (a remand by the Board confers on the Veteran, as a matter of law, a right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand). In determining that the 2012 VA examination report and February 2013 addendum opinion are inadequate, the Board observes that the VA examiner appears to have concluded that spinal meningitis was incurred during service. That notwithstanding, the VA examiner did not identify any current diagnoses, if any, manifested by the Veteran's in-service spinal meningitis or residuals thereof, including the Veteran's August 2009 assertions of damage to his frontal lobes which allegedly has resulted in emotional disorders and chronic problems with rage. See also Veteran's April 2013 statement. Additionally, the most recent VA treatment records in the claims file are dated June 2008. On remand, the RO should also obtain any updated VA treatment records. See 38 U.S.C.A. § 5103A(b); 38 C.F.R. § 3.159(c)(2); see also Bell v. Derwinski, 2 Vet. App. 611 (1992); VAOPGCPREC 12-95, 60 Fed. Reg. 43186 (1995) ("...an [agency of original jurisdiction's] failure to consider records which were in VA's possession at the time of the decision, although not actually in the record before the AOJ, may constitute clear and unmistakable error.") Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should obtain any outstanding VA treatment records dated after June 2008 from the Dallas, Texas, VA Medical Center, and should associate them with the claims file. If the search for such records has negative results, the RO/AMC should notify the Veteran and place a statement to that effect in the Veteran's claims file. 2. Thereafter, the RO/AMC should request an addendum opinion from the VA examiner who conducted September 2012 examination and rendered the February 2013 addendum opinion, if available. If that examiner is no longer available, a suitable substitute should be located. The claims folder must be made available to the examiner for review. The examiner should review the entire claims file, to include the Veteran's lay statements. All tests and studies deemed necessary should be accomplished and clinical findings should be reported in detail. The VA examiner should render an opinion as to the following: A) Identify any current diagnoses manifested by the Veteran pertaining to the in-service spinal meningitis, or residuals thereof; including, but not limited to, contentions of frontal lobe damage resulting in emotional disorders and chronic problems with rage. See Veteran's April 2013 and August 2009 statement. B) For each identified diagnosis, is it at least as likely as not that such disability is related to the spinal meningitis diagnosed in service? The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The VA examiner should provide a clear rationale for his or her opinion with references to the evidence of record and must provide a discussion of the facts and medical principles involved. 3. When the development requested has been completed, the RO/AMC should readjudicate the appeal in light of any additional evidence added to the claims file. If the benefits sought are not granted, the Veteran should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further 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. 2012). _________________________________________________ THOMAS D. JONES Acting 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) (2012).