Citation Nr: 1331287 Decision Date: 09/27/13 Archive Date: 10/01/13 DOCKET NO. 11-00 916 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for a back disability, to include as secondary to service-connected status post spinal meningitis. 2. Entitlement to an initial evaluation in excess of 10 percent for status post meningitis. REPRESENTATION Appellant represented by: Robert C. Brown, Attorney-at-Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. S. Kelly, Counsel INTRODUCTION The Veteran served on active duty from November 1952 to October 1954. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office in Muskogee, Oklahoma (RO) which, in pertinent part, granted service connection for status post spinal meningitis and assigned a 10 percent evaluation effective October 8, 2008, and denied service connection for a back condition (claimed as spinal meningitis to include back problems). The Veteran testified at a video conference hearing before the undersigned Veterans Law Judge in December 2011; the hearing transcript has been associated with the claims file. In February 2012, the Board remanded this matter for further development, to include obtaining an additional VA examination. The requested VA examination was performed in July 2012. In March 2013, the Board requested a VHA opinion on the issue of entitlement to service connection for a low back disorder, to include as secondary to the service-connected status post spinal meningitis. The required actions have been complied with and the matter is now ready for appellate review. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting the Board's duty to "insure [the RO's] compliance" with the terms of its remand orders). 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). FINDINGS OF FACT 1. Any current low back disorder is not of service origin, arthritis did not manifest to a degree of 10 percent within a year of service separation, and any current back disorder, is not etiologically related to the service-connected spinal meningitis, to include by way of aggravation. 2. The Veteran's residuals of spinal meningitis are non-existent to minimal in nature. CONCLUSIONS OF LAW 1. The criteria for service connection for a back disability are not met. 38 U.S.C.A. §§ 1101, 1110 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.306, 3.307, 3.309, 3.310 (2013). 2. The criteria for a rating in excess of 10 percent for status post residuals of spinal meningitis have not been met at any time. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8019 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (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) (2013). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) and that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). For claims pending before VA on or after May 30, 2008, 38 C.F.R. § 3.159 has been amended to eliminate the requirement that VA request that a claimant submit any evidence in his or her possession that might substantiate the claim. 73 Fed. Reg. 23,353 (Apr. 30, 2008). The Court has also held that that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). With regard to status post residuals of spinal meningitis, as the Veteran's appeal arises from disagreement with the initial rating following the grant of service connection no additional notice is required. The United States Court of Appeals for Veterans Claims (Court) and the United States Court of Appeals for the Federal Circuit (Federal Circuit) have held that, once service connection is granted, the claim is substantiated, additional notice is not required, and any defect in notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); 38 C.F.R. § 3.159(b)(3)(i) (no duty to provide VCAA notice upon receipt of a notice of disagreement); VAOPGCPREC 8-2003 (in which the VA General Counsel interpreted that separate notification is not required for "downstream" issues following a service connection grant, such as initial rating and effective date). As it relates to the claim of service connection for a back disability, to include as secondary to service-connected spinal meningitis, that in an October 2009 letter, the RO provided the Veteran with notice that informed him of the evidence needed to substantiate his claim. The letter also told him what evidence he was responsible for obtaining and what evidence VA would undertake to obtain. The letter further told him to submit relevant evidence in his possession. The October 2009 letter also provided the Veteran with notice as to the disability rating and effective date elements of the claim. As to all issues, the Board finds that there has been substantial compliance with the assistance provisions set forth in the law and regulations. The record in this case includes service treatment records, VA treatment records, private treatment records and opinions, VA examination and VHA reports, and lay evidence, to include hearing testimony. No additional pertinent evidence has been identified by the claimant. As it relates to the claim for a higher evaluation for residuals of spinal meningitis, the Veteran was afforded VA examinations in May 2010 and July 2012. Information obtained from these examinations is sufficient in order to properly rate the Veteran's claim. As to the issue of service connection for a back disorder, the Veteran was afforded several VA examinations, to include one in compliance with the February 2012 Board remand, a VHA opinion was obtained with regard to the etiology of the Veteran's back disorder and its relationship to his service, to include his service-connected spinal meningitis residuals. The opinions obtained in conjunction with the examinations, to include the most recent VHA examination, are sufficient and provide detailed rationale in order to properly address the Veteran's claim. As such, the Board finds that additional VA examinations are not warranted as there is otherwise sufficient competent medical evidence of record to make a decision on the claims. 38 U.S.C.A. § 5103A(d) and 38 C.F.R. § 3.159(c)(4) . The Veteran also appeared at a videoconference hearing before the undersigned Veterans Law Judge in a local hearing officer in December 2011. In Bryant v. Shinseki, the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the RO Decision Review Officer (DRO) or Veterans Law Judge (VLJ) who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issue and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the VLJ noted the issues on appeal and informed the Veteran and his attorney what was needed for service connection for a back disorder and a higher evaluation for residuals of the spinal meningitis. In addition, the VLJ sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claim including asking about symptoms and asking for all possible treatment records and inquiring as to where the Veteran was receiving current treatment. Moreover, neither the Veteran nor his attorney has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) nor has identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claim and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim for benefits. In addition, the Veteran was represented by an attorney. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) , or if there was error, it was harmless due to the Veteran's actual knowledge of what was needed, and that the Board can adjudicate the claim based on the current record. The Veteran has been afforded a meaningful opportunity to participate effectively in the processing of the claim, including by submission of statements and arguments presented by his attorney. As noted above, he also appeared at a hearing in December 2011. For these reasons, it is not prejudicial to the appellant for the Board to proceed to finally decide the appeal. Based upon the foregoing, the duties to notify and assist the Veteran have been met, and no further action is necessary to assist the Veteran in substantiating this claim. Service Connection for a Back Disability, to Include as Secondary to Service-Connected Status Post Spinal Meningitis Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). The Veteran has claimed a low back disorder and the Veteran has been diagnosed with degenerative spine disease and the July 2012 VA examination report indicated that there is a diagnosis of arthritis of the thoracolumbar spine. Arthritis is a "chronic disease" listed under 38 C.F.R. § 3.309(a). Therefore, 38 C.F.R. § 3.303(b) applies in this case. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. For the showing of "chronic" disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases, such as arthritis, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. Service connection may also be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439, at 448 (1995) (holding that service connection on a secondary basis requires evidence sufficient to show that the current disability was caused or aggravated by a service-connected disability). To establish secondary service connection, the law states that there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between a service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). The Veteran has presented various theories of entitlement in relation to his claimed back disability. In his October 2009 claim, the Veteran stated that he contracted spinal meningitis in December 1952. He indicated that the residual effects of spinal meningitis had caused severe back problems since that time. During a December 2011 videoconference hearing, the Veteran reported that his back problems began in service. The Veteran has also indicated that his current back disability may be due to lumbar punctures, or spinal taps, performed in service, noting the presence of scar tissue in the spine as well as the presence of a spinal needle on X-ray. The Veteran has also stated that his treating physicians have told him that his back problems are a result of a narrowing of the area around his spinal cord due to scar tissue that built up in the affected area. Service treatment records reveal that the Veteran was diagnosed as having cerebrospinal meningitis in December 1952. The Veteran was feeling well until December 13, 1952, when he developed a slight sore throat that was followed by headache which gradually became more intense with a stiff neck and chills and fever. Physical examination revealed a spasm of the paravertebral muscles of the back at the time of hospitalization. The Veteran remained hospitalized until January 12, 1953. The Veteran was again hospitalized on January 24, 1953, when he developed weakness followed by a sore throat, dry cough, and general pains in the trunk and extremities. He was noted to have received immunizations on January 26, after which he developed a rash. The Veteran remained hospitalized until February 27, 1953, at which time he was discharged and his signs and symptoms were noted to be resolved. At the time of the Veteran's October 1954 service separation examination, normal findings were reported for the spine and lower extremities. The Veteran has undergone multiple back surgeries, including in 1959, 1974, and 2004. The Veteran has also been diagnosed with epidural fibrosis and a December 2004 x-ray report included a notation that a spinal needle was identified at the L2 level. In conjunction with his claim, the Veteran was afforded a VA examination in May 2005. The examiner found that the Veteran had no residuals of spinal meningitis. Diagnoses of lumbar intervertebral disc syndrome and thoracolumbar intervertebral disc syndrome were rendered at that time. Although the examiner noted the Veteran's reported history of back pain since 1953, there was no opinion provided with regard to the etiology of any diagnosed back disorder. Treatment records associated with the claims folder following the May 2005 VA examination include private treatment records reflecting a history of treatment for lumbar spondylosis, congenital and acquired degenerative stenosis, and degenerative spondylolisthesis. Private treatment records also note a history of multiple back surgeries with peroneal fibrosis, to include surgeries in performed 1959, 1974, and 2004. The Veteran has also reported continuous symptomatology and treatment since service. In February 2012, the Board remanded this matter for further development, to include a VA examination to determine the etiology of any current low back disorder. The requested examination was performed in July 2012. The examiner, following examination of the Veteran and review of the claims folder, indicated that the Veteran's current low back disorder was less likely as not related to his period of service. The examiner noted that the Veteran stated he had lower back pain in the service at the time he had his meningitis. After the meningitis resolved, his lower back pain resolved. The examiner stated that the Veteran did not have back pain on a chronic basis until 1955, after he left active duty, and this correlated with the information in the medical records from his current treating physicians. Therefore, there was no evidence from the history reported by the Veteran at the time of the examination, or from the medical records available to indicate that the lower back pain was incurred in service or that he developed a chronic condition or continuity of back symptoms in the service. The examiner also stated that the Veteran's low back condition was less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service-connected spinal meningitis residuals. The examiner noted that the Veteran contended that his current back problems were a result of spinal taps performed in service which had resulted in a build-up of scar tissue in the spinal column. The examiner indicated that meningitis was an infection usually caused by a bacterial or viral organism which resulted in inflammation of the meninges. The meninges were protective layers of tissue that covered the spinal cord and brain. She stated that although meningitis could cause permanent neurological damage to the central nervous system, in the case of the Veteran, there was no evidence that this occurred. She indicated that meningitis did not affect the spine, as it was an infection of the meninges only, and therefore did not cause spine disease, such as degenerative disc disease or arthritis of the spine. The examiner also opined that repeated spinal taps were unlikely to cause significant scar tissue, but if this did occur, the scar tissue would be superficial to the spine and would not affect the spine. She noted that the "scar tissue" that the Veteran's physicians referred to when explaining the condition to the Veteran was undoubtedly that due from prior surgeries. She stated that the Veteran's medical records revealed that his condition was due to a congenital stenosis of the spine as well as acquired (degenerative) spine disease. She noted that neither spinal taps nor meningitis resulted in congenital or degenerative spine disease. The examiner further indicated that meningitis did not cause or aggravate degenerative disc disease of the lumbar spine. She reported that meningitis was a one-time infection that resolved before the Veteran developed chronic lower back pain. She stated that it no way continued to be symptomatic or resulted in ongoing damage or pathology affecting the spine. She further noted that the spinal needle that was reported on a 2004 imaging study was present purposefully. The imaging study was performed during a procedure, at which time the X-ray was being used to demonstrate the anatomy for purposes of the procedure involving the use of the needle. Subsequent to the July 2012 VA examination, the Veteran, through his attorney, submitted an opinion in support of the Veteran's claim. In a December 2012 report, J. E., M.D., noted that the Veteran served honorably in the United States Army from November 1952 to October 1954. He observed that in December 1952, while on active duty, the Veteran developed meningococcal meningitis and was hospitalized at the Camp Breckenridge, Kentucky, Army Base. He was noted to have had several lumbar punctures done and to have been treated with high dose antibiotics. He recovered from the meningitis; however, he had persistent low back pain from the meningitis and the multiple lumbar punctures. He was noted to have subsequently gone to Germany and to have served as an interrogator. While there, his low back pain persisted until discharge. Dr. E. noted that the first surgery of the spine took place in 1959 with subsequent surgery within two weeks. The Veteran had a third surgery in 1976 and a fourth in 2004. Dr. E. further reported that he had reviewed the December 2004 spinal X-ray and determined that it was an intraoperative lateral view of the lumbar spine, which would indicate that the image was obtained during the operation and it was used as a marker to mark the L2 level rather than a needle that was left in the Veteran after the surgery was completed. As to causal relationship and connectedness to military service, Dr. E. noted that the Veteran developed meningococcal meningitis in December 1952 and that several lumbar punctures caused a significant amount of scar tissue in and around the spinal canal. He observed that the Veteran had subsequent back surgery and it was noted at that time that he had significant epidural fibrosis, which was "extremely scarred" in the lumbar spine region. Dr. E. stated that the scar tissue was caused by his meningitis and lumbar punctures put increased pressure on the vertebral discs and subsequently caused disc rupture, resulting in the significant sciatica that he now experienced. Dr. E. indicated that his medical opinion was based upon examination of the Veteran, review of medical and/or service records, his education, training, and experience and reasonable medical certainty. He stated that it was his medical opinion that the injuries, impairments, and disabilities set forth in his diagnoses were, as likely as not, due to and a consequence of the Veteran's military service. In March 2013, the Board requested a VHA opinion on the issue of service connection for a back disorder. The Board requested that the reviewer, following a thorough review of the claims folder, identify all currently diagnosed back disabilities. The examiner was also requested to indicate whether it was at least as likely as not (50 percent probability or greater) that any identified back disability was incurred in service. When rendering the opinion the examiner was requested to comment upon the Veteran's testimony with respect to experiencing back pain in service and since that time; the Veteran's history of multiple back surgeries beginning as early as 1959; the Veteran's assertion that his current back problems were a result of spinal taps performed in service, which had resulted in a buildup of scar tissue in the spinal column; the findings and opinions rendered by the July 2012 VA examiner; and the December 2012 report and opinions from Dr. Ellis. The examiner was further requested to render an opinion as to whether it was at least as likely as not that that any identified back disability was either proximately due to, or alternatively, permanently aggravated by the Veteran's service-connected status post spinal meningitis. If it was determined that there was aggravation, to the extent that was possible, the examiner was requested to provide an opinion as to approximate baseline level of severity of the Veteran's back disability before the onset of aggravation. The term "aggravation" was noted to be defined for legal purposes as a worsening of the underlying condition versus a temporary flare-up of symptoms. When rendering the opinion, the examiner was requested to address the opinions set forth in the July 2012 VA examination report and the December 2012 private medical report. In May 2013, the requested opinion was provided. The examiner was noted to be a an M.D. and Ph.D., and to be an assistant Professor of Neurological Surgery. The examiner noted a portion of the history, including the prior surgeries that had been performed. As to lumbar stenosis with claudication, the examiner indicated that this had been well documented by the Veteran's private physician, S. P., M.D., in his 2004-2005 surgical and post-surgical notes. This was supported by the relief that the Veteran felt after the decompressive surgery (redo lumbar laminectomy). He observed that the final note, dated April 27, 2005, stated "He has simply excellent results from his recent decompressive lumbar laminectomy at L2-3 for lumbar spondylosis and stenosis with neurogenic claudication. He is now totally asymptomatic, he had a well-healed incision, he had no evidence of neurologic deficit on exam" -S. P., M.D. The examiner indicated that he could not comment if the Veteran's neurogenic claudication was directly related to his service. He reported that given the Veteran's age, many men of this age had degenerative spine disease. As to lumbar arachnoiditis, the examiner referenced Dr. P's notes dated September 30, 2004 "The patient states he has pain mainly when he walks. In fact, at present, he can only walk about 50 to 60 feet without developing leg pain and cramps in the lower extremities. Bending and stooping make his pain worse. Sitting helps his pain. Walking with a flexed lumbar spine helps his ability to ambulate. X-ray radiographic images reveal multiple previous surgeries, a significant stenosis and almost total block of myelogram dye at L2-3 where there is a degenerative spondylolisthesis. There appears to be arachnoiditis involving the nerve roots in the lower part of the spinal canal at L4 to S1 where there is clumping". He noted that lumbar arachnoiditis was present and this may be related to his meningitis in the service; however, his excellent response to decompression spoke to his back pain being related to stenosis and claudication, and not primarily to arachnoiditis. He stated that he did not think it was likely that spinal taps or even spinal meningitis from the 1950's contributed to his lumbar stenosis and resultant symptoms. As to the Veteran's testimony, the examiner indicated that it had been reviewed. He stated that his description of spinal meningitis appeared to be accurate and believable. He indicated that meningitis in closed quarters, such as military barracks, was a known situation. He stated that he did not know what the Veteran meant by he was "paralyzed " after the surgery. Does he mean he could move anything at all ( the medical understanding of "paralyzed") or that he was in such pain that he could not move. Was he weak after surgery? It was not clear from the testimony what occurred. He noted that the Veteran required a redo surgery, possibly a hematoma was evacuated? This was the examiner's speculation. He further noted that the Veteran described "scarring of the spinal cord". The examiner stated he was not sure what was meant by this. He noted that non-medical people often do not discriminate between the spinal column (bones/joints/disk, etc.) and the spinal cord. He indicated that perhaps the Veteran was told that he had post-operative scarring? That would be a more likely scenario. He noted that he did not believe that the Veteran was medically sophisticated enough to render an opinion if the meningitis was responsible for his back pain or if degenerative changes were. He stated that back pain from degenerative changes, stenosis, and from being in a post-operative state, were more likely. As to the July 2012 report, the VHA examiner indicated that the July 2012 examiner provided a thorough report and concluded that the Veteran's current low back disorder was less likely as not related to his period of service. He noted that without repeating the entire document in this opinion, he entirely agreed with the July 2012 VA examiner's opinion, including that the Veteran's current low back disorder was less likely as not related to his period of service; there was no evidence from history reported by the Veteran to indicate the lower back pain was incurred in service or that he developed a chronic condition or continuity of back symptoms in service; there was no evidence that there was permanent neurological damage secondary to spinal meningitis; spinal taps were unlikely to cause significant scar tissue, and that the meningitis did not cause or aggravate degenerative disc disease. As to Dr. E's report, he indicated that he did not agree with the statements (a) that several lumbar punctures caused a significant amount of scar tissue in and around the spinal canal and (b) that scar tissue was caused by his meningitis and lumbar punctures put the increased pressure on the vertebral discs and subsequently caused disc rupture, resulting in the significant sciatica that the Veteran now experienced. He indicated that hat he found these statements highly unlikely. The examiner stated that he did not believe that it was as least as likely as not that any identified back disability was either proximately due to or alternatively aggravated by the Veteran's service-connected status post spinal meningitis. The Board finds that the weight of the competent, probative and credible evidence does not demonstrate that symptoms of the claimed low back disorder were chronic in service or continuous since service. While service treatment records note findings of muscle weakness and spasms during the time of the Veteran's treatment and hospitalization for meningitis, these problems resolved along with the Veteran's meningitis. Moreover, there were no findings during the remainder of the Veteran's period of back problems or complaints. Furthermore, at the time of the Veteran's October 1954 service separation examination, normal findings were reported for the spine and lower extremities, with no problems being noted with regard to back problems on the examination report. Although the Veteran has reported receiving treatment for his back almost immediately following service, as well be discussed below, the first surgery performed on the Veteran's back was not until 1959, more than 4 years after his release from service. Therefore, the clinical evidence does not reflect either an in-service low back injury or continuity of symptomatology, for reasons clearly noted above, with significant evidence against such a finding. The Board has considered the lay evidence of record in determining whether there is continuity of symptoms. The Board has considered the statements of the Veteran, noting that the Veteran is considered competent to report back symptoms such as low back pain because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470. However, competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In determining whether statements submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board is not required to accept a veteran's uncorroborated account of his active service experiences. Wood v. Derwinski, 1 Vet. App. 190 (1991). It is not disputed that the Veteran has reported back pain since his period of service. However, as noted above, the Veteran was afforded an examination at separation which revealed no findings or complaints of spine or lower extremity problems. Moreover, treatment records from the time of the Veteran's treatment for meningitis, which subsequently resolved, to the end of his period of service make no reference to any complaints or findings of back problems. Moreover, treatment records which have been associated with the claims folder make no reference to any findings of arthritis until years following service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (lengthy period of absence of medical complaints for condition can be considered as a factor in resolving claim); see also Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board's denial of service connection where veteran failed to account for lengthy time period between service and initial symptoms of disability). For the above reasons, continuity has not here been established, either through the clinical record or through the Veteran's own statements. While the Veteran is competent to report low back pain, his accounts of continuity of such pain since service are not considered credible in light of the lack of complaints of such pain within the record until more than several years following service. As to the Veteran's belief that his current low back disorders are related to his period of service, to include by way of lumbar punctures performed in relation to his meningitis or as residuals of the service-connected meningitis, the Board acknowledges the holding of the U.S. Court of Appeals for the Federal Circuit in Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Here, however, the question of causation extends beyond an immediately observable cause-and-effect relationship and, as such, the Veteran is not competent to address etiology in the present case. The record does not demonstrate that the Veteran has the required expertise to relate his current back problems to his period of service, to include as residuals of his meningitis or in relation to lumbar punctures performed in connection with his meningitis. The Board finds that the weight of the lay and medical evidence demonstrates that arthritis of the spine did not manifest to a degree of 10 percent within a year of service separation. The July 2012 VA examiner indicated that the Veteran did not have back pain on a chronic basis until 1955, after he left active duty, and this correlated with the information in the medical records from his current treating physicians. The VA examiner did not indicate that the Veteran had arthritis within the one year presumptive period. A compensable rating is assigned for arthritis based when degenerative arthritis is established by x-ray findings. 38 C.F.R. § 4.17a. In the present case, the record does not contain X-ray evidence of arthritis within the one year period following service. The Board finds that the weight of the lay and medical evidence does not demonstrate that arthritis of the spine was manifested to a compensable degree within one year after separation from service and service connection on this basis is not warranted. Next, service connection may be granted when the evidence establishes a nexus between active duty service and current complaints. When evaluating the weight of medical evidence, the Board is guided by the principle that the probative value of a medical opinion largely rests upon the extent to which such opinion is based upon a thorough evaluation of the Veteran's medical history, including but not limited to the medical evidence contained in the claims file. See, e.g. Miller v. West, 11 Vet. App. 345, 348. The Board may examine the factual foundation of a medical opinion, including whether the physician had access to relevant information of record. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-304 (2008). The Board notes that the Veteran's private physician, Dr. E., indicated that the Veteran developed meningococcal meningitis in December 1952 and that several lumbar punctures caused a significant amount of scar tissue in and around the spinal canal. He observed that the Veteran had subsequent back surgery and it was noted at that time that he had significant epidural fibrosis, which was "extremely scarred" in the lumbar spine region. Dr. E. stated that the scar tissue was caused by his meningitis and lumbar punctures put increased pressure on the vertebral discs and subsequently caused disc rupture, resulting in the significant sciatica that he now experienced. Dr. E. indicated that his medical opinion was based upon examination of the Veteran, review of medical and/or service records, his education, training, and experience and reasonable medical certainty. He stated that it was his medical opinion that the injuries, impairments, and disabilities set forth in his diagnoses were, as likely as not, due to and a consequence of the Veteran's military service. As indicated above, the treatment records noted above demonstrate the Veteran did not complaint of back pain following his hospitalization for meningitis, which was noted to be resolved following the February 1953 hospitalization, subsequent to February 1953, nor were there findings of back problems at the time of the Veteran's October 1954 examination, with no notation of any back problems being reported at that time. The weight of a medical opinion is diminished where that opinion is ambivalent, based on an inaccurate factual premise, based on an examination of limited scope, or where the basis for the opinion is not stated. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993); Sklar v. Brown, 5 Vet. App. 140 (1993). In contrast, the Board notes that the July 2012 VA examiner, following a comprehensive examination of the Veteran and a thorough review of the claims folder, indicated that the Veteran did not have back pain on a chronic basis until 1955, after he left active duty, and this correlated with the information in the medical records from his current treating physicians. She also stated that meningitis did not affect the spine, as it was an infection of the meninges only, and therefore did not cause spine disease, such as degenerative disc disease or arthritis of the spine. The examiner further noted that the Veteran's low back condition was less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service-connected spinal meningitis residuals and that it also did not cause or aggravate degenerative disc disease of the lumbar spine, noting that meningitis was a one-time infection that resolved before the Veteran developed chronic lower back pain and that it no way continued to be symptomatic or resulted in ongoing damage or pathology affecting the spine. The examiner also indicated that repeated spinal taps were unlikely to cause significant scar tissue, but if this did occur, the scar tissue would be superficial to the spine and would not affect the spine. She noted that the "scar tissue" that the Veteran's physicians referred to when explaining the condition to the Veteran was undoubtedly that due from prior surgeries. She stated that the Veteran's medical records revealed that his condition was due to a congenital stenosis of the spine as well as acquired (degenerative) spine disease. She noted that neither spinal taps nor meningitis resulted in congenital or degenerative spine disease. The May 2013 VHA examiner, following a comprehensive review of the claims folder, which included the report from Dr. E., indicated that he did not believe that it was as least as likely as not that any identified back disability was either proximately due to or alternatively aggravated by the Veteran's service-connected status post spinal meningitis. In rendering his opinion the VHA examiner cited to specific notations in the record and addressed not only the Veteran's testimony and why he felt the Veteran was not sophisticated enough to render a medical opinion but also discussed the reports from the July 2012 VA examiner and Dr. E. and what he agreed or disagreed with in those reports. Based on all of the evidence, the July 2012 and May 2013 examiners rendered opinions that were supported by detailed and complete rationale. There was no indication that the VA examiners were not fully aware of the Veteran's past medical history, citing to findings in the record, or that they misstated any relevant fact. Thus, the Board finds these opinions to be the more probative evidence of record. In sum, the preponderance of the evidence weighs against a finding that any current low back disorder developed in service or in the one year following service, or is otherwise related to his period of service; or was proximately due to or the result of, to include way of aggravation, his service-connected meningitis. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. (CONTINUED ON NEXT PAGE) Disability Rating Criteria Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Where the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of a veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). With respect to the Veteran's claim for an increased rating, cerebrospinal meningitis is rated under Code 8019, which provides for a 100 percent evaluation when the disease is active. Otherwise, residuals are to be rated separately, with any residuals identified receiving a minimum 10 percent evaluation. 38 C.F.R. § 4.124a, Diagnostic Code 8019. Essentially, Diagnostic Code 8019 contemplates that, through use of analogous ratings, any residuals of the meningitis should be rated based on the appropriate analogous Diagnostic Code. See 38 C.F.R. § 4.124a [noting that VA should especially consider psychotic manifestations, complete or partial loss of use of one or more extremities, speech disturbances, impairment of vision, disturbances of gait, tremors, visceral manifestations, etc., referring to the appropriate bodily system of the schedule]. Crucially, Note (1) under this section specifies that it is of exceptional importance that when ratings in excess of the prescribed minimum ratings are assigned, the diagnostic codes utilized as bases of evaluation be cited, in addition to the codes identifying the diagnoses. See 38 C.F.R. § 4.24a, Note (1). The weight of the lay and medical evidence demonstrates that at no time during the appeal period has the Veteran alleged or been shown to have meningitis that is active. Consequently, a 100 percent rating under Diagnostic Code 8019 is not warranted, and the disability must therefore be rated based on residuals. In conjunction with his initial claim for service connection, the Veteran was afforded a VA examination in May 2010. The examiner noted that the condition had existed since 1953. The Veteran reported having no neurological problems and no seizure disorder. He denied having urinary incontinence or headaches. He also did not experience any fecal leakage. The Veteran also did not have dizziness and had not had a stroke. The Veteran stated that he did not experience any overall impairment from this condition. The examiner stated that for the claimed condition of status post spinal meningitis, the diagnosis was status post spinal meningitis. There were no findings of smell or taste problems. As to the question of what were the residuals of the Veteran's spinal meningitis, the examiner indicated none. At his December 2011 hearing, the Veteran indicated that his meningitis was not active. He stated that the only disability he had resulting from his meningitis was his back problem, for which, as noted above, service connection is not currently in effect. In conjunction with the February 2012 Board remand, the Veteran was afforded an additional VA examination in July 2012. At the time of the examination, the examiner observed that the Veteran had spinal meningitis in the military in 1952. He recovered well and eventually returned to his regular duties and was able to complete his regular tour of duty, being discharged in 1954. The examiner observed that neither the service treatment records nor the medical records following service indicated that the Veteran had residual neurological deficits following the case of acute meningitis. Therefore, there was no evidence of a condition of the central nervous system as a residual of meningitis. He further noted that there was no evidence of any other residual disability resulting from his service-connected spinal meningitis at that time. The May 2013 VHA examiner indicated that he felt the assigned 10 percent disability evaluation was appropriate. The weight of the lay and medical evidence demonstrates that there are no residuals that have been attributed to the Veteran's history of meningitis. The Veteran has denied having any residuals other than his claimed back disorder, for which service connection has been denied, and both the May 2010 and July 2012 VA examiners have indicated that the Veteran has no residual disabilities from his service-connected spinal meningitis. Thus, the weight of the lay and medical establishes the Veteran's meningitis is not currently active, and that no compensably rated residuals of this condition have been identified. The Board concludes, for the reasons set forth above, the preponderance of the evidence is against entitlement to a rating in excess of 10 percent for the service-connected residuals of spinal meningitis at all times during the pendency of the appeal, the reasonable doubt doctrine does not apply, and the claim must be denied. Extraschedular Consideration In addition to the foregoing, the Board has considered whether referral for an extraschedular evaluation is warranted for the Veteran's service-connected status post meningitis. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2012). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. § 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step - a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. Turning to the first step of the extraschedular analysis, the Veteran's service-connected spinal meningitis has not been shown to cause residuals. The schedular criteria specifically sets forth criteria to be applied if residuals were present. In this case, comparing the Veteran's disability level and symptomatology of the spinal meningitis residuals to the rating schedule, the degree of disability throughout the entire period under consideration is contemplated by the rating schedule and the assigned ratings are, therefore, adequate. In the absence of exceptional factors associated with the status post spinal meningitis residuals, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER Service connection for a back disability, to include as secondary to service-connected status post spinal meningitis, is denied. An initial evaluation in excess of 10 percent for status post meningitis is denied. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs