Citation Nr: 1336340 Decision Date: 11/07/13 Archive Date: 11/13/13 DOCKET NO. 07-37 817 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUE Entitlement to service connection for residuals of meningitis, to include headaches and lumbar pain. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Michael J. Adams, Associate Counsel INTRODUCTION The Veteran had active service from September 1986 to September 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada. This claim was previously remanded by the Board for additional development in September 2011. Specifically, the September 2011 remand requested a VA examination to determine the nature and etiology of the Veteran's meningitis and claimed residuals. Two examinations were scheduled and accepted by the Veteran. However, the Veteran did not report for either examination and has not provided good cause for his absence. Neither the Veteran nor his representative have challenged the adequacy of the development required by the September 2011 remand. As such, this development has been completed and the claim has been returned to the Board for adjudication. See Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. The Veteran was treated for an in-service meningitis infection in March 1990. 2. The most probative evidence of record does not demonstrate that it is at least as likely as not that the Veteran, at any time during the period of appeal, had a diagnosis of meningitis or any residuals of meningitis, to include headaches and lumbar pain. CONCLUSION OF LAW The criteria for service connection for residuals of meningitis, to include headaches and lumbar pain, have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VCAA Notice Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126 (West 2002) and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). The United States Court of Appeals for Veterans Claims (Court) decision in Pelegrini v. Principi, 18 Vet. App. 112 (2004) held, in part, that a VCAA notice as required by 38 U.S.C. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim for VA benefits. Further, the notice requirements apply to all five elements of a service connection claim: 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 v. Nicholson, 19 Vet. App. 473 (2006). The record shows that through a VCAA letter dated in October 2006 the Veteran was informed of the information and evidence necessary to substantiate the claim for service connection. The Veteran was also advised of the types of evidence VA would assist in obtaining, as well as the Veteran's own responsibilities with regard to identifying relevant evidence. See Charles v. Principi, 16 Vet. App. 370 (2002). Additionally, he was informed of the criteria for assignment of an effective date, and/or disability rating, in the event of an award of the benefit being sought. The VCAA letter to the Veteran was provided in October 2006, prior to the initial unfavorable decision in January 2007. As to VA's duty to assist, the Board finds that all necessary development has been accomplished and therefore appellate review may proceed without prejudice to the Veteran. See generally 38 C.F.R. § 3.159(c). The record in this case includes service treatment records, service personnel records, VA treatment records, private medical treatment records, and lay evidence. The record also shows that while the appeal was in remand status the RO/AMC substantially complied with the Board's remand directions to obtain all outstanding VA treatment records and schedule the Veteran for examination. See 38 U.S.C.A. § 5103A (b); Stegall v. West, 11 Vet. App. 268 (1998). Additionally, the Veteran requested and was scheduled for a hearing before the Board but did not appear. The Veteran has not provided good cause for his absence and his request for a hearing is considered withdrawn. See 38 C.F.R. § 20.704 (2012). Pursuant to the Board's September 2011 remand, the Veteran was scheduled for VA examinations in September and October 2011. The record reflects that despite accepting both appointments, he did not report for either of the VA examinations. Neither the Veteran nor his representative have provided good cause for the Veteran's absence and have not requested that another examination be scheduled. The July 2012 Supplemental Statement of the Case (SSOC), informed him that failure to report for a scheduled VA examination may have adverse consequences, including the possible denial of his claim. The Court has held that "[t]he duty to assist is not always a one-way street." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Where entitlement to a benefit cannot be established or confirmed without a current VA examination and the Veteran does not report for an examination scheduled in conjunction with an original compensation claim (as in this case), the claim shall be rated based on the evidence of record. 38 C.F.R. § 3.655(b) (2013). The Veteran also has an obligation to assist in the adjudication of his claim. The Veteran must be prepared to meet his obligations by cooperating with VA efforts to provide an adequate medical examination and submitting to the Secretary all medical evidence supporting his claim. Olson v. Principi, 3 Vet. App. 480 (1992). Individuals for whom examinations have been authorized and scheduled are required to report for same. 38 C.F.R. § 3.326 (2013). In view of the foregoing, the Board concludes that there is no duty to attempt to provide another examination or medical opinion. The Veteran was provided a hearing before a Decision Review Officer (DRO) in August 2007, the transcript of which has been associated with the claims file. The Board notes that 38 C.F.R. § 3.103(c)(2) requires that the DRO, when conducting a hearing, fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issue or issues and (2) the duty to suggest the submission of evidence that may have been overlooked. During the Veteran's hearing, the DRO noted the issues of service connection for residuals of meningitis. The Veteran was assisted at the hearing by an accredited representative from the American Legion. The representative then asked questions to ascertain the etiology and extent of the Veteran's asserted disabilities. The representative specifically asked the Veteran about his in-service occurrence of meningitis and residuals of meningitis. The DRO did not suggest the submission of evidence that may have been overlooked, or solicit information as to any potentially available outstanding relevant evidence. However, the Board finds that the Veteran has not been prejudiced in this regard as the Veteran's representative did suggest that treatment records from the Naval Hospital at Long Beach would substantiate the Veteran's claim. These records have been obtained and are currently associated with the claims file. Additionally, in a signed statement dated in December 2008, the Veteran indicated that he stood on his contentions of record and would provide additional testimony at a Board hearing in May 2009. However, as stated, he did not appear for this hearing or provide good cause for his absence and as such, his request for a Board hearing is considered withdrawn. Neither the Veteran nor his representative has identified any prejudice to the Veteran due to failure to comply with 38 C.F.R. § 3.103(c)(2). 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. The Veteran's representative asked questions to draw out the etiology of the Veteran's meningitis as well as the residual problems he asserted to experience. As such, the Board finds that any error in notice or assistance provided during the Veteran's hearing, pursuant to the duties set forth in 38 C.F.R. § 3.103(c) (2), constitutes harmless error. As described, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. II. Service Connection In seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. In order to establish direct service connection for a disability, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of a disease contracted, an injury suffered, or an event witnessed or experienced in active service; and (3) competent evidence of a nexus or connection between the disease, injury, or event in service and the current disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Service connection may also 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). The Veteran contends that he experiences residuals of meningitis, to include headaches and lumbar pain. Service treatment records indicate that the Veteran was treated for viral meningitis in March 1990. The records reflect that the Veteran experienced a severe headache and treatment required a one week stay in the hospital after which the Veteran was released to two weeks of convalescence. No other reports of episodes of meningitis in service are of record. Additionally, while the Veteran received a substantial amount of medical treatment for his hand, foot, ankle, neck, and shoulder, service treatment notes do not relate any of his ailments to meningitis. A physical examination report conducted at separation in August 1996 does not reflect that the Veteran was experiencing any residuals of meningitis. Post-service private treatment notes reflect that the Veteran was treated for meningitis in November 2001. The Veteran reported a severe headache and back pain in conjunction with this episode. A private treatment note from November 2001 diagnosed the Veteran with chronic meningitis and reflects that he was treated between November 14 and November 20. A medical report from a follow up visit in December 2001 reflects that the Veteran continued to experience occasional headaches and low back pain near the region of the lumbar puncture. The treating physician opined that the ongoing headaches were a sequela of the viral infection and, possibly, the lumbar puncture. VA treatment notes reflect that the Veteran has reported a history of meningitis infections both during and after service. Specifically, in a treatment note from April 2006, the Veteran reported a 1989 meningitis outbreak that required a 3 week hospital stay, along with two additional outbreaks in 2001 and 2002 which required a blood patch. A VA treatment note from March 2010 reflects that the Veteran again reported 3 prior incidents of meningitis. The Veteran again received VA treatment in April 2010 and reported that he had experienced 4 incidents of meningitis, the most recent occurring in June 2009. A VA examination report from August 2006 reflects that the Veteran was struck by a motor vehicle in January 2005 that required fusing of his L4, L5, and S1 vertebrae. At a DRO hearing in August 2007, the Veteran testified extensively about his in-service episode of meningitis. The Veteran asserted that between April 22 and June 1 he was hospitalized for approximately 28 days and quarantined for approximately 21 to 23 days. The Veteran also asserted that he received a blood patch and was placed on 15 days of convalescent leave. The Veteran then testified that in 2001 he had another meningitis infection that required a 3 week quarantine in the hospital. He also testified that he experienced a third episode of meningitis in 2002. Finally, the Veteran asserted that the headaches he experiences from meningitis manifest differently than the headaches he experiences as a result of an in-service neck injury. He also asserted that these headaches are accompanied by vertigo. Despite the fact that the Veteran did experience a meningitis infection in service, the medical evidence of record does not reflect that he was diagnosed with meningitis or residuals of meningitis during the period on appeal. In the absence of proof of a disability resulting from meningitis there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). A Veteran's belief that he is entitled to some sort of benefit simply because he had a disease or injury while on active service is mistaken, as Congress has specifically limited entitlement to service connection to cases where such incidents have resulted in a disability. Brammer, 3 Vet. App. at 225. Service connection can also be warranted if there was a disability present at any point during the claim period, even if it is not currently present. McClain v. Nicholson, 21 Vet. App. 319 (2007). The medical evidence does not demonstrate that the Veteran experienced meningitis or residuals of meningitis at any point during the claim period. The Board is also cognizant of the holding of the U.S. Court of Appeals for Veterans Claims (Court) in Romanowsky v. Shinseki, No. 11-3272 (Vet. App. July 10, 2013). In Romanowsky, the Court held that when the record contains a recent diagnosis of disability prior to a veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency. In a footnote, the Court noted that a determination that a diagnosis is "sufficiently proximate to the filing of a claim so as to constitute evidence of a 'current diagnosis' is a factual finding to be made by the Board in the first instance." Here, the record reflects that the Veteran experienced meningitis infections in March 1990 and November 2001. There is no medical evidence diagnosing the Veteran with meningitis or with residuals of meningitis during the period on appeal. There is also no evidence that demonstrates the Veteran had headaches or lumbar pain as a result of his meningitis during the period on appeal. While the April 2010 VA treatment note reflects that the Veteran reported a June 2009 instance of meningitis, he has not provided any additional medical evidence documenting this and neither he nor his representative have asserted that he experienced meningitis in 2009. Furthermore, the March 2010 VA treatment note reflects that the Veteran did not report the June 2009 instance of meningitis. Additionally, while there is evidence that the Veteran experienced low back pain in June 2008, the VA treatment note reflects that he has a history of back surgery. As described, the Veteran experienced a motor vehicle accident in January 2005 which required fusing of the L4, L5, and S1 vertebrae in October 2005. The treatment notes are negative for a definitive origin or cause of the Veteran's low back pain in 2008 but a VA treatment note from March 2006 indicates that the Veteran was seeing a private physician for his low back pain following surgery. Finally, the Board is cognizant of the private treatment notes from November 2001 to December 2001. At that time the Veteran appears to have been diagnosed with chronic meningitis and a medical provider connected his headaches to that infection and possibly the lumbar puncture. However, the Veteran did not file his claim until February 2006, more than 4 years later, and the record is negative for evidence of a diagnosis of meningitis or residuals of meningitis since 2001. Therefore, the Board does not find the Veteran's 2001 diagnosis to be sufficiently proximate to the filing of the Veteran's claim so as to constitute evidence of a current diagnosis. As such, the evidence weighs against a finding that the Veteran has a current disability. The Board acknowledges that the Veteran has asserted that he received treatment for meningitis in 2002. However, there is no evidence of record to support this assertion. The Veteran has not provided details as to treatment dates or facilities and there is no evidence of any residuals resulting from that alleged infection. Based on his inaccurate recollection of his medical history as discussed below, the Board does not give his assertion of treatment in 2002 any probative value. Even assuming that he did have meningitis in 2002, the Board finds that a diagnosis then would still be too far removed to constitute a current diagnosis. Under certain circumstances, lay evidence can be competent to establish a diagnosis of a simple medical condition, relate a contemporaneous medical diagnosis, or describe symptoms that later support a diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Also, the Veteran as a lay person is competent to offer an opinion on a simple medical condition. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (citing Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007)). Here, the Veteran is competent to relate his symptoms of meningitis and report that he experiences headaches and back pain. He is also competent to report a diagnosis provided to him by a medical professional. However, the Veteran is not competent to diagnose himself with meningitis or opine on whether his headaches and back pain are the result of meningitis as this requires special medical training and/or equipment that the Veteran does not have and therefore it is a determination medical in nature and not capable of lay observation. Moreover, even if the Veteran were competent to render a diagnosis, the record reflects that the Veteran has not been able to accurately recount his medical history as it pertains to meningitis. Specifically, the Veteran made several assertions at his August 2007 DRO hearing that are not supported by the record. As described, the Veteran asserted that his in-service meningitis occurred between April and June 1989 and he was hospitalized for almost 30 days and quarantined during that time. However, service treatment records to not reflect that he was treated for meningitis in 1989 but rather in March 1990. Treatment notes further reflect that the Veteran was hospitalized for only one week and do not reference quarantine. Additionally, a treatment note from May 1989 reflects that the Veteran sought treatment for orthopedic problems related to his foot and hand. This weighs against the likelihood that the Veteran was quarantined during that period as he has asserted. The Veteran also reported an instance of meningitis that allegedly occurred in June 2009. However, the Veteran has not submitted any documentation of that episode nor has he or his representative asserted that he had meningitis in 2009. Additionally, as described, the Veteran did not report this incident while receiving VA treatment in March 2010 but rather reported it a month later at VA treatment in April 2010. It is unlikely that the Veteran would not report a serious medical condition such as meningitis when providing a medical history to a healthcare provider. Based on this evidence, the Board finds the Veteran's assertions as to his history of meningitis to be less credible than the medical treatment records and therefore they are provided little probative value. As such, the evidence weighs against finding that the Veteran experienced residuals of meningitis during the period on appeal. Furthermore, the Veteran did not report for his two scheduled VA examinations and did not provide good cause for his absence. As discussed, when a Veteran, without good cause, does not report to a scheduled VA examination, the claim will be determined on the evidence of record. 38 C.F.R. § 3.655(b) (2013). Here, the evidence simply does not support finding that the Veteran has any current residuals of meningitis or had any residuals at any point during the course of the appeal. As such the claim must be denied. The condition at issue is not a "chronic disease" listed under 38 C.F.R. § 3.309(a), therefore 38 C.F.R. § 3.303(b) does not apply. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Additionally, the Board is aware of the Veteran's service in the Gulf and has considered 38 C.F.R. § 3.317. However, as meningitis is a diagnosed illness 38 C.F.R. § 3.317 is not for application. In summary, the Board finds that evidence of a present disability has not been presented in the case of the Veteran's reported residuals of meningitis; and, in the absence of proof of a present disability, there can be no valid claim. Brammer 3 Vet. App. at 225 (1992). See also Romanowsky, No. 11-3272. The evidence does not demonstrate that the Veteran has had meningitis since 2001 or that he has experienced any residuals of meningitis during the period on appeal. Accordingly, the claim for entitlement to service connection for residuals of meningitis must be denied. ORDER Entitlement to service connection for residuals of meningitis, to include headaches and lumbar pain, is denied. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs