Citation Nr: 1336557 Decision Date: 11/08/13 Archive Date: 11/22/13 DOCKET NO. 10-13 458 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for residuals of spinal meningitis. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Espinoza, Associate Counsel INTRODUCTION The Veteran had active service from August 1970 to February 1971 and additional reserve service. This matter originally came before the Board of Veterans Appeals (Board) on appeal from a May 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In December 2011, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ). A transcript of this hearing has been associated with the claims file. In March 2012 the Board remanded the appeal for additional development, as discussed below. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The United States Court of Appeals for Veterans Claims (Court) has held that a remand by the Board confers on a 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. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Court has indicated, additionally, that if the Board proceeds with final disposition of an appeal, and the remand orders have not been complied with, the Board itself errs in failing to ensure compliance. Id. As noted in the introduction, the Board remanded the case in March 2012 to the agency of original jurisdiction (AOJ) for additional development and consideration. The Board instructed the AOJ to obtain the Veteran's service treatment records surrounding his October 1970 treatment for spinal meningitis, including any clinical records from his hospitalization at Fort Leonard Wood Hospital. The remand instructions further stated that if the records could not be located or no such records existed, a memorandum of unavailability should be prepared outlining all the actions taken to obtain the requested records and a copy of it should be sent to the Veteran. While development undertaken revealed that no further STRs were available, the Fort Leonard Wood Hospital records were not obtained and efforts to obtain them are not documented in the claims file. Additionally, a memorandum of unavailability has not been prepared and a copy has not been sent to the Veteran. Thus, a remand is necessary to complete this development. See Stegall, 11 Vet. App. at 271. In addition, the Board remanded the Veteran's claim in order to provide a VA examination. The examiner was asked to provide an opinion as to whether it is at least as likely as not that the Veteran has any current disability, including head and neck pain and peripheral neuropathy of the arms, which may be residuals of the spinal meningitis he was treated for while on active duty in October 1970. The Veteran was provided a VA examination in September 2012. The Board finds that the examiner's opinion is inadequate. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The examiner states, in part, that the Veteran does not have headaches but has C-spine DDD, which results in neck pain. The examiner further states that this is not related to spinal meningitis and no opinion is warranted. However, it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes probative value to a medical opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Once VA undertakes the effort to provide an examination, it must provide an adequate one. See Barr, 21 Vet. App. at 311-12. As the examiner's opinion lacks the necessary rationale, the Board must remand for a new VA opinion. The October 2012 supplemental statement of the case (SSOC), states that records from the VA Medical Center (VAMC) in Orlando, Florida were considered. Additionally, a prior SSOC, dated November 2010, also states that Orlando VAMC records, from November 2009 to October 2010, were considered. Finally, the February 2010 statement of the case, also references Orlando VAMC treatment records, from March 2008 to October 2009, and indicates these records note a history of meningitis. However, these Orlando VAMC treatment records are not associated with the claims file. Thus, on remand all relevant VA treatment records should be obtained from the Orlando VAMC, from March 2008 to the present. See 38 U.S.C.A. § 5103A(c) (West 2002); 38 C.F.R. § 3.159(c)(2) (2013). See also Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (holding that documents which are generated by VA agents or employees are in constructive possession of VA, and as such, should be obtained and included in the record). Accordingly, the case is REMANDED for the following actions: 1. Obtain any clinical records related to the Veteran's hospitalization in October 1970 from the Fort Leonard Wood Hospital. All attempts to obtain those records should be documented in the claims file. Moreover, if the records cannot be located or no such records exist, a memorandum of unavailability should be prepared outlining all actions taken to obtain the requested records and a copy of it should be sent to the Veteran and his representative. 2. Obtain all VA treatment records for the Veteran from the VA Medical Center in Orlando, Florida and any associated outpatient clinics, dated from March 2008 to the present, and associate them with the claims file. All attempts to obtain those records should be documented in the claims file. The Veteran and his representative must be notified of any inability to obtain the requested documents. 3. Thereafter, return the claims file to the September 2012 VA examiner, if available, or to another suitably qualified examiner, to provide an addendum opinion to the September 2012 VA examination report. The claims file should be reviewed by the examiner in conjunction with the examination. The examiner is requested to provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's C-spine DDD is causally or etiologically related to the spinal meningitis the Veteran was treated for while on active duty in October 1970. In providing this opinion, the examiner should address the Veteran's statements regarding his claimed residuals such as head and neck pain, while on active duty and since that time, even when his medical records are negative for symptoms or of a diagnosis. The term at least as likely as not does not mean within the realm of possibility, but rather that the evidence both for and against a conclusion is so evenly divided that it is as sound to find in favor of conclusion as it is to find against it. A complete rationale for all opinions expressed must be provided. 4. Finally, after undertaking any other development deemed appropriate, readjudicate the issue on appeal. If the benefit sought is not granted, furnish the Veteran and his representative with a supplemental statement of the case and afford them an 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 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 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. 2013). _________________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board 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).