Citation Nr: 1340057 Decision Date: 12/04/13 Archive Date: 12/18/13 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 spinal meningitis, including any residuals. ATTORNEY FOR THE BOARD Andrea Johnson, Associate Counsel INTRODUCTION The Veteran had active military service 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 received 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. In June 2013 the Board again remanded this matter for additional development. The Board found the VA examination and addendum opinion provided on remand were not responsive to the September 2012 remand request and remand for an additional opinion was needed under Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding 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). This matter has again returned to the Board. The Board finds all requested actions have now been completed and the matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). This appeal was processed using the VMBS paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. The issue of clear and unmistakable error (CUE) in the August 22, 2013 supplemental statement of the case (SSOC) has been raised by a September 2013 written statement by the Veteran; however, as the Veteran is claiming CUE in a pending appeal to which finality has not attached, his CUE claim is premature and need not be considered at this time. FINDINGS OF FACT 1. The evidence does not establish the Veteran had meningitis at any point after his military service. 2. The evidence does not establish the Veteran currently has any other condition which is related to his in-service meningitis. CONCLUSION OF LAW The criteria for service connection for meningitis have not been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran is currently seeking service connection for meningitis. 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 service. 38 U.S.C.A. § 1110. "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. 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). 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). In addition, the law provides that, where a veteran served ninety days or more of active service, and certain chronic diseases 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, 1137; 38 C.F.R. §§ 3.307, 3.309(a). However meningitis is not a "chronic disease" listed under 38 C.F.R. § 3.309(a), therefore this presumption does not apply in this case. See Walker v. Shinseki, F. 3d 1331 (Fed. Cir. 2013). Service treatment records were reviewed and reflect the Veteran was diagnosed with meningitis and hospitalized for this condition from February 1969 to April 1969, during his active military service. His discharge record from April 1969 reflects the Veteran's meningitis was treated and "cured." Accordingly the Board finds the Veteran had meningitis during military service, however this condition resolved before his separation from military service. As will be discussed in detail below, the Board finds the evidence fails to establish the Veteran currently has meningitis or any other medical condition due to his temporary period of meningitis during military service. All post-service treatment records included in the claims file were reviewed but do not establish the Veteran sought any treatment for, or made any complaint of, any symptoms of meningitis after his separation from military service. This lack of medical treatment provides highly probative evidence the Veteran did not continue to have symptoms of meningitis after his military service. More persuasively the Veteran himself has not asserted that he experienced meningitis at any point after his military service, but rather has only asserted he experienced additional residuals, which are discussed below. In September 2012 the Veteran was provided with a VA examination. The examiner found the available records did not include any clinical mention of meningitis during service. This examiner noted the Veteran had a self-reported history of meningitis but specifically opined the Veteran did not have any current residuals of meningitis. After the September 2012 VA examination additional records were added to the claims file which clearly reflected the Veteran had meningitis during his military service. Following the addition of these records the Veteran's file was returned to the same examiner for an addendum opinion. In February 2013 this examiner noted the additional records reflected the Veteran's history of meningitis during his military service, but noted the Veteran's condition was "treated and cured." Finally in August 2013 the Veteran's file was again returned to the examiner for an additional addendum opinion. The examiner opined the Veteran had "no current medical conditions related to meningitis or having had meningitis." Therefore the Board finds although the Veteran had meningitis during military service he does not have any disability or symptoms related to meningitis. The Veteran has not sought any medical treatment for such a condition and the VA examiner clearly opined the Veteran did not have any medical condition related to meningitis. Because the evidence does not establish the Veteran has a current condition on which benefits could be granted his claim for service connection for meningitis is denied. Residuals of Meningitis Throughout the course of this appeal the Veteran has also asserted he suffered additional residuals due to his meningitis during military service. Essentially the Veteran 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. The Veteran has asserted he did not experience these symptoms prior to his bout with meningitis during his military service. See statements by the Veteran dated April 2013, September 2012, and August 2009. As a lay person, the Veteran is considered to be competent to report what comes to him through his senses, such as experiencing increased irritability and rage. Layno v. Brown, 6 Vet. App. 465 (1994). However, he lacks the medical training and expertise to provide a complex medical opinion as to the etiology of his current feelings of irritability and rage. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Accordingly the Board has considered the Veteran's consistent, lay assertions regarding the onset of his emotional disorder and rage. However, as will be discussed, the Board finds his assertions are not supported by contemporaneous or current objective medical evidence. The Board notes service treatment records do reflect the Veteran experienced symptoms of emotional and mental disorders during his military service. Most notably, the Veteran attempted suicide by taking a large dose of Librium in May 1969, after he was treated for meningitis. However, service treatment records do not suggest these symptoms were related to the Veteran's meningitis. Instead, these records reflect the Veteran's "long history of emotional instability," including difficult family life and difficulties in school prior to his military service. The Veteran was ultimately recommended for separation from military service due to his personality disorder, with no mention of any residuals from his meningitis. Therefore although service treatment records reflect symptoms of emotional disorder and rage the records do not suggest these symptoms were related to the Veteran's meningitis. In April 2008 the Veteran sought mental health treatment from a VA facility. The Veteran reported a long history of anger and temper control which started after his bout with meningitis. He also reported a suicide attempt shortly after discharge following his diagnosis of meningitis. The nurse diagnosed the Veteran with bipolar disorder. Additional post-service medical records reflect the Veteran told several mental health professionals his current mental condition began shortly after his diagnosis with meningitis. However, none of these care providers provided their own opinion regarding any relation of the Veteran's current mental health condition to his in-service meningitis. In October 2008 the Veteran was provided with a VA examination regarding mental disorders. The Veteran again reported his history of spinal meningitis during his military service and asserted this episode of meningitis damaged his frontal lobe which results in emotional dysregulation and chronic rage. The examiner diagnosed the Veteran with bipolar disorder but did not suggest his bipolar condition was in any way related to his in-service meningitis. Instead the examiner merely noted the Veteran's "remote history of spinal meningitis." In June 2012 the Veteran again sought treatment for his mental health and reported his history of anxiety and irritability began after he was hospitalized and in a coma due to meningitis during his military service. The Veteran denied experiencing any psychiatric symptoms before this time. Based on that information the physician opined "I think it reasonable to consider that his symptoms could have been caused by this serious CNS infection." The Board acknowledges this medical record may provide some evidence in support of the Veteran's claim, however the Board finds this report is of limited probative value. The physician did not provide a clear opinion but instead merely stated it was "reasonable" the Veteran's symptoms "could" have been caused by his meningitis. The Board finds this report is speculative as the use of the term "could" merely suggest the possibility of a conclusion, not the probability. See Warren v. Brown, 6 Vet. App. 4, 6 (1993) (a doctor's statement framed in terms such as "could have been" is not probative.). For these reasons the Board finds the opinion of this physician is afforded limited probative value. Lastly in his August 2013 addendum opinion the VA examiner specifically addressed the Veteran's assertions that his current mental health issues were residuals from his in-service meningitis. The examiner opined "There is no credible medical literature known that links meningitis to any of these conditions." The examiner continued "It is unfortunate that he had meningitis while in service and more so unfortunate that he currently has mental health and substance abuse issue however the two are not connected," providing probative evidence against the Veteran's claim. Therefore the Board finds the objective medical evidence fails to establish the Veteran's current mental health conditions are residuals of his in-service meningitis. Although several care providers noted the Veteran's assertions that his current mental health condition was due to his meningitis they did not provide any medical opinion regarding the accuracy of the Veteran's theory. Although one physician in June 2012 suggested the possibility of this condition the Board finds this speculative opinion is afforded limited probative value. Instead, the Board finds the addendum report from the VA examiner clearly opining no credible medical literature links meningitis to any of the Veteran's mental health conditions more probative. Finally, the Board notes the Veteran is presently service connected for bipolar disorder and granted a 70 percent rating for this condition. Accordingly the Veteran's symptoms of bipolar disorder are already service connected and cannot be additionally service connected under the theory of secondary entitlement due to meningitis. Based on all of the foregoing the Board finds the evidence does not establish the Veteran has any other current condition which is a residual from his in-service meningitis. Therefore his claim for service connection is denied. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to veterans. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Notice must be provided to a veteran before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits and must: (1) inform the veteran about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the veteran about the information and evidence that VA will seek to provide; and (3) inform the veteran about the information and evidence the veteran is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). With respect to service connection claims, a section 5103(a) notice should also advise a veteran of the criteria for establishing a disability rating and effective date of award. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). In the present case, required notice was provided by a letter dated in May 2008, which informed the Veteran of all the elements required by the Pelegrini II Court as stated above. The letter also informed the Veteran how disability ratings and effective dates were established. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. 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 Bernard v. Brown, 4 Vet. App. 384 (1993). VA and private treatment records have been obtained, as have service treatment records. Additionally, the Veteran was offered the opportunity to testify at a hearing before the Board, but he declined. The Veteran was also provided with a VA examination, the report of which has been associated with the claims file. Although his initial examination was inadequate as the examiner was not initially provided with all relevant medical evidence, the examiner provided two additional addendum opinions following review of the additional relevant evidence. Therefore the Board finds this examination, combined with the two addendum opinions, was thorough and adequate and provides a sound basis upon which to base a decision with regard to the Veteran's claim. The VA examiner personally interviewed and examined the Veteran, including eliciting a history from him, and provided the information necessary to evaluate his disability. As discussed, 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. ORDER The claim for service connection for meningitis is denied. ____________________________________________ T. D. JONES Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs