Citation Nr: 1443768 Decision Date: 10/01/14 Archive Date: 10/10/14 DOCKET NO. 02-06 850A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for residuals of spinal meningitis, including restless leg syndrome. 2. Entitlement to service connection for a bilateral foot disability, including rheumatoid arthritis and hammertoes, to include as secondary to the residuals of spinal meningitis. 3. Entitlement to a total disability evaluation based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran, his spouse, and Dr. C.N.B ATTORNEY FOR THE BOARD L. Crohe, Counsel INTRODUCTION The Veteran had active service from January 1955 to January 1958. This matter comes before the Board of Veterans' Appeals (Board) on appeal from March 2000 and January 2002 rating decisions of the Department of Veterans Affairs Regional Office (RO) in St. Petersburg, Florida, denying the claims currently on appeal. These claims were subsequently denied by the Board in an August 2008 decision. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). Pursuant to a Joint Motion for Remand, a September 2009 Order of the Court remanded the claims back to the Board for readjudication. In December 2007, the Veteran testified at a hearing at the RO in St. Petersburg, Florida before a Veterans Law Judge that is no longer with the Board. He was subsequently afforded a new hearing at the VA Central Office Washington, D.C. in September 2010 before the undersigned Veterans Law Judge. Written transcripts of both hearings have been prepared and incorporated into the evidence of record. In October 2010 and April 2013, the Board remanded the claims for further development. In an October 2010 remand, the Board found that the issue of entitlement to a TDIU had been raised by the evidence of record, but had not yet been adjudicated and referred the matter to the AOJ. In a January 2013 supplemental statement of the case (SSOC), the AOJ denied entitlement to a TDIU. In an April 2013 remand, the Board again referred the issue of entitlement to a TDIU to the AOJ for adjudication. In a February 2014 rating decision, the RO denied entitlement to a TDIU. While the issue was summarily included in the February and May 2014 supplemental statements of the case (SS0Cs), the Board ultimately deems that the issue was not in appellate status at that time. Under VA law, in order to appeal any RO decision, the claimant must file a timely Notice of Disagreement (NOD), followed by a timely Substantive Appeal in response to the RO's issuance of an intervening Statement of the Case (SOC). See 38 C.F.R. § 20.200. A SSOC is further utilized by the RO regarding an issue already on appeal, for which additional pertinent evidence or controlling law must be duly considered. See 38 C.F.R. § 19.31(b). Here, it was not until later in May 2014, that the Veteran and his representative appeared to disagree with the denial of entitlement to a TDIU and also indicated a desire for a hearing, which will be addressed in the remand portion below. The issues of entitlement to service connection for weak bowel, bladder, and sexual dysfunction, as well as mental impairment secondary to in-service spinal meningitis and/or treatments have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2013). The issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The competent evidence of record is at least in equipoise as to whether the Veteran has current residuals of in-service spinal meningitis. 2. The competent evidence of record is at least in equipoise as to whether the Veteran's current has a bilateral foot disorder, including rheumatoid arthritis and hammertoes that is related to service or in-service spinal meningitis. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in favor of the Veteran, the criteria for service connection for residuals of in-service spinal meningitis, including restless leg syndrome have been met. 38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303 (2013). 2. Resolving all reasonable doubt in favor of the Veteran, the criteria for service connection for a bilateral foot disorder, including rheumatoid arthritis and hammertoes have been met. 38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2013) redefined VA's duty to assist a Veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). The VCAA is not applicable where further assistance would not aid the appellant in substantiating his claim. Wensch v. Principi, 15 Vet App 362 (2001); see 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); see also VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (holding that the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). In view of the Board's decision, which constitutes a full grant of the benefit sought on appeal, further assistance is unnecessary to aid the Veteran in substantiating his claims Service Connection - Laws and Regulations Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2013). That determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d) (2013). A current disability must be present for a valid service connection claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999) (complaints of pain alone do not meet the current disability threshold); Evans v. West, 12 Vet. App. 22, 31-32 (1998). More recently, the Court has held that the current disability requirement is satisfied when a claimant has a disability at the time of filing the claim or during the pendency of that claim, even if the disability has since resolved. McLain v. Nicholson, 21 Vet. App. 319 (2007). Service connection may be presumed for certain chronic diseases, such as arthritis, which develop to a compensable degree within one year after discharge from service, even though there is no evidence of such disease during the period of service. That presumption is rebuttable by probative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002 & Supp. 2013); 38 C.F.R. 3.307, 3.309(a) (2013). If a chronic disease or injury is shown in service, subsequent manifestations of the same chronic disease or injury at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. For a showing of a chronic disorder in service, the mere use of the word chronic will not suffice; rather, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b) (2013). The provisions of 38 C.F.R. § 3.303(b) have been interpreted as an alternative manner of establishing service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a), which include arthritis. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Thus, evidence of continuous symptoms since active duty is still a factor for consideration as to whether a causal relationship exists between an in-service injury or incident and the current disability as is contemplated under 38 C.F.R. § 3.303(a) . In relevant part, 38 U.S.C.A. 1154(a) (West 2002) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Factual Background The Veteran contends that he is entitled to service connection for the residuals of spinal meningitis and rheumatoid arthritis of the feet, to include as secondary to spinal meningitis. He testified that he was diagnosed with spinal meningitis two to three weeks after he reached Fort Bragg North Carolina during basic training he mentioned that there were a number of men in his unit who were treated for spinal meningitis at the same time. The veteran indicated that his residuals of spinal meningitis include nervous twitches in his legs. The Veteran's service treatment records are presumed to have been destroyed in the 1973 fire at the National Personnel Records Center. See May 2000 response from the National Personnel Records Center (NPRC) and May 2006 Memorandum. A separation examination is part of the record of evidence; however, the Veteran and his representative have consistently stated that the Veteran did not have an examination when he left service in January 1958. See March 2000 notice of disagreement, December 2004 memorandum, December 2007 TB hearing testimony, letter from Veteran dated in June 2008, September 2010 CO hearing testimony. In a statement from the Veteran's private attorney dated in September 2010, the Veteran specifically noted that the examination on file was the wrong height and weight, and did not show the dental work he received while on active duty. In addition, he submitted letters from two fellow soldiers who were discharged at the same time who also contend that they did not have separation examinations. Analysis-Spinal Meningitis In November 1999 correspondence, R.B.S. reported that he was in service with the Veteran and that in February 1955, the Veteran was hospitalized for three weeks due to spinal meningitis at Fort Bragg, North Carolina. In December 1999, the Veteran's spouse reported that the Veteran was hospitalized in February 1955 at Fort Bragg, North Carolina due to spiral meningitis. She reported that during that time, she was dating the Veteran and had received a letter from him indicating that he was sick. In June 2006, H.S.L. reported that he served with the Veteran and that the Veteran was hospitalized between February and March 1955 due to spinal meningitis. A November 1999 record from Bridges, Hardy, and Miltead noted a history of having spinal meningitis in the service. An April 2008 VA examination report noted that the Veteran had meningitis in 1955 while in basic training and was hospitalized for 13 days. The veteran has consistently reported that he was diagnosed with spinal meningitis in service during basic training at Fort Bragg in 1955 and has submitted statements from individuals who recalled this event. There is no reason to doubt his credibility in this regard. Further, the veteran is competent to testify as to symptoms and relate diagnoses that he received from medical professionals. See Jandreau v Nicholson, 492 F 3d 1372 (Fed Cir 2007). Thus, even though there is no actual medical documentation, the veteran is presumed to have been diagnosed with spinal meningitis in service. The determinative issue therefore, is whether the veteran has any residuals of spinal meningitis related to this in-service diagnosis. A record dated in April 1992 from Dr. S.K.D. to J.F.H. noted that the veteran had jerky motions in his legs at night and was very restless. The examiner found that the veteran might have periodic leg myoclonus and obstructive sleep apnea. An August 2002 private medical record from Dr. Novero shows that the veteran had complaints of twitching fidgeting involving his extremities, restlessness, and restless legs like symptoms. After physical examination, the impression was possible symptoms secondary to tic disorder anxiety restless legs or periodic limb movements. Another private medical record dated in October 2002 included complaints of restless legs. The diagnoses included periodic limb movement disorder and obstructive sleep apnea. A February 2004 private medical record included an assessment of restless leg syndrome. VA outpatient treatment records dated from May to August 2004 indicated that the Veteran was evaluated for hyperlipidemia, depression, hypertension, rheumatoid arthritis, restless leg syndrome, low testosterone levels, sleep apnea, tic disorder and coronary artery disease. There are several conflicting medical opinions in the claims file. In this regard, the Board must assess the credibility and probative value of evidence, and, provided that it offers an adequate statement of reasons or bases, the Board may favor one medical opinion over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wood v. Derwinski, 1 Vet. App. 190 (1991). An August 2005, Dr. R.R., noted that he had been the veteran's primary care physician for the past seven years and had treated the Veteran for several conditions including side effects of spinal meningitis, which were nervous twitching and sleep apnea. The examiner noted that the Veteran contracted spinal meningitis during basic training and was hospitalized for 11 days. The examiner found that it was more likely than not that these conditions were service connected. The Court has found that a medical opinion must support its conclusions with analysis. Stefl v Nicholson, 21 Vet App 120, 124 (2007). "Neither a VA medical examination report nor a private medical opinion is entitled to any weight in a service connection or rating context if it contains only data and conclusions [without reasoning or rationale].' Nieves-Rodriguez v Peake, 22 Vet App 295, 304 (2008). On April 2008 VA examination report, the examiner noted that the Veteran had problems with restless legs in the 1980's and was diagnosed with restless leg syndrome in 2004. The examiner found that the Veteran's restless leg syndrome was not caused by or a result of spinal meningitis and that there were no residuals of spinal meningitis present on examination. The examiner's rationale was based on review of the medical records, medical literature, his clinical experience, and the present examination. The examiner determined that there was no evidence to support any chronic condition that occurred from the spinal meningitis, noting that the Veteran stated that a month after discharge from the hospital he was back to full duty. The examiner further mentioned that if problems do develop from meningitis they occur either immediately or shortly after the infection has resolved. In November 2009, Dr. R.P. noted the Veteran's history of spinal meningitis while in the military and that the Veteran currently suffered from restless leg syndrome, bilateral hearing loss, as well as problems with his memory. In letters dated in January and September 2010, Dr. C.N.B. indicated that he reviewed the evidence included in the Veteran's claims file as well as provided the Veteran with an examination. Dr. C.N.B opined that the Veteran's current brain and spinal cord problems were due to his experiences/trauma in service. Dr. C.N.B. reasoned that the Veteran had meningitis while in service according to the lay records, a doctor in service told the Veteran that he had meningitis, and the medical history provided by the Veteran was consistent with meningitis. In fact, based on the symptoms in service, it was Dr. C.N.B.'s diagnosis that the Veteran had meningitis in service. Dr. C.N.B. assumed the Veteran's lay statements were accurate and thus could be used as a basis for his diagnosis. Dr. C.N.B. added that the Veteran's records did not support another more plausible etiology for his current leg dysfunction. Also, the time lag interval between his service time injury/illness and his development of signs and symptoms was consistent with known medical principles and the natural history of this disease. At the September 2010 Board hearing, Dr. C.N.B. reported that he thought that the Veteran's ambulatory problems were related to meningitis. On May 2011 VA examination, the examiner noted that the Veteran had a diagnosis of restless leg syndrome, which the examiner opined was less likely than not caused by or a result of military service or spinal meningitis. In a February 2012 VA examination addendum, the examiner opined that the Veteran's restless leg syndrome was not caused by or a result of spinal meningitis. The examiner provided the rationale that the current medical literature was silent for any evidence to suggest a causal relationship between a history of meningitis and any subsequent development of restless leg syndrome. The examiner also noted that while the underlying etiology of restless leg syndrome was only partially understood, there seems to be a strong genetic component and several genetic linkages and three causative genes have been identified worldwide. The examiner noted that while a history of meningitis as an etiology of subsequent development of restless leg syndrome may be within the realm of medical possibility he opined that it failed to meet the test of more likely than not (a 51% probability). The examiner noted that he could not opine whether or not the Veteran had any residuals of spinal meningitis without resorting to mere speculation. The examiner stated that regarding the question of whether he has any residuals of spinal meningitis, it was well past his expertise to comment on this question without resorting to mere speculation. The examiner reported that the veteran should be evaluated by a qualified neurologist or neuropsychiatrist for this opinion. The examiner stated that he could comfortably comment on the Veteran's restless leg syndrome as a possible manifestation or residual of his claimed meningitis, but not to the additional level of "ANY" possible residuals of spinal meningitis. In a VA examination addendum dated in April 2012, the VA examiner noted that in 1955 after the Veteran was transferred from Fort Dix New Jersey to Fort Bragg, he developed an intense fever nausea, vomiting and changes in mental status during an epidemic of meningitis. The examiner noted that the Veteran was diagnosed with spinal meningitis and was hospitalized for several weeks in order to recuperate. The examiner noted that 30 years later, the Veteran developed a progressive restlessness in the legs when he would try to lay down. He reported that immobility aggravated this condition and activity or walking improved this condition. The examiner opined that he did not think that the restless leg syndrome was related to spinal meningitis, but rather an underlying polyneuropathy. On January 2013 VA examination, the examiner opined that the Veteran's claimed residuals of meningitis were not caused by or a result of the claimed episode of meningitis during active military service. The examiner provided the rationale that a thorough review of the claimed folder uncovered a September 1958 separation examination, which was silent for any mention of either treatment for meningitis or any residuals thereof. Based on that information, the examiner noted that there is no objective documented medical evidence that the Veteran had meningitis during active military duty. The examiner noted that regarding the lay statements from the Veteran, his wife and his friends if he did indeed contract meningitis during active military duty it was more likely than not viral meningitis which would almost certainly not result in any expected residual complications. Additionally, the examiner noted that it would not be expected the Veteran, his wife or associates would have any medical knowledge of the various etiologies of meningitis and their vastly different prognoses. The examiner noted that with regard to Dr. C.N.B.'s opinions dated in January and September 2010, it was unclear whether Dr. C.N.B had the opportunity to review of the Veteran's military separation examination in the preparation of his opinions or whether his opinions were based solely on a review of the current medical record and the Veteran's self-reported history. In summary, the examiner noted that in the absence of any new or material objective evidence regarding a claim of treatment for meningitis during active service he agrees with prior decision that there is no record of spinal meningitis showing a chrome disability subject to service connection and that the separation examination is absent for complaints of symptoms of or diagnosis for spinal meningitis. On January 2014 VA examination, the examiner noted that the Veteran had a history of meningitis which has resolved with no residuals. The examiner also noted that the Veteran was diagnosed with restless leg syndrome in 2004. After examination, the examiner opined that the Veteran's restless leg syndrome was not caused by or a result of spinal meningitis. The examiner provided the rationale that based on review of the medical records, the medical literature, clinical experience and the current examination, there was no evidence to support any chronic condition that occurred from the meningitis. The examiner noted that a month after discharge from the hospital, the Veteran was back to full duty and following service, he worked full time for 40 years. The examiner noted that the Veteran's history and available records showed that he had viral meningitis, which was resolved without any residuals in active duty. The examiner also opined that the Veteran did not have any current residuals of an in service bout of spinal meningitis. The examiner noted that there were no residuals of meningitis present on the previous April 2008 neurological examination and on the current examination as well. In providing their opinions, the April 2008, February 2012, January 2013, and January 2014 VA examiners appeared to rely, in part, on the absence of service treatment records as well as the results of the January 1958 separation examination, ostensibly showing that the Veteran did not have residuals of spinal meningitis when he left service; however, the Veteran has provided consistent, credible statements and sworn testimony that he did not undergo a separation examination when he was discharged from active duty. Additionally, the VA examiners also appeared to ignore evidence showing that the Veteran had a current leg dysfunction/restless leg syndrome and that it was related to his in-service spinal meningitis. As such, the Board finds that reliance on these VA examinations report is not warranted. Although, the January 2013 VA examiner addressed the findings of Dr. C.N.B., the examiner dismissed Dr. C.N.B.'s because he didn't consider the January 1958 examination. Accordingly, the Board concludes that the balance of positive and negative evidence is at the very least in relative equipoise. Accordingly, resolving all reasonable doubt in favor of the Veteran, the Board finds that service connection for residuals of spinal meningitis, including restless leg syndrome is warranted. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Analysis-Feet The veteran testified that he had problems with his feet in service because his boots were too tight. He noted that his boots would cramp his feet and that when he was shipped to Germany, he spent most of his time near the Russian border exposed to cold weather elements wearing ill-fitted boots that were not made for winter. Post service, the earliest date the evidence of record documents a diagnosis or treatment for complaints related to arthritis is found in treatment records dated March 29 1967 for treatment of psoriatic arthritis. Private medical records dated from 1988 to 1998 show diagnoses of psoriatic arthritis. A September 1988 medical record from Dr. J.H. noted that the Veteran worked in a warehouse and began having some difficulty with his right wrist and hand in 1986 including complaints of numbness, tingling and swelling. It was noted that four or five years prior he had come down with psoriasis of the scalp. The records showed that the Veteran had trouble with his fourth and fifth metatarsophalangeals (MTPs) last year. There was swelling in left foot and a stress fracture on the second metatarsal. An April 1988 x-ray examination revealed early erosive changes in the right wrist. The examiner determined that the Veteran's history and findings were consistent with psoriatic arthritis. In 1989, he started having problems in his right knee and hips with swelling and stiffness. Starting in August 1995, private medical records show complaints of swelling discomfort, and stiffness in the left knee. The diagnosis continued to be psoriatic arthritis. The earliest documentation for rheumatoid arthritis of the bilateral feet is in September 1993. An April 1996 private medical record noted deformities of the metatarsophalangeal joints. A September 1993 record from Dr. P.W.C. included such diagnoses as metatarsalgia, rheumatoid arthritis, and forefoot valgus deformity in both feet. In October 1993, the Veteran was diagnosed with hallux abduct valgus in the right foot. A July 2002 record included a history and an assessment of psoriatic/rheumatoid arthritis. Additional private treatment records dated in April 1995 included a diagnosis of arthritis, psoriatic and rheumatoid. A November 1999 record from Bridges, Hardy, and Miltead noted a possible history of rheumatoid arthritis and psoriasis. VA outpatient treatment records dated in May 2004 included such diagnoses as rheumatoid arthritis versus psoriasis. Therefore the determinative issue is whether there is any relationship between these post-service foot related diagnoses and the in service complaints. An August 2005 correspondence, Dr. R.R., a private examiner, noted that he had been the Veteran s primary care physician for the past seven years and that he had treated the Veteran for rheumatoid arthritis in the feet. The examiner found that this condition was more likely than not service connected. "Neither a VA medical examination report nor a private medical opinion is entitled to any weight in a service connection or rating context if it contains only data and conclusions [without reasoning or rationale].' Nieves-Rodriguez v Peake, 22 Vet App 295, 304 (2008). An April 2008 VA examination report shows the examiner reviewed the claims file. The examiner noted that the Veteran was issued boots in service that did not fit and had pain in both feet throughout service. He had orthotics for both feet made for him by a private podiatrist and was diagnosed with rheumatoid arthritis in the late 1980's or early 1990's. The course since onset had become progressively worse. The examiner found that the Veteran s rheumatoid arthritis of the feet was not caused by or a result of his active service. The rationale was based on review of the medical records medical literature, the examiner's clinical experience, and the fact that there was no evidence of a chronic problem with his feet after he left service and no documentation of foot problems until 1993. The examiner further noted that there was no evidence of active rheumatoid arthritis during service. In November 2009 functional capacities evaluation, Dr. R.R. noted that the Veteran had spinal meningitis during service and was also issued boots which were too small and caused deformity in his feet. In September 2010 correspondence, Dr. C.N.B. found that the Veteran's hammertoes began during service following his meningitis. Dr. C.N.B. found that as the Veteran's hammertoe problems pre-dated his diagnosis of rheumatoid arthritis by decades, both of these diagnoses were likely true but unrelated. However, Dr. C.N.B. opined that the Veteran's meningitis made his foot muscles weak, which resulted in his current hammertoe problems. At the September 2010 Board hearing, Dr. C.N.B. reported that the Veteran has had hammertoes since service, which were also manifestations of his meningitis. On May 2011 VA examination, the examiner noted that the Veteran did not have a diagnosis of rheumatoid arthritis of the feet. On April 2012 VA examination, the examiner reported that the Veteran noticed progressive sensory loss in his feet, ataxia, and hammer toes that he attributed to wearing tight shoes. On January 2013 VA examination, the examiner noted that with regard to Dr. R.R.'s opinion dated in August 2005, it was unclear whether Dr. R.R. had the opportunity to review the military separation examination in the preparation of that opinion or whether his opinion was based solely on a review of the current medical record and the Veteran's self-reported history. However, the examiner pointed out that it should be noted that while Dr. R.R. claimed to have treated the Veteran for "rheumatoid arthritis of the feet" for 7 years at the time of his opinion, the Veteran's claim at that time was not for rheumatoid arthritis of the feet, but for hammertoes. The examiner noted that there is no objective evidence that the Veteran had rheumatoid arthritis. The examiner noted that the Veteran's current complaints of hammertoes were stand alone entities, which were neither due to nor aggravated by active military service. Here, the VA examiner failed to provide adequate reasons for the provided opinion. See Nieves-Rodriguez v Peake, 22 Vet App 295, 304 (2008). January 2014 VA examination included such diagnoses as bilateral hammer toes and rheumatoid arthritis. The examiner noted the Veteran's reports of having feet problems since he was discharged from the military. Following examination and a review of the claims file, the examiner opined that the Veteran's bilateral hammer toes, which were most likely due to rheumatoid arthritis, were not caused by or a result of the Veteran's military service, including wearing tight, ill-fitting boots during taming exercises. The examiner provided the rationale that based on review of the medical records, medical literature, and clinical experience there was no evidence of a chronic problem with the Veteran's feet after he left military service and objective evidence of foot problems did not begin until 1993. The examiner noted that there was no evidence of active rheumatoid arthritis during the Veteran's military service and there was no evidence of bilateral hammer toes deformity in active military service and therefore a nexus could not be made to military service. In regards to the April 2008 and January 2014 VA examination, the Veteran's service treatment records were lost in a fire at the NPRC, so it is unclear what evidence was relied on in reaching this conclusion. While a January 1958 examination has been included in the record, the Board has previously determined that the Veteran has provided consistent, credible statements and sworn testimony that he did not undergo a separation examination when he was discharged from active duty. Overall, the Board concludes that the balance of positive and negative evidence is at the very least in relative equipoise. Accordingly, resolving all reasonable doubt in favor of the Veteran, the Board finds that service connection for a bilateral foot disability, including rheumatoid arthritis and hammertoes is warranted. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for residuals of spinal meningitis, including restless leg syndrome is granted. Service connection for a bilateral foot disability, including rheumatoid arthritis and hammertoes is granted. REMAND As previously discussed in the Introduction section, in a February 2014 rating decision, the RO denied entitlement to a TDIU. While the issue was summarily included in the February and May 2014 supplemental statements of the case (SS0Cs), the Board ultimately deems that the issue was not in appellate status at that time. Under VA law, in order to appeal any RO decision, the claimant must file a timely Notice of Disagreement (NOD), followed by a timely Substantive Appeal in response to the RO's issuance of an intervening Statement of the Case (SOC). See 38 C.F.R. § 20.200. Here, it was not until later in May 2014, that the Veteran and his representative appeared to disagree with the denial of entitlement to a TDIU and also indicated a desire for a hearing. A Statement of the Case has not been issued for either issue and under these circumstances, a Statement of the Case must be issued for both issues. See Manlicon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). Expedited handling is requested.) Issue a Statement of the Case regarding entitlement to a TDIU and clarify if the Veteran desires a hearing. Only if the Veteran perfects an appeal should the claims be certified to the Board and after any necessary development has been completed. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs