Citation Nr: 1754542 Decision Date: 11/29/17 Archive Date: 12/07/17 DOCKET NO. 16-13 318 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for hepatitis. 2. Entitlement to service connection for spinal meningitis. 3. Entitlement to service connection for an acquired psychiatric disorder, to include anxiety. 4. Entitlement to service connection for diverticulitis. 5. Entitlement to service connection for a prostate condition. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Steven H. Johnston, Associate Counsel INTRODUCTION The Veteran had active service from September 1953 to July 1957. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2013 rating decision by the Department of Veterans Affairs (VA) Pension Management Center in St. Paul, Minnesota. While this decision was rendered by the PMC, jurisdiction of the Veteran's claims file remains with the Regional Office (RO) in St. Louis. The Board notes that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. As such the Board has recharacterized the issue of entitlement to service connection for anxiety as entitlement to service connection for an acquired psychiatric disorder, to include anxiety. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The issues of entitlement to service connection for an acquired psychiatric disorder, diverticulitis, and a prostate condition are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The evidence of record does not show that the Veteran has been diagnosed with or suffers from a current hepatitis disability during or proximate to the appeal period. 2. The evidence of record does not show that the Veteran has been diagnosed with or suffers from a current disability of spinal meningitis during or proximate to the appeal period. CONCLUSION OF LAW 1. The criteria for service connection for hepatitis are not met. 38 U.S.C. §§ 1110, 1131, 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). 2. The criteria for service connection for spinal meningitis are not met. 38 U.S.C. §§ 1110, 1131, 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159. Here required notice was provided by letters in January and July 2013. As to VA's duty to assist, the Board finds that all necessary development has been accomplished with respect to the Veteran's claims, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Where the Veteran has identified and authorized VA to obtain private treatment records, VA has either obtained those records and associated them with the claims file or made the appropriate attempts to obtain those records. The Veteran does not appear to have sought treatment from the VA system. Consequently, there are no VA treatment notes of record. Additionally, with regard to the Veteran's service treatment records, the Board notes that the National Personnel Records Center (NPRC) has indicated that the Veteran's service treatment records (STRs) and personnel records are not available and presumed destroyed in the NPRC fire in 1973. Where STRs have been destroyed or are unavailable, VA has a heightened duty to assist the Veteran and the Board has a heightened duty to provide and explanation of reasons or bases for its findings. See O'Hare vs. Derwinski, 1 Vet. App. 365 (1991). That duty includes obtaining medical records and medical examinations where indicated by the facts and circumstances of the individual case. Littke v. Derwinski, 1 Vet. App. 90 (1990). Appropriate examinations have been obtained with respect to the Veteran's claims for hepatitis and spinal meningitis in August 2013. The Board finds that the examination and medical opinion are adequate because they were based on a review of the Veteran's claims file; an in-person examination of the Veteran, including a history elicited from the Veteran; and provide the necessary information to guide the Board's decision regarding service connection. Nieves-Rodriguez v. Peake, 22 Vet. App 295 (2008); see Barr v. Nicholson, 21 Vet. App. 303 (2007). Neither the Veteran nor his representative has raised any issues with the adequacy of the examinations and opinions. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). The duty with regard to missing records also requires VA to make a formal finding that these Federal Records are not available and to provide the Veteran with notice of that fact and of VA's efforts to obtain those records. 38 C.F.R. § 3.159(e). An appropriate finding was made and the Veteran was notified in November 2013. II. Service Connection Service connection may be established for a disease or injury incurred in or caused or aggravated during service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. To prevail on the issue of service connection, there must be (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Hickson v. West, 12 Vet. App. 247 (1999). After considering all information including the lay and medical evidence of record in a case with respect to benefits under laws administered by the Secretary, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The benefit of the doubt rule is inapplicable when the evidence preponderates against the claim. Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). A. Hepatitis The Veteran seeks service connection for hepatitis. As previously discussed, the Veteran's service treatment records are not available. However, the Veteran reports that he was infected with hepatitis in 1956 during his service from contaminated food and developed jaundice. The Veteran reports being treated for this condition during his service. The Veteran's post-service treatment records do not record a history of hepatitis infection or treatment for this condition. At the August 2013 VA examination, the examiner noted the Veteran's historical diagnosis with this condition. However, the examiner also examined liver functioning tests from April 2012 and explained that the reports of those tests were normal. The examiner went on to explain that the Veteran showed no current symptoms of any liver disease, had no sequelae from his in-service hepatitis, and had no diagnosable liver condition. Based on this evidence, the Board finds that service connection for hepatitis must be denied. The most probative evidence of record indicates that the Veteran has not, at any time relevant to this appeal, manifested hepatitis or another liver condition. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (noting that the requirement of a current disability is satisfied when the claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim and that a claimant may be granted service connection even though the disability resolves prior to VA's adjudication of the claim); cf. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013) (noting that the Board must consider evidence of a "recent" diagnosis made prior to the filing of a claim). Because the record does not show that the Veteran's in-service hepatitis has resulted in any disability during the relevant time period, the Board finds that there is no valid claim of service connection for such disability. See Brammer v. Derwinski, 3 Vet. App. 223 (1992). Hence, service connection for hepatitis is denied. In reaching this conclusion, the Board has considered the benefit of the doubt doctrine. However, the benefit of the doubt doctrine does not apply where the evidence preponderates against a claim. Ortiz, 274 F.3d 1361 (Fed. Cir. 2001). B. Spinal Meningitis The Veteran seeks service connection for spinal meningitis. As previously discussed, the Veteran's service treatment records are not available. However, the Veteran reports that he was infected with spinal meningitis in 1954 during his service. The Veteran reports being treated for this condition during his service. The Veteran's post-service treatment records do not record a history of spinal meningitis or treatment for this condition. At the August 2013 VA examination, the examiner noted the Veteran's historical diagnosis with this condition. However, the examiner also noted that the Veteran denied any sequelae from spinal meningitis in 1954. After an examination of the Veteran's back, the only diagnosis provided at the time was a herniated disc that the Veteran explained was the result of a 2006 injury. According to the Veteran's statements to the August 2013 VA examiner, the Veteran did not have back problems prior to the 2006 injury. Based on this evidence, the Board finds that service connection for spinal meningitis must be denied. The most probative evidence of record indicates that the Veteran has not, at any time relevant to this appeal, manifested spinal meningitis or residual symptoms or conditions from his in-service diagnosis of spinal meningitis. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (noting that the requirement of a current disability is satisfied when the claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim and that a claimant may be granted service connection even though the disability resolves prior to VA's adjudication of the claim); cf. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013) (noting that the Board must consider evidence of a "recent" diagnosis made prior to the filing of a claim). Because the record does not show that the Veteran's in-service spinal meningitis has resulted in any disability during the relevant time period, the Board finds that there is no valid claim of service connection for such disability. See Brammer v. Derwinski, 3 Vet. App. 223 (1992). Hence, service connection for spinal meningitis is denied. In reaching this conclusion, the Board has considered the benefit of the doubt doctrine. However, the benefit of the doubt doctrine does not apply where the evidence preponderates against a claim. Ortiz, 274 F.3d 1361 (Fed. Cir. 2001). ORDER Entitlement to service connection for hepatitis is denied. Entitlement to service connection for spinal meningitis is denied. REMAND With respect to the claims of service connection for diverticulitis, a prostate condition, and an acquired psychiatric disorder, the Board finds that a remand is required before a final adjudication can be accomplished. While the Veteran's post-service treatment records do not document clear diagnoses of diverticulitis or a prostate condition, the records do document potentially related symptoms of gastrointestinal/abdominal pain and an increase in the Veteran's prostate-specific antigen levels. Consequently, the Board finds that this matter should be remanded for an examination to determine whether these symptoms are manifestations of the conditions claimed and, if so, whether the conditions are etiologically related to the Veteran's service. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The record does not contain any information regarding the Veteran's psychological condition. As the Board has an expanded duty to explain the reasons for its decision because the Veteran's service treatment records were destroyed, the Board finds that, in this case, it cannot comply with this duty without a psychological evaluation and opinion. Littke, 1 Vet. App. 90 (1990). 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). Expedited handling is requested.) 1. Obtain and associate with the claims file any outstanding/updated VA treatment records that are not already associated with the claims file that are relevant to the claims on appeal. 2. After the above records development is completed, schedule the Veteran for appropriate VA examinations to assess the nature, severity, and etiology of his claimed diverticulitis, prostate, and acquired psychiatric conditions. The examiner should assess the following: (a) Whether the Veteran is currently diagnosed with diverticulitis, or has been during or proximate to the appeal period. If so, whether it is at least as likely as not (50 percent or greater probability) that the Veteran's diverticulitis was incurred in or caused or aggravated by the Veteran's service. (b) Whether the Veteran is currently diagnosed with a prostate condition, or has been during or proximate to the appeal period. If so, whether it is at least as likely as not (50 percent or greater probability) that the Veteran's prostate condition was incurred in or caused or aggravated by the Veteran's service. (c) Whether the Veteran is currently diagnosed with an acquired psychiatric disorder, or has been during or proximate to the appeal period. If so, whether it is at least as likely as not (50 percent or greater probability) that the Veteran's acquired psychiatric disorder was incurred in or caused or aggravated by the Veteran's service. The examiner(s) should provide a complete rationale for each opinion given, and cite to the medical and competent lay evidence of record and explain the rationale for all opinions given. If after consideration of all pertinent factors it remains that the opinion sought cannot be given without resort to speculation, it should be so stated and the provider(s) must (to comply with governing legal guidelines) explain why the opinion sought cannot be offered without resort to speculation. 3. Once the development described above has been completed, undertake any further development that may be indicated. Then, readjudicate the claims on appeal. If any claim remains denied, or less than the full benefit sought is granted, provide the Veteran and his representative with an appropriate supplemental statement of the case and the requisite time to respond. Then, if the claims file is otherwise in order, return the claims to the Board for further appellate review. 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 (2012). ______________________________________________ A. ISHIZAWAR Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs