Citation Nr: 18146070 Decision Date: 10/30/18 Archive Date: 10/30/18 DOCKET NO. 12-10 229 DATE: October 30, 2018 ORDER Service connection for meningitis is denied. REMANDED Entitlement to service connection for a kidney disorder, to include as due to exposure to contaminated water at Camp Lejeune, as well as toxic exposure in a gas chamber, is remanded. Entitlement to service connection for a seizure disorder, to include as due to exposure to contaminated water at Camp Lejeune, as well as toxic exposure in a gas chamber, is remanded. Entitlement to service connection for a headache disorder, to include as due to exposure to contaminated water at Camp Lejeune, as well as toxic exposure in a gas chamber, is remanded. FINDINGS OF FACT 1. The Veteran does not have a current diagnosis of meningitis. 2. The Veteran was hospitalized during service on June 13, 1952 with a diagnosis listed as “Undetermined (Meningitis)” for complaints of a sore neck, aching of extremities, slight sore throat and slight headache. On June 16, 1952, as the established symptoms subsided with aspirin and local application of heat, and his temperature remained normal throughout, the diagnosis was changed to “Influenza, virus type unknown.” There is no competent evidence of a diagnosis of meningitis at any time during service. CONCLUSION OF LAW The criteria to establish service connection for meningitis are not met. 38 U.S.C. §§ 1110, 1131, 1154, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Navy from November 1951 to November 1955 as a hospital corpsman. The Veteran appeared before the undersigned Veterans Law Judge in a Travel Board hearing in June 2012 to present testimony on the issues on appeal. This appeal was subject to a prior remand by the Board in October 2012 to ensure compliance with due process requirements. For the claim of service connection for meningitis, the evidentiary record has been adequately developed in substantial compliance with all prior Board remand instructions and has been returned to the Board for further appellate review. Stegall v. West, 11 Vet. App. 268 (1998). Service connection for meningitis Service connection generally requires (1) 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) competent evidence of a causal relationship, or nexus, between the claimed in-service event, injury, or disease and the current disability. 38 C.F.R. § 3.303; see Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In the present case, there is no evidence of a current meningitis disability, nor credible evidence of meningitis diagnosed during service. The February 2010 VA examiner evaluated the Veteran and determined that, although the Veteran described diagnosis and treatment during service for meningitis, found by the Board to be incorrect, the Veteran did not have a present diagnosis of meningitis, or identified residuals thereof. Furthermore, despite generally consistent VA treatment documented from January 1998 to March 2018, these treatment records do not contain a diagnosis of meningitis. In correspondence to VA in January 2010, the Veteran stated, “The biggest problem I had was I never realized that I was treated for meningitis.” It is understandable how the Veteran may have reached the conclusion that he was treated for meningitis during service at the time of his June 1952 hospitalization. However, a careful reading of the Veteran’s service treatment records reflects that no confirmed diagnosis of meningitis was ever reached. Instead, the service treatment records show that the provisional diagnosis at the time of hospitalization was “Diagnosis Undetermined (Meningitis).” The Veteran was then hospitalized at the U.S. Naval Hospital in Bainbridge, Maryland from June 13 to June 19, 1952. During this hospitalization, the Veteran was examined and found to have slight inflammation of the pharynx with slight tenderness of submaxillary nodes and slight abdominal tenderness to the right of his naval. Symptoms subsided with aspirin and local application of heat. Temperature remained normal. Based on these facts, the diagnosis was changed from undetermined, with the possibility of meningitis, to influenza on June 16, 1952. The Veteran was then returned to duty well on June 19. A February 2010 VA examination report appears to reflect the Veteran’s self-described 1952 hospital admission as being due to headaches, fever, and dizziness, with treatment including intravenous penicillin and a spinal tap lumbar puncture. Although the Veteran’s medical training renders him competent to describe such treatment procedures, the symptoms and procedures described by the Veteran are not documented in the service treatment records, and are inconsistent with the official records for this hospitalization. The Board assigns more evidentiary weight to the contemporaneous records over imperfect memories of an event lapsed by 57 years. The Board does not find competent and credible evidence of an in-service diagnosis of meningitis, nor evidence of the specific treatment described by the Veteran. The determined diagnosis for the relevant period of hospitalization is documented as influenza. In sum, in the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Board finds that the Veteran has no current diagnosis of meningitis, as well as no meningitis diagnosed during service. Thus, service connection for meningitis is not warranted. 38 C.F.R. § 3.303. REASONS FOR REMAND 1. Entitlement to service connection for a kidney disorder, to include as due to exposure to contaminated water at Camp Lejeune, as well as toxic exposure in a gas chamber, is remanded. The Board cannot make a fully-informed decision on the issue of service connection for a kidney disorder because no VA examiner has opined whether the Veteran’s claimed exposure to “atomic, biological, and chemical sprays and gases” in a gas chamber at Camp Lejeune is related to his current diagnosis of chronic renal disease. See Veteran’s statement, March 2010. 2. Entitlement to service connection for a seizure disorder, to include as due to exposure to contaminated water at Camp Lejeune, as well as toxic exposure in a gas chamber, is remanded. Where there is competent evidence of a current disability or persistent or recurrent symptoms of a disability, evidence establishing that an event, injury, or disease occurred in service, and an indication that the disability or persistent symptoms of a disability may be associated with service or another service-connected disability, but there is insufficient competent medical evidence to decide on the claim, the Veteran must be afforded a VA examination. McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this instance, the Veteran has been diagnosed with a history of seizures (partial complex seizure versus focal seizure with secondary generalization), and is taking regular medication for the condition. VA examination, February 2010. A seizure condition was not diagnosed during the Veteran’s active service, but his service treatment records contain a February 24, 1955 reference to feeling “quivering sensations throughout his body recently.” When this information is viewed in conjunction with the Veteran’s June 2012 hearing testimony that he experienced seizures during service and is still being treated for them today, the Board finds this to collectively be sufficient evidence to trigger VA’s duty to assist the Veteran in obtaining a medical opinion on the matter. The Board cannot make a fully-informed decision on the issue of service connection for a seizure disorder because no VA examiner has opined whether his current history and ongoing treatment of seizures is related to the quivering sensations described during service. The Board also notes that in January 2010 and in testimony provided in June 2012, the Veteran identified relevant private treatment records that had not been associated with the claims file from Drs. G, M, and Z. These records were requested in February and March 2010, and the Veteran was again asked to identify relevant records subsequent to the October 2012 Board remand, to which he did not respond. The identified records have not yet been associated with the claims file. As such, the Board will afford one more opportunity to the Veteran to request the described files, and provide the appropriate identifying information if he wishes VA’s assistance in obtaining them. 3. Entitlement to service connection for a headache disorder to include as due to exposure to contaminated water at Camp Lejeune, as well as toxic exposure in a gas chamber, is remanded. A VA examination in February 2010 identified a diagnosis of migraine headaches. The examiner then opined that the Veteran’s current diagnosis was less likely than not related to the headaches described in service. However, the Board finds this examination to be inadequate for the purposes of a service connection determination. Specifically, the examiner describes treatment during service for meningitis, including symptoms of headache, fever, and dizziness, treated with IV penicillin and a spinal tap lumbar puncture done in June 1952. As described in the portion of the decision regarding meningitis above, the Board finds this history to be inconsistent with the diagnosis and treatment documented in the service treatment records in June 1952. However, a October 1952 service treatment notation states “Hit on the head with a brick age 5. Now headache almost continuously.” The Veteran denied ever experiencing frequent or severe headaches on the Report of Medical History form submitted at his entrance into service, and he was found to be neurologically normal at the time of his service entrance examination in November 1951. Thus, there is no defect noted at the time of examination, acceptance and enrollment, and the Veteran’s headches described in service are not clearly and unmistakably shown to be a pre-eixisting injury or disease. As such, this is a claim for service connection on a direct basis, rather than one for service-connected aggravation. 38 U.S.C. §§ 1111, 1137 (2012); see also Wagner v. Principi, 370 F.3d 1089 (Fed. Cir., 2004). Nonetheless, the symptoms described by the Veteran as continuous headaches in October 1952 must be considered. Given the deficiencies described above in the VA examination report, the Board finds that a new medical opinion with an adequate supporting rationale is required to decide the Veteran’s claim. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for Drs. G, M, and Z as identified in the prior VA Form 21-4142 signed in January 2010. If the proper authorization is provided, make two requests for the authorized records from these providers, unless it is clear after the first request that a second request would be futile. 2. After completion of the above, obtain an addendum opinion regarding whether the Veteran’s chronic renal disease is at least as likely as not related to the Veteran’s claimed exposure to toxic substances in a gas chamber at Camp Lejeune. 3. Schedule the Veteran for an examination to determine the nature and etiology of any currently diagnosed seizure disorder. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including the quivering sensations described in February 1955, or other credible history of in-service seizure activity or related symptoms described by the Veteran. If a form of epilepsy is diagnosed, the examiner must opine whether it at least as likely as not (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service. The Veteran is also presumed to have been exposed to contaminated water during his service at Camp Lejeune from March 1953 to April 1954. Although seizure disorders are not a listed presumptive disease linked with such exposure in 38 C.F.R. § 3.309(f), direct service connection remains possible. As such, the examiner is also asked to opine whether it is at least as likely as not that any currently diagnosed seizure condition is related to contaminants in the water at Camp Lejeune, or to the Veteran’s claimed toxic exposure in a gas chamber. 4. After completion of the above, schedule the Veteran for an examination to determine the nature and etiology of any currently diagnosed headache disorder. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including the Veteran’s documented history of headaches in October 1952, or other lay history of headaches during service that are credibly described by the Veteran. If an organic disease of the nervous system is diagnosed, opine whether it at least as likely as not (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service. Opine whether a currently diagnosed headache disability is at least as likely as not related to contaminants in the water during service at Camp Lejeune, or to the toxic exposure described by the Veteran during training in a gas chamber. (Continued on the next page)   If a VA examiner has opined that the Veteran’s claimed seizure disorder is at least as likely as not related to the Veteran’s active service, please opine whether any current headache disability is at least as likely as not (1) proximately due to service-connected seizures (if established), or (2) aggravated beyond its natural progression by service-connected seizures (if established). K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. McDonald