Citation Nr: 18156923 Decision Date: 12/11/18 Archive Date: 12/11/18 DOCKET NO. 17-20 684 DATE: December 11, 2018 ORDER Entitlement to service connection for tuberculous meningitis is granted. Entitlement to an evaluation higher than 10 percent for tinnitus is denied. REMANDED The claim of entitlement to service connection for a left shoulder disability is remanded. The claim of entitlement to service connection for visual impairment is remanded. The claim of entitlement to service connection for aphasia is remanded. The claim of entitlement to service connection for deep vein thrombosis (DVT) of the left lower extremity is remanded. The claim of entitlement to service connection for DVT of the right lower extremity is remanded. The claim of entitlement to service connection for incontinence is remanded. The claim of entitlement to service connection for left upper extremity hemiparesis is remanded. The claim of entitlement to service connection for right upper extremity hemiparesis is remanded. The claim of entitlement to service connection for left lower extremity hemiparesis is remanded. The claim of entitlement to service connection for right lower extremity hemiparesis is remanded. The claim of entitlement to service connection for cognitive impairment is remanded. The claim of entitlement to automobile or other adaptive equipment is remanded. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran’s favor, tuberculous meningitis is at least as likely as not related to service. 2. The Veteran’s tinnitus is assigned a 10 percent evaluation, the maximum rating authorized under Diagnostic Code 6260. CONCLUSIONS OF LAW 1. The criteria for service connection for tuberculous meningitis have been met. 38 U.S.C. § 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 2. The claim of entitlement to a higher evaluation for tinnitus is denied. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.321, 4.25, 4.87, Diagnostic Code 6260 (2003), Diagnostic Code 6260 (2017); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994); Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 1. Entitlement to service connection for tuberculous meningitis The Veteran seeks service connection for tuberculous meningitis, asserting that he was exposed to tuberculosis during service and that he subsequently developed tuberculous meningitis. Entitlement to VA compensation may be granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C. §§ 1110 (wartime service), 1131 (peacetime service); 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). However, “[a] determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service.” Watson v. Brown, 4 Vet. App. 309, 314 (1993). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b). During an August 2018 hearing, the Veteran’s wife testified that he became extremely ill beginning in 1981, and that he was admitted to the University of Texas Medical Center and diagnosed with tuberculosis of the brain. In a sworn statement dated in September 2016, Dr. T.K.S. indicated that he was a former professor of internal medicine at the University of Texas Health Science Center at Houston, and that he had post graduate training in internal medicine and infectious diseases. He noted that during his tenure as a professor at the University of Texas Medical School at Houston, he consulted on patients with infectious diseases, and gave lectures on tuberculosis and related organisms for more than 20 years. He indicated that in January 1982, the Veteran was transferred to the teaching hospital, where on admission, he had a high fever, seizures, and an obvious stroke. He related that a CT scan revealed a hydrocephalus requiring an emergency shunt, and a granuloma (inflammation caused by tuberculosis) as the likely cause of the stroke. He indicated that pathology revealed organisms compatible with tuberculosis, which was confirmed by culture. He stated that although the stroke left the Veteran with significant impairment, he returned to work until the disability forced him to retire. Dr. S. noted that the usual mechanism of acquiring tuberculosis was by inhalation of droplet nuclei and of those infected, five percent would have clinical illness initially (usually pulmonary tuberculosis) during the first year or two, and such was known as primary tuberculosis. He indicated that those infected who did not have primary tuberculosis had latent tuberculosis infection (LTBI), and that the bacteria were not killed, but were held in check by the immune system. He stated that another five percent would become ill at some time over the course of their lives, and that the reactivation of latent tuberculosis, usually pulmonary, could affect any part of the body. He named various risk factors, but stated that frequently, there was no known underlying factor. He indicated that 90 percent of people infected with tuberculous bacteria never became ill, and that the tuberculin skin test was the most usual way to detect those with LTBI; he noted that the Veteran was apparently never skin tested, and experienced no manifestation of tuberculosis until he became ill with meningitis. He acknowledged that he did not know with certainty where the Veteran was infected with tuberculosis, but pointed out that he had no family member with tuberculosis, and that reports from employers and business associates in 1982 revealed no knowledge or awareness of any contacts having tuberculosis. He noted that tuberculosis was more likely to be transmitted in areas of crowding, with poor ventilation. He stated that, according to the Veteran’s history, the only place that he had been that was crowded with poor ventilation was during his time in the service. He stated that he knew no other risk factors in the Veteran’s history. Having carefully reviewed the record, the Board has determined that service connection for tuberculous meningitis is warranted. In reaching this conclusion, the Board notes that Dr. S provided a highly detailed statement regarding the Veteran’s initial treatment for tuberculous meningitis, explaining the mechanism by which an individual was infected, and how reactivation of LTBI could affect any part of the body. He concluded, in the absence of any other known risk factor, that the Veteran was likely initially infected during service. In consideration of the above, the Board has carefully considered the evidence, and finds that there is at least an approximate balance of evidence with respect to the question of whether the Veteran’s tuberculous meningitis, diagnosed in 1982, is related to service. Therefore, having resolved doubt in favor of the Veteran, service connection for tuberculous meningitis is granted. 2. Entitlement to an evaluation higher than 10 percent for tinnitus The Veteran has requested an initial evaluation higher than 10 percent for tinnitus. The RO denied the Veteran’s request because under diagnostic code 6260 the maximum evaluation for tinnitus is 10 percent. The Veteran appealed that decision to the Board. In Smith v. Nicholson, 19 Vet. App. 63, 78 (2005) the United States Court of Appeals for Veterans Claims (Court) held that the pre-1999 and pre-June 13, 2003 versions of diagnostic code 6260 required the assignment of dual ratings for bilateral tinnitus. VA appealed this decision to the U.S. Court of Appeals for the Federal Circuit (Federal Circuit). In Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006), the Federal Circuit concluded that the Court erred in not deferring to the VA’s interpretation of its own regulations, 38 C.F.R. § 4.25(b) and Diagnostic Code 6260, which limits a Veteran to a single disability evaluation for tinnitus, regardless of whether the tinnitus is unilateral or bilateral. The Veteran’s service-connected tinnitus has been assigned the maximum schedular rating available. 38 C.F.R. §4.87, Diagnostic Code 6260. As there is no basis upon which to award a higher schedular evaluation for tinnitus or separate schedular evaluations for tinnitus in each ear, the Veteran’s appeal must be denied. Sabonis v. Brown, 6 Vet. App. 426 (1994). REASONS FOR REMAND 1. Service connection for a left shoulder disability 2. Service connection for visual impairment 3. Service connection for aphasia 4. Service connection for DVT of the left lower extremity 5. Service connection for DVT of the right lower extremity 6. Service connection for incontinence 7. Service connection for left upper extremity hemiparesis 8. Service connection for right upper extremity hemiparesis 9. Service connection for left lower extremity hemiparesis 10. Service connection for right lower extremity hemiparesis 11. Service connection for cognitive impairment During the August 2018 hearing, the Veteran’s representative specified that service connection for the disabilities listed above was sought as secondary to tuberculous meningitis. The appellant asserts that the Veteran was infected by tuberculous bacteria during service, and that such ultimately caused meningitis, and that strokes and other residuals were related to tuberculous meningitis. While medical records associated with the claims file indicate various complaints, the full extent of the Veteran’s disabilities is not entirely clear. Moreover, records from Integris Baptist Medical Center dating to January 2009 indicate acute cerebral infarction. A history taken at the time of the Veteran’s hospitalization notes a history of tuberculous meningitis at age 44 in 1981, with a complicated course, but recovery to the extent that the Veteran remained independent and employed until experiencing symptoms just prior to his hospitalization in 2009. In light of the lack of clarity regarding the Veteran’s disabilities and the nature of any residuals of his tuberculous meningitis, the Board concludes that examinations are necessary to determine whether the claimed disabilities are related to his now service-connected tuberculous meningitis. 12. Entitlement to automobile or other adaptive equipment Further development and adjudication of the remanded service connection claims may provide evidence in support of the claim for automobile or other adaptive equipment. The Board has therefore concluded that it would be inappropriate at this juncture to enter a final determination on that issue. See Henderson v. West, 12 Vet. App. 11 (1998), citing Harris v. Derwinski, 1 Vet. App. 180 (1991) (noting that where a decision on one issue would have a "significant impact" upon another, and that impact in turn could render any review of the decision on the other claim meaningless and a waste of appellate resources, the claims are inextricably intertwined). The matters are REMANDED for the following action: Schedule the Veteran for appropriate VA examinations to determine the nature and etiology of his claimed bilateral upper and lower extremity hemiparesis, DVT of the lower extremities, aphasia, incontinence, cognitive impairment, left shoulder disability, and vision impairment. The claims file must be made available to the examiner. All necessary tests and studies should be accomplished, and all clinical findings should be reported in detail. Following review of the record and examination of the Veteran, the examiner should indicate whether diagnoses of hemiparesis, DVT, aphasia, incontinence, a left shoulder disability, and/or cognitive impairment are appropriate. If so, the examiner should provide an opinion with respect to whether it is at least as likely as not (50 percent or more probability) that each diagnosed condition was caused or aggravated (worsened beyond normal progression) by the Veteran’s service-connected tuberculous meningitis. With respect to the claimed visual impairment, the examiner should provide an opinion regarding whether it is at least as likely as not (50 percent or more probability) that any diagnosed visual impairment is was caused or aggravated by medication prescribed to treat the service-connected tuberculous meningitis. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. If the examiner is unable to offer any of the requested opinions, a rationale for the conclusion that an opinion cannot be provided without resort to speculation should be provided, together with a statement as to whether there is additional evidence that might enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. (Continued on the next page)   The complete rationale for any conclusion reached should be provided. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Barone, Counsel