Citation Nr: 1808950	
Decision Date: 02/13/18    Archive Date: 02/23/18

DOCKET NO.  10-24 517	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUES

1.  Entitlement to service connection for bilateral hearing loss, to include as secondary to service-connected meningitis.

2.  Entitlement to service connection for tinnitus, to include as secondary to service-connected meningitis.

3.  Entitlement to service connection for an upper respiratory disability, claimed as asthma.

4.  Entitlement to a rating in excess of 10 percent for service-connected meningitis.


REPRESENTATION

Appellant represented by:	Disabled American Veterans



WITNESSES AT HEARING ON APPEAL

Appellant and spouse


ATTORNEY FOR THE BOARD

M. Yuan, Associate Counsel


INTRODUCTION

The Veteran who served on active duty from October 1977 to October 1980.  This appeal to the Board of Veterans' Appeals (Board/BVA) is from a February 2009 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO).  In March 2015, in support of these claims, the Veteran and his wife testified at a videoconference hearing before the undersigned Veterans Law Judge of the Board; a transcript of the hearing is of record.  In August 2015, the Board remanded these matters for further development.

The issues of whether new and material evidence has been received to reopen service connection for headaches and of service connection for a speech disorder, vertigo, cognitive disability, vision disability, seizures, heart disability, liver disability, and gastrointestinal disability (other than an ulcer), all alleged as secondary to service-connected meningitis, have been raised by the Veteran's March 2015 testimony, 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) (2017). 

The issues of service connection for bilateral hearing loss, tinnitus, and an upper respiratory disability are REMANDED to the AOJ.



FINDING OF FACT

The Veteran is not shown or alleged to have had active meningitis at any time during the period on appeal.


CONCLUSION OF LAW

A rating in excess of 10 percent for meningitis is not warranted.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.1, 4.124a, Diagnostic Code (Code) 8019 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veterans Claims Assistance Act of 2000 (VCAA)

In a claim for increase, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned.  Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009).  VA's duty to notify was satisfied by letters in July 2008, August 2008, September 2008, and December 2008.  The Veteran has had ample opportunity to respond and has not alleged that notice was less than adequate.  See 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).  

In addition, the Veteran's service treatment records (STRs) and pertinent postservice treatment records have been secured.  The Veteran was afforded a VA examination in conjunction with this claim in December 2015; for reasons that are explained further in the analysis section below, the report of that examination describes the Veteran's disability in sufficient detail to allow for application of the applicable rating criteria.  Crucially, the Veteran has not identified any additional pertinent evidence that remains outstanding, alleged that the December 2015 VA examination was inadequate, or otherwise suggested his disability has worsened since.  Thus, VA's duty to assist is met.

Legal Criteria, Factual Background, and Analysis

Disability ratings are assigned in accordance with VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from a disability.  See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1.  When a question arises as to which of two ratings shall be applied under a particular diagnostic code, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned.  See 38 C.F.R. § 4.7.

In a claim for increase, the present level of disability is the primary concern.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  However, where the evidence contains factual findings that demonstrate distinct time periods when the service connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, staged ratings are to be considered.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).  The relevant temporal focus for adjudicating the level of disability of an increased rating claim begins one year before the claim was filed.  38 C.F.R. § 3.400(o).  As the instant claim for increase was received on May 22, 2008, the period for consideration is from May 22, 2007 to the present.

The Veteran's meningitis is explicitly rated under Diagnostic Code 8019, which awards a 10 percent minimum rating for all residuals of meningitis and a 100 percent rating for active meningitis.  See 38 C.F.R. § 4.124a.

The evaluation of the same disability under various diagnoses is to be avoided.  38 C.F.R. § 4.14.  However, § 4.14 does not preclude the assignment of separate evaluations for separate and distinct symptomatology where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code.  Esteban v. Brown, 6 Vet. App. 259, 262 (1994).

On September 2008 VA examination, the Veteran said he had contracted meningitis in service but that he gradually recovered and was placed on light duty until his retirement in 1980.  He explicitly denied any residual headaches or seizures, and said he did not believe there were any other residual neurological problems.  On examination, the Veteran had an unremarkable motor and cranial nerve evaluation.  Reflexes were decreased throughout, but sensation was fair.  Gait was limited and the Veteran used a cane due to low back pain.  The diagnosis was a history of meningitis in service that he recovered from without any specific neurological residuals.  

A private medical problem list includes a January 2008 notation of meningitis while in the military, but there is no indication of a current diagnosis of active disease or infection.  Subsequent September and October 2008 VA records note a history of meningitis but not active infection, and indicate the Veteran was unaware of any specific neurological abnormalities from meningitis.  On September 2008 audiological examination, the Veteran reported a history of meningitis but did not alleged any postservice recurrence.  An October 2008 private sleep disorder evaluation notes the Veteran reported meningitis in 1978.  January 2009 VA records show the Veteran reported a history of meningitis in service without brain damage.

On a July 2014 VA back examination conducted in conjunction with a separate appeal, the examiner indicated that the Veteran's meningitis had resolved and was successfully treated in service.  At his March 2015 hearing, the Veteran testified that he suffers from several issues related to meningitis, including low back pain, degenerative joint disease of the cervical spine, hearing loss, tinnitus, and headaches.  Those problems were on appeal at the time as the subject of service connection claims (and were previously adjudicated by the Board in August 2015).  He then added that he also has speech defects, memory loss, coordination problems, vertigo, learning difficulties, vision problems, epilepsy or seizures, and heart, liver, and intestinal conditions secondary to his meningitis.  

On December 2015 VA examination, the Veteran was diagnosed with meningitis and an April 2014 stroke.  The examiner then noted that he required continuous medication to control his neurological disability and that there was an active infectious condition with muscle weakness in the extremities.  However, a subsequent note explicitly clarified that the "Veteran had the diagnosis of meningococcal meningitis and was treated successfully for this condition in 1978."  On neurological examination, the examiner noted several neurological impairments and deficits.  Crucially, however, the examiner found no neurological signs or symptoms of meningitis and attributed all those deficits to a more recent neurological event (a stroke in April 2014).  

In an appended opinion, the examiner reiterated that the deficits found on examination were due to a recent stroke and that any risk for neurological deficits or conditions related to his prior condition of meningitis would have occurred in close proximity to the time of his active disease in 1978.  He further explained that there was no risk of such an occurrence years after complete resolution of the acute infectious process.  To that end, the examiner then noted that the Veteran was "very sick with meningitis in 1978" but that "once treatment was rendered, [he] recovered as expected without residual."  The examiner specifically notes that physicians' notes at the time indicate the disease had resolved without residuals and the Veteran was returned to duty without a physical profile.  The examiner then explained that this is the expected course of this disease process and there were no residual conditions that persisted.  Furthermore, the examiner presented medical literature showing a low risk (of approximately 9 percent) for an adverse outcome from acute bacterial meningitis, including in-hospital mortality and neurological deficit at discharge.  The literature also indicated that, while neurological complications can develop at any time during the course of bacterial meningitis and are seen during treatment of active disease, once the patient is treated and returns to normal, there "are no delayed effects that will show up at a later date from this condition."  

After reviewing the record, the Board finds no evidence or allegation suggesting the Veteran has had active meningitis at any time during the period on appeal.  In so finding, the Board acknowledges that the December 2015 examiner does check a box indicating the Veteran has an active infectious condition, as noted in the statement of facts.  However, the examiner immediately clarified that the Veteran's meningitis in service was treated successfully and the attached medical opinions state in rather unequivocal terms that the examiner's opinion is, in fact, that the Veteran's meningitis in service resolved without any residuals and would not be expected to produce any delayed, long-term effects.  As those opinions are thoroughly explained and supported by citations to factual evidence and medical literature, the Board finds they more than sufficiently clarify any ambiguity presented by the earlier notation of an "active" infectious condition.  Crucially, while the Board acknowledges that the Veteran has certainly presented testimony and allegations that contest the specific findings in the examiner's opinion regarding whether there have been any residuals of meningitis since treatment in service, the only way to substantiate his claim for a higher rating is to show active meningitis.  To that end, there is simply nothing in the record suggesting that the Veteran's meningitis has been active such that it meets the criteria for a higher rating.

In light of the above, the Board finds that the preponderance of the evidence is against finding that the Veteran's service-connected meningitis warrants a rating in excess of 10 percent.  As such, the benefit of the doubt rule does not apply, and the appeal in this matter must be denied.


ORDER

A higher rating for service-connected meningitis is denied.


REMAND

A review of the record shows that the Veteran has specifically alleged, on both September 2008 and January 2009 VA audiological examination, that his hearing problems began in service and gradually progressed.  However, none of the etiological opinions rendered in the course of developing his hearing loss and tinnitus claims have adequately considered those subjective reports, which are certainly competent and suggest continuous symptoms since service, even if they were intermittent or not clinically significant before or immediately after discharge.  Moreover, the nature of his hearing loss remains unclear, as December 2015 and September 2008 VA examinations suggest that there is a nonorganic component to his hearing loss and VA treatment records and January 2009 VA examination found sensorineural hearing loss.  Under the circumstances, and particularly as the matters of hearing loss and tinnitus are somewhat inextricably intertwined (given evidence suggesting the latter is secondary to the former), the Board finds that another examination is required to adequately address the nature and likely etiology of such disabilities.  

The August 2015 Board remanded the matter involving upper respiratory disability for a VA examination to determine the nature and likely etiology thereof, and specifically noted a documented history of postservice treatment for bronchitis as well as asthma.  However, on the subsequent December 2015 VA examination report obtained, the examiner appears to only diagnose asthma and sleep apnea without considering or discussing those notations of bronchitis.  Moreover, the examiner also fails to adequately consider the Veteran's competent and sworn testimony endorsing continuous upper respiratory symptoms since service more substantively than as a passing acknowledgement appended to the end of the negative opinion rendered.  Therefore, a new examination is needed.

Accordingly, the case is REMANDED for the following action:

1. Obtain all updated records of VA or adequately identified private evaluations or treatment the Veteran has received for the disabilities remaining on appeal. 

2. Then, arrange for the Veteran to be examined by an audiologist to determine the nature and likely etiology of his hearing loss and tinnitus.  Based on an examination, review of the record, and audiometric and speech recognition testing pursuant to 38 C.F.R. § 4.85, the examiner should provide opinions responding to the following: 

a. Please clarify the nature of the Veteran's hearing loss.  Specifically, does the Veteran have any sensorineural or organic component to his bilateral hearing loss?  The examiner must reconcile his or her findings in this regard with any conflicting evidence in the record, to include audiometric findings on both prior VA examinations and VA evaluation.

b. If there is NO ORGANIC COMPONENT of hearing loss found, is it AT LEAST AS LIKELY AS NOT (A 50 PERCENT PROBABILITY OR GREATER) that such disability is nonetheless related to the Veteran's military service, to include noise exposure or meningitis (and its treatment) therein?

The examiner must SPECIFICALLY CONSIDER AND DISCUSS the significance of the Veteran's COMPETENT reports that his hearing problems began in service and have persisted ever since.  Crucially, the examiner must consider whether those reports may be sufficient evidence, from a medical perspective, of onset in service, even if they were not noted or found significant in a clinical setting at that time.

A detailed explanation (rationale) is requested for all opinions provided.  (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation.  Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested).

3. Then, arrange for the Veteran to be examined by a respiratory specialist or pulmonologist to determine the nature and likely etiology of his claimed upper respiratory disability.  Based on an examination, review of the record, and any tests or studies deemed necessary, the examiner should provide opinions responding to the following: 

a. Please identify, by diagnosis, each upper respiratory disability entity found.  The examiner must reconcile his or her findings with ALL conflicting evidence in the record, to include (but not limited to) notations of bronchitis and asthma on prior VA evaluation or examination.  If a previously documented diagnosis is deemed no longer applicable, the examiner must explain why.

b. For each respiratory disability diagnosed, the examiner must opine as to whether such is AT LEAST AS LIKELY AS NOT (A 50 PERCENT PROBABILITY OR GREATER) related to the Veteran's military service, to include upper respiratory symptoms and meningitis noted therein.  

The examiner must SPECIFICALLY CONSIDER AND DISCUSS the significance of the Veteran and his wife's competent and sworn testimony that he has experienced continuous upper respiratory symptoms since service and whether such reports may be sufficient evidence, from a medical perspective, of onset of any current respiratory disability in service, even absent official documentation therein.

A detailed explanation (rationale) is requested for all opinions provided.  (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation.  Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested).

4. The AOJ should then review the record and readjudicate the claims.  If any remains denied, the AOJ should issue an appropriate supplemental statement of the case, afford the Veteran and his representative opportunity to respond, and return the record to the Board.

The Veteran has the right to submit additional evidence and argument concerning these claims the Board is remanding.  Kutscherousky v. West, 12 Vet. App. 369 (1999).  These claims must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board 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 2014).



______________________________________________
KEITH W. ALLEN
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs