Citation Nr: 20003514 Decision Date: 01/16/20 Archive Date: 01/15/20 DOCKET NO. 14-28 981 DATE: January 16, 2020 REMANDED Entitlement to a rating in excess of 10 percent for residuals of meningitis is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1973 to August 1977. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a June 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The appeal was previously before the Board in March 2017 and May 2018 at which times it was remanded for further development. 1. Entitlement to a rating in excess of 10 percent for residuals of meningitis is remanded. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. The Veteran is seeking entitlement to a rating in excess of 10 percent for his service-connected meningitis residuals and entitlement to TDIU. The Veteran’s claim was most recently remanded in May 2018 in order to obtain a comprehensive examination to determine meningitis residuals and their current severity. A remand by the Board confers on claimants, as a matter of law, the right to substantial compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998); D’Aries v. Peake, 22 Vet. App. 97 (2008). It imposes upon VA a concomitant duty to ensure substantial compliance with the terms of the remand. Accordingly, in the present case, the additional development specified in the Board’s prior remand must be substantially completed prior to adjudication. The Veteran was afforded a VA neurological examination February 2013 that was previously found to be incomplete because the examiner noted a meningitis residual of cramping due to scar tissue, but did not make a finding as to the severity. He was then provided another VA examination in January 2015. He reported headaches, muscle spasms, pain, and concern about possible future infections. The examiner concluded that the Veteran did not have any residuals of meningitis. This examination was found to be inadequate in the May 2018 remand as the examiner dismissed the Veteran’s reported symptoms and did not address the February 2013 VA neurological examination finding that the Veteran’s symptoms of muscle cramps were residuals of meningitis. The Veteran was most recently afforded a VA examination in January 2019. The examiner found that he had no neurological deficits and his meningitis was treated successfully with no further treatment required. Further, the light sensitivity, recurrent headaches, and perhaps joint pains could be sequela of the meningitis, but it was speculation. The Board finds this opinion incomplete, at best, for rating purposes. The examiner did not explain why it could not be determined if the symptoms reported were residuals, including whether the need to speculate is due to a deficiency in the state of general medical knowledge, the record, or the examiner. See Jones v. Shinseki, 23 Vet. App. 382 (2010) (stating that to the effect that before the Board can rely on an examiner’s conclusion that an etiology opinion would be speculative, the examiner must explain the basis for such an opinion, or the basis must otherwise be apparent in the Board’s review of the evidence). Accordingly, the Board finds that another opinion is warranted. In addition, the Veteran is seeking entitlement to TDIU. The February 2013 VA examiner indicated that the Veteran’s meningitis residuals would prevent him for performing physical labor-intensive employment but did not indicate if he was capable of sedentary work. The 2019 examiner indicated that there was no functional impact do to a central nervous system disorder, but failed to address the February 2013 VA examiners determination and did not address the impact from other residuals. The RO also failed to request documents related to the Veteran’s May 2017 application for vocational rehabilitation as instructed in the May 2018 Board remand and efforts should be made to obtain these documents as they are relevant to the TDIU matter. These matters are REMANDED for the following actions: 1. Obtain the Veteran’s VA treatment records for the period from January 2019 to the Present. 2. Obtain and associate with the claims file any and all records associated with the Veteran’s application for vocational rehabilitation. Document all requests for information as well as all responses in the claims file. 3. After the completion of #1 and #2, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected meningitis. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner must address: a. Identify all current residuals of meningitis. The examiner should address whether light sensitivity, recurrent headaches, joint pains, and cramping are residuals of his meningitis. b. Indicate the current severity of all identified residuals of meningitis. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Cruz, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.