Citation Nr: 21001669 Decision Date: 01/11/21 Archive Date: 01/11/21 DOCKET NO. 15-04 034A DATE: January 11, 2021 ORDER Service connection for an acquired psychiatric disorder is denied. Entitlement to a rating in excess of 10 percent for meningococcal meningitis prior to April 15, 2019, is denied. FINDINGS OF FACT 1. The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of an acquired psychiatric disorder. 2. The Veteran does not have an established service-connected psychiatric disorder to serve as the basis of the claim of entitlement to service connection for a substance abuse disorder secondary to a psychiatric disorder. 3. For the period prior to April 15, 2019, residuals of meningitis included complaints of dizziness/vertigo that were not medically shown to be an associated residual; the additional residuals shown included right ear hearing loss and tinnitus which were separately rated as per the applicable diagnostic code. CONCLUSIONS OF LAW 1. Service connection for an acquired psychiatric disorder, to include for a substance abuse disorder, have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310, 4.125 (2019). 2. The criteria for a rating in excess of 10 percent for meningococcal meningitis prior to April 15, 2019, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.124a, Diagnostic Codes (DCs) 8019, 6205 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1965 to October 1966. These matters are before the Board of Veterans’ Appeals (Board) on appeal of a September 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. In March 2017, the Veteran was afforded a personal hearing before the undersigned. A transcript of the hearing has been associated with the claim file. In May 2018, the issues were remanded for additional evidentiary development, and they have now been returned for additional appellate consideration. Service Connection for an Acquired Psychiatric Disorder. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2019). In addition, service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2019). To establish direct service connection, there must be: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.” Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Under 38 C.F.R. § 3.310(a) (2019), service connection may be granted for disability that is proximately due to or the result of a service-connected disease or injury. That regulation permits service connection not only for disability caused by service-connected disability, but for the degree of disability resulting from aggravation to a nonservice-connected disability by a service-connected disability. See 38 C.F.R. § 3.310 (2019); see also Allen v. Brown, 7 Vet. App. 439, 448 (1995). Under 38 U.S.C. § 1110 (2012), “no compensation shall be paid if the disability is a result of the Veteran’s own willful misconduct or abuse of alcohol or drugs.” However, if an alcohol or drug addiction was acquired as a result of a service-connected disability, then secondary service-connection may be available. See 38 U.S.C. § 105 (2012); 38 C.F.R. §§ 3.1(m), 3.301(d) (2019); see also Allen, 237 F.3d 1368 (noting that 38 U.S.C. § 1110 precludes compensation for primary alcohol and drug abuse disabilities but does not preclude compensation for an alcohol or drug abuse disability that is secondary to a service-connected disability). Service connection is limited to those cases where disease or injury has resulted in a disability. In the absence of proof of a present disability for which service connection is sought, there is no valid claim of service connection. See Brammer v. Derwinski, 3 Vet. App. 223 (1992). Lay evidence may be competent evidence to establish incurrence. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a layperson. 38 C.F.R. § 3.159(a)(2) (2019). Lay evidence can also be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (e.g., a broken leg), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, competent medical evidence is necessary where the determinative question is one requiring medical knowledge. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises or statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1) (2019). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2019). When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Board notes that it has reviewed all of the evidence in the record, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as appropriate, and the Board’s analysis will focus specifically on what the evidence shows, or fails to show, as to the claims being decided. Background The Veteran’s service treatment records (STRs) are negative for complaints of psychiatric symptoms or diagnosis of such. Post service, in a June 2011 statement, the Veteran described psychiatric symptoms (mood swings, emotional problems, sleep disturbance) associated with his service-connected residuals of meningitis. VA general medical examination in May 1998 reflects report of sobriety since 1990. Upon psychiatric examination in August 2011 noted that the Veteran and mood swings and expressed some frustration regarding treatment for his meningitis, hearing impairment, and tinnitus. The examiner opined that the Veteran’s mood swings were within normal limits of variation of mood. No psychiatric disorder was diagnosed. It was further noted that the Veteran had had substance dependence problems but that this was in remission. Subsequently dated VA records include a report dated in September 2015 at which time no psychiatric disorder was present. At the 2017 hearing, when questioned about his contentions regarding his claim of service connection for a psychiatric disorder, the Veteran testified that he felt that this substance abuse problem was a psychiatric condition that he had as a result of military service/trauma (suffering from inservice meningitis). It was further noted that he had been in remission for the past 20 years. (Tr. at pg. 16-17.) Subsequently dated VA records through 2020 are negative for diagnosis of an acquired psychiatric disorder. Analysis Review of the evidentiary record demonstrates that a valid diagnosis of an acquired psychiatric disorder has not been made. Thus, the claim for service connection for a psychiatric disorder must be denied. In the absence of a showing that the Veteran has had a qualifying valid diagnosis during the pendency of this claim, he has not presented a valid claim of service connection for a psychiatric disorder. See Brammer, supra. Accordingly, the appeal seeking to establish service connection a psychiatric disorder must be denied. As to the claim that entitlement is warranted for a substance abuse disorder, as secondary to an acquired psychiatric disorder, it is noted that service connection on a direct basis for substance abuse is precluded by law. VA’s General Counsel has concluded that direct service connection for a disability that is a result of a claimant’s own abuse of alcohol or drugs (a substance abuse disability) is precluded for purposes of all VA benefits for claims filed after October 31, 1990. VAOPGCPREC 7-99, 64 Fed. Reg. 52,375 (1999); see also 38 C.F.R. §§ 3.1 (m), 3.301(a); VAOPGCPREC 2-98, 63 Fed. Reg. 31,263 (1998). VA General Counsel precedent opinions are binding on the Board. Brooks v. Brown, 5 Vet. App. 484 (1993). Therefore, service connection for substance abuse as directly related to active duty service must be denied as a matter of law. To warrant entitlement to secondary service connection, the Veteran needs to establish that his current disability was caused or aggravated by a service-connected disability. 38 C.F.R. § 3.310 (2019). However, the Veteran has not established that he has any service-connected psychiatric disorder; the Veteran’s claim of entitlement to service-connection for a substance abuse disorder secondary to any nonservice-connected psychiatric disorder is barred as a matter of law. 38 C.F.R. § 3.310(a) (2019); Sabonis v. Brown, 6 Vet. App. 426 (1994). Accordingly, the preponderance of the evidence is against the Veteran’s claim for service connection for an acquired psychiatric disorder. As there is no doubt to be resolved, service connection for this disability is not warranted. See 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.102 (2019). A Rating in Excess of 10 Percent for Residuals of Meningococcal Meningitis. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2019). The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10 (2019). In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran’s disability(ies). 38 C.F.R. §§ 4.1, 4.2 (2019); Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7 (2019). It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21 (2019). In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as “staging the ratings.” See Hart v. Mansfield, 21 Vet. App. 505 (2008); Fenderson v. West, 12 Vet. App. 119 (1999). After the evidence has been assembled, it is the Board’s responsibility to evaluate the entire record. 38 U.S.C. § 7104(a) (2012). When there is an approximate balance of 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 (2012); 38 C.F.R. §§ 3.102, 4.3 (2019). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that “a Veteran need only demonstrate that there is an ‘approximate balance of positive and negative evidence’ in order to prevail.” For many years, the Veteran’s service-connected meningitis was evaluated under 38 C.F.R. § 4.124a, Diagnostic Code (DC) 8019 (epidemic cerebrospinal meningitis). See 38 C.F.R. § 4.124a, DC 8019 (2016). Under that code, a minimum 10 percent rating is assigned under for residuals of meningitis, and more disabling residuals are rated separately. A maximum 100 percent rating is assigned under DC 8019 for meningitis as an active febrile disease. Id. Recently, as further detailed below, in a June 2020 rating action, the Veteran was granted a disability rating of 100 percent pursuant to DC 6205 for residuals of meningitis. Under DC 6205, a 100 percent disability rating is assigned where Meniere’s syndrome is manifested by a hearing impairment with attacks of vertigo and cerebellar gait occurring more than once a week, with or without tinnitus. Meniere’s syndrome with hearing impairment, attacks of vertigo and cerebellar gait occurring from one to four times a month, with or without tinnitus is rated at 60 percent disabling. Meniere’s syndrome with hearing impairment, vertigo attacks less than once a month, and with or without tinnitus, is rated at 30 percent disabling. 38 C.F.R. § 4.87 (2019). Background When examined by VA in October 1988, the Veteran had a histor of balance issues which he associated with inservice treatment for spinal meningitis. In addition to hearing loss and tinnitus, he experienced dizziness since his meningitis. The Veteran walked normally and held his balance well. Romberg test was positive, however, and the Veteran fell back immediately when he closed his eyes. The diagnosis was history of spinal meningitis with “claimed” loss of balance with positive Romberg, test, symptomatic. Service connection was established in a January 1989 rating action. Service connection was also granted for right ear hearing loss and tinnitus. Those conditions are separately rated. VA treatment records dated in 2004 reflect that the Veteran was seen for right hips problems. It was noted at that time that he experienced dizziness and had balance problems which he had been told stemmed from his meningitis. In February 2011, the Veteran filed a claim for increased ratings, and this appeal ensued. When examined by VA in May 2011, the Veteran’s self-reported residuals of meningitis included hearing loss, double vision, and balance issues. While he did not currently have vision issues, he continued to experience problems with his balance due to dizziness, particularly if he moved his eyes too fast. The VA examiner was not certain that his balance/dizziness issues were related to his meningitis. It was noted that the Veteran denied having problems walking or climbing stairs. His activities of daily living were not limited to his meningitis history. VA examinations in December 2014 noted that the Veteran had urinary dysfunction and sleep apnea. These disorders, however, were found to be less likely than not related to meningitis. During the March 2017 hearing, the Veteran stated that the symptoms associated with his meningitis had worsened. As stated earlier, the Board remanded the claim in May 2018 for obtainment of records and for a contemporaneous examination. Records added to the file include a VA treatment record dated on May 16, 2017. At that time, the Veteran was seen for a hearing evaluation. He also reported some vertigo when he looked up. Following testing, new hearing aids were ordered. Upon VA central nervous examination on April 15, 2019, the Veteran was noted to have an abnormal gait. The examiner stated that the Veteran’s medical history included a right hip replacement and knee arthritis which also contributed to his slow gait and inability to walk tandem, on his heels, or toes. Neurological examination showed that he was oriented with normal cranial nerves except for abnormal hearing impairment in both ears. Vestibular function testing was not performed as the Veteran complained of discomfort with movement of his neck. The examiner further noted that the Veteran experienced dizziness and an unsteady gait. It was opined that these symptoms could be attributed to his meningitis residuals, as was the Veteran’s hearing loss and tinnitus. The examiner added that disequilibrium was a known long-term complication of meningitis due to impairment of vestibular function and that the Veteran most likely had a combination of causes for his dizziness. The VA examiner further noted that it was less likely than not that the Veteran’s urinary dysfunction was less likely than not associated with his meningococcal meningitis. That disability was more likely due to benign prostatic hypertrophy. The Veteran’s sleep disturbance resulted from obstructive sleep apnea (OSA diagnosed in 1997) which was likely the result of his morbid obesity and was also not due to meningitis. Upon VA ear examination conducted in October 2019, it was noted that the Veteran had Meniere’s syndrome and peripheral vestibular disorder as a result of his meningococcal meningitis. It was also noted that he had hearing impairment with vertigo and cerebellar gait with a frequency of episodes more than once weekly, and a duration of episodes of one to twenty-four hours. Additionally, the Veteran had tinnitus, vertigo, and some staggering which occurred more than once weekly with the duration of episodes of vertigo being one to twenty-four hours. The Veteran had an abnormal shuffling gait with sudden movements of the head causing loss of balance. His perception of his feet was not stable, and he shuffled to make sure his feet touched the ground to prevent falling. Upon rating decision in June 2020, the disability rating for residuals of meningococcal meningitis was increased to 100 percent pursuant to DC 6205 for Meniere’s syndrome as a residual of meningococcal meningitis, effective April 15, 2019. In doing so, the separately rated disorders of right hear hearing loss (10%) and tinnitus (10%) were discontinued as of that date in that those conditions were now part and parcel of the 100 percent rating. Analysis Following the assignment of a 100 percent rating, effective April 15, 2019, for residuals of meningitis in the June 2020 rating decision, the question remains whether a rating in excess of 10 percent is warranted prior to that date. The Board concludes that a rating in excess of 10 percent prior to April 15, 2019, is not warranted. In explanation, when first looking to DC 8019, it is noted that the Veteran’s meningitis has not been active throughout the appeal process. Thus, at no time during the appeal process was a 100 percent rating warranted pursuant to that DC. The 10 percent rating assigned was the minimum disability rating and the more disabling residuals were rated separately. In this case, those separately rated disorders were right ear hearing loss and tinnitus. Current review of the evidence reflects that as of April 15, 2019, the Veteran’s long-standing reports of balance issues were indeed medically found to be the result of his service-connected meningitis. While the evidence prior to that date reflects a long-standing history of dizziness and balance issues, these problems were not conclusively found to be associated with his meningitis. Thus, entitlement to the vestibular residuals associated with Meniere’s syndrome prior to that date are not warranted, and the proper rating was the 10 percent disability rating assigned pursuant to DC 8019. And, as already reported, the Veteran was also in receipt of separately assigned ratings for his associated right ear hearing impairment and his tinnitus. The record is correct in confirming the 10 percent rating for residuals of meningitis prior to the April 15, 2019 date. It simply was not demonstrated prior to that examination that the Veteran’s balance and dizziness problems were attributable to his meningitis. Moreover, Meniere’s syndrome was first noted at this time. The 10 percent rating was increased to 100 percent as of April 15, 2019, as that was the date that an increase in symptoms attributable to his meningitis was confirmed. The 10 percent rating in effect prior to April 15, 2019, is correct. Because the preponderance of the evidence is against the appeal, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 4.3, 4.7 (2019). E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Hal Smith, 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.