Citation Nr: 21069662 Decision Date: 11/19/21 Archive Date: 11/19/21 DOCKET NO. 15-24 148 DATE: November 19, 2021 ORDER The July 9, 2019, Board of Veterans' Appeals (Board) decision that dismissed the issues of entitlement to service connection for right hip disability, meningitis, and migraines is partially vacated only as to these specific claims. Entitlement to service connection for right hip disability is denied. REMANDED Entitlement to service connection for migraines is remanded. Entitlement to service connection for meningitis is remanded. FINDINGS OF FACT 1. In July 2019, the Board issued a decision, in part, dismissing entitlement to service connection for migraines, meningitis, and right hip disability. 2. The part of the July 2019 Board decision dismissing the claims of entitlement to service connection for migraines, meningitis, and right hip disability constitutes an obvious error of fact. 3. The most probative evidence of record shows that the Veteran does not have a current right hip disability diagnosis. CONCLUSIONS OF LAW 1. Vacatur of that part of the July 2019 Board decision that dismissed the claims of entitlement to service connection for migraines, meningitis, and degenerative arthritis, right hip, is warranted. 38 U.S.C. §§ 7103(c), 7104(a) (2012); 38 C.F.R. §§ 20.904, 20.1000 (2020). 2. The criteria for entitlement to service connection for a right hip disability have not been met. 38 U.S.C. §§ 1110, 1153, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.306, 3.307, 3.309 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1983 to July 1987. This case comes to the Board of Veterans' Appeals (Board) on appeal from an April 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), in St. Petersburg, FL. The claims of entitlement to service connection for migraines, meningitis, and right hip degenerative arthritis were previously before the Board in July 2019, when the claims were dismissed. As will be discussed in greater detail below, that decision is partially vacated herein and the claims of entitlement to service connection for migraines, meningitis, and right hip disability are readjudicated. 1. Partial vacatur of July 2019 Board decision The Board may vacate an appellate decision at any time upon request of the appellant or his or her representative, or on the Board's own motion, when an appellant has been denied due process of law. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.904. In July 2019, the Board, in relevant part, dismissed the claims of service connection for right hip condition, meningitis, and migraine headaches. The Board's dismissal of these claims was based on the Veteran's request to withdraw claims in a letter dated February 2019. However, although the Veteran did submit a letter requesting several issues be withdrawn, the letter did not list the claims of entitlement to service connection for migraines, meningitis, and degenerative arthritis, right hip. Because the Veteran's claims were dismissed without the Veteran's request to withdraw, the Board finds that an obvious error of fact was committed in withdrawing the Veteran's claims of entitlement to service connection for migraines, meningitis, and degenerative arthritis, right hip. 38 C.F.R. § 20.1000. As such, the Board finds that the partial vacatur of the July 2019 Board decision is proper. See 38 U.S.C. § 7104(a); 38 C.F.R. § 20.904. The Board acknowledges that the appellant's representative has submitted a motion for reconsideration of the Board's July 9, 2019 decision and arguments in support thereof. See November 2019 Motion for Reconsideration. However, the Board's partial vacatur of the July 9, 2019 decision renders the motion moot. See 38 U.S.C. § 7103(c). This vacatur is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of the appeal. 38 C.F.R. § 20.1100(b). 2. Entitlement to service connection for right hip disability Service connection may be granted for a disability resulting from disease or injury incurred or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In general, service connection requires (1) evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 382 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease or injury diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Where a Veteran who served for ninety days or more during a period of war (or during peacetime service after December 31, 1946) develops certain chronic diseases, to a degree of 10 percent or more within one year from separation from service, such diseases may be presumed to have incurred in service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by evidence to the contrary. 38 C.F.R. §§ 3.307, 3.309. Alternatively, for the showing of chronic disease in service, there is a required combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. 38 C.F.R. §§ 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Continuity of symptomology is required only where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. A Veteran is competent to describe symptoms that he experienced in service or at any time after service when the symptoms he perceived or experienced, were directly through the senses. 38 C.F.R. § 3.159; Layno v. Brown, 6 Vet. App. 465, at 469-71 (1994). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007). VA must consider the competency of the lay evidence and cannot outright reject such evidence on the basis that such evidence can never establish a medical diagnosis or nexus. However, this does not mean that lay evidence is necessarily always sufficient to identify a medical diagnosis, but rather only that it is sufficient in those cases where the lay person is competent and does not otherwise require specialized medical training and expertise to do so; i.e., the Board must determine whether the claimed disability is a type of disability for which a layperson is competent to provide etiology or nexus evidence. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The Board is required to analyze the credibility and probative value of the evidence, account for any evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Daye v. Nicholson, 20 Vet. App. 512, 516 (2006). It is noted that competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify."). In determining whether statements are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. at 498 (Fed Cir. 1996). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran asserts that he has a current right hip disability that is related to his military service. See March 2011 Supplemental Claim. Regarding whether there was in-service event or injury, a review of the Veteran's service treatment records (STRs) shows no right hip disability symptoms nor treatment. A review of the Veteran's VA treatment records does not show a diagnosis of any right hip disability. A June 2011 VA treatment record shows normal right hip. A November 2012 VA treatment record shows normal right hip flexion, extension, and strength. A February 2013 VA treatment record for the Veteran's low back pain shows right hip range of motion measurements as follows: flexion to 120 degrees, without objective evidence of pain; and right hip extension to 10 degrees, without objective evidence of pain. A September 2016 VA treatment record shows the Veteran's report of hip pain. A review of the Veteran's Social Security Administration (SSA) medical records shows no diagnosed right hip disability nor any complaints of right hip symptoms or pain. In considering the evidence of record under the laws and regulations as set forth above, the Board finds that service connection for a right hip disability is not warranted. Congress, as a general rule, limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C. §§ 1110, 1131; and see Brammer v. Derwinski, 3 Vet. App. 223 (1992). In Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997), it was observed that 38 U.S.C.§ 1110, as well as other relevant statutes, only permitted payment for disabilities existing on and after the date of application for such disorders. The Federal Circuit observed that the structure of these statutes "provided strong evidence of congressional intent to restrict compensation to only presently existing conditions," and VA's interpretation of the law requiring a present disability for a grant of service connection was consistent with the statutory scheme. Degmetich, 104 F.3d at 1332; see also Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998) (holding VA's interpretation of the provisions of 38 U.S.C.§ 1110 to require evidence of a present disability to be consistent with congressional intent); Rabideau v. Derwinski, 2 Vet. App. 141 (1992) (the law limits entitlement for service-related diseases and injuries to cases where the underlying in-service incident has resulted in a disability). Simply put, the general rule is that in the absence of proof of present disability there can be no valid claim. Based on the above, to the extent that the medical evidence addresses whether the Veteran has a current right hip disability, it indicates that he does not. The Veteran is competent to report his current symptoms, such as pain, but his reports must be weighed against the medical evidence of record. See Grover v. West, 12 Vet. App. 109, 112 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). To the extent that the Veteran has indicated that he currently has a right hip disability, the medical evidence showing an absence of such a disability is of greater probative weight than the Veteran's reports made during the course of his claim for VA benefits. In addition, although the Veteran is competent to report pain, there must be "objective indications of chronic disability" or "functional impairment" due to the pain to warrant service connection. See Saunders v. Wilkie, 2018 U.S. App. LEXIS 8467 (Fed. Cir. Apr. 3, 2018). Here, following a review of the record in its entirety, the record is absent such evidence. The weight of the evidence is against a finding that the Veteran currently has a diagnosed right hip disability. A necessary element for establishing service connection-evidence of a current disability-has not been shown. For the foregoing reasons, the claim for service connection for a right hip disability must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable. REASONS FOR REMAND 1. Entitlement to service connection for migraines is remanded. The Veteran asserts entitlement to service connection for migraine headaches. In September 2012, the Veteran was afforded a VA examination to determine the manifestations and etiology of his migraine headaches. The VA examiner noted a diagnosis of migraines in 2009. The Veteran reported pain localized to one side of the head with no non-headache symptoms, lasting less than one day. The Veteran denied experiencing prostrating attacks. The VA examiner opined that the Veteran's migraines are less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In support of this opinion, the VA examiner reasoned that the Veteran was not diagnosed or treated for migraine headaches while in service. The Veteran contends that the September 2012 VA examination was inadequate. Specifically, the Veteran argues that the VA examiner did not adequately account for the Veteran's treatment for headaches during service in February 1986 and incorrectly opined that the Veteran's migraines are not connected to his service because he was not diagnosed in service. See May 2019 Appellant Br.; see also February 1986 STR. The Board finds that the September 2012 VA examination was inadequate because the VA examiner did not provide any rationale to support the negative nexus opinion and merely relied on the lack of diagnosis during service. Furthermore, the VA examiner did not address the Veteran's headache complaint in his February 1986 STR. As such, on remand, an addendum opinion is necessary. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). 2. Entitlement to service connection for meningitis is remanded. The Veteran asserts entitlement to service connection for meningitis. VA treatment records show that the Veteran was diagnosed with bacterial meningitis in April 1988, within one year of his separation from service. See June 1988 VA treatment record. The Veteran contends that, while he did not have symptoms or treatment for meningitis during service, his diagnosis of meningitis within one year of separation could mean that he contracted the disease in service. See May 2019 Appellant Br. The Veteran argues that he is entitled to a remand for an initial VA examination to determine the etiology of his meningitis. Multiple VA treatment notes show a history of meningitis. See December 2010, December 2013, April 2014, and May 2014 VA treatment records. To date, the Veteran has not been afforded a VA examination to determine the current manifestations and etiology of his meningitis. In this regard, VA must provide a medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing that certain diseases manifested during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C. § 5103A (d)(2), 38 C.F.R. § 3.159 (c)(4)(i). The third prong, which requires that the evidence of record "indicate" that the claimed disability or symptoms "may be" associated with the established event, is a low threshold. After considering the Veteran's assertion of a relationship between his meningitis and active service, the Board finds that a VA medical opinion is warranted to address the likelihood of an etiological relationship between an event or disease in service and the Veteran's meningitis. See, e.g., McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C. § 5103A(d)(2) (2012), 38 C.F.R. § 3.159(c)(4)(i) (2019). The matters are REMANDED for the following action: 1. Return the record to the VA examiner who offered the September 2012 opinion regarding the etiology of the Veteran's migraine headaches. The record and a copy of this Remand must be made available to the examiner. If the September 2012 VA examiner is not available, the record should be provided to an appropriate medical professional so as to render the requested opinion. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinion. The examiner is asked to respond to the following inquiry: (a.) Whether it is at least as likely as not (probability of 50 percent or greater) that the Veteran's current migraine headaches are related to his military service, including the documented headache complaint during service, or are otherwise related to service, to include on the basis of continuity of symptomatology. In rendering the opinion, the examiner should specifically consider and discuss the lay statements of record. If a negative nexus opinion is rendered, the VA examiner should again provide a complete medical rationale for the opinion. 2. Schedule the Veteran for a VA examination with an appropriate examiner to determine the etiology of his meningitis. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. The examination report must include a notation that this review of the evidence of record occurred. Upon determination of diagnostic impressions, if any, the examiner is asked to respond to the following inquiry: (a.) It is at least as likely as not (i.e., probability of 50 percent or greater) that the Veteran's meningitis had its onset during active service or is related to any in-service disease, event, or injury. In rendering the opinion, the examiner should specifically consider and discuss the lay statements of record. If a negative nexus opinion is rendered, the VA examiner should again provide a complete medical rationale for the opinion. 3. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated. If the claims remain denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for a response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. 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. §§ 5109B, 7112 (2012). KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. C. Slaughter, 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.