Citation Nr: 21074782 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 12-01 511 DATE: December 16, 2021 REMANDED Entitlement to service connection for meningitis and encephalitis is remanded. Entitlement to service connection for unspecified central nervous system damage is remanded. Entitlement to service connection for headaches is remanded. Entitlement to service connection for Horner's syndrome is remanded. Entitlement to service connection for a lung disorder, to include chronic pneumonia, is remanded. Entitlement to service connection for kidney stones is remanded. Entitlement to service connection for oral abscesses is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include anxiety, depression, and posttraumatic stress disorder (PTSD), is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1971 to January 1974. This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In May 2015, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the record. In November 2015 and April 2019, the Board remanded the case for further development. The case has since been returned to the Board for appellate review. In April 2021, the Veteran submitted a claim for service connection for PTSD based on military sexual assault. The Board notes that the psychiatric claim on appeal was characterized as entitlement to service connection for an acquired psychiatric disorder, to include anxiety and depression. However, in light of the Veteran's assertions and the evidence of record, the Board has recharacterized the issue more broadly to encompass any acquired psychiatric disorder, to include PTSD. See Clemons v. Shinseki, 23 Vet. App. 1, 5-6, 8 (2009). Upon review, the Board finds that additional development is needed prior to adjudication of the issues on appeal. The Veteran has contended that he developed meningitis when an epidemic of meningitis broke out during basic training at Fort Lewis. He stated that he was given a series of experimental pills intended to prevent contracting meningitis. However, he has reported that he became sick and was quarantined at Madigan General Hospital for seven days. See, e.g., October 2008, January 2012 statements; February 2010 VA examination. In a January 2012 statement, the Veteran reported that he found out that a study was carried out while he was at Fort Lewis. He stated that the experiment was to allow an epidemic of bacterial meningitis to occur and then substitute pills for a proven vaccine. The Veteran referenced an article that he submitted in November 2008. The article was entitled, "Minocycline in the Chemoprophylaxis of Meningococcal Disease," and it was received for publication in December 1971. The abstract to the article stated the following: An outbreak of meningococcal disease occurred among basic combat trainees at Fort Lewis, Wash., in the first 3 months of 1971. After five recruits developed meningitis within a 2-week period, 8,721 recruits were given 100 mg of minocycline every 12 hr for 5 days. No new cases of meningococcal disease occurred for almost 5 weeks. Then six additional cases occurred among recruits who had entered training after the initial course of minocycline and who had not received the drug. Minocycline was given to all 6,130 of these men, and again occurrence of new cases was halted abruptly. One week later, group C polysaccharide vaccine was administered to all recruits in the first 6 weeks of training and subsequently to all new entering trainees. No new cases of meningitis occurred in the next 3 months... In March 2011, the Veteran submitted partial copies of other articles that referenced studies of a meningitis outbreak among Fort Lewis recruits in 1971. In the first page of an article entitled "Bacterial Antibody after Colonization with Neisseria meningitidis," which was published in January 1973. The article noted a study of a company of 217 military recruits at Fort Lewis followed with weekly nasopharyngeal cultures during an eight-week training period in February and March 1971. He also submitted the first page of an article entitled "Identification of an Epidemic Strain of Neisseria meningitidis by Bacteriocin Typing," which was published in July 1976. The article further noted that there was an outbreak of meningococcal disease among Army recruits at Fort Lewis. As discussed in the April 2019 remand, the Veteran's service treatment records from November 1971 show a possible diagnosis of meningitis, but it is unclear whether this was a diagnosis or was later ruled out. A vaccination record also indicates that the Veteran may have received some type of meningitis vaccination around the same time. A November 1971 hospital record further shows that the Veteran was admitted for flu-like symptoms with a diagnosis code of 470. A September 2010 radiology report from H.R. (initials used to protect privacy) noted that the Veteran had some slight prominence diffusely of the sulci and ventricles without evidence of temporal horn dilation, which favored some minimal and possibly post-meningitis related reactive change and/or atrophy. In a January 2012 email, R.E., a director of the Board on Military and Veterans Health of the Institute of Medicine, noted that the diagnostic code for the Veteran's February 1971 hospital admission at Fort Lewis during service was for an acute upper respiratory infection of multiple or unspecified sites. He noted that a different diagnostic code would have been used for bacterial meningitis or for meningococcal meningitis. In a November 2018 statement, R.E. clarified that, although he was unable to find a diagnostic code of meningitis in the Veteran's hospital records, the absence of a diagnostic code for meningitis did not prove that the Veteran was not exposed to meningitis during service or that he did not have meningitis. In a March 2018 private medical opinion, B.G. indicated that the Veteran's service treatment records showed that he was hospitalized for meningitis exposure and that his symptoms were wholly consistent with one who has contracted meningitis. The Board remanded the case, in part, to obtain a VA examination to determine the nature and etiology of any meningitis or residuals thereof that may be present. The April 2019 remand directives specifically requested that the examiner address the service treatment records showing a possible diagnosis of, symptoms of, and vaccination for meningitis. The examiner was also asked to address the September 2010 radiology report, the April 2012 letter issued by K.H., and the March 2018 letter issued by B.G. Thereafter, the Veteran was afforded a VA examination in April 2020. The VA examiner noted that he had no way to investigate or substantiate the Veteran's reports that he contracted meningitis in 1971 when he was provided experimental medication to prevent meningitis during a local outbreak. The examiner noted that no available in-service records show sufficient evidence of meningitis. The examiner indicated that the November 1973 service treatment records showing a possible diagnosis of, symptoms of, and vaccination for meningitis were speculative and "after the fact." He also stated that the September 2010 radiology report provided nonspecific MRI findings. He indicated that the April 2012 letter issued by K.H. and the March 2018 letter issued by B.G. were speculative without sufficient evidence. The Board finds that the April 2020 VA examiner's opinion is inadequate. First, the Board notes that the service treatment notes that suggested a possible diagnosis of, symptoms of, and vaccination for meningitis were dated in November 1971 rather than November 1973 and were not "after the fact." Conversely, the November 1971 service treatment notes correspond with the timing of the meningococcal disease outbreak in 1971, as documented in the articles submitted by the Veteran in support of his claim. In addition, the examiner provided no comment as to the September 2010 radiology report from H.R., which noted that the Veteran had some slight prominence diffusely of the sulci and ventricles without evidence of temporal horn dilation, which favored some minimal and possibly post-meningitis related reactive change and/or atrophy. Rather, the VA examiner dismissed the MRI findings as "non-specific" with no additional discussion as to the finding of possible post-meningitis related reactive change and/or atrophy. Further, the Board finds that the VA examiner did not provide adequate support in his dismissal of the April 2012 and March 2018 letters as speculative. In addition, the examiner did not address R.E.'s November 2018 statement in which he clarified that, although he was unable to find a diagnostic code of meningitis in the Veteran's hospital records, the absence of a diagnostic code for meningitis did not prove that the Veteran was not exposed to meningitis during service or that he did not have meningitis. Therefore, the Board finds that an additional VA medical opinion is needed. Moreover, the Veteran has asserted that his claimed disorders either resulted from meningitis, which he reported he contracted during an outbreak of meningococcal disease during basic training, or from exposure to trichloroethylene (TCE), which he used to clean missiles during service. See, e.g., October 2008, September 2009, February 2011, January 2012 statements; December 2008 private treatment note; November 2010 VA treatment note; February 2010 VA examination report; March 2020 VA examination report. Therefore, the Board finds that the additional claims for service connection and TDIU are inextricably intertwined with the claim for service connection for meningitis. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (where a claim is inextricably intertwined with another claim, the claims must be adjudicated together in order to enter a final decision on the matter). In addition, as discussed above, the Veteran recently submitted a claim for service connection for PTSD based on military sexual assault, which requires development as detailed in the directives below. The matters are REMANDED for the following action: 1. The AOJ should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for meningitis and encephalitis, unspecified central nervous system damage, Horner's syndrome, a lung disorder, kidney stones, headaches, oral abscesses, and an acquired psychiatric disorder. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. The AOJ should also secure any VA treatment records that have not yet been associated with the file. 2. The AOJ should send the Veteran a notice letter in connection with his claim for service connection for an acquired psychiatric disorder, to include PTSD. The letter should: (1) inform him of the information and evidence that is necessary to substantiate the claim, (2) inform him about the information and evidence that VA will seek to provide, and, (3) inform him about the information and evidence that he is expected to provide. This letter should be compliant with 38 C.F.R. § 3.304(f)(5), advising the Veteran of specific examples of alternative forms of evidence to corroborate an in-service assault and that behavioral changes may constitute credible supporting evidence of such a stressor. This letter should also include a VA Form 21-0781a (Statement in Support of Claim for PTSD Secondary to Personal Assault). 3. After completing the foregoing development, the Veteran should be afforded a VA examination to determine the nature and etiology of any acquired psychiatric disorder that may be present, including PTSD. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and lay assertions. The examiner should identify any current psychiatric disorders. For any psychiatric disorder identified other than PTSD, the examiner should state whether it is at least as likely as not that the disorder manifested in service or is otherwise causally or etiologically related to the Veteran's military service, to include any possible trichloroethylene (TCE) exposure therein. The examiner should also opine as to whether it is at least as likely as not that any acquired psychiatric disorder was either caused by or aggravated by meningitis. In rendering this opinion, the examiner should consider the April 2012 letter issued by K.H. and the March 2018 letter issued by B.G. Regarding PTSD, the AOJ should provide the examiner with a summary of any verified in-service stressors. The examiner must be instructed that only these events, any stressors related to fear of hostile military or terrorist activity, or any personal assault that he or she determines to have occurred in service may be considered for the purpose of determining whether exposure to an in-service stressor has resulted in PTSD. The examiner should comment on whether the Veteran exhibited any behavioral changes during service that are reflective of the occurrence of an in-service physical assault. Examples of behavior changes that may constitute credible evidence of the stressor include, but are not limited to: a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. The examiner should determine whether the diagnostic criteria to support the diagnosis of PTSD have been satisfied. If the PTSD diagnosis is deemed appropriate, the examiner should then comment upon the link between the current symptomatology and any verified in-service stressor. In rendering this opinion, the examiner should also consider an April 1996 VA evaluation in which the Veteran was diagnosed with mild PTSD and the Veteran's April 2021 statement. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find favor of conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 4. After completing the foregoing development, the Veteran should be afforded a VA examination to determine the nature and etiology of any meningitis that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions. It should be noted that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should state whether it is at least as likely as not that meningitis manifested in service or is otherwise causally or etiologically related to the Veteran's military service, to include any possible trichloroethylene (TCE) exposure therein. In rendering this opinion, the examiner should address the November 1971 service treatment records showing a possible diagnosis, symptoms of, and vaccination for meningitis. The examiner should also address the September 2010 radiology report, the April 2012 letter issued by K.H., the March 2018 letter issued by B.G., R.E.'s November 2018 statement. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find favor of conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 5. The AOJ should review the examination reports to ensure that they are in compliance with this remand. If the reports are deficient in any manner, the AOJ should implement corrective procedures. 6. The AOJ should conduct any other development as may be indicated. J.W. ZISSIMOS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Osegueda, 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.