Citation Nr: 21007594 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 20-04 276A DATE: February 10, 2021 ORDER The previously denied claim of entitlement to service connection for bilateral hearing loss is reopened; to this limited extent, the appeal of that issue is granted. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for residuals of spinal meningitis, to include myasthenia gravis, is remanded. FINDINGS OF FACT 1. In July 2010, the Board of Veterans’ Appeals (Board) issued a decision denying the Veteran’s claim of entitlement to service connection for bilateral hearing loss; he did not thereafter request reconsideration or appeal the decision to the United States Court of Appeals for Veterans Claims (Court). 2. A January 2015 Board decision denied the Veteran’s application to reopen his previously denied claim for service connection for bilateral hearing loss; he did not thereafter request reconsideration or appeal the decision to the Court. 3. New evidence received since the time of the Board’s January 2015 decision, when considered with the evidence previously of record, relates to an unestablished fact necessary to substantiate the Veteran’s claim and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The July 2010 and January 2015 Board decisions denying service connection for bilateral hearing loss are final. 38 U.S.C. § 7104; 38 C.F.R. § 20.1100. 2. New and material evidence has been received to reopen the claim for service connection for bilateral hearing loss. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from January 1966 to April 1966. This matter comes to the Board on appeal from a November 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In October 2020, the Veteran testified at a virtual Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the record. In its November 2016 rating decision, the RO found that new and material evidence had not been received to reopen the Veteran’s claim for service connection for bilateral hearing loss. However, the Board is required to consider that question independently. See 38 U.S.C. § 7104(b); Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). With regard to symptoms of weakness, imbalance, and swallowing difficulties identified in the record in connection with the Veteran’s residuals of spinal meningitis, to include myasthenia gravis, the Board notes that it is required to consider all issues raised either by the claimant or the evidence of record. Robinson v. Mansfield, 21 Vet. App. 545, 552 (2008). This duty includes broadly construing a claim “based on the reasonable expectations of the non-expert, self-represented claimant and the evidence developed in processing that claim,” including the claimant’s description of the claim and symptoms, as well as medical information submitted or obtained by VA. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). When a claimant makes a claim, he or she is seeking service connection for symptoms, regardless of how those symptoms are diagnosed or labeled. Id. The Court has held that a claimant’s identification of the benefit sought does not require technical precision. See Ingram v. Nicholson, 21 Vet. App. 232, 256-57 (2007). This rule also applies to non-mental health conditions. See Brokowski v. Shinseki, 23 Vet. App. 79 (2009) (regarding a neurological disorder). A claimant may “identify the benefit sought” for their claim “by referring to a body part or system that is disabled or by describing symptoms of the disability.” Id. at 86-87 (citing to Clemons and 38 C.F.R. § 3.159 (c)(3)). In his August 2016 application, the Veteran claimed entitlement to service connection for both residuals of spinal meningitis and for myasthenia gravis, to include as secondary to spinal meningitis. The November 2016 rating decision on appeal denied each claim separately. At his October 2020 hearing, the Veteran amended his claim, clarifying that his theory of the case was that the symptoms of myasthenia gravis were residuals of spinal meningitis. The issue on appeal has been recharacterized accordingly. Whether new and material evidence has been received to reopen the previously denied claim of entitlement to service connection for bilateral hearing loss. The Veteran first filed a claim for service connection for bilateral hearing loss in March 2005. A July 2010 Board decision denied the claim. The Veteran did not thereafter request reconsideration or appeal the decision to the Court. In September 2013, the Veteran filed an application to reopen his previously denied claim for service connection for bilateral hearing loss. A January 2015 Board decision again denied the claim. The Veteran did not thereafter request reconsideration or appeal to the Court. By regulations, all Board decisions are final on the date stamped on the face of the decision. 38 C.F.R. § 20.1100 (2017). Generally, a claim that has been denied in a final Board decision may not thereafter be reopened and allowed. 38 U.S.C. § 7104 (2012). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New and material evidence means evidence not previously submitted to agency decision makers; which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis. The Court has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold and has characterized the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” Shade v. Shinseki, 24 Vet. App. 11 (2010). For purposes of determining whether new and material evidence has been received, the credibility of the evidence is to be presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). Here, the Board finds that new and material evidence has been received with respect to the Veteran’s bilateral hearing loss. The record contains an April 2016 opinion from the Veteran’s private treating provider, W.T., D.O. When considered with the Veteran’s contentions and evidence previously of record, this evidence relates to whether there is a link between the Veteran’s current hearing loss disability and an in-service incurrence, which relates to a previously unestablished fact, and raises a reasonable possibility of substantiating the claim for service connection for bilateral hearing loss. It is therefore new and material. The claim is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS FOR REMAND 1. Entitlement to service connection for bilateral hearing loss is remanded. 2. Entitlement to service connection for residuals of spinal meningitis, to include myasthenia gravis, is remanded. The Veteran contends that his hearing loss was either incurred in or aggravated by service, and that his residuals of spinal meningitis, to include myasthenia gravis, were also incurred in service. Specifically, he contends that he contracted spinal meningitis during service at Fort Knox and that he was misdiagnosed at that time. In support of his contention that he was misdiagnosed, he has submitted a February 1966 newspaper article confirming an outbreak of spinal meningitis at Fort Knox at that time and a February 2016 lay statement from his wife, who is an L.P.N. The newspaper article noted that one soldier died during the meningitis outbreak, and that Army officials originally reported his cause of death as a respiratory disease. In her February 2016 statement, the Veteran’s wife stated that spinal meningitis and pneumococcal meningitis start with a respiratory infection, and when they are let go without treatment they can turn into spinal meningitis and pneumococcal meningitis. The Veteran’s primary contention is that although he was diagnosed with and treated for respiratory diseases while hospitalized in service, what he actually had was spinal meningitis, and that this disease aggravated his hearing loss and caused other residuals, to include symptoms of myasthenia gravis. He also contended in a February 2006 Statement in Support of Claim that exposure to strep throat aggravated his hearing loss. At the outset, the Board notes that the Veteran’s January 1966 entrance examination demonstrates that he had a bilateral hearing loss disability pursuant to 38 C.F.R. § 3.385 when he entered service. He also underwent a VA examination for respiratory conditions in May 2016, when the examiner noted that a March 2007 neurology consultation diagnosed myasthenia gravis. The claims file therefore indicates that the Veteran has current diagnoses regarding both issues on appeal. The Veteran’s service treatment records (STRs) also indicate that he was admitted on an inpatient basis for 61 days during service beginning in February 1966, and that he was initially admitted with a diagnosis of possible pneumonia. Another February 1966 STR shows that just over a week after his admission a throat culture revealed beta strep, and that he was subsequently started on penicillin for that reason. A March 1966 STR indicates that his case was referred to the Medical Board, who found that the Veteran’s diagnoses during his hospitalization included pneumonia, asthma with bronchitis, and partial deafness in both ears. The Board recommended separation from service after finding that the Veteran was medically unfit for duty. Turning to post-service treatment records, a March 2007 private treatment record demonstrates that an evaluation for weakness and fatigue was negative at that time except for increased C-Reactive protein (CRP). While no diagnosis was confirmed, the provider noted that the Veteran had a strong family history of myasthenia gravis. An April 2007 VA treatment record noted that the Veteran’s mother had myasthenia gravis. The Veteran submitted a statement from his private treating provider, W.T., D.O. in April 2016. Dr. T. stated that the Veteran had a history of hearing loss and gait instability, and that he had investigated the cause of the Veteran’s hearing loss and gait instability. He concluded that the Veteran most likely contracted bacterial meningitis in the “distant past,” reasoning that the long-term neurologic sequelae of bacterial meningitis were hearing loss and gait instability due to inflammation of the eighth cranial nerve. While appearing to support the Veteran’s claim, the Board finds that Dr. T.’s April 2016 opinion is too vague to support an award of service connection at present. Dr. T. did not address the Veteran’s period of active service at all, concluding that the Veteran most likely contracted meningitis only at some point in the past. The file does not contain any other nexus opinions from any source. In light of the available evidence, and the Veteran’s assertions, the Board finds that a VA examination and/or opinion are warranted. See McLendon v. Nicholson, 20 Vet. App. 79, 81-83 (2006) (holding, in part, that an examination may be required under the provisions of 38 C.F.R. § 3.159(c)(4) if the record on appeal contains medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits). Additionally, the Board also notes that the claims file does not appear to contain copies of all relevant treatment records. There do not appear to be any records of treatment from Dr. T. The March 2007 neurology consultation referred to by the May 2016 VA examiner is also not of record. The Veteran further testified at his October 2020 hearing that he saw a neurologist who did a spinal tap and found spinal meningitis, but there are no records in the claims file regarding that procedure. Finally, while VA treatment records show that the Veteran has been followed by VA neurology at times, the claims file also indicates that he may have been seen by private neurologists as well. On remand, efforts should be made to obtain any outstanding private treatment records. As a final matter, the Board notes that at his October 2020 hearing, the Veteran indicated that he had received a new statement from Dr. T. just two weeks earlier, and that he would submit it following his hearing. To date, no additional evidence has been received. Given the Veteran’s testimony, further development is warranted. These matters are REMANDED for the following action: 1. Ask the Veteran to provide a release for relevant records of treatment from Dr. T. in Crossville, Tennessee, and to identify, and provide appropriate releases for, any other care providers who may possess additional evidence pertinent to the issues on appeal. If he provides the necessary release(s), assist him in obtaining the records identified, following the procedures set forth in 38 C.F.R. § 3.159. Any new or additional (i.e., non-duplicative) evidence received should be associated with the record. If any of the records sought are not available, the record should be annotated to reflect that fact, and the Veteran and his representative should be notified. 2. Inform the Veteran and his representative that the claims file does not contain the new statement received from Dr. T. that he identified at his October 2020 hearing, and invite him to submit any such statement that may be in his possession. If he provides any new or additional statements from Dr. T., associate them with the claims file. 3. Obtain copies of records pertaining to any VA treatment the Veteran has received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the record. 4. After the foregoing development has been completed to the extent possible, arrange to provide the record on appeal to an appropriate VA clinician, or clinicians, for opinions on the etiology of the Veteran’s hearing loss and residuals of his alleged spinal meningitis, to include myasthenia gravis. The examiner(s) should review the record. After reviewing the record, the examiner(s) should provide an opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that the Veteran’s pre-existing hearing loss increased in severity during service and, if so, whether it is clear and unmistakable (i.e., obvious, manifest, or undebatable) that any such increase was due to the natural progress of the disease. The examiner(s) should also provide an opinion as to whether it is at least as likely as not that the Veteran had spinal meningitis during service that was misdiagnosed. In so doing, the examiner(s) should consider the Veteran’s STRs reflecting his inpatient hospitalization, a February 1966 newspaper article confirming an outbreak of spinal meningitis at Fort Knox Hospital at that time, the March 1966 findings of a Medical Board, a February 2016 lay statement from the Veteran’s wife (who is a L.P.N.) that untreated respiratory infections lead to meningitis, Dr. T.’s April 2016 statement, and the Veteran’s contention that he was misdiagnosed during service. If, and only if, an examiner finds that it is at least as likely as not that the Veteran had spinal meningitis during service, the examiner should also provide opinions as to the following: a) Whether it is at least as likely as not that a portion of the Veteran’s current hearing loss is due to spinal meningitis in service. b) Whether it is at least as likely as not that any residuals of spinal meningitis, to include myasthenia gravis, were caused or have been aggravated by the spinal meningitis he contracted in service. In so doing, the examiner should consider a March 2007 private treatment record indicating that the Veteran has a strong family history of myasthenia gravis, and an April 2007 VA treatment record indicating that his mother had myasthenia gravis. The need for an in-person, video, and/or telephonic interview of the Veteran is left to the discretion of the examiner(s) selected to offer the requested opinions. A complete medical rationale for all opinions expressed must be provided. 5. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issues on appeal should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Oldroyd, 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.