Citation Nr: 21010692 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 14-20 997A DATE: February 25, 2021 REMANDED Entitlement to a compensable disability rating for service-connected viral meningitis is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1982 to April 2002. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge in May 2017. The Veteran’s spouse, L.C., was present as a witness. A transcript of the hearing is of record. The Board remanded this matter in February 2018 and February 2020. However, the Board finds that the RO did not substantially comply with the directives set forth in the February 2020 remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to a compensable disability rating for service-connected viral meningitis is remanded. The Board is obligated by law to ensure that the RO complies with its directives; where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall, 11. Vet. App. at 268. Regrettably, the Board finds that further remand is necessary in this case under Stegall. Pursuant to the February 2020 remand, the Board requested that an additional VA opinion should be provided to address the Board’s February 2018 remand directive to determine whether the Veteran suffers from residuals of meningitis, to include headaches, memory, and cognitive process. The Board noted that the May 2019 VA examination was inadequate because the examiner did not discuss the Veteran’s headaches, memory, or cognitive processes. The Board also noted that the record showed the Veteran suffered from headaches. In a March 2020 VA opinion, the examiner referred to the answer in question 10 from the original examination (the Board notes this would be the May 2019 VA examination) that had already been provided based upon the physical exam. It was noted there was no physical neurological deficit and the mental was answered to the best of the examiner’s ability based upon the physical exam. The examiner said that otherwise refer to the psychiatric exam for cognitive and memory. Reiterating the opinion, word for word, from the May 2019 VA opinion, the examiner stated that the Veteran himself was present for this exam, and he denied any real loss of function related to the meningitis during service. At the time of the [2019] exam, there was no neurological loss, as in muscle weakness or balance issues. The Veteran might have pain when he transitioned from sitting to standing because of his back pain, but that was solely a function of his degenerative arthritis/strain in his back, not the meningitis. His meningitis was treated and resolved. He also specifically denied memory or cognitive loss. The Veteran noted that his wife felt that it was an issue, and so the Veteran was seen for a psych exam. It was noted that during the 45 minute exam with the Veteran, he was able to give details and readily converse about his service and was able to give details of his current life and activities. As such, there was no evidence seen on the exam of memory loss or cognitive dysfunction. The Board finds that in reiterating the rationale from the May 2019 VA opinion, which was found to be inadequate, the March 2020 VA examiner’s opinion is inadequate. Further, the examiner, again, did not discuss the Veteran’s headaches, memory, or cognitive processes; of note, headaches are seen in the record. The Board notes that staged ratings are warranted during periods of time where symptoms were present and then resolved at a later time. See Francisco v. Brown, 7 Vet. App. 55 (1994); Hart v. Mansfield, 21 Vet. App. 505 (2007). Therefore, the examiner failing to consider different periods where the Veteran had headaches, based on his statements, is inadequate. Thus, on remand, an additional VA opinion should be obtained to address the Board’s February 2018 and February 2020 remand directive to determine whether the Veteran suffers from residuals of meningitis, to include headaches, memory, and cognitive processes. The matters are REMANDED for the following actions: 1. Obtain any outstanding VA or private treatment records. Request that the Veteran assist with locating these records, if possible. Associate these records with the claims file. 2. Then, obtain a VA opinion from an appropriate examiner, different from the May 2019 and March 2020 VA examiner, or an appropriate substitute, to determine whether the Veteran suffers from any residuals of his service-connected meningitis. A clear rationale must be provided for all opinions expressed. The examiner must consider and discuss the lay statements of record, including complaints of headaches, memory loss, and cognitive process issues. If the examiner is unable to make an opinion without resorting to mere speculation, then the examiner must state this and provide any additional information needed to make an opinion, if possible. 3. Thereafter, readjudicate the claim on appeal. If the benefit sought on appeal remains denied, issue the Veteran and his representative a supplemental statement of the case and provide a reasonable opportunity to respond before returning the matter to the Board for further appellate review. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Saudiee Brown 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.