Citation Nr: 21025466 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 14-28 981 DATE: April 28, 2021 ORDER A rating greater than 10 percent, for the period from October 10, 2012 to February 26, 2020 for residuals of meningitis characterized as generalized pain is denied. A rating greater than 50 percent, effective February 26, 2020, for residuals of meningitis characterized as a depressive disorder is denied. A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. During the period from October 10, 2012 to February 26, 2020, the Veteran’s meningitis residuals were characterized by no more than constant pain in his bilateral upper and lower extremities, neck and back with normal muscle strength, normal range of motion and full sensory and normal reflexes. 2. During the period effective February 26, 2020, the Veteran’s adjustment disorder as a residual of meningitis has been characterized by no more than social impairment with reduced reliability and productivity, lack of friends, depressed mood, suspiciousness, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulties establishing and maintaining effective work and social relationships, no psychosis or delusions and no suicidal or homicidal ideation. 3. The Veteran does not meet the schedular requirements for TDIU, for the period on appeal, and referral to the Director of the VA Compensation and Pension Service is not in order. CONCLUSIONS OF LAW 1. The criteria for a rating greater than 10 percent, for the period from October 10, 2012 to February 26, 2020, for residuals of meningitis have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.7, 4.14, 4.21, 4.130, Diagnostic Code 8019 (2020). 2. The criteria for a rating greater than 50 percent, effective February 26, 2020, for residuals of meningitis characterized as a depressive disorder have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.7, 4.14, 4.21, 4.130, Diagnostic Codes 8019, 9440 (2020). 3. The criteria for a TDIU have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from September 1973 to August 1977. In January 2020, the Board remanded the Veteran’s claims for adequate medical examinations and to obtain additional documents related to the Veteran’s application for vocational rehabilitation. Non-mental residuals of meningitis Disability evaluations are determined by comparing the Veteran’s current symptomatology with the criteria set forth in the Schedule For Rating Disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4 (2020). The Veteran’s service-connected meningitis is evaluated under 38 C.F.R. § 4.124a, Diagnostic Code 8019 (epidemic cerebrospinal meningitis). See 38 C.F.R. § 4.124a, Diagnostic Code 8019 (2020). 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. A note following Diagnostic Code 8025 reads as follows: Note: It is required for the minimum ratings for residuals under diagnostic codes 8000-8025, that there be ascertainable residuals. Determinations as to the presence of residuals not capable of objective verification, i.e., headaches, dizziness, fatigability, must be approached on the basis of the diagnosis recorded; subjective residuals will be accepted when consistent with the disease and not more likely attributable to other disease or no disease. It is of exceptional importance that when ratings in excess of the prescribed minimum ratings are assigned, the diagnostic codes utilized as bases of evaluation be cited, in addition to the codes identifying the diagnoses. The January 2019 Board remand requested documents associated with the Veteran’s May 2017 vocational rehabilitation application be added to the claims file. The RO requested those documents in January 2020 and was notified that the Veteran did not appear for his appointment and that his case was closed for non-pursuit on June 24, 2017. The Board must determine the competence and credibility of all evidence, including lay statements, and determine its probative value. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In the evaluation of evidence, VA adjudicators such as the Board may properly consider internal inconsistency, facial plausibility and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995), aff’d, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F. 3d 1447 (Fed. Cir. 1997) (holding that the Board has the “authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence”). The Veteran has described to various medical examiners and VA adjudicators a service medical history markedly at odds with his service treatment record. In his November 2013 notice of disagreement, the Veteran alleged that his meningitis residuals included a back disorder caused by the two in-service lumbar punctures. In his substantive appeal received in June 2014, the Veteran again alleged he had been hospitalized for two months in service, and that he was the “third known person medically in the world to contract the particular strain that the nerve damage, soreness, back pains [resulting from] spinal taps and cramping, occasional headaches, and severe joint pain from high fever are all related.” There is no question that the Veteran was treated for an episode of an acute episode of bacterial spinal meningitis for approximately 20 days in service. He received lumbar punctures on November 9th and 12th, 1974. During the hospitalization, the Veteran had a left foot lesion. However, service medical and orthopedic examiners found no evidence of osteomyelitis and after further observation, the lesion improved. The record of hospitalization indicates that his hospital course was “uneventful,” except for a period of a fever caused by a medication reaction. After the medication was discontinued, the fever abated. After the hospitalization, he was returned to full duty. There is no mention in the service medical records of any abnormalities regarding the lumbar punctures. Whether caused by a faulty memory or a desire for financial gain, the Veteran’s account is not truthful. The Veteran’s in-service medical diagnosis and treatment did not include a two-month hospitalization and the disorder was not characterized such as a unusual variant that he was the “third person in the world” to have it. Had there been continuing residuals while the Veteran was on active duty, the service department certainly would have noted them during the period from November 1974 to his discharge in August 1977. The Veteran’s lack of credibility in this respect is critical. Part of a medical examiner’s assessment of a disorder is based on the subjective account of the examinee. To the extent that the Veteran’s false account of his in-service treatment may have been considered by examiners, the probative value of their assessment of the meningitis residuals is diminished. Guerrieri v. Brown, 4 Vet. App. 467 (1993) (observing that the evaluation of medical evidence involves inquiry into, inter alia, the medical expert’s personal examination of the patient, the physician’s knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches), In February 2013, the Veteran was afforded a VA neurological examination after a general VA medical examiner was unable to determine if the Veteran had any residuals of his now service-connected disorder. The Veteran complained of cramping in all four extremities, particularly after exertion of moderate intensity. He reported that the cramping was in all muscle groups of the effected extremities and last for a few hours. However, the Veteran’s neurological examination resulted in normal findings. The examiner noted that the Veteran had full strength, full sensory, and normal reflexes. The examiner noted the Veteran had normal strength at elbow flexion, elbow extension, wrist flexion, wrist extension, grip, pinch, knee extension, ankle plantarflexion and ankle dorsiflexion. There was no muscle atrophy noted. He also reported that sensory testing indicated light touch was normal, including bilateral shoulder, inner and outer forearm of both arms, both hands, all fingers, both upper thighs, both knees, the lower leg and ankle, both feet and all toes. A separate VA examiner that scarring of the nerve root could cause a predisposition for cramping and motor weakness as had by the Veteran. The Veteran’s spinal meningitis residuals were evaluated as 10 percent disabling in a June 2013 rating decision on the finding of “ascertainable residuals.” In January 2015, the Veteran was afforded a VA examination. The Veteran reported headaches, muscle spasms, pain, and concern about possible future infections. The examiner noted that the Veteran “could not provide evidence” to support his assertion that he had these symptoms. The examiner also noted that there was no evidence in the service treatment records to support the Veteran’s assertion of a “continued infection in the brain.” The examiner observed that although the Veteran had been diagnosed with an “infectious condition,” it was not active and it did not require continuous medication for control. On examination, the Veteran had no muscle weakness in the upper or lower extremities, no impairment of movement, no impairment of his pharynx and or larynx or swallowing capability; no respiratory conditions, no sleep disturbances, no bowel or voiding dysfunction, and no recurrent symptomatic urinary tract infections. The Veteran also did not have erectile dysfunction. The Veteran’s neurological examination was normal. The examiner recorded normal findings as to the Veteran’s speech, gait, strength testing, elbow flexion, elbow extension, wrist flexion, wrist extension, grip strength, pinch strength, bilateral knee extension, bilateral ankle plantar flexion and dorsiflexion. Also normal on deep tendon reflex testing were the Veteran’s bilateral biceps, triceps, brachioradialis, knees, and ankles. The Veteran did not have muscle atrophy attributable to his meningitis disorder and his bilateral upper and lower extremity muscle strength was normal. The examiner noted the Veteran had no pertinent physical findings, complications, conditions, signs or symptoms related to his past diagnosis and concluded that the Veteran did not have any residuals of meningitis. The January 2015 VA examiner also noted that the Veteran did not then have depression or other mental health abnormalities from the service-connected spinal meningitis. In April 2017, VA received the Veteran’s Social Security Administration (SSA) disability award file. The SSA found that as of January 2011, the Veteran was disabled within the meaning of its laws and regulations because of osteoarthrosis and allied disorders. The Veteran reported that he stopped working in December 2008 because of a “lack of work,” although the Veteran reported his belief that he was too disabled to work as of January 2011. The SSA file contains a June 2012 occupational health report authored by K. Klausman, M.D. In substance, the Veteran reported that his legs would “give out” occasionally, and that he broke three ribs in December 2011 – fully 34 years after he was discharged from active duty. The Veteran had constant arthritis pain in his back which caused depression and had a “history of spinal meningitis.” However, on physical examination by Dr. Klausman, the Veteran walked with a normal gait. He was able to get on and off the examination table without difficulty and went from sitting to laying without difficulty. His cervical range of motion was full in extension, flexion, right lateral flexion, left lateral flexion, and right and left rotation. An emergency medical treatment record included with the SSA file indicates that in December 2011, the Veteran fell onto his back approximately five to seven feet onto a hard surface while running/walking. Imaging testing indicated a left posterior tenth rib fracture. The onset of his symptoms was reported as “sudden.” He reported “no past medical history” and “no history of depression.” On review of systems, neurological testing was normal. His fine normal hand movements were within normal limits bilaterally and he had full grip strength in both hands. He was able to pick up a coin and make a fist with each hand. In a January 2019 VA central nervous system examination, the Veteran had no neurological deficits. The Veteran falsely reported that he had been hospitalized in service for three months. Although he reported that he had back pain and various joint pain, he did not report his December 2011 fall on his back. The examiner indicated that his meningitis was treated successfully with no further treatment required. On testing, the Veteran had no muscle weakness in his upper or lower extremities, his speech and gait were normal. He had full strength in his bilateral elbow flexion and extension, bilateral wrist flexion, bilateral grip, bilateral pinch, bilateral knee extension, bilateral ankle flexion and dorsiflexion. Although he had decreased right and left triceps deep tendon reflexes, reflex testing of the bilateral biceps, brachioradialis, knee and ankle were all normal. The Veteran had no muscle atrophy attributable to his service-connected disorder. In a February 2020, the Veteran was afforded a VA examination. The Veteran had complaints of sudden muscle weakness and inability to move. The Veteran also reported low back pain, bilateral shoulder pain, and insomnia. Upon examination, the Veteran was noted to have mild right upper extremity muscle weakness manifesting as a weaker right-hand grip. The Veteran was also noted to have mental health manifestations due to his Central Nervous System (CNS) Condition and treatment. The examiner noted that the Veteran’s report of light sensitivity, recurrent headaches, joint pains, and cramping. The examiner also noted the aftereffects of meningitis may be physical or emotional. The examiner indicated that the Veterans’ CNS condition impacts his ability to work. In July 2020, the Veteran was afforded a VA examination to determine the etiology of his erectile dysfunction (ED). The examiner concluded that the Veteran’s ED was not related to his meningitis. The examiner noted that the Veteran did not report ED related to meningitis until 2020. The examiner reported that the Veteran’s alcohol abuse and peripheral vascular disease (PVD) could account for his ED given the long interval (45 years) since his meningitis, and that the Veteran’s meningitis “resolved without residuals.” The July 2020 examiner also concluded that the Veteran’s headaches were not a residual of his meningitis. The examiner stated that the Veteran did not report headache symptoms because of meningitis until 2020. The examiner stated that headache symptoms can be associated with acute meningitis but that a January 2015 disability benefits questionnaire indicates that his meningitis resolved without residuals. The examiner also observed that headaches are not a long-term residual of meningitis according to current medical science. In November 2020, the Veteran was afforded a VA examination. The examiner found that the Veteran’s bilateral shoulder condition was not the result of his meningitis. The examiner noted that the Veteran did not have a consistent record of pain in his bilateral shoulders since discharge from active duty. The examiner also stated that the Veteran had a history of rib fractures and degenerative joint disease which were more likely to cause the described pain. The examiner also observed that the Veteran was evaluated for residuals of meningitis by a neurologist, but none were found. A November 2020 examiner also found that the Veteran’s low back pain was not the result of his meningitis in service. The examiner correctly observed that the Veteran had a musculoskeletal injury since service that could cause the pain he described. He indicated that the Veteran had a record of rib fractures and degenerative arthritis of the spine, specifically levoscoliosis, osteophytes L2-L5, first degree retrolisthesis L2-L3 and L3-L4, and narrowing of all lumbar disc space except L1-L2 with early generative disc disease at L5-S1. The examiner stated that these abnormalities were are more likely to cause the Veteran’s described pain. During the period from October 10, 2012 to February 26, 2020, the Veteran’s meningitis residuals were characterized by no more than cramping and pain in his bilateral upper and lower extremities, neck and back with normal muscle strength, full sensory and normal reflexes. Given these facts, the preponderance of the evidence is against the assignment of an evaluation greater than 10 percent under Diagnostic Code 8019 for residuals of meningitis. The record indicates that contrary to the Veteran’s account of his in-service treatment, he was successfully treated in service for an acute, and apparently ordinary episode of meningitis. Other than the generalized pain for which service connection was granted, numerous medical examiners have found the meningitis resolved and the Veteran’s orthopedic symptoms arose because of a post-service accident many years after his discharge. The appeal is therefore denied. Adjustment disorder The Veteran’s adjustment disorder with depressed mood is a residual of meningitis and rated as 50 percent disabling under 38 C.F.R. § 4.130, Diagnostic Code 9440 (2020). Under the diagnostic code, a 50 percent evaluation contemplates symptoms of occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, Diagnostic Code 9440 (2020). A 70 percent evaluation requires occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking, or mood due to symptoms such as suicidal ideation, obsessional rituals which interfere with routine activities, intermittently illogical, obscure, or irrelevant speech, near continuous panic or depression affecting the ability to function independently, appropriately and effectively, impaired impulse control (such as unprovoked irritability with periods of violence), spatial disorientation, neglect of personal appearance and hygiene, difficulty in adapting to stressful circumstances (including work or a work like setting), and an inability to establish and maintain effective relationships. Id. A 100 percent evaluation requires total occupational and social impairment due to symptoms such as gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, a persistent danger of hurting himself or others, an intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene), disorientation to time or place, and memory loss for names of close relatives, own occupation, or own name. Id. The use of the phrase “such symptoms as,” followed by a list of examples, provides guidance as to the severity of symptomatology contemplated for each rating. Use of such terminology permits consideration of items listed as well as other symptoms and contemplates the effect of those symptoms on the claimant’s social and work situation. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). In March 2020, the Veteran was afforded a VA examination. The Veteran was diagnosed with the adjustment disorder with depressed mood. The examiner noted occupational and social impairment with reduced reliability and productivity. The Veteran noted that he has been married since 1979, has two children and described his marriage as “alright.” The Veteran stated that he doesn’t have any friends and struggles to sleep at night. The Veteran’s symptoms included depressed mood, suspiciousness, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, and difficulties establishing and maintaining effective work and social relationships. The Veteran exhibited no signs of psychosis or delusions and denied suicidal or homicidal ideation. During the period effective February 26, 2020, the Veteran’s only meningitis residual has been adjustment disorder with depressed mood. The Veteran’s adjustment disorder has been characterized by no more than social impairment with reduced reliability and productivity, lack of friends, depressed mood, suspiciousness, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulties establishing and maintaining effective work and social relationships, no psychosis or delusions and no suicidal or homicidal ideation. In the context of determining whether a higher 70 percent disability evaluation is warranted, the Diagnostic Code requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment with deficiencies in most areas and inability to establish and maintain effective relationships -i.e., “the regulation... requires an ultimate factual conclusion as to the veteran’s level of impairment...” Vazquez-Claudio, 713 F.3d at 117-18; see 38 C.F.R. § 4.130, DC 9440. The preponderance of the evidence is against finding that the Veteran’s level of impairment resulting from his adjustment disorder is greater than the currently-assigned rating. The Veteran has not demonstrated severe impairment. There was not intermittently illogical, obscure, or irrelevant speech. There was no near-continuous panic or depression affecting his ability to function independently, appropriately, or effectively. There had been no evidence of impaired impulse control or spatial disorientation and no evidence of suicidal or homicidal ideation. The Veteran has maintained his marriage since 1979. There have been no periods of disorientation to time or place, or severe memory loss. In short, he does not have the collection of symptoms indicative of the more severe disability. Thus, the Board finds that a 70 percent rating is not warranted for the Veteran’s adjustment disorder as a residual of his meningitis. TDIU VA regulations allow for the assignment of TDIU when a veteran is unable to secure or follow a substantially gainful occupation because of service-connected disabilities, and the veteran has certain combinations of ratings for service-connected disabilities. If there is only one such disability, that disability must be ratable at 60 percent or more. If there are two or more disabilities, there must be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). The Veteran’s assigned combined service-connected evaluation is 50 percent for the period on appeal. The combined rating for his service-connected disabilities fails to meet the criteria for schedular consideration of TDIU. See 38 C.F.R. § 4.16(a). Although the Veteran does not meet the schedular criteria for consideration of a TDIU rating, the Board must also consider whether referral for extra-schedular consideration is warranted at any time during the appeal period. Such consideration is warranted when a Veteran fails to meet the percentage requirements for eligibility for a total rating set forth in 38 C.F.R. § 4.16(a), and when two additional criteria are met. It must be shown that the claimant is unable to secure and follow a substantially gainful occupation because of service-connected disabilities. 38 C.F.R. § 4.16(b). Referral of this case to the Director of the VA Compensation and Pension Service for extra-schedular consideration is not in order. In a February 2013 VA examination, the Veteran reported constant pain and stated that he had to stop working due to the pain, he was referred for a neurological examination. The neurologist opined that the Veterans examination was normal but noted excessive cramping around the nerve roots because of his spinal meningitis which would cause “labor type of work” to be very difficult for him. VA examinations from January 2015 and January 2019 indicated that the Veteran did not have residuals of meningitis. The March 2020 examiner noted that the Veteran had occupational and social impairment with reduced reliability and productivity but did not note total occupational and social impairment. Extraschedular consideration for his TDIU claim is not appropriate. The Veteran is service connected for residuals of meningitis, specifically adjustment disorder. As mentioned above, the Veteran’s combined disability rating, for the period on appeal, is 10 percent from October 10, 2012 to February 26, 2020 and 50 percent thereafter. These ratings compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from the Veteran’s disabilities. 38 C.F.R. § 4.1. The Board does not find that the Veteran is unemployable because of his meningitis residuals for the period on appeal. Therefore, the Veteran’s TDIU claim is denied. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Wozniak, 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.