Citation Nr: 22013687 Decision Date: 03/10/22 Archive Date: 03/10/22 DOCKET NO. 14-20 997A DATE: March 10, 2022 ORDER Entitlement to a compensable rating for the service-connected viral meningitis is denied. FINDING OF FACT The evidence of record persuasively weighs against the finding that during the appeal period the Veteran's service-connected viral meningitis manifested by any residual symptoms other than his depression which is separately compensated at a 30 percent rating. CONCLUSION OF LAW The criteria for entitlement to a compensable rating for the service-connected viral meningitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.14, 4.29, 4.30, 4.31, 4.124a, Diagnostic Code 8019. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Navy from February 1982 to April 2002. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a 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 associated with the record. The Board remanded this matter in February 2018, February 2020, February 2021, and July 2021. In the July 2021 remand, the Board directed the RO to complete additional development, including to obtain the outstanding VA and private treatment records. After completing the additional development, the RO issued an October 2021 supplemental statement of the case, denying entitlement to a compensable rating for viral meningitis and returned the matter to the Board for appellate review. 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. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board finds that the RO substantially complied with the directives set forth in the July 2021 remand. See Stegall, 11 Vet. App. at 271; see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only "substantial" rather than strict or exact compliance with the Board's remand directives is required under Stegall). Entitlement to a compensable rating for viral meningitis. In a March 2002 rating decision, the RO granted service connection for viral meningitis and assigned a noncompensable disability rating from May 1, 2002, the day following the Veteran's discharge from active service. Subsequently, in January 2012, the Veteran filed increased rating claim for the service-connected viral meningitis, which is the beginning of the rating period on appeal. The Veteran stated that he was recently hospitalized due to meningitis and requested reevaluation of the service-connected viral meningitis. In the May 2013 rating decision, the RO denied entitlement to a compensable rating for viral meningitis. In the April 2014 notice of disagreement, the Veteran asserted that a minimum of 10 percent rating should be granted for the service-connected meningitis. In his June 2014 VA Form 9, the Veteran asserted that he became "slow" and could not process things quickly, like he could prior to having meningitis. At the May 2017 Board hearing, the Veteran testified that he had meningitis twice, once in 1996 during his military service and again in 2011. He also testified that he has headaches, loss of memory, decreased neurological and muscle function, some weakness in muscle, sleep impairment, and dizziness, which he believes are the residuals of meningitis. The Veteran's wife testified that meningitis made the Veteran slow and he takes notes to remember stuff. The Veteran's viral meningitis is rated as noncompensable (zero percent) throughout the period on appeal. Thus, the question before the Board is whether a compensable or higher rating for the service-connected viral meningitis is warranted. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation is assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of a disability is resolved in favor of the Veteran. See 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when assigning disability rating. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991); 38 C.F.R. § 4.1. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the period of claim on appeal. See Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Veteran's viral meningitis is rated as noncompensable (zero percent) under diagnostic code 8019 throughout the period on appeal. See 38 C.F.R. § 4.124a, Diagnostic Code 8019. Under diagnostic code 8019, a 10 percent minimum rating is warranted for residuals of meningitis. Id. A 100 percent rating is warranted when meningitis is an active febrile disease. Id. Diagnostic code 8019 does not have a noncompensable (zero percent) rating, but where the rating schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation is assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. The Board has reviewed the relevant evidence of record from the beginning of the rating period on appeal to analyze whether the Veteran has any residuals of the service-connected meningitis. The Board notes that the July 2011 VA treatment record reflects that the Veteran received inpatient treatment at Bay Medical Hospital from July 11 to July 14, 2011. The actual record of inpatient treatment is not in the claims file, but the July 2011 VA treatment record reflects that the notes were obtained from Bay Medical Hospital. During the July 2011 VA treatment, the Veteran stated that he was feeling fine. Also, the August 2011 VA treatment record reflects that the Veteran was admitted to Bay Medical Hospital for four days in July 2011, for viral meningitis treatment. The August 2011 VA treatment record noted the Veteran's reports that he was feeling well. It was also noted by the clinician that two weeks after the onset of initial symptoms, no specific virus was identified by review of cerebrospinal fluid (CSF) culture. During the August 2011 VA treatment, the Veteran reported that he has no symptoms; however, two weeks earlier when he was treated for meningitis he had symptoms of headache, back pain, and tiredness. The Veteran was afforded a VA examination for meningitis in June 2012, during which the examiner noted that the Veteran was in no acute distress and denied any medical symptoms. The examiner also noted that the neurological physical examination was unremarkable without any evidence of residuals from viral meningitis reported in July 2011. The examiner stated that the Veteran was hospitalized in 1996 and 2011 for meningitis which was resolved without residuals as expected. In the May 2013 rating decision, the RO denied the entitlement to a compensable rating for meningitis. The RO also denied temporary rating of 100 percent because the hospitalization for meningitis treatment in July 2011 was less than 21 days. During a January 2017 VA treatment, the clinician noted the Veteran's complaints of rash, headache, loose stools, abdominal discomfort. The clinician noted that the Veteran did not have meningismus. In a May 2017 statement, the Veteran's wife asserted that after second meningitis, the Veteran is slow and has to write things down and makes notes otherwise he forgets, and he also has headaches. The Board notes that the Veteran submitted an August 2017 disability benefit questionnaire (DBQ) for meningitis, without the name and signature of the physician who completed the DBQ. In the DBQ, it was noted that the Veteran had short term memory loss, headache, and low back pain as residuals of meningitis. However, no rationale for the opinion was provided by the examiner. In February 2018, the Board remanded the matter for new VA medical opinion and directed the examiner to address the Veteran's contentions of headache, muscle weakness, and impaired memory. Pursuant to the Board's remand, the Veteran was afforded a VA examination for meningitis in May 2019, during which the examiner noted that the Veteran denied any weakness or neurological deficit from the meningitis. The examiner also noted that the examination did not show any neurological deficit related to the meningitis. The examiner stated that the Veteran himself was present for this examination, and he denied any real loss of function related to the meningitis during service. The examiner further explained that at the time of the examination, there was no neurological loss, muscle weakness, or balance issues. The examiner noted that the Veteran might have pain when he transitions from sitting to standing due to his back pain, but that is 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 did note that his wife felt that it was an issue, and so the Veteran was seen for a psychiatric examination. The examiner noted that during the 45 minute examination with the Veteran, he was able to give the examiner details and readily converse about his service and was able to provide details of his life and activities. As such, no evidence was seen of memory loss or cognitive dysfunction. In May 2019, the Veteran also underwent an examination for mental disorder by a different VA examination, during which the examiner noted the diagnosis of persistent depressive disorder. The examiner opined that although the Veteran complained of the following, there was no objective evidence to support that he had "impaired memory, headaches, slow moving and thinking, impaired sleep, muscle weakness, and balance issues with movement and transitions between standing and sitting" due to meningitis. However, the examiner noted that the Veteran's depressive symptoms include disrupted sleep, irritability, and disrupted focus. The stress associated with meningitis has caused the depression. Based on the May 2019 examination for mental disorder, in an October 2019 rating decision, the RO granted service connection for depressive disorder and assigned a 30 percent disability rating. The RO also issued an October 2019 supplemental statement of the case, denying entitlement to a compensable rating for meningitis. The Board remanded the matter again in February 2020 and directed the VA examiner to address the Veteran's contentions of headaches, memory loss, and cognitive problems as being the alleged residuals of meningitis. Consequently, the VA examiner who performed the May 2019 examination for meningitis provided an addendum medical opinion in March 2020. The examiner stated that based on [May 2019] physical examination, it was noted that there was no physical and neurological deficit. The examiner stated that the opinion was provided to the best of the examiner's knowledge. The examiner provided the same rationale that was provided in the May 2019 opinion. Subsequently, in February 2021, the Board remanded the matter again and directed the RO to obtain a new medical opinion from a different examiner than the one who provided the May 2019 and March 2020 opinions regarding the Veteran's headache, memory loss, and cognitive problems as being the alleged residuals of meningitis. Hence, another VA medical opinion was obtained in April 2021, in which the examiner opined that there is insufficient evidence to warrant or confirm a diagnosis of an acute or chronic residual of meningitis condition or its residuals at this time, and no medical opinion can be rendered as no condition is diagnosed. The examiner explained that the Veteran with history of meningitis in 1996 after which he continued with 6 years as a military on a higher skilled billet-medical/deep sea diver, which is inconsistent with any cognitive dysfunction, memory issues or issues with headaches. The examiner stated that the Veteran has denied having cognitive issues/significant loss due to his meningitis history as per compensation and pension medical opinion of 2020. The examiner noted that the compensation and pension examination of June 2012 documents a normal neuro without evidence of cognitive dysfunction or impaired memory. The examiner further stated that there are over 150 types of headaches, having headache is not pathognomic of a medical condition or a residual. Subsequently, in July 2021, the Board remanded the matter again and directed the RO to obtain inpatient treatment record from Bay Medical Hospital for the Veteran's meningitis treatment from July 11 to July 14, 2011. Consequently, in July 2021, the RO sent the Veteran a letter requesting him to provide the completed authorization forms for obtaining private treatment records. However, the Veteran did not respond to the request. Hence, the RO issued an October 2021 supplemental statement of the case, denying entitlement to a compensable rating for viral meningitis. The Board notes that in a February 2022 Appellate Brief, the Veteran's representative referred to a VA news release concerning delays in printing and mailing services supply chain and staffing shortage. The representative requested that the Veteran should be afforded another chance to complete the required authorization forms for VA to obtain private treatment record. In this regard, the Board notes that the Veteran's representative did not provide explanation whether the Veteran submitted the forms or whether he did not receive the requested forms that were sent by the RO many months ago in July 2021. The requested forms were sent to the Veteran's address of record and there is no indication that the mail was returned undelivered. The news release that the representative referred to was published on November 30, 2021. According to this news release, "In response to the mailing delays and to protect the best interest of claimants, the Veterans Benefits Administration is extending their response period by 90-calendar days for claimants with letters dated between July 13, 2021, and Dec. 31, 2021. If a claimant does not reply to a time-limited notification, such as, making an election of benefits or services, or reporting for a scheduled compensation and pension examination. VBA will not take adverse action to deny, reduce or terminate benefits and services unless: 1) the claimant is contacted and there is documentation of their right to respond; 2) the requested information has been received; or 3) the response period has lapsed." The letter requesting the completed authorization forms to release medical information to VA was sent to the Veteran on July 30, 2021, with a deadline of 30 days. The Board notes that six months have lapsed from the deadline and no completed authorization forms have been received by VA. Even though there are no actual records of the inpatient treatment for meningitis at Bay Medical Hospital from July 11 to July 14, 2011, in the claims file, the Board finds that there is sufficient medical evidence in the record to decide the matter on appeal. As noted above, the August 2011 VA treatment record, which was two weeks after the inpatient treatment at Bay Medical Hospital, clearly reflects that the Veteran did not have any residual symptoms of meningitis. The Veteran reported he was feeling fine and did not have any symptoms. Also, no VA examiner noted any of the residual symptoms of meningitis. Overall, the Board finds that the evidence of record, including VA examinations, treatment records, and the Veteran's reports during these treatments, reflects that there are no residuals of the service-connected viral meningitis, which is required for minimum compensable rating under diagnostic code 8019. See 38 C.F.R. § 4.124a, Diagnostic Code 8019. Moreover, the Board notes that the residual of depression is separately rated as 30 percent disabling. Thus, in this way he does in fact receive a compensable rating for his residuals. As far as any potential temporary 100 percent rating for the four days of hospital treatment from July 11 to July 14, 2011, is concerned the Veteran is not entitled to a temporary rating for this treatment. In this regard, the Board notes that under 38 C.F.R. § 4.29, a total disability rating is assigned without regard to other provisions of the rating schedule when it is established that a service-connected disability has required hospital treatment in a VA or an approved hospital for a period in excess of 21 days or hospital observation at VA expense for a service-connected disability for a period in excess of 21 days. Under 38 C.F.R. § 4.30, a total disability rating is assigned without regard to other provisions of the rating schedule when it is established by report at hospital discharge (regular discharge or release to non-bed care) or outpatient release that entitlement is warranted under paragraph (a)(1), (2) or (3) of this section effective the date of hospital admission or outpatient treatment and continuing for a period of 1, 2, or 3 months from the first day of the month following such hospital discharge or outpatient release. Such total rating is followed by appropriate schedular evaluations. Specifically, a temporary total rating is assigned when treatment of a service-connected disability resulted in (1) surgery necessitating at least one month of convalescence (effective as to outpatient surgery March 1, 1989); (2) surgery with severe postoperative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body cast, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches; or (3) immobilization by cast, without surgery, of one major joint or more. 38 C.F.R. § 4.30(a)(1)-(3). "Convalescence" is defined as the stage of recovery following an attack of disease, a surgical operation, or an injury. Felden v. West, 11 Vet. App. 427, 430 (1998) (citing Dorland's Illustrated Medical Dictionary, 374 (28th ed. 1994)). "Recovery" is defined as the act of regaining or returning toward a normal or healthy state. Id. (citing Webster's Medical Desk Dictionary, p. 606 (1986)). The evidence of record clearly indicates that the Veteran received inpatient treatment for the service-connected meningitis for four days from July 11 to July 14, 2011. And there were not residual symptoms or convalescent period after this treatment. The VA treatment record fourteen days after the hospitalization reflects the Veteran was fine and did not have any residual symptoms. Hence, the Board finds that a temporary 100 percent rating is not warranted for the Veteran hospitalization for four days. As far as the statements of the Veteran and his wife are concerned, the Board acknowledges that the Veteran and his wife are competent to report observable symptoms such as headache, memory impairment, sleep impairment, muscle weakness, and cognitive processing problems. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, they are not competent to render the opinion that these symptoms are residuals of meningitis. Competent evidence concerning any potential residual symptoms of meningitis has been provided by VA medical professionals who have examined the Veteran. The medical findings adequately addressed the criteria under which the disability is evaluated to determine if there are any residuals of the service-connected meningitis. As noted above, there is an August 2017 DBQ for meningitis, without the name and signature of the physician who completed the DBQ. In the DBQ, it was noted that the Veteran had short term memory loss, headache, and low back pain as residuals of meningitis. However, no rationale for the opinion was provided by the examiner. The Board finds that the June 2012, May 2019, and April 2021 VA medical opinions, in which the examiners did not have find any residual symptoms of meningitis, have greater probative value than the August 2017 unsigned DBQ because the VA examiners provided detailed rationale for their findings after reviewing the evidence of record. As noted above, during the May 2019 VA examination for mental disorder, the examiner noted that the stress associated with meningitis caused the Veteran's depression. The Board notes that the Veteran is already receiving a 30 percent disability rating for depressive disorder that was associated with meningitis by the VA examiner. A separate rating under a different diagnostic code for depressive disorder is not warranted because the Rating Schedule generally prohibits pyramiding (evaluating the same disability under different diagnostic codes), and the United States Court of Appeals for Veterans Claims has held that pyramiding is disfavored "unless the regulation expressly provides otherwise." See Cullen v. Shinseki, 24 Vet. App. 74, 84 (2010); 38 C.F.R. § 4.14; see also Esteban v. Brown, 6 Vet. App. 259, 262 (1994) (separate evaluations may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not "duplicative of or overlapping with the symptomatology" of the other condition). In conclusion, the Board finds that the evidence of record persuasively weighs against the finding that throughout the appeal period the Veteran's service-connected meningitis manifested by any residual symptoms to warrant a minimum rating of 10 percent under diagnostic code 8019. 38 C.F.R. § 4.124a, Diagnostic Code 8019. Since the evidence of record persuasively weighs against the Veteran's appeal for a compensable rating for the service-connected viral meningitis, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); Lynch v. McDonough, No. 2020-2067, 2021 U.S. App. LEXIS 37307 (Fed. Cir. Dec. 17, 2021); 38 C.F.R. §§ 4.3, 4.7. Consequently, entitlement to a compensable rating for the service-connected viral meningitis is denied. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Tariq, Nadeem, 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.