BVA9502082 DOCKET NO. 92-08 613 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for meningitis. 2. Entitlement to service connection for a nervous disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD James A. Pritchett, Associate Counsel INTRODUCTION The veteran had active service from February 1970 to August 1972. This matter came before the Board of Veterans' Appeals (Board) on appeal from a rating decision of July 1990, by the Los Angeles, California, Department of Veterans Affairs (VA) Regional Office (RO) which denied service connection for a nervous disorder and held that new and material evidence sufficient to reopen a claim for service connection for meningitis had not been submitted. In March 1993, the case was remanded for further evidentiary development. CONTENTIONS OF APPELLANT ON APPEAL It is contended that the veteran incurred meningitis while in active service. It is asserted that the veteran developed a nervous disorder secondary to his meningitis. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that a preponderance of the evidence is against a grant of service connection for a nervous disorder. It is the decision of the Board that new and material evidence to reopen a claim for service connection for meningitis has not been submitted. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. Service connection for meningitis was denied by the RO in an April 1986 decision. 3. Evidence received since the April 1986 decision does not bear directly on whether meningitis had its onset in service. 4. No current nervous disorder is shown to be related to service. CONCLUSIONS OF LAW 1. The April 1986 rating decision denying service connection for meningitis is final; new and materia evidence has not been presented. 38 U.S.C.A. §§ 5108, 7105 (West 1991); 38 C.F.R. §§ 3.104, 3.156, 20.302 (1993). 2. A nervous disorder was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 5107 (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION New and Material Evidence As the issue of service connection for meningitis was denied by rating decision in April 1986, the appellant's claim may be reopened only if new and material evidence is presented. Manio v. Derwinski, 1 Vet.App. 140, 145 (1991). ...when a veteran seeks to reopen his or her claim under [38 U.S.C.A.] section 5108, the BVA must conduct a two-step analysis. First, the Board must determine whether the evidence submitted since the previous BVA decision is "new and material." Second, if the evidence is found to be new and material, the claim is to be reopened and the Board must then "assess the new and material evidence in the context of the other evidence of record and make new factual determinations." Masors v. Derwinski, 2 Vet.App. 181, 185 (1992) (quoting Godwin v. Derwinski, 1 Vet.App. 419, 425 (1991) and Jones v. Derwinski, 1 Vet.App. 210, 215 (1991)). In undertaking this "two-step" process, the Board must compare the medical evidence considered in the 1986 RO decision with that evidence submitted since that time. "New and material" evidence does not have to "establish" service connection; it must merely create a "reasonable possibility" of service connection for purposes of reopening the claim. Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991). "New" evidence is that which is not merely cumulative of other evidence of record. "Material" evidence is that which is relevant to and probative of the issue at hand and which must be of sufficient weight or significance (assuming its credibility) that there is a reasonable possibility that the new evidence, when viewed in the context of all the evidence, both new and old, would change the outcome. Cox v. Brown, 5 Vet.App. 95 (1993). The evidence before the RO at the time of the April 1986 rating decision included the veteran's service medical records. The report of the examination for entrance dated in February 1970 is negative for symptoms or findings of meningitis. A narrative summary dated in April 1970, indicates that the veteran was hospitalized in March 1970 complaining of a fever, sore throat and headache. While hospitalized, a diagnosis of meningococcal meningitis, type C was made. He was returned to duty in April 1970. A treatment note dated in October 1970 indicates that the veteran was referred to a physician after he played a game of "chicken" with another service member, which resulted in both of them receiving knife cuts. The physician's report notes that the veteran denied any residuals of his meningitis other than a hearing loss. He specifically denied significant behavioral changes after the meningitis. The impression was that the veteran had probably always been of below average to low average intelligence, but that the physician wondered about neurological damage considering the history of meningitis and the veteran's poor ability to abstract. A psychiatric consultation was ordered. The report of a psychiatric consultation dated in November 1970 indicates that he quit high school just before graduating. The report indicates that his responses to proverbs was probably due to poor intellectual functioning rather than to a schizophrenic process. The impression was passive-aggressive and inadequate personality, not severe enough to be incapacitating as they were not significantly affecting his level of competence and performance of duty. The recommendation was further trial at duty. The report of the examination for separation dated in August 1972 is negative for symptoms or findings of meningitis or any sequelae thereto, including psychological disorders or a hearing loss. Also included in the record was a VA hospital summary for the period of November 1985 to January 1986. The summary notes that the veteran presented with depression and was admitted therefore. The summary notes that because the veteran displayed poor problem solving and language skills, a computerized tomography (CT) scan of the frontotemporal areas was performed to evaluate possible structural abnormalities but none were found. The report states that a mass was removed from the veteran's mouth and a needle biopsy of a mass on the veteran's neck was performed. The summary states that he was discharged to return to work in January 1986. A report dated in February 1986 states that the biopsy revealed no negative pathology. The April 1986 rating decision denied service connection for meningitis because it was acute and transitory. Since the April 1986 decision a copy of the November 1985 to January 1986 hospital summary was added as well as copies of portions of the veteran's service medical records. Also added was the report of a VA special psychological examination performed in March 1990. The report reveals that the veteran had been treated for cognitive and affective symptoms for sixteen months prior to the examination. The veteran related a history of making low grades in high school and quitting school shortly before graduation. The summary and impression state that testing indicated severe psychopathology and the symptomatology suggested major depression with the need to rule out psychosis. A May 1990 VA special psychiatric examination is of record. The report includes a history as related by the veteran which is negative for complaints of cognitive problems prior to contracting meningitis while in active service. The report states that the veteran ascribed difficulties in boot camp and difficulties with learning his duties to meningitis. The history also indicates that the veteran saw a service psychiatrist because of self-mutilating behavior, to include cutting his arms and burning his arms with dry ice. Testing indicated borderline intellectual functioning and a number of scholastic deficits. The report states that the age and etiology of the functioning problems and scholastic deficits would be difficult to determine. The report states that the veteran had a chronic major depression and borderline traits including mood lability, interpersonal sensitivity and identity disturbances. A July 1991 letter the same VA physician was to the effect that the veteran's records from the Loma Linda VA Medical Center had not been reviewed in their entirety. Associated with the claims folder are VA outpatient treatment notes January 1989 through March 1993. The treatment notes mention meningitis in connection with the veteran's psychiatric history. The records are negative for treatment of sequelae of meningitis. Reports of VA special neurological and psychiatric examinations dated in July 1993 are of record. Both reports mention meningitis in the veteran's history. The report of the neurological examination notes that the veteran's hearing was impaired for four years but that he had regained his hearing. The report notes that the veteran stated that he had always had poor grades in school prior to his active service and that he always had problems understanding. He stated that the jobs he held prior to active service were borderline; he was a dish washer, gardener and a shipping clerk. The discussion portion of the report concerns the lack of a link between the veteran's meningitis and his difficulty with comprehension. The report of the psychiatric examination is also concerned with a possible link between the veteran's meningitis and his intellectual difficulties. The discussion states that there was no relationship between the veteran's meningitis and his intellectual ability or his depression. The report is otherwise negative regarding meningitis. Having reviewed the evidence associated with the claims folder since 1986, the Board concludes that this evidence is not new and material and the claim is not reopened. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a) (1993). Accordingly, the RO's 1986 decision remains final. 38 U.S.C.A. § 7104 (West 1991). New evidence is not that which is merely cumulative of other evidence on the record. Material evidence is relevant and probative of the issue at hand. However, not every piece of new evidence, even if relevant and probative, will justify a reopening because some evidence is of limited weight and thus is insufficient to justify a new hearing. The 'bright line' rule in other federal courts is that to justify a reopening on the basis of new and material evidence, there must be a reasonable possibility that the new evidence, when viewed in the context of all the evidence, both new and old, would change the outcome. Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991). Some of the evidence added since the April 1986 rating decision is redundant; the copies of the service medical records, and the copy of the November 1985 through January 1986 VA discharge summary was before the RO at the time of the 1986 decision. None of the evidence submitted since the April 1986 decision bears directly on the question at issue, i.e., whether the claimed condition was other than acute and transitory. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(b). The remainder of the evidence concerns VA treatment of the veteran's psychiatric and physical disorders, as well as notes regarding private treatment for a back disability. With the exception of a June 1990 psychological assessment, none of the Loma Linda treatment notes from January 1989 through March 1993 concern any sequelae of meningitis. The psychological assessment is equivocal at best. It notes that it was possible that the veteran never functioned at a better level than he did at the time of the evaluation. The assessment does note that it was possible that meningitis, drug abuse, chemical toxicity, or a combination thereof affected the veteran's functioning to some extent. However, the report then states that there were no signs of gross deficits in tests which were sensitive to brain damage. Rather, testing indicated a low level of functioning coupled with poor learning in school. Finally, some of the evidence is negative. The reports of the July 1993 VA neurological and psychiatric examinations both are negative for any residuals of meningitis, particularly any neurological or psychiatric residuals. Medical evidence submitted does not tend to show that the meningitis treated in service resulted in chronic residuals. In other words, it is not shown that he has a present disability which developed as a result of the meningitis shown in service. For the reasons and bases discussed above, the Board finds that new and material evidence has not been submitted sufficient to reopen the appellant's claim for service connection for meningitis. The Board has carefully reviewed the entire record in this case; however, the Board does not find the evidence to be so evenly balanced that there is any doubt as to a material issue. 38 U.S.C.A. § 5107. Service Connection for a Nervous Disorder The veteran's claim is "well grounded" within the meaning of 38 U.S.C.A. § 5107. That is, he has presented a claim which is plausible, and all relevant facts have been properly developed. No further assistance to the veteran is required to comply with the duty to assist the veteran mandated by 38 U.S.C.A. § 5107. The veteran's service medical records indicate that he was treated for meningitis during March and April 1970. A narrative summary indicates that he was treated successfully and returned to duty in late April 1970. The records indicate that in October 1970 he engaged in a game with another service member in which each cut the other with a knife. Evidently the point of the game was to see who would endure the most punishment without being "chicken" and stopping the game. As a result of the game, he was referred to a medical officer for evaluation. The report of the evaluation dated in October 1970 is concerned solely with his mental state. The report reveals that he had dropped out of high school shortly before graduation; he was vague about his reasons for quitting, stating that he just did not feel like going to school anymore. He denied any significant behavioral change since his hospitalization for meningitis. The only change he reported was a hearing loss. The report indicates that he performed simple additions, subtractions and multiplications well but did poorly with serial 7's knowledge of presidents and interpretation of proverbs. The impression states that the veteran had probably always been below average to low average intelligence but that the history of meningitis raised a question of neurological damage and a psychiatric consultation was recommended. The report of a psychiatric evaluation dated in November 1970 states that the veteran claimed a hearing loss but no other residuals of meningitis. On examination he did not display overt defects or distortions of ideation or perception. He was oriented times three and his memory was intact for recent and remote events. His attention and concentration were good, his general fund of information was poor. His judgment was good, but impulsive. The impression was passive-aggressive and inadequate personality with marked difficulty handling passive-aggressive feelings and impulses. The impression also notes ineffectual responses to emotional, social, intellectual and physical demands but that none of the traits mentioned were sufficient to be considered an incapacitating personality disorder. The impression states that the observed traits were not significantly affecting the veteran's level of competence or performance of duty. The report recommended a further trial at duty so long as the observed traits did not interfere with his ability to perform his duty. The report of the examination for release from active duty dated in August 1972, is negative for findings of an acquired psychiatric disorder. A VA medical center discharge summary dated in January 1986 indicates that the veteran was hospitalized after he presented at an emergency room stating that he wanted to die and donate his organs. He related a history of substance abuse including marijuana, PCP, speed, downers, Valium and cocaine. He described several suicide attempts or gestures. At the time of his admission he felt stressors of a breakup with his girlfriend, an on the job injury which resulted in disc surgery and an inability to work. He also felt stress because he could not get along with friends. His neurological examination was within normal limits. A computerized tomography (CT) scan was performed to determine if the veteran's speech abnormalities and poor problem solving skills were cause by frontotemporal area impairment. The CT scan was negative. The disposition notes that the veteran was discharged without medications and evaluated as psychiatrically able to return to work. The report of a March 1990 VA psychological was to the effect that the veteran stated that his high school grades were low and that he dropped out of school one month before graduation to go to work. He denied alcohol or drug abuse prior to his active service. He stated that he contracted meningitis while in boot camp and as a result, he had difficulty concentrating and learning in the service which led to mistreatment by his shipmates. He worked for one year as a housekeeper and then for twelve years as a machine operator. He held that job until he incurred a back injury and had to be retrained for another job. He completed training as a welder and worked for five months. A second back injury forced him quit welding because he could no longer pass the required physical examination for welders. He complained of sleep disturbance, frightening dreams, difficulty with concentration, comprehension and memory, depression, anxiety, suicidal ideation, including plans and attempts, social isolation, distant family relationships, anhedonia and weight loss. On examination he was anxious and somewhat guarded in his responses. His speech was normal. His thoughts were coherent but he had difficulty with memory at times. He was able to concentrate and comprehend questions. His affect was very restricted in range and his mood was depressed. His Minnesota Multiphasic Personality Inventory (MMPI) results were similar to individuals who have pervasive psychopathology, including depression, anxiety, social isolation, difficulty concentrating, periods of confusion, unrealistic feelings of guilt, agitation, somatization, morbid rumination, immaturity and insecurity. Suggested diagnoses included a major affective disorder and a pre-psychotic state. The summary and impressions state that the testing indicated severe psychopathology. His symptoms suggested major depression and the presence of psychosis needed to be ruled out. PTSD was ruled out because the veteran had not experienced any events outside the range of usual human experience. In March 1993, the Board remanded the case to have the RO consider treatment records from the Loma Linda, California, VA Medical Center (Loma Linda) and to afford the veteran special neurological and psychiatric examinations. VA outpatient treatment records January 1989 to March 1993 indicate that the veteran was treated for various disabilities, including psychiatric disorders during that time. The report of a May 1990 VA special psychiatric examination performed by the veteran's treating physician at Loma Linda includes a history as related by the veteran which is negative for complaints of cognitive problems prior to contracting meningitis while in active service. The report states that the veteran ascribed difficulties in boot camp and difficulties with learning his duties to meningitis. The history also indicates that the veteran saw a service psychiatrist because of self-mutilating behavior, to include cutting his arms and burning his arms with dry ice. Testing indicated borderline intellectual functioning and a number of scholastic deficits. The report states that the age and etiology of the functioning problems and scholastic deficits would be difficult to determine. The report states that the veteran had a chronic major depression and borderline traits including mood lability, interpersonal sensitivity and identity disturbances. The report of a VA psychological evaluation dated in June 1990, states that the veteran related that his grades dropped in high school and that he quit before graduation because he was bored. The report notes that the veteran was a poor historian and that the true story behind his leaving school may not have been presented. He stated that he held a job as a gardener and at a packaging company before entering active service. He further stated that the first indication that meningitis had affected his mental abilities was when he could not learn how to operate an evaporator. He stated that in May of 1973 he was exposed to chemicals on a daily basis, sometimes exposed to chemical spills. It was then that he noticed that his thinking was getting slower and he was unable to get along with people. The report states that the veteran's high school transcripts indicated D's and F's in all subjects except art, wood-shop and physical education. The report states that his pre-induction test scores indicated a low mechanical aptitude. It notes that it was possible that the veteran never functioned at a better level than he did at the time of the evaluation. The assessment does note that it was possible that meningitis, drug abuse, chemical toxicity, or a combination thereof affected the veteran's functioning to some extent. However, the report then states that there were no signs of gross deficits in tests which were sensitive to brain damage. Rather, testing indicated a low level of functioning coupled with poor learning in school and that the presence of mild impairment could not be ruled out, and that it appeared to be centered in problem solving skills and flexibility. The report of a VA special neurological examination dated in July 1993 states that the veteran had migraine headaches for the prior fourteen years. He related that his concentration and comprehension had been poor and that he had had difficulty reading and thinking since 1972. He further stated that he had usually obtained C's and D's in school prior to his active service and that he had "always had problems comprehending." He had a long history of poly-substance abuse, chronic severe depression with suicidal ideation, passive-aggressive personality and inadequate personality type and poor social adaptation. The discussion states that there was no objective evidence to relate the difficulty comprehending or reading and thinking to the meningitis, meningealcoccal type sustained in 1970, since there was a history that he had similar problems with comprehension prior to joining the service as exemplified by his school and work history. During a July 1993 VA psychiatric examination, the veteran stated that he was a poor student who got low grades and had to attend summer school and that his jobs prior to active service were in a cafeteria and as a gardener. He presented with complaints of difficulty in understanding and comprehension, difficulty in talking to people, chronic depression and anger because of feelings that people mistreated him, starting in active service, insomnia, loss of energy and interest, feelings of hopelessness, worthlessness, decreased ability to concentrate and suicidal ideation. On examination, the veteran was oriented times three. His affect and mood appeared sad, somewhat confused, with dysphoria. His memory was fair. He was unable to do proverbs and had difficulty with serial three subtractions. He expressed some vague visual and auditory type of hallucinations. Insight and judgment were poor. The diagnostic impressions were major depression, chronic, severe with suicidal ideation; poly- substance abuse in remission for five months; personality disorder, with traits of passive-aggressive tendencies, borderline traits and an inadequate personality. The examiner remarked that he had always had difficulty intellectually and certain character and personality defects, which were demonstrated while he was on active duty; that he had a long history of poly-substance abuse and that there was no relationship between his meningitis and his intellectual ability and his depression. The record indicates that the veteran performed poorly in school and held marginal jobs prior to his entrance into active service, as demonstrated by his high school grades and the versions of his history as he related it in more recent examinations or treatment sessions. Psychological testing in June 1990 indicates that he had always had difficulties with comprehension and learning. The problem of major depression and treatment for it is the recurrent theme of the VA outpatient treatment records from 1989 through 1993. The reports of the VA special examinations dated in July 1993 definitely state that there is no connection between his acute episode of meningitis treated in active service and his current depression nor did an acquired psychiatric disorder begin in service. 38 U.S.C.A. §§ 1110. The Board has carefully reviewed the entire record in this case; however, the Board does not find the evidence to be so evenly balanced that there is any doubt as to a material issue. 38 U.S.C.A. § 5107. ORDER New and material evidence not having been submitted to reopen a claim for service connection for meningitis , the appeal is denied. Service connection for a nervous disorder is denied. RENÉE M. PELLETIER Member, Board of Veterans' Appeals (CONTINUED ON NEXT PAGE) The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.