Citation Nr: 9921011 Decision Date: 07/29/99 Archive Date: 08/03/99 DOCKET NO. 94-26 859 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim for service connection for an organic personality disorder. 2. Entitlement to a temporary total rating under 38 C.F.R. § 4.29 Department of Veterans Affairs hospitalization in July and August 1992. REPRESENTATION Appellant represented by: The American Legion INTRODUCTION The veteran had active service from April 1969 until March 1970. This matter comes before the Board of Veteran's Appeals (Board) from the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The case was remanded in November 1996 and has now been returned for appellate adjudication. FINDINGS OF FACTS 1. The veteran had active service from April 1969 until March 1970. 2. No appeal was taken from a February 1971 rating action, of which the veteran was notified, denying service connection for an emotionally unstable personality. 3. The evidence submitted since the February 1971 denial is new and material for the purpose of reopening the claim and establishes that that claim is well grounded. 4. The veteran's organic personality disorder is due to or related to chronic right ear infections, described as cerebrospinal fluid otorrhea, from leakage of cerebrospinal fluid due to inservice head trauma with resultant, and already service- connected seizures, residuals of meningitis, and organic hallucinosis. CONCLUSIONS OF LAW 1. The unappealed rating action of February 1971, which denied service connection for an emotional unstable personality, and of which the veteran was notified, is final. 38 U.S.C.A. § 7105(c) (West 1991); 38 C.F.R. §§ 3.104(a), 20.302(a), 20.1103 (1998). 2. The new and material evidence, when considered with the old evidence, is sufficient to reopen the claim for service connection for an organic personality disorder and upon reopening that claim is well grounded and upon de novo adjudication, an organic personality disorder is secondary to service-connected disabilities. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. §§ 3.310, 3.156(a) (1998). 3. The veteran was hospitalized in July and August 1992, in excess of 21 days, for service-connected disability or disabilities. 38 U.S.C.A. § 5107 (West 1991); 38 C.F.R. §§ 4.29 (1998). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Background The veteran's examination for service entrance in March 1969, as well as an adjunct medical history questionnaire, was negative for psychiatric disability. The veteran was hospitalized from September to December 1969 after falling through a hatch, striking his head on the right side without loss of consciousness but he did become dazed, agitated, and disoriented. Examination revealed extrusion of cerebrospinal fluid, blood, and cerebral tissue through the right external ear canal. He was treated for a basilar skull fracture. He regained neurological orientation after four days but had intermittent vertigo and headaches. The diagnoses were a basilar skull fracture and traumatic right labyrinthitis. A report of hospitalization which commenced in January 1970 reflects that the veteran was admitted with a diagnosis of immature personality with suicidal tendencies. His chief complaint was of suicidal gestures on two occasions. He was unable to tolerate being separated from his wife and felt useless because he could not support her financially. He also complained of being unable to tolerate being told what to do by men close to his own age, and often had to walk away from such authorities to control his temper. On mental status examination he was alert and oriented but moderately anxious and had rather poor impulse control and a somewhat blunted affect. There was no evidence of organic brain dysfunction. His motivation to remain in military service was extremely poor. His vertigo and headaches, following his prior head injury, had resolved. The veteran's past psychiatric history revealed that he had longstanding difficulty with impulse control. During high school he had alienated himself from all but his closest friends because of his tendency to flare up and fight. He reported that he easily became extremely excited. His father had also had difficulty controlling his temper. During his current hospitalization he showed no evidence of psychosis or suicidal tendencies. He quite readily became tense, was quite anxious because of his confinement, and appeared to have a low tolerance of frustration. The diagnoses included an emotionally unstable personality, status post skull fracture, and traumatic labyrinthitis of the right ear. Separation from military service was recommended due to his unstable personality, which was chronic, and the result of his emotional background. It was felt that if he continued in military service he might continue to make suicidal gestures. A February 1970 Medical Board Report reflects that the veteran was hospitalized a second time in January 1970 and that during the past 10 months of active service he had made two suicidal gestures. It was recommended that he be discharged from military service and the diagnoses included an emotionally unstable personality, which had existed prior to service. During VA hospitalization in October and January 1970 it was reported that when the veteran had had a right temporal bone injury during service he had been noted to have cerebrospinal fluid (CSF) otorrhea. Because of an air-bone gap hearing loss he had an exploratory tympanotomy during his current hospitalization at which time CSF otorrhea occurred and, 6 days later when the operation was done again, "exposed dura" was removed ["Dura mater" is the outer most, toughest, and most fibrous of the three membranes (meninges) covering the brain and spinal cord. DORLAND'S ILLUSTRATED MEDICAL DICTIONARY (DORLAND'S), 27th ed. 1988, page 514]. The discharge diagnosis was a temporal bone fracture with CSF otorrhea. [Otorrhea is a discharge from the ear, especially a purulent one. DORLAND'S, page 1203]. The veteran was notified by letter of February 25, 1971 of a rating action that month which denied, in part, service connection for "emotional nervousness" on the basis that it was developmental and not a disability under the law. No appeal was taken from that denial. That actual rating decision described the disability as "emotional unstable personality." The veteran was admitted to the Cooper Green Hospital in July 1982, after a seizure, to determine whether his presentation with CSF pleocytosis was secondary to a contiguous spread of the organism versus a primary process. [Pleocytosis is the presence of a greater than normal number of cells in the CSF. DORLAND'S, page 1308]. The initial differential diagnosis included herpes encephalitis. The initial impression, after consultation, was a primary otitis externa with questionable otitis media and/or mastoiditis spreading to meningitis. Neurologically, it was felt that he probably had meningitis and it was doubted that he had a viral infection, e.g., herpes. A computerized tomography (CT) was not consistent with any type of subdural empyema or abscess process. The day after admission his mentation increased markedly and he was able to form fully coherent sentences but later had a decrease in mental status with increased slurring, stuttering of words, and slow mentation. An electroencephalogram suggested that his brain parenchyma had not been severely damaged by meningeal infection. Further consultation indicated that he had possible bacterial meningitis but a parameningeal infection with abscess was rapidly becoming a likely choice. He developed seizures and another CT scan did not reveal a definite brain abscess but was various interpreted, to include a suggestion of cerebritis of the left frontal area. There was a diagnosis of probable cortical vein thrombosis secondary to bacterial meningitis. During VA hospitalization in August 1982 the veteran had a modified radical mastoidectomy, with tympanoplasty; incus remnant from stapes superstructure to tympanic membrane. It was reported that at the time of the inservice skull fracture he apparently had had "dehiscent tegmen" of or in the right ear. [Dehiscence is a splitting open, DORLAND'S, page 440, and tegmen is a covering or structure, DORLAND'S, page 1666] Since then he had had two episodes of meningitis. The discharge diagnosis was coalescent mastoiditis and dehiscence of the tegmen in the right ear. During VA hospitalization in January 1983 it was noted that the veteran had continued to leak a small amount of CSF from the area of the attic of the right ear, although no specific site of leakage could be identified. He underwent a right middle ear exploration with revision of the mastoidectomy, a fascial graft and right epitympanum in an attempt to repair right CSF leak, and repair of right tympanic membrane perforation. During VA hospitalization in May 1983 it was noted that the veteran had been hospitalized at the Cooper Green Hospital for meningitis secondary to mastoid infection and otitis media. After his January 1983 VA hospitalization he was to have been evaluated for repair of a possible CSF leak but prior to his current admission he had fallen, striking the right side of his head, and had had a seizure. On VA neurology examination in August 1983 it was reported that the veteran had had several episodes of meningitis attributable to recurrent CSF leakage into the right ear, for which he had had surgery, but complicating the problem were seizures and right hemiparesis. After an examination the diagnosis was a history compatible with a convulsive disorder due to recurrent meningitis without evidence of current active meningeal infection. During VA hospitalization in October 1983 it was noted that during prior VA hospitalizations it had been felt that because of (unsuccessful) attempts to stop the CSF otorrhea through the mastoid approach, that subsequent procedures should be done through a craniotomy type of approach. However, because no CSF otorrhea was demonstrated during his current hospitalization, no craniotomy was done. The pertinent diagnosis was CSF otorrhea secondary to temporal bone fracture. The veteran underwent VA hospitalization in January 1988 for recent closed head trauma, due to an assault, which had caused a loss of consciousness for an unknown period of time. During VA hospitalization of December 1988 and January 1989 the veteran had a revision of mastoidectomy, tympanoplasty, and meatoplasty due to cholesteatoma of the right ear. In August 1991 Dr. Randall Real stated that since the veteran's last surgery he had continued to have vertiginous symptoms and took medication for seizures. The veteran was admitted for his first psychiatric hospitalization at a VA medical facility on July 19, 1982 when he reported that "there's two of me." He related that voices spoke to him and told him to kill himself and others. He had attempted suicide in 1983, 1985, and again in 1989. He had started hearing voice in 1982 after "almost dying from an ear infection." He had been on seizure medication since 1982. On mental status examination he admitted having auditory hallucinations and at times having violent outbursts toward others. He stated that his personality changed after a stroke in 1982 (following the ear infection which led to meningitis and seizures). Neuropsychological testing suggested a possible organic brain syndrome, although other psychological testing raised a possibility of exaggeration of symptoms and due to this testing it could not be determined if he was actually hallucinating. During hospitalization he underwent testing and evaluation for intracranial and ear pathology. He was discharged on August 28, 1992 and the discharge diagnoses were, in part, organic personality syndrome, organic hallucinosis, and alcohol abuse. On VA psychiatric examination in January 1992, to evaluate possible psychiatric complications arising out of the veteran's chronic right otitis media he again related hearing voices, although on examination there was no evidence of an active psychotic process. His auditory hallucinations coincided with an increase in his headaches. The examiner stated that there was no question that the veteran's right ear pathology and the complications suffered in 1982 and subsequently had contributed to an organic hallucinatory psychosis. The diagnoses were organic personality syndrome and organic hallucinations secondary to chronic otitis media. During VA hospitalization in November 1992 it was again reported that the veteran's voices had begun in 1982. The discharge diagnoses included organic hallucinogenesis and organic affective disorder. A January 1993 rating action granted service connection for organic hallucinations secondary to otitis media, for which a 10 percent disabling rating was assigned, but denied service connection for an organic personality disorder on the basis that it preexisted service and was not aggravated during service (i.e., that it was developmental in nature). A September 1993 rating action granted a temporary total rating based on VA hospitalization in November 1992, under 38 C.F.R. § 4.29 (1998), but denied a temporary total rating under those provisions for VA hospitalization in July and August 1992. During VA hospitalization in July and August 1993 the veteran complained of auditory hallucinations. The discharge diagnoses included organic affective disorder. VA neurology evaluation in November 1993 yielded an opinion that the veteran's status post basilar skull fracture, chronic otorrhea, seizure disorder, and post traumatic headaches were all related to his initial inservice head injury. A VA magnetic resonance imaging (MRI) in 1994 yielded impressions which included asymmetric involutional changes, with the anterior left temporal lobe being smaller in size than the right anterior temporal lobe and a suspicion of gliotic changes in the inferior right temporal lobe. The discharge diagnoses from VA hospitalization in March and April 1994 included organic mood disorder and organic hallucinosis. On VA psychiatric examination in January 1997 the diagnoses were organic personality disorder and major depression, recurrent. On VA psychiatric examination in June 1998 the veteran's claim file was reviewed prior to the examination. After the examination, the examiner stated that the diagnosis was organic personality disorder directly related to the veteran's head trauma while on active duty. Analysis The veteran was notified in February 1971 of a rating decision that month denying service connection for an emotionally unstable personality but no appeal was taken from that rating action. Under 38 U.S.C.A. §§ 5108, 7105(c) (West 1991) and 38 C.F.R. §§ 3.104, 20.302(a) (1998) a rating action which is not appealed is final and may not be reopened unless new and material evidence is presented. New and material evidence is jurisdictional, i.e., if new and material evidence is not submitted to reopen a previously denied claim, the Board is without jurisdiction to adjudicate the merits. Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). New and material evidence is jurisdictional, i.e., if new and material evidence is not submitted to reopen a previously denied claim, the Board is without jurisdiction to adjudicate the merits. Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). In Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998) (decided September 16, 1998), the United States Court of Appeals for the Federal Circuit (hereinafter "Federal Circuit") held that in Colvin v. Derwinski, 1 Vet. App. 171, 174 (1991) the United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (hereinafter the Court) impermissibly defined "material evidence" as requiring, for reopening of a previously denied claim, that such evidence establish "a reasonable possibility that the new evidence, when viewed in the context of all the evidence, both new and old, would change the outcome." The new standard established in Hodge is lower than that in Colvin and requires only that the new and material evidence is so significant that it must be considered to fairly decide the merits of the claim. "[A]ny evidence found to be material under the more stringent Colvin test would also have to be found to be material under the more flexible Hodge standard." Fossie v. West, 12 Vet. App. 1, 4 (1998). The Hodge test "calls for judgment as to whether new evidence [] bears directly or substantially on the specific matter." Fossie, at 4. New evidence can be material if it provides a more complete picture of circumstances surrounding the origin of an injury or disability. Elkins v. West, 12 Vet. App. 209, 214 (1999) (en banc). If no new evidence is submitted, no further analysis of materiality is required since evidence which is not new can not be both new and material. Smith (Russell) v. West, 12 Vet. App. 312, 315 (1999). Moreover, if there is no new and material evidence, the Board is without jurisdiction to proceed further, Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996), and there the analysis must end. Butler v. Brown, 9 Vet. App. 167, 171 (1996). There is now a three-step analysis in applications to reopen a final previously denied claim under 38 U.S.C.A. § 5108 (West 1991). First, there must be evidence submitted since the last disallowance on any basis, i.e., on the merits or denying reopening (Evans v. Brown, 9 Vet. App. 273, 285 (1996)), which is new (i.e., noncumulative evidence, not redundant, and not previously submitted) and material (i.e., that which bears directly and substantially on the issue) and, by itself or together with evidence previously on file, must be so significant that it must be considered to fairly decide the merits of the claim. Second, if new and material evidence is presented, the claim is reopened and it must immediately determined whether, based on all the evidence, the reopened (not the original) claim is well grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991) (since a reopened claim is not necessarily well grounded). This is because the Hodge decision effectively decoupled the previously announced relationship between determinations of well groundedness and of new and material evidence (the difference, if any, between evidence required for well groundedness and that which constitutes new and material evidence appears to be of slight degree; Molloy v. Brown, 9 Vet. App. 513, 516 (1996) (citing Gobber v. Derwinski, 2 Vet. App. 470, 472 (1992) and Edenfield v. Brown, 8 Vet. App. 384, 390 (1995)(en banc)). Elkins v. West, 12 Vet. App. 209, 214 (1999). In both the determinations of reopening and well groundedness, the credibility of the evidence, but not necessarily its competence, is presumed if it is not inherently false, untrue, or patently incredible, but the full weight of such evidence is not assumed. However, neither the doctrine of the resolution of the benefit-of-the-doubt, at 38 U.S.C.A. § 5107(b) nor the duty to assist in obtaining relevant evidence, at 38 U.S.C.A. § 5107(a), is applicable. Third, if the reopened claim is well grounded, it must then be adjudicated de novo, after ensuring that the duty to assist has been fulfilled, and with application of the benefit- of-the-doubt rule. Elkins v. West, 12 Vet. App. 209, 214-218 (1999) and Winters v. West, 12 Vet. App. 203, 206-06 (1999) (en banc) (citing Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998)). Here, it has been alleged (with citation to M21-1) that the duty to assist attaches even if there is no determination that, upon reopening (or implicitly even before reopening) the claim is well grounded. However, in Morton v. West, No. 96-1517, slip op. (U.S. Vet. App. July 14, 1999) it was held that neither regulations, Manual provisions (M21-1), nor policy statements (which were merely interpretative and not substantive rules, thus not creating substantive rights) have eliminated the the Congressionally mandated condition precedent of the submission of a well grounded claim prior to attachment of the duty to assist contained in 38 U.S.C.A. § 5107(a) (West 1991). The veteran was discharged from active service for an emotionally unstable personality disorder. Congenital or developmental defects, e.g., personality disorders, as such are not diseases or injuries within the meaning of applicable legislation and, thus, are not disabilities for which service connection may be granted. 38 C.F.R. § 3.303(c) (1998). Secondary service connection is warranted when a disability is proximately due to or the result of a service-connected disease or injury (38 C.F.R. § 3.310(a)) or, to the extent of any increase, there is aggravation, i.e., additional disability, of a nonservice-connected disability due to a service-connected disorder. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Generally, as noted in the 1996 remand, service connection may not be granted for a personality disorder which is developmental in nature. See 38 C.F.R. § 3.303(c) (1998). However, service connection may be granted for a personality disorder which is due to a service-connected seizure disorder or organic brain syndrome. Generally see the Note at 38 C.F.R. § 4.124a (1998). At the time that service connection was originally denied for a personality disorder in 1971 the veteran's only service-connected disability was hearing loss of the right ear and a healed perforation of the right tympanic membrane. It is clear that the veteran was discharged from active service due to a personality disorder which, in 1971, was not shown to be other than development in nature. In other words, in 1971 the veteran's personality disorder was not shown to be due to or related to, or in any way associated with, his inservice head trauma (which had caused his service-connected hearing loss and tympanic membrane perforation of the right ear. The new evidence shows that due to the initial inservice head trauma the veteran had continuous leakage of CSF in to the right ear which, unfortunately, led to infections which involved the veteran's brain leading to his now service-connected seizures and organic hallucinosis, secondary to those infections which have been described as otitis media and CSF otorrhea. This conclusion was suggested by the evidence even prior to the November 1996 remand and served to reopen the claim (although no such formal adjudication was made at the time) and to well ground the claim (leading to the 1996 remand for evidentiary development). The VA examination in 1998 yielded a medical opinion as to the etiology of the organic personality disorder and that opinion was that the disorder was due to inservice head trauma. This is consistent with the opinion in 1992 that there was no question that the veteran's right ear pathology and the complications suffered in 1982 and subsequently had contributed to an organic hallucinatory psychosis. The Board is bound by the independent medical evidence. Colvin v. Derwinski, 1 Vet. App. 171, 174 (1991). Lastly, the April 1999 supplemental statement of the case indicates that the 1998 VA examiner had not reviewed the service medical records, because the service medical records while showing a long standing personality disorder, had shown that he had attempted suicide on two occasions but that these were obviously prior to enlistment since the service medical records were negative for evidence of a suicide attempt. However, the service medical records specifically reflect, in February 1970, that in the last 10 months of active service the veteran had made two suicide gestures. In sum, while the Board does not doubt that the veteran had a personality disorder for which he was discharged from active service, the new and material evidence establishes that he now has an organic personality disorder stemming from repeated infections of his brain due to leakage of CSF through his right ear (which have caused his now service-connected seizures, residuals of meningitis, and organic hallucinosis). Accordingly, the claim is reopened and is well grounded and must be allowed. Temporary Total Rating for VA hospitalization in July and August 1992 To be entitled to a temporary total rating of 100 percent under 38 C.F.R. § 4.29, as applicable to this case, a veteran must have been hospitalized for a period in excess of 21 days for service-connected disability that required hospital treatment. Even if the admission was not for treatment of such disability, such an award can be made if treatment for a service-connected disorder is instituted and continued for a period in excess of 21 days. Here, the veteran was hospitalized in July and August 1992 for more than 21 days and during that time was treated and evaluated for service-connected organic hallucinosis as well as an organic personality disorder (with service-connection now being warranted for the latter). Accordingly, a temporary total rating of 100 percent under 38 C.F.R. § 4.29 for that period of VA hospitalization is warranted. When all the evidence is assembled, the Board is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case that claim is denied. 38 U.S.C.A. § 5107(b) (West 1991); 38 C.F.R. § 3.102; Gilbert v. Derwinski 1 Vet. App. 49 (1990). In this case, for the foregoing reasons and bases, the evidence is in equipoise as to the claim of service connection for an organic personality disorder, and upon de novo adjudication all doubt is resolved in favor of the veteran. As to the claim for a temporary totat rating under 38 C.F.R. § 4.29 based on VA hospitalization in July and August 1992, the preponderance of the evidence is in favor of the claim. ORDER The claim for service connection for an organic personality disorder is reopened and, upon de novo adjudication, service connection for an organic personality disorder is granted. A temporary total rating under 38 C.F.R. § 4.29 Department of Veterans Affairs hospitalization in July and August 1992 is granted. JOHN FUSSELL Acting Member, Board of Veterans' Appeals