Citation Nr: 0825366 Decision Date: 07/29/08 Archive Date: 08/04/08 DOCKET NO. 96-18 976 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for organic brain syndrome (OBS). 2. Entitlement to a separate rating for a cognitive disorder distinct from a rating for posttraumatic stress disorder (PTSD). 3. Entitlement to a higher initial rating for PTSD prior to August 23, 1999. 4. Entitlement to an effective date earlier than August 23, 1999, for a staged rating for PTSD. 5. Entitlement to an effective date earlier than August 23, 1999, for a total disability rating based on individual unemployability (TDIU). WITNESSES AT HEARING ON APPEAL The veteran, L.B. and J.F. ATTORNEY FOR THE BOARD C. Fetty, Counsel INTRODUCTION The veteran had active military service from April 1964 to September 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from August 1996 and later rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. In August 1996, the RO denied service connection for OBS. The veteran appealed. In July 1999, the RO awarded service connection for PTSD with cognitive disorder and assigned an initial 30 percent rating, effective from June 15, 1994. The veteran disagreed with the 30 percent rating and the denial of a separate rating for cognitive disorder. In pertinent part of an April 2000 rating decision, the RO continued to deny a separate rating for cognitive disorder, but assigned a 70 percent rating effective April 23, 1999, for PTSD with cognitive disorder and awarded TDIU effective April 23, 1999. In April and May 2000 statements, the veteran's former attorney conveyed the veteran's pleasure with a 70 percent rating for PTSD and for TDIU, but disagreed with the effective dates assigned for both. The veteran has not withdrawn his appeal for a higher PTSD rating or for service connection for OBS or for a separate rating for cognitive disorder. In November 2000, the veteran withdrew his request for a hearing before a Veterans Law Judge. Because the Board has granted the appeal for a separate rating for service-connected cognitive disorder in the decision below, the Board must recharacterize certain issues on appeal to reflect this grant of benefits. Issues number 3 and 4, as listed on page 1, have been changed to reflect the decision below. Service connection for OBS, an initial rating for PTSD prior to August 23, 1999, an effective date earlier than August 23, 1999, for a staged rating for PTSD, and an effective date earlier than August 23, 1999, for TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. FINDINGS OF FACT 1. The medical evidence distinguishes the veteran's cognitive disorder from PTSD. 2. The service-connected cognitive disorder has been manifested by poor incidental learning ability, moderately limited ability to maintain attention and concentration for extended periods, a 20 point drop in his IQ, and memory problems throughout the appeal period. CONCLUSIONS OF LAW 1. For the period prior to November 7, 1996, the criteria for a separate 30 percent schedular rating for cognitive disorder are met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp.2007); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.126, 4.132, Diagnostic Code 9304 (1996). 2. For the appeal period beginning on November 7, 1996, the criteria for a separate 50 percent schedular rating for cognitive disorder are met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp.2007); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.126, 4.132, Diagnostic Code 9304 (1996). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties To Notify And To Assist VA must notify and assist claimants in substantiating claims for benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). Upon receipt of a complete or substantially complete application for benefits, VA must notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. These notices must be provided prior to an initial unfavorable decision. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). These notification requirements are not applicable in all cases, however. Where, as here, a veteran challenges the initial rating assigned following a grant of service connection for a disability, the Court of Appeals for Veterans Claims (Court) has held that the typical service- connection claim has been more than substantiated, or proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess v. Nicholson, 19 Vet. App. 473, 490-491 (2006) VA also has a duty to assist the claimant in the development of the claim. This duty includes assisting the claimant in obtaining service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. All necessary development has been accomplished and adjudication may proceed without unfair prejudice to the claimant. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA has obtained VA outpatient treatment records, SSA records, and private medical reports. The claimant was afforded VA medical examinations. Neither the claimant nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the claimant is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Entitlement to a Separate Rating for Cognitive Deficits An April 2000 rating decision reflects that VA has granted service connection for "PTSD with cognitive disorder." The PTSD stressors appear to include the heat stroke incident during active service. Certain cognitive deficits were attributed by VA medical professionals to residuals of the in-service heat stroke incident wherein the veteran's body temperature rose to 107 degrees. While the RO has assigned a single disability rating for PTSD with cognitive disorder, the veteran has requested that VA rate his cognitive disorder separately. In July 2005, the Board requested that a physician determine whether the veteran's PTSD could be distinguished from that for cognitive disorder or OBS (if found). In a February 2007 VA compensation examination report, a physician offered Axis I diagnoses of PTSD and of "cognitive disorder, no other symptoms" which clearly distinguishes the cognitive disorder from the primary psychiatric diagnosis of PTSD. The physician further explained, "I did not find any evidence that the veteran's cognitive disorder was related in any way to his posttraumatic stress disorder symptomatology." Finally, the physician stated, "I did not see any evidence suggesting any etiology for his cognitive difficulties other than his exposure to heat stroke." The February 2007 VA physician specifically noted that a cognitive disorder had caused memory impairment, whereas PTSD symptoms included nightmares, intrusive thoughts, startled response, discomfort around crowds, and avoidance of war movies. Not only do medical professionals agree that the cognitive disorder is a separate disability. In fact, separate ratings (for cognitive versus mental disorders) are also mandated by 38 C.F.R. § 4.126 (c) (2007), which states: Delirium, dementia, and amnestic and other cognitive disorders shall be evaluated under the general rating formula for mental disorders; Neurologic deficits or other impairments [emphasis added] stemming from the same etiology (e.g. a head injury) shall be evaluated separately [emphasis added] and combined with the evaluation for delirium, dementia, or amnestic or other cognitive disorder (see § 4.25). Thus, VA regulations clearly require that other impairments (in this case, PTSD) stemming from the same etiology, must be separately evaluated from cognitive disorder and then combined in the usual fashion under § 4.25. As such, the Board concludes that a separate rating for the veteran's service-connected cognitive disorder is warranted. Disability ratings are based upon the average impairment of earning capacity as determined by a schedule for rating disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2007). Diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. The entire medical history is reviewed when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1995). In determining the current level of impairment, the disability must be considered in the context of the whole recorded history, including service medical records. 38 C.F.R. § 4.2. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Evaluation of a disability includes consideration of the veteran's ability to engage in ordinary activities, including employment, and the effect of symptoms on functional abilities. 38 C.F.R. § 4.10. Because the rating criteria changed during the pendency of the veteran's appeal (effective November 7, 1996), the question arises as to which set of rating criteria applies. A liberalizing law will generally be held to have no retroactive effects. 38 U.S.C.A. § 5110(g); VAOPGCPREC 7- 2003. Under the former applicable criteria, 38 C.F.R. § 4.132 (1996), a 10 percent evaluation is warranted when the symptoms are less than the criteria required for the 30 percent evaluation, with emotional tension or other evidence of anxiety productive of mild social and industrial impairment. A 30 percent evaluation is warranted when the ability to establish or maintain effective and wholesome relationships with people is definitely impaired, and the psychoneurotic symptoms result in such reduction in initiative, flexibility, efficiency and reliability levels as to produce definite industrial impairment. VA's General Counsel has defined "definite" as "distinct, ambiguous, and moderately large in degree," and as representing a degree of social and industrial inadaptability that is "more than moderate but less than rather large." VA O.G.C. Prec. 9-93. The VA, including the Board, is bound by this interpretation of the term "definite." 38 U.S.C.A. § 7104(c) (West 1991). A 50 percent evaluation is warranted under the former criteria when the ability to establish or maintain effective or favorable relationships with people is considerably impaired and where, by reason of psychoneurotic symptoms, the reliability, flexibility, and efficiency levels are so reduced as to result in considerable industrial impairment. A 70 percent evaluation is warranted when the ability to establish and maintain effective or favorable relationships with people is severely impaired and the psychoneurotic symptoms are of such severity and persistence that there is severe impairment in the ability to obtain or retain employment. A 100 percent evaluation is warranted when: 1) the attitudes of all contacts except the most intimate are so adversely affected as to result in virtual isolation in the community; 2) the veteran exhibits totally incapacitating psychoneurotic, symptoms bordering on gross repudiation of reality with disturbed thought or behavioral processes associated with almost all daily activities such as fantasy, confusion, panic, and explosions of aggressive energy resulting in profound retreat from mature behavior; or 3) there is demonstrable inability to obtain or retain employment. Effective from November 7, 1996, 38 C.F.R. § 4.130 provides that a 50 percent rating is warranted where there is 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. A 70 percent evaluation is warranted for occupational and social impairment with deficiencies in most areas, such as work, school, family relationships, judgment, thinking or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near- continuous panic or depression affecting 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 worklike setting); and inability to establish and maintain effective relationships. A 100 percent evaluation is warranted for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusion or hallucination; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of closes relatives, own occupation, or own name. With regard to the facts of this particular case, the Board notes that a July 1994 VA consultation report notes that neuropsychological testing revealed "poor incidental learning ability." A December 1995 SSA evaluation notes that the ability to maintain attention and concentration for extended periods was moderately limited. The report notes that the veteran attributed a 20 point drop in his IQ to the heat stroke. The SSA decision then notes, "A thorough review of the evidence supports the claimant's contentions." During an August 1996 VA examination, the veteran was asked about his cognitive problems. He reported extreme agitation, IQ problems, and memory problems. The examiner noted that the veteran repeatedly misinterpreted or misconstrued certain questions about his cognitive problems. The only Axis I diagnosis offered during that examination was cognitive disorder, not otherwise specified (NOS). The psychologist assigned a Global Assessment of Functioning (GAF) score of 55 [according to the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (hereinafter DSM-IV), a GAF score of 51 to 60 is indicative of moderate symptoms (flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (few friends, conflicts with peers or co-workers). See 38 C.F.R. § 4.125 (2007)]. This VA examination report offers perhaps the clearest picture of the severity of the cognitive disorder by itself, as no other Axis I diagnosis was offered. An August 2001 VA PTSD clinic report notes a primary Axis I diagnosis of PTSD, but then also lists on Axis one a secondary diagnosis of, "Personality change and cognitive change due to CNS [central nervous system] damage due to past heat stroke." The report contains a GAF score of 41 and states, "Mem/Conc appear to be affected." According to DSM-IV, GAF scores of 41 through 50 or lower are indicative of serious symptoms, or serious difficulty in social, occupational, or school functioning, i.e., no friends, unable to keep a job. See 38 C.F.R. § 4.125 (2007). In a February 1997 letter, a VA staff psychiatrist reported that the veteran had cognitive deficits confirmed by testing, due to heat stroke. The psychiatrist did not list those deficits, however. A February 2007 VA compensation examiner made clear that the veteran's "PTSD symptoms and cognitive difficulties would make a successful occupation virtually impossible." The examiner also found that cognitive difficulties by themselves would not preclude activities of daily living. Condensing the above evidence into a statement of manifestations throughout the appeal period, the Board finds that the veteran's cognitive disorder has been manifested by poor incidental learning ability, moderately limited ability to maintain attention and concentration for extended periods, a 20 point drop in his IQ, and memory problems. Comparing the manifestations with the rating criteria above, the evidence indicates that the veteran's cognitive disorder is no more than moderate in degree, as noted by the GAF score of 55 assigned to cognitive disorder in 1996 and by the characterization of "moderate" impairment. Thus, the criteria of a 30 percent rating appear to be more nearly approximated prior to November 7, 1996 (under the former criteria). The criteria of a 50 percent or higher rating under the prior provisions are not more nearly approximated because the "considerably impaired" level of severity is not shown. Next for consideration is whether the changes to the rating schedule that became effective November 7, 1996, are more favorable to the veteran. Comparing the manifestations to these revised rating criteria, the only symptoms attributed to the cognitive disorder that are listed in the 50 percent criteria are memory problems. None of the other listed criteria are shown, although the veteran has some manifestations that are not mentioned in the new schedule. These additional symptoms include poor incidental learning ability, moderately limited ability to maintain attention and concentration for extended periods, and a 20 point drop in IQ and appear to be outside the rating criteria. In Mauerhan v. Principi, 16 Vet. App. 436 (2002) the Court stated that the specified factors for each incremental rating were examples rather than requirements for a particular rating and the Board's analysis should not be limited solely to whether the claimant exhibited the symptoms listed in the rating scheme. The Court found it appropriate for a rating specialist to consider factors outside the specific rating criteria in determining the level of occupational and social impairment. Applying the benefit of the doubt to the level of occupational and social impairment attributed to the cognitive disorder, the criteria of a 50% rating for cognitive disorder under the revised rating criteria are more nearly approximated. Of significance to the Board are the factors appearing outside the rating criteria, which include poor incidental learning ability, moderately limited ability to maintain attention and concentration for extended periods, and a 20 point drop in IQ. After considering all the evidence of record, the Board finds that the evidence favors the claim. A separate 30% rating for cognitive disorder must therefore be granted for that portion of the appeal period prior to November 7, 1996 (under the former rating criteria), and a 50% rating must be assigned beginning on November 7, 1996 (under the revised rating criteria). ORDER Separate ratings for a cognitive disorder (30% prior to November 7, 1996 and 50% from November 7, 1996) are granted, subject to the laws and regulations governing payment of monetary benefits. REMAND Service Connection for Organic Brain Syndrome VA testing in August 1994 found a diffuse pattern of deficits in mental functions that must be accepted as evidence of an organic brain disorder. The report notes that the testing revealed a chronic, stable cerebral dysfunction. The impression was "Moderate Organic Brain Dysfunction- Diffuse-with greater impairment of right hemisphere functions." Psychiatric testing for the Social Security Administration (SSA) dated in March 1996 also concludes that the veteran has moderate organic brain syndrome. In its July 2005 REMAND, the Board noted that a notice of disagreement addressing the denial of service connection for OBS had not yet been addressed in a statement of the case (SOC). This was erroneous. The RO issued an appropriate SOC in January 1999 and the veteran timely submitted correspondence that was accepted by the RO in lieu of a VA Form 9, Substantive Appeal. In July 2005, the Board remanded the issue of a separate rating for cognitive disorder. In February 2007, a VA examiner clearly separated the cognitive disorder from PTSD. Because the Board now has jurisdiction to address service connection for OBS, we must ask the VA examiner to clarify whether OBS represents a disability separate from cognitive disorder. Although the February 2007 examiner stated, "I did not find evidence of another psychiatric disorder in today's examination", this statement rules out the presence of other mental disorders, but does not tend to rule out the presence of OBS, which is not a mental disorder. Rather, OBS appears to be an organic disease of the central nervous system. See 38 C.F.R. § 4.124a, Organic Diseases of the Central Nervous System, Diagnostic Code 8045, Brain disease due to trauma. Higher PTSD Ratings and TDIU Because the Board has granted separate ratings for cognitive disorder, the rating or ratings to be assigned for PTSD for each portion of the appeal period could be impacted as well as the effective dates for those PTSD ratings and the effective date for entitlement to TDIU. A determination of entitlement to service connection for OBS might also impact the ratings and effective dates for PTSD and the effective date for TDIU. In Harris v. Derwinski, 1 Vet.App. 180 (1991), the Court stressed that the Board may not address a claim that is "inextricably intertwined" with another claim which was undecided and pending before VA. Accordingly, the case is REMANDED for the following action: 1. VA must review the entire file and ensure that all notification and development necessary to comply with 38 U.S.C.A. §§ 5103(a) and 5103A (West 2002 & Supp. 2007) and 38 C.F.R. § 3.159 (2007)), as well as VAOPGCPREC 7-2004, is fully satisfied. The claims file must include documentation that there has been compliance with the VA's duties to notify and assist a claimant as specifically affecting the issue on appeal. 2. After the development requested above has been completed, VA should make arrangements for the February 2007 compensation examination provider to review the pertinent evidence in the claims files and then address whether it is at least as likely as not (50 percent or greater probability) that the veteran's organic brain syndrome represents a disability separate from service-connected cognitive disorder. The physician should offer a rationale for any conclusion in a legible report. If the question cannot be answered, the physician should state the reason. The veteran may be reexamined, if necessary. If the requested physician is not available, a qualified substitute may be used. 3. After the development requested above has been completed to the extent possible, the AMC should readjudicate the service connection claim. The AMC must also issue an SSOC on the issues of an initial rating for PTSD prior to August 23, 1999, an effective date earlier than August 23, 1999, for a staged rating for PTSD, and an effective date earlier than August 23, 1999, for TDIU. This SSOC must reflect the separate ratings the Board has assigned for cognitive disorder. If the benefit sought remains denied, the veteran and his representative should be furnished a supplemental statement of the case (SSOC) and given an opportunity to respond. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The purposes of this remand are to comply with due process of law and to further develop the veteran's claims. No action by the veteran is required until he receives further notice; however, the veteran is advised that failure to report for examination without good cause may result in the denial of the claim. 38 C.F.R. § 3.655 (2007). The Board intimates no opinion, either legal or factual, as to the ultimate disposition warranted in this case, pending completion of the above. The veteran has the right to submit additional evidence and argument on the matter that the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2008). ______________________________________________ THERESA M. CATINO Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs