Citation Nr: 0905987 Decision Date: 02/18/09 Archive Date: 02/24/09 DOCKET NO. 04-38 595A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an increased rating for non-psychotic organic brain syndrome with brain trauma, manifested by headaches, currently rated as 30 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Erin McGuire, Associate Counsel INTRODUCTION The veteran served on active duty from September 1975 to November 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied a clam for a rating in excess of 30 percent for organic brain syndrome manifested by headaches. A November 1977 rating decision had initially granted service connection for organic brain syndrome manifested by headaches and anxiety. FINDING OF FACT The veteran's in-service head injury has resulted in headaches, cognitive impairment, anxiety and difficulty sleeping. CONCLUSIONS OF LAW 1. The current 30 percent disability rating is warranted for headaches due to brain trauma, but a higher rating is not warranted. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.124a, Diagnostic Code 8100 (2008). 2. A separate 30 percent disability rating is assigned for cognitive impairment and anxiety due to brain trauma, but a higher rating is not warranted. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.124a, 4.130 Diagnostic Code 8100, 9304 (2008). REASONS AND BASES FOR FINDING AND CONCLUSIONS Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) imposes obligations on VA with respect to its duty to notify and assist a claimant in developing a claim. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2008); 38 C.F.R. § 3.159 (2008). Under the VCAA, upon receipt of a complete or substantially complete application for benefits, VA is required to notify the veteran and his representative, if any, of any information and medical or lay evidence necessary to substantiate the claim. The United States Court of Appeals for Veterans Claims (hereinafter the Court) has held that these notice requirements apply to all five elements of a service connection claim, which include: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). For an increased-compensation claim, VCAA requires, at a minimum, that VA notify the claimant that the evidence must show a worsening or increase in severity of the disability and the effect that worsening has on the veteran's employment and daily life. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). The notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation, e.g., competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability. Id. VA law and regulations also indicate that part of notifying a claimant of what is needed to substantiate a claim includes notification as to what information and evidence VA will seek to provide and what evidence the claimant is expected to provide. VCAA notice must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). The scope of VA's duty to assist will depend on the facts and circumstances of an individual case, but typically, the duty to assist requires VA to obtain relevant records from federal agencies, to make reasonable efforts to obtain relevant records not in the custody of federal agencies, and in certain circumstances, to provide a medical examination or obtain a medical opinion. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that the requirements of the VCAA have been met and that VA has no further duty prior to Board adjudication. In correspondence dated in April 2002, the RO advised the veteran of VA's duties under the VCAA and the delegation of responsibility between VA and the veteran in procuring the evidence relevant to the claim, including which portion of the information and evidence necessary to substantiate the claim was to be provided by the veteran and which portion VA would attempt to obtain on behalf of the veteran. The RO sent similar correspondence in September 2002 and May 2005. In regards to assigning a disability rating, an August 2008 letter informed the veteran that VA considered the nature and symptoms of the condition, severity and duration of the symptoms, and impact of the condition and symptoms on employment. The RO also provided examples of evidence that the veteran should submit that might affect how VA determined a disability rating. The August 2008 correspondence fulfilled the RO's duties under Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). The letter explained that, in increased disability rating claims, the evidence must demonstrate a worsening or increase in severity of the disability and the effect that worsening has on the veteran's daily life. The RO listed types of evidence relevant to establishing entitlement to increased compensation. The RO also included the general rating formula for mental disorders. 38 C.F.R. § 4.130, Diagnostic Code 9304. Although notice with respect to the impact of the disability on the veteran's daily life was not provided until after the initial adjudication of the claim, the RO readjudicated the claim and issued a supplemental statement of the case in October 2008. The issuance of such notice followed by a readjudication of the claim remedied any timing defect with respect to issuance of compliant notice. See Prickett v. Nicholson, 20 Vet. App. 370, 376-77 (2006). Finally, the Board finds that the RO has satisfied VA's duty to assist. The RO has obtained the veteran's VA Medical Center (VAMC) treatment records, service medical records, and private records from Florida Neurology Group. The veteran underwent VA examinations in May 2002 and April 2008, reports of which are contained in the claims file. The veteran has not made the RO or the Board aware of any other evidence relevant to his appeal, and no further development is required to comply with the duty to assist the veteran in developing the facts pertinent to his claim. Accordingly, the Board will proceed with appellate review. Factual Background During service, the veteran incurred a head injury in a motor vehicle accident. The initial post-service neurological examination in September 1977 resulted in diagnosis of non organic brain syndrome with brain trauma, manifested by headaches and anxiety. This is the exact nature of the disability for which service connection was granted in a November 1977 rating decision. However, for reasons unknown, subsequent rating decisions dropped the "anxiety" portion of the veteran's service- connected disability. That may, perhaps, have been the result of a 1981 VA examination which resulted in diagnosis of non-psychotic organic brain syndrome with brain trauma manifested by headaches. The fact remains, though, that even at that same 1981 VA examination, the veteran complained of feeling "jittery" and becoming easily upset. He was tense during the examination. The veteran did not file a VA claim for compensation again until 2000. On the March 2001 examination, the veteran appeared anxious. The most recent VA neurological disorders examination, dated in April 2008, also showed that the veteran appeared tense and anxious. The veteran's long history of headache complaints is as follows. Treatment records from the VA medical center (VAMC) in Bay Pines, Florida dating between April 2001 and March 2002 showed numerous complaints of headaches. In a January 2002 entry, the veteran indicated that the headaches were more frequent in recent years, with pain sometimes reaching nine on a ten-point scale. The veteran sought treatment in February 2002 after a severe headache caused the area around his left eye to swell. In a report from the Naples Hospital emergency room, Dr. V.R. diagnosed the veteran with transient paralysis of the left eye with diminished vision due to an atypical migraine. The veteran reported experiencing five headaches per week at that time. In a February 2002 entry from a VA neurology consultation, Dr. P.B. stated the veteran's symptoms were consistent with migraine. A March 2002 electroencephalogram reading was abnormal, with mild generalized slowing. However, there was no evidence of epileptiform activity. The record includes treatment notes from Dr. W.C. of Florida Neurology Group dated from March 2002 to June 2007. These records showed the veteran sought treatment for headaches on at least nine occasions over the course of five years. In a March 2002 report of an initial consultation, Dr. W.C. noted the veteran's blurred vision, depressive symptoms, nervousness, excessive sleep and insomnia, and periods of sleep apnea. The doctor believed the veteran to have classical migrainous syndrome with ice pick headaches. The veteran received a VA neurological disorders examination in May 2002. In that report, Dr. L.G. diagnosed headaches as the result of the in-service head injury. The doctor noted that the severity, duration, and frequency of the headaches did not seem to be worse than they had been in the past. Continued treatment at the VAMC in Bay Pines, Florida between May 2002 and September 2002 showed that the ice pick headaches were of the indomethacin responsive form. In a September 2002 entry by Dr. C.P., the veteran reported having headaches three times per week. In September 2002, Dr. W.C. of the Florida Neurology Group indicated that the veteran would begin treatment with Topamax. A treatment note from March 2003 showed that the Topamax caused severe stuttering, but the veteran chose to remain on the medication because of its efficacy in treating headaches. In a June 2007 letter, Dr. W.C. stated that the headache treatment had been effective, but the veteran still experienced headaches. The Topamax limited his ability to interact in social situations and to hold down higher-paying jobs. Dr. W.C. stated the veteran had occupational and social impairment with reduced reliability and productivity due to hysteria type speech with poor understanding. A December 2005 VAMC treatment note indicated the veteran was experiencing three to seven headaches per month, with two or three headaches severe enough to cause him to lie down in bed. The veteran reported that this was an improvement due to treatment with Topamax. A May 2006 treatment note shows that the veteran's headaches had improved since taking Topamax; he experienced three to five headaches per month at that time. The veteran's employer has tried to accommodate him, as evidenced by an April 2007 letter. Accommodations included rearranging work schedules, installing separate climate and lighting controls for the veteran's office, limiting customer relations due to stuttering and leaving notes for tasks due to memory problems. The veteran received a neurological disorders examination in April 2008, and Dr. J.N. diagnosed him with organic brain syndrome with headaches and memory impairment. With respect to his occupation, Dr. J.N. reported the veteran's employer worked with him to make the job work; however, his employer was increasingly concerned over his progressive memory impairment. With respect to daily activities, Dr. J.N. reported the veteran did housework, shopping, drove his car and functioned independently with respect to daily life. However, he avoided socializing because of his disability. A VA mental disorders examination report by Dr. W.M., dated in April 2008, showed the veteran reported memory problems for at least the past three years that consisted of forgetfulness, difficulty with visual spatial orientation and difficulty maintaining his attention and focus at work. Dr. W.M. determined the effect of this was moderate occupational impairment due to a mild cognitive impairment, more likely than not due to traumatic brain injury and resulting organic brain syndrome. The veteran received a global assessment of functioning (GAF) score of 60. A GAF score between 51 and 60 indicates moderate symptoms (e.g. flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning. See 38 C.F.R. §§ 4.125, 4.130 (incorporating the Diagnostic and Statistical Manual of Mental Disorders, 4th Edition of the American Psychiatric Association in the rating schedule). The doctor suggested the possibility that the veteran's medications could be contributing to his memory loss but concluded the medications were an exacerbating factor, not the sole cause of his cognitive impairment. A June 2008 VAMC treatment note showed the veteran experienced a couple of migraines per month on his Topamax regimen and continued experiencing severe stuttering because of this medication. In a treatment note dated in September 2008, Dr. C.P. reviewed magnetic resonance imaging (MRI) results conducted because of the veteran's worsening memory. The veteran told the examiner that he was having more difficulty writing checks to pay his bills. Results of the MRI were normal, but C.P. stated that in-service head trauma caused the veteran's memory to worsen to the point that it was difficult for him to function at work. Legal Criteria Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2008). Where an increase in an existing disability rating based on established entitlement to compensation is at issue, the present level of disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Individual disabilities are assigned separate diagnostic codes. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. All benefit of the doubt will be resolved in the veteran's favor. 38 C.F.R. § 4.3. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability or the same manifestation of a disability under different diagnostic codes, is to be avoided when rating a veteran's service-connected disabilities. 38 C.F.R. § 4.14. It is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes. However, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis and the demonstrated symptomatology. Any change in a diagnostic code by a VA adjudicator must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). Effective October 23, 2008, VA amended the Schedule for Rating Disabilities by revising the portion of the Schedule that addresses neurological conditions and convulsive disorders. The effect of this action is to provide detailed and updated criteria for evaluating residuals of traumatic brain injury (TBI). These amendments revise 38 C.F.R. § 4.124a, Diagnostic Code 8045 and are effective October 23, 2008. The amendment applies to all applications for benefits received by VA on or after October 23, 2008. Schedule for Rating Disabilities; Evaluation of Residuals of Traumatic Brain Injury (TBI), 73 Fed. Reg. 54,693 (September 28, 2008) (to be codified at 38 C.F.R. pt. 4). Here, the veteran's claim was received in February 2002, and the old criteria apply. The veteran is currently in receipt of a 30 percent rating under the provisions of 38 C.F.R. § 4.124a, Diagnostic Code 8045-9304, for brain disease due to trauma, rated based on entirely subjective complaints (i.e., complaints such as headache, dizziness, and insomnia). Under the provisions of Diagnostic Code 8045, purely neurological disabilities, such as hemiplegia, epileptiform seizures, facial nerve paralysis, etc., following trauma to the brain, will be rated under the diagnostic codes specifically dealing with such disabilities, with citation of a hyphenated diagnostic code (e.g., 8045- 8207). Purely subjective complaints such as headache, dizziness, insomnia, etc., recognized as symptomatic of brain trauma, will be rated 10 percent and no more under Diagnostic Code 9304. This 10 percent rating will not be combined with any other rating for a disability due to brain trauma. Ratings in excess of 10 percent for brain disease due to trauma under Diagnostic Code 9304 are not assignable in the absence of a diagnosis of multi-infarct dementia associated with brain trauma. See 38 C.F.R. § 4.124a, Diagnostic Code 8045. At the time of the original 1977 rating decision, Diagnostic Code 9304 was titled "non-psychotic organic brain syndrome with brain trauma," which was the veteran's diagnosis. See 38 C.F.R. § 4.132, Diagnostic Code 9304 (1976). As explained above, the current Diagnostic Code 8045 limits ratings to 10 percent unless there is a finding of multi-infarct dementia. The Board realizes the veteran does not have dementia, but he has other symptoms not adequately encompassed by Diagnostic Code 8045. The severity and history of his illness warrants assignment of a different diagnostic code. See Butts v. Brown, 5 Vet. App. 532 (1993). As such, the Board is changing the Diagnostic Code from 8045-9304 to 8100-9304. See 38 C.F.R. §§ 4.124a, 4.130 Diagnostic Code 8100-9304 (2008). There is no prejudice to the veteran in the Board's decision to change the diagnostic code for the following reasons. First, the RO clearly recognized that Diagnostic Code 8100 was appropriate in the October 2002 rating decision because the increase from 10 to 30 percent was based on the criteria contained within Diagnostic Code 8100, as shown in the RO's reasons for its decision. The veteran was provided notice of the rating criteria under Diagnostic Codes 8045, 8100, and 9304 in the August 2004 statement of the case. Also, during the pendency of the appeal, the RO considered whether a higher rating was warranted under Diagnostic Code 8100 or 9304, as shown by the April 2007 supplemental statement of the case. The fact that the RO did not consider separate ratings under both codes does not prevent the Board from doing so, because such action results in a higher rating for the veteran's disability. Diagnostic Code 8100 provides that a veteran will be rated as 30 percent disabled when he has characteristic prostrating attacks averaging once a month over the last several months. Very frequent, completely prostrating and prolonged attacks productive of severe economic inadaptability warrant a 50 percent rating. Dementia due to head trauma is evaluated under a General Rating Formula for Mental Disorders, which takes into account the objective signs and manifestations of a psychiatric disorder for rating purposes. The enumerated symptoms, however, are not intended to be exclusive in determining the parameters of the applicable rating scheme. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In pertinent part, a 10 percent rating is prescribed for occupational and social impairment due to mild or transient symptoms which decrease work efficiency and the ability to perform occupational tasks only during periods of significant stress, or for symptoms controlled by continuous medication. 38 C.F.R. 4.130, Diagnostic Code 9304 (2008). A 30 percent evaluation is appropriate when there is evidence of occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and normal conversation), due to such symptoms as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment and mild memory loss (such as forgetting names, directions, or recent events). 38 C.F.R. § 4.130, Diagnostic Code 9304. A 50 percent rating will be awarded when 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; and difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, Diagnostic Code 9304. Analysis As noted above, the veteran was assigned a 30 percent rating for headaches due to brain trauma in the October 2002 rating decision, based on the criteria for Diagnostic Code 8100. The Board will continue the 30 percent disability rating under the diagnostic code for migraine. 38 C.F.R. § 4.124a, Diagnostic Code 8100 (2008). A 30 percent evaluation is appropriate under Diagnostic Code 8100 because recent medical records showed the veteran experiences a couple of migraine headaches per month on his current regimen of Topamax. See VAMC treatment note dated June 6, 2008. A VAMC treatment note from December 2005 indicated the veteran experienced headaches severe enough to make him lie down in bed. Thus, his headaches can be prostrating. A 50 percent evaluation is not warranted because the veteran does not experience very frequent, completely prostrating and prolonged attacks causing severe economic inadaptability. See 38 C.F.R. § 4.124a, Diagnostic Code 8100. The veteran has been able to maintain employment, largely due to special conditions provided by his employer, such as separate lighting and climate controls and reminders due to his short- term memory issues. Because of this, the veteran does not experience severe economic inadaptability. However, the Board finds that the veteran's organic brain syndrome is also manifested by cognitive impairment and anxiety, the symptoms of which are separate and distinct from his migraine symptoms. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). As previously stated, service connection was originally granted for brain trauma, manifested by headache and anxiety in a November 1977 rating decision. The veteran's anxiety symptoms are still present; the Board will rate the veteran's anxiety under 38 C.F.R. § 4.130, Diagnostic Code 9304 (2008). The above evidence shows clearly noted complaints of a history of anxiety, progressing memory loss and stuttering due to in-service head trauma and resulting treatment thereof. In addition, the Board observes that the veteran was assigned a GAF score of 60. Taking all evidence into consideration, the Board finds that the veteran's cognitive impairment and anxiety meet the criteria for a 30 percent disability rating for occupational and social impairment under 38 C.F.R. § 4.130, Diagnostic Code 9304. The evidence shows that the veteran's Topamax-induced stuttering has caused him to avoid social situations. His memory and comprehension problems affect his performance at work, though he is functional enough to remain employed. Doctors have repeatedly noted anxiety symptoms upon examining the veteran. 38 C.F.R. § 4.130, Diagnostic Code 9304. A 50 percent rating is not warranted because the veteran does not demonstrate a flattened affect; panic attacks more than once a week; difficulty in understanding complex commands; impairment of long-term memory; impaired judgment; impaired abstract thinking; or disturbances of motivation and mood. 38 C.F.R. § 4.130, Diagnostic Code 9304. The Board has also considered whether the case should be referred to the Director of the Compensation and Pension Service for extra-schedular consideration under 38 C.F.R. § 3.321(b)(1). The evidence does not indicate that the veteran's disabilities have caused marked interference with employment (i.e., beyond that already contemplated in the assigned evaluation) or necessitated any frequent periods of hospitalization, such that application of the regular schedular standards is rendered impracticable. Therefore, referral of this case for extra-schedular consideration is not warranted. See Floyd v. Brownž 9 Vet. App. 88, 95 (1996); Bagwell v. Brownž 9 Vet. App. 337 (1996). (CONTINUED ON NEXT PAGE) ORDER The criteria for an evaluation in excess of 30 percent for headaches due to brain trauma have not been met, and that part of the appeal is denied. The criteria for a separate evaluation of 30 percent for cognitive impairment and anxiety due to brain trauma have been met, subject to the laws and regulations governing payment of monetary benefits. ____________________________________________ Michelle L. Kane Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs