Citation Nr: 1313359	
Decision Date: 04/22/13    Archive Date: 05/03/13

DOCKET NO.  10-25 620	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Salt Lake City, Utah


THE ISSUE

Entitlement to an initial rating in excess of 10 percent for transient ischemic attacks manifested by memory loss.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

T. Adams, Counsel


INTRODUCTION

The Veteran had active service from September 1986 to October 2008.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision by the Department of Veterans Affairs (VA), Regional Office (RO), in Salt Lake City, Utah, as part of the Benefits Delivery at Discharge (BDD) program, that, in pertinent part, granted service connection and assigned a noncompensable (0 percent) disability rating for transient ischemic attacks, effective November 1, 2008.

In September 2011, the Board granted an initial increased rating, to 10 percent, for transient ischemic attacks and remanded for further development the issue of an initial rating in excess of 10 percent for transient ischemic attacks manifested by memory loss.  A review of the file reflects that there has been substantial compliance with the actions requested in that remand and the case has returned to the Board for appellate consideration.  See also D'Aries v. Peake, 22 Vet. App. 97 (2008) (finding that only substantial compliance, rather than strict compliance, with the terms of a Board's remand directives is required).  An October 2011 Decision Review Officer decision granted an initial 10 percent rating for transient ischemic attacks, from November 1, 2008.

In a March 2013 brief, the Veteran's representative stated that in the April 2012 Supplemental Statement of the Case, the RO failed to consider the January 2012 VA mental disorders examination in their readjudication of the Veteran's claim.  However, the Veteran, through his representative, waived consideration of the January 2012 examination report, by the Agency of Original Jurisdiction.

The Board has reviewed the Veteran's claims file and the record maintained in the Virtual VA paperless claims processing system.


FINDING OF FACT

The Veteran's transient ischemic attacks are not manifested by memory loss.



CONCLUSION OF LAW

The criteria for an initial evaluation in excess of 10 percent for transient ischemic attacks manifested by memory loss, have not been met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.124a, Diagnostic Codes 8007, 8009 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify & to Assist

Before addressing the merits of the remaining issues on appeal, the Board notes that VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a).

Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay 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.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability).  Dingess v. Nicholson, 19 Vet. App. 473 (2006).  Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included.  Id.

This appeal arises from disagreement with the initial evaluations following the grant of service connection for transient ischemic attack.  Courts have held that once service connection is granted the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  Regardless, the RO provided notice as to how VA assigns disability ratings in a letter sent to the Veteran in June 2010.

Under the VCAA, VA also has a duty to assist the Veteran in the development of a claim.  This includes assisting the Veteran in procuring service treatment records (STRs) and other relevant treatment records and providing a VA examination when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  Here, VA obtained the Veteran's STRs.  Also on file are pertinent outpatient treatment records.  The file also contains statements and contentions made by the Veteran and his representative.

VA examinations were conducted during the course of the appeal period in January and February 2012.  Both VA examination reports were quite comprehensive and adequately addressed the Veteran's complaints of memory loss.

Accordingly, the Board concludes that during the administrative appeal process, the Veteran was provided the information necessary such that the purposes of the notification have been met.  Moreover, there has been substantial compliance with the 2011 Board remand instructions as the 2012 VA examinations were developed and additional outpatient treatment records have been associated with Virtual VA; therefore, no further remand is required.  See also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall where Board's remand instructions were substantially complied with).  Under these circumstances, the Board finds that VA has complied with all duties to notify and assist required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159.

Initial Rating Claim

In this case, the Veteran claims that his currently service-connected transient ischemic attacks are more severe than indicated by his 10 percent evaluation.  Specifically, he contends that he experiences memory loss as a residual of transient ischemic attacks.

The Board points out that disability evaluations are based upon the average impairment of earning capacity as contemplated by the schedule for rating disabilities.  See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2012).  In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition.  See Schafrath v. Derwinski, 1 Vet. App. 589, 594 (2002).  However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability.  See Francisco v. Brown, 7 Vet. App. 55 (1994).  In cases in which a reasonable doubt arises as to the appropriate degree of disability to be assigned, such doubt shall be resolved in favor of the Veteran.  See 38 C.F.R. § 4.3 (2012). 

VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim, a practice known as a "staged rating."  See Fenderson v. West, 12 Vet. App 119 (1999).  In this case, the evidence of record does not establish additional, distinct time periods in which the issue on appeal resulted in symptoms that would warrant staged ratings.  

Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating.  Otherwise, the lower rating will be assigned.  See 38 C.F.R. § 4.7 (2012)

The Veteran's transient ischemic attacks are rated by analogy to rating an embolism of a brain vessel under Diagnostic Code 8007.  A vascular condition under Diagnostic Code 8007 is as a hemorrhage of a brain vessel under Diagnostic Code 8009 which provides for an initial disability rating of 100 percent for six months, with the disability being rated thereafter based on residuals, at a minimum disability rating of 10 percent.  38 C.F.R. § 4.124a, Diagnostic Codes 8007, 8009.

Neurological conditions, except as otherwise provided, will be rated in accordance with a schedule of ratings set out at 38 C.F.R. § 4.124a, which provides that, with the exceptions noted, disability from the following diseases and their residuals may be rated from 10 percent to 100 percent in proportion to the impairment of motor, sensory, or mental function.  Consideration is to be given to psychotic manifestations, complete or partial loss of use of one or more extremities, speech disturbances, impairment of vision, disturbances of gait, tremors, visceral manifestations, etc., referring to the appropriate bodily system of the schedule.  With partial loss of use of one or more extremities from neurological lesions, rating shall be by comparison with the mild, moderate, severe, or complete paralysis of peripheral nerves.

Within the September 2011 Board decision and remand, the Board examined the Veteran's service treatment records and VA examination reports.  As such, all evidence discussed in the September 2011 Board decision is incorporated herein.

The Veteran underwent a VA mental disorders Disability Benefits Questionnaire examination in January 2012.  The Veteran was not found to have any psychiatric disorder on examination or any previously diagnosed psychiatric disorder.  The examiner noted that the Veteran did not report any residuals related to transient ischemic attacks (TIAs).  Rather, the Veteran reported symptoms that appeared to be acute and limited to the experience of a TIA.  Moreover, while there was no indication of significant memory loss and the Veteran did not describe memory loss of events, he did describe some alterations in cognitive functioning.  For example, he had difficulty finding the word for "remote," difficulty identifying the hot or cold valve for the shower faucet, and had some perceptual distortions.  He reported three instances of these types of problems since 2008, but did not report any residual or ongoing problems.

The Veteran also underwent a VA neurological examination in February 2012.  At that time, on mental status evaluation the Veteran appeared to be alert and oriented in all spheres.  Recent and remote memory was intact.  The impression was that the Veteran had experienced a classical migraine on three occasions.  During a migraine, the Veteran was unable to remember the phrase "remote control," but was able to talk around this by describing the purpose of the device.  However, the examiner stated that the Veteran did not have a memory deficit in association with his migraines.
Outpatient records dated in May 2012 reflect a negative neurological evaluation.

Based on the evidence of record, the Board finds that an initial rating in excess of 10 percent for transient ischemic attacks manifested by memory loss is not warranted at any time during this appeal.  As outlined above, there is no currently diagnosed memory loss disability that is associated with the Veteran's transient ischemic attacks.  Specifically, on VA examination in February 2012, recent and remote memory was intact.  With regard to the Veteran's inability to remember the phrase "remote control" during a migraine, the examiner stated that the Veteran did not have any memory deficit in association with these episodes.  Accordingly, an initial rating in excess of 10 percent is not warranted at this time.

In reaching the above conclusions, the Board has also not overlooked the Veteran's statements in support of his claim.  In this regard, the Veteran is competent to report on factual matters of which he has first-hand knowledge, e.g. memory loss.  See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005).  However, while the Board may consider the Veteran's subjective statements regarding the severity of the disability, the Board notes that with respect to the Rating Schedule, the criteria set forth therein generally require medical expertise which the Veteran has not been shown to have.  See King v. Shinseki, 700 F.3d 1339, 1344 (Fed. Cir. 2012).  Furthermore, the Board finds the objective medical findings and opinions provided by the expert of record should be accorded the greater probative weight.  See Guerrieri v. Brown, 4 Vet. App. 467, 473 (1993) ("the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches . . . . As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the [Board as] adjudicators.").

The above determination is based upon consideration of applicable rating provisions.  It should also be noted that there is no showing that the Veteran's disability has reflected so exceptional or unusual a disability picture as to warrant the assignment of any higher evaluation on an extra-schedular basis.  See 38 C.F.R. § 3.321(b) (1).  In this case, there is no evidence that the Veteran experiences memory loss as a residual of his service-connected transient ischemic attacks.  Without sufficient evidence reflecting that the Veteran's disability picture is not contemplated by the rating schedule, referral for a determination of whether any disability on appeal requires the assignment of an extraschedular rating is not warranted.  See Thun v. Peake, 22 Vet. App. 111, 115-16 (2008).

In light of the foregoing, the Board finds that an initial rating in excess of 10 percent for transient ischemic attacks manifested by memory loss is not warranted as there is no evidence that the Veteran experiences any associated memory loss.  As such, the preponderance of the evidence is against the Veteran's claim.  Because the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply.  38 U.S.C.A. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  The Veteran's claim for an initial rating in excess of 10 percent for transient ischemic attacks manifested by memory loss, must therefore be denied.


ORDER

An initial rating in excess of 10 percent for transient ischemic attacks manifested by memory loss, is denied.



____________________________________________
JONATHAN B. KRAMER
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs