92 Decision Citation: BVA 92-14657 Y92 BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 DOCKET NO. 90-20 341 ) DATE ) ) ) THE ISSUE 1. Entitlement to restoration of a compensable evaluation for urticaria. 2. Entitlement to an increased evaluation for post-traumatic encephalopathy, currently evaluated as 30 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Horrigan, Counsel INTRODUCTION The veteran had active honorable service, including a period from September 1984 to November 1986. This matter came before the Board on appeal from a September 1989 decision from the Roanoke, Virginia, Regional Office (hereinafter referred to as RO) which reduced the evaluation for the veteran's urticaria from 10 percent to noncompensable effective January 1, 1990, and confirmed and continued a 30 percent evaluation for the veteran's post-traumatic encephalopathy. The notice of disagreement was received on November 2, 1989. The statement of the case was issued on March 5, 1990. The veteran's substantive appeal was received on March 19, 1990. The case arrived at the Board of Veterans' Appeals on May 7, 1990, and was docketed for appeal on November 26, 1990. In April 1991, the veteran appeared and gave testimony at a hearing before the Board of Veterans' Appeals. He has been represented during his appeal by the Disabled American Veterans. A Board of Veterans' Appeals decision of June 1991 remanded this case for further development. After the veteran's claim was again denied, a supplemental statement of the case was issued on November 13, 1991. The case was returned to the Board on April 8, 1992, and docketed for appeal that same day. The case was referred to the veteran's representative who submitted additional written arguments on April 28, 1992. The case is before the Board for appellate consideration at this time. CONTENTIONS OF APPELLANT ON APPEAL It is essentially contended, by and on behalf of the veteran, that his urticaria has not improved and warrants an evaluation of at least 10 percent. It is also argued that the veteran's service-connected traumatic encephalopathy has resulted in symptoms, especially impaired memory, which warrant an evaluation in excess of the 30 percent currently assigned. DECISION OF THE BOARD For the reasons and bases hereinafter set forth, it is the decision of the Board that the evidence warrants the restoration of a 10 percent evaluation for the veteran's urticaria. It it is also the decision of the Board that the preponderance of the evidence is against the veteran's claim for an evaluation in excess of 30 percent for post-traumatic encephalopathy. FINDINGS OF FACT 1. The veteran has infrequent mild attacks of urticaria. 2. The veteran's post-traumatic encephalopathy results in headaches, recent and remote memory loss, attention deficits, decreased abstraction ability and mild aphasic symptoms producing no more than definite social and industrial impairment. CONCLUSIONS OF LAW 1. The veteran's urticaria is currently 10 percent disabling according to the schedular criteria. 38 U.S.C. 1155, 5107(a); 38 C.F.R. 4.7, Part 4, Diagnostic Code 7118. 2. The veteran's post-traumatic encephalopathy is currently no more than 30 percent disabling according to the schedular criteria. 38 U.S.C. 1155, 5107(a); 38 C.F.R. 4.7, Part 4, Diagnostic Codes 8045-9304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS We note initially that we have found the veteran's claim is "well grounded" within the meaning of 38 U.S.C. 5107(a). That is, we find that he has presented a claim which is plausible. We are also satisfied that all relevant facts have been properly developed and that no further assistance to the veteran is required to comply with the duty to assist him mandated by 38 U.S.C. 5107(a). I. Entitlement to a Compensable Evaluation for Urticaria The veteran was noted to have urticaria in service. A rating board action of December 29, 1986, granted service connection for urticaria with angioedema of the distal extremities and assigned a 10 percent evaluation, effective November 8, 1986. After a physical examination of August 1989 disclosed no findings of urticaria, a rating board action of September 1989 assigned a noncompensable evaluation for this disability, effective, January 1, 1990. Under the criteria of Diagnostic Code 7118 for the evaluation of angioneurotic edema, a 10 percent evaluation requires that the condition be mild with infrequent attacks of slight extent and duration. A 20 percent evaluation is warranted if the disorder is moderate with frequent attacks of moderate extent and duration. Recent evaluations have failed to disclose any current findings indicative of active urticaria or angioedema. However, the clinical record reveals that the veteran apparently had episodes of urticaria in July 1987 and March 1988. In addition, on the most recent evaluation, he reported another outbreak of urticaria in August 1991. In our opinion, this evidence indicates that the veteran has mild urticaria resulting in infrequent attacks of slight extent and duration. Therefore, a 10 percent evaluation for this disorder under the provisions of Diagnostic Code 7118 should be restored. II. Entitlement to an Increased Evaluation for Post-traumatic Encephalopathy The veteran developed post-traumatic encephalopathy following an inservice motorcycle accident which resulted in a closed head injury. A rating board action of December 1986 granted service connection for post-traumatic encephalopathy and assigned a 30 percent evaluation for this disorder, effective November 8, 1986. This evaluation has been confirmed and continued thereafter. Under the criteria of Diagnostic Code 8045, a 10 percent evaluation is the maximum assignable for complaints such as headaches which are recognized as symptomatic of brain trauma. Ratings in excess of 10 percent require utilization of Diagnostic Code 9304 for nonpsychotic organic brain syndrome with brain trauma. According to the criteria of Diagnostic Code 9304, a 30 percent evaluation is warranted for post-traumatic encephalopathy with symptoms which result in definite impairment of social and industrial adaptability. A 50 percent evaluation warrants symptomatology which results in considerable impairment of social and industrial adaptability. A 70 percent evaluation requires severe impairment of social and industrial adaptability. A review of the veteran's recent clinical record reveals occasional treatment for symptoms of post-traumatic encephalopathy, primarily memory loss and headaches. On recent psychiatric examination, he was noted to be alert, fully oriented, pleasant, cooperative, and euthymic with an appropriate affect. His speech was relevant, coherent, and goal-directed. No overt thought disorder was noted and the veteran's insight and judgment were described as good. Neuropsychological tests revealed some cognitive dysfunction characterized by mild impairment in recent memory and significant impairment of remote memory. In addition, some attention deficits and decreased abstraction ability were reported as were several mild aphasic symptoms. The overall organically based cognitive impairment was described as moderate. We also note that the veteran has a record of continuous employment from August 1989 to the present. In our opinion, the veteran's symptomatology due to post-traumatic encephalopathy currently results in no more than definite social and industrial impairment. ORDER An increased evaluation for urticaria is granted to the extent indicated subject to the law and regulations governing the payment of benefits by the Department of Veterans Affairs. An increased evaluation for traumatic encephalopathy is denied. BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 ANTHONY FAVA CHARLES E. EDWARDS, M.D. H. H. CLARK NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C. § 7266 (1992), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.