Citation Nr: 0814510	
Decision Date: 05/02/08    Archive Date: 05/12/08

DOCKET NO.  04-41 434A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. 
Petersburg, Florida


THE ISSUES

1. Entitlement to a compensable rating for memory loss as a 
residual of a cerebrovascular accident (CVA, i.e., stroke).

2. Entitlement to a rating higher than 30 percent for 
superior right quadranopsia in both eyes, also a residual of 
the CVA.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

Chris Yegen, Associate Counsel




INTRODUCTION

The veteran served on active duty from September 1958 to 
September 1961.  He also had a year and three months of prior 
service.

This case comes to the Board of Veterans' Appeals (Board) 
from an October 2003 rating decision of the Department of 
Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, 
Florida - which granted compensation under 38 U.S.C.A. § 1151 
for residuals of a CVA on the basis of additional disability 
resulting from VA hospitalization, medial or surgical 
treatment.  The RO assigned a temporary 100 percent rating 
retroactively effective from January 5, 1998 (the date of the 
VA procedure in question) to August 1, 1998.  The RO also 
granted claims for residual memory loss - rated 
noncompensable, i.e., 0 percent retroactively effective from 
August 1, 1998, and for right homonympous quadranopsia - 
initially rated as10-percent disabling also retroactively 
effective from August 1, 1998.

A more recent November 2005 RO decision, during the pendency 
of this appeal, increased the rating for the superior right 
quadranopsia in both eyes to 30 percent with the same 
retroactive effective date of August 1, 1998.  The veteran 
has since continued to appeal, requesting an even higher 
rating.  See AB v. Brown, 6 Vet. App. 35, 39 (1993).

In his substantive appeal (VA Form 9), the veteran requested 
a hearing at the RO before a Veterans Law Judge of the Board 
(travel Board hearing).  In an April 2005 letter, he waived 
his right to an in-person hearing with a Member of the Board 
(Veterans Law Judge) and requested, instead, a video 
conference hearing.  However, he failed to report for his 
scheduled hearing and has not explained his absence or 
requested to again reschedule his hearing.  Thus, VA 
considers his request for a video conference hearing 
withdrawn.  38 C.F.R. § 20.704(d) (2007).




FINDINGS OF FACT

1.  The veteran has subjective complaints of short-term 
memory loss and decreased concentration, attention and 
difficulty processing words as residuals of his CVA in 
January 1998.  However, he does not have a diagnosis of 
multi-infarct dementia.

2.  The results of his April 2005 VA examination, including a 
Goldman Bowl visual field test, indicate he has an average 
contraction to 39 degrees in both eyes.  The visual 
examination also noted a dense superior right quadranopsia in 
both eyes, and the examiner indicated this is consistent with 
a left Meyer's loop due to a CVA.


CONCLUSIONS OF LAW

1.  The criteria are met for a higher 10 rating for the 
memory loss, as a residual of the CVA.  38 U.S.C.A. §§ 1155, 
5107 (West 2002); 38 C.F.R. §§ 3.321(b)(1), 
4.1-4.7, 4.124a, 4.130 Diagnostic Code (DC) 8045 (2007).

2.  The criteria are not met, however, for a rating higher 
than 30 percent for the superior right quadranopsia in both 
eyes as a residual of the CVA. 38 U.S.C.A. §§ 1155, 5107 
(West 2002); 38 C.F.R. §§ 3.321(b)(1), 4.84a, DCs 6080, 9304 
(2007).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  The Duties to Notify and Assist

VA has complied with the duty-to-notify provisions of the 
Veterans Claims Assistance Act (VCAA).  38 U.S.C.A. 
§ 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 
16 Vet. App. 183, 197 (2002).  In particular, letters from 
the RO in August 2003 and March 2005 (1) informed the veteran 
of the information and evidence not of record that is 
necessary to substantiate his claims; (2) informed him of the 
information and evidence that VA will obtain and assist him 
in obtaining; (3) informed him of the information and 
evidence he is expected to provide; and (4) requested that he 
provide any evidence in his possession pertaining to his 
claims, or something to the effect that he should 
"give us everything you've got pertaining to your claims."  
Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini 
II).  

VA also has complied with the Court's holding in 
Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd 
sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007), which 
states that the VCAA notice requirements of 38 U.S.C.A. § 
5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements 
of a service-connection claim:  (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.  The RO 
complied with the requirements in Dingess when it sent a VCAA 
notice letter in March 2006 discussing the downstream 
disability rating and effective date elements of the claims.  

For an increased-rating claim, 38 U.S.C.A. § 5103(a) 
requires, at a minimum, that the Secretary notify the 
claimant that, to substantiate the claim, the claimant must 
provide, or ask the Secretary to obtain, medical or lay 
evidence demonstrating a worsening or increase in severity of 
the disability and the effect that worsening has on the 
claimant's employment and daily life.  Vazquez-Flores v. 
Peake, 
22 Vet. App. 37 (2008).  Further, if the Diagnostic Code 
under which the claimant is rated contains criteria necessary 
for entitlement to a higher disability rating that would not 
be satisfied by the claimant demonstrating a noticeable 
worsening or increase in severity of the disability and the 
effect that worsening has on the claimant's employment and 
daily life (such as a specific measurement or test result), 
the Secretary must provide at least general notice of that 
requirement to the claimant.  Id.  

Additionally, the claimant must be notified that, should an 
increase in disability be found, a disability rating will be 
determined by applying relevant Diagnostic Codes, which 
typically provide for a range in severity of a particular 
disability from noncompensable to as much as 100 percent 
(depending on the disability involved), based on the nature 
of the symptoms of the condition for which disability 
compensation is being sought, their severity and duration, 
and their impact upon employment and daily life.  As with 
proper notice for an initial disability rating and consistent 
with the statutory and regulatory history, 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.  Vazquez-Flores, slip op. at 5-6.

In this case at hand, the Board finds that the RO's August 
2003 and March 2005 notice letters, along with the statement 
of the case (SOC) issued in November 2004, comply with the 
Court's holding in Vazquez-Flores.  For example, the August 
2003 letter states:

As we consider your claim, you may submit evidence 
showing that your service-connected residuals of 
memory and visual defects resulting from a 
cerebrovascular accident have increased in 
severity.  This evidence may be a statement from 
you doctor, containing the physical and clinical 
findings, the results of any laboratory tests or 
x-rays, and the dates of examinations and tests.  You 
may also submit statements from other individuals who 
are able to describe from their knowledge and personal 
observations in what manner your disability has become 
worse.

The SOC informed the veteran of the applicable rating 
criteria.

Even if arguably there is any deficiency in the notice to the 
veteran or the timing of the notice it is harmless error.  
See Overton v. Nicholson, 20 Vet. App. 427, 435 (2006) 
(finding that the Board had erred by relying on various post-
decisional documents for concluding that adequate 38 U.S.C.A. 
§ 5103(a) notice had been provided to the appellant, but 
determining nonetheless that the evidence established the 
veteran was afforded a meaningful opportunity to participate 
effectively in the adjudication of his claims, so found the 
error was harmless).

If there was any deficiency in the notice to the veteran, the 
Board finds that the presumption of prejudice on VA's part 
has been rebutted:  (1) based on the communications sent to 
him over the course of this appeal, and his responses, 
he clearly has actual knowledge of the evidence he is 
required to submit and needed to substantiate his claims; and 
(2) based on his contentions he is reasonably expected to 
understand from the notices what was needed.  See Sanders v. 
Nicholson, 487 F.3d 881 (2007).  

VA also fulfilled its duty to assist by obtaining all 
relevant evidence concerning the claims under 38 U.S.C.A. 
§ 5103A and 38 C.F.R. § 3.159.  The RO obtained 
all pertinent medical records identified by the veteran and 
his representative.  In addition, VA furnished the veteran 
compensation examinations to determine the severity of his 
memory loss and superior right quadranopsia in both eyes due 
to residuals of a CVA.  See Caffrey v. Brown, 6 Vet. App. 377 
(1994).  Accordingly, the Board finds that no further 
assistance is needed to meet the requirements of the VCAA or 
Court.

II.  Whether the Veteran is Entitled to a Compensable Rating 
for his Memory Loss, a Residual of the CVA

Historically, the RO granted compensation for memory loss due 
to residuals of a CVA in an October 2003 decision and 
initially assigned a noncompensable (i.e., 0 percent) rating 
retroactively effective from August 1, 1998 (the date his 
temporary 100 percent rating expired).  His appeal concerns 
his request for an even higher rating.  See AB v. Brown, 6 
Vet. App. 35, 38-39 (1993).

Governing Statutes and Regulations

VA determines ratings for service-connected disabilities by 
comparing the symptoms the veteran is presently experiencing 
with criteria set forth in VA's Schedule for Rating 
Disabilities based on average impairment in earning capacity.  
38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2007).  Separate 
diagnostic codes identify the various disabilities.  When a 
question arises as to which of two ratings apply under a 
particular diagnostic code, VA assigns the higher evaluation 
if the disability more closely approximates the criteria for 
the higher rating; otherwise, VA assigns the lower rating. 
 38 C.F.R. § 4.7.  After careful consideration of the 
evidence, VA resolves any reasonable doubt in favor of the 
veteran.  38 C.F.R. § 4.3.  Also, VA must take into account 
the veteran's entire medical history and circumstances when 
determining the appropriate rating.  See 38 C.F.R. § 4.1; 
Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1995).

The RO partly evaluated the veteran's memory loss under DC 
9304 for dementia due to head trauma.  The RO also partly 
rated the veteran's memory loss under DC 8007 for an embolism 
of brain vessels.  The notes for DC 8007 provide that, 
following an initial rating of 100 percent for six months, 
the disability shall be rated based on residuals, at a 
minimum rating of 10 percent.

Under DC 8045, for brain disease due to trauma, VA rates 
purely neurological disabilities, such as hemiplegia, 
epileptiform seizures, facial nerve paralysis, etc., under 
the diagnostic codes specifically dealing with such 
disabilities, with citation of a hyphenated DC (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 DC 9304 
(for dementia due to brain trauma).  This 10 percent rating 
will not be combined with any other rating for a disability 
due to brain trauma.  Ratings higher than 10 percent for 
brain disease due to trauma under DC 9304 are not assignable 
in the absence of a diagnosis of multi-infarct dementia 
associated with the brain trauma.

Analysis

The veteran argues that the evidence supports a compensable 
rating for his memory loss disability as a residual of his 
CVA.  Since his CVA in January 1998, he has complained of 
forgetting words, definitions, sentence structure, short-term 
memory loss, and reading at a slow pace.  The Board agrees 
that he is entitled to the minimum compensable 10 percent 
rating, especially as this is expressly indicated in the 
applicable regulation.

Records show that, after coronary artery surgery in January 
1998, the veteran complained of problems with his vision, 
memory, concentration and attention, and problems 
transforming visual images into auditory sounds.  He had 
three VA compensation examinations documenting these 
subjective complaints.  As a result of these complaints, he 
had an MRI as well as several follow-up CT scans in January 
and February 1998 that showed a left parietal occipital, 
initially hemorrhagic infarct, which later transformed to an 
encephalomalcic defect.

As noted, under DC 8045, purely subjective complaints such as 
headache, dizziness, insomnia, etc., recognized as 
symptomatic of brain trauma, will be rated 10 percent and no 
more under DC 9304 (for dementia due to brain trauma).  
Since the veteran demonstrated purely subjective complaints 
such as memory loss, difficulty reading, concentration, and 
attention, recognized as symptomatic of brain trauma 
(symptoms of a stroke in this case), the Board will grant a 
higher 10 percent rating for this condition under DC 9304 
(for dementia due to brain trauma).  See 38 C.F.R. § 4.124a, 
DC 8045.  He is not, however, entitled to an even higher 
rating because the evidence does not show a diagnosis of 
multi-infarct dementia.

In sum, the record supports a 10 percent rating for the 
veteran's subjective complaints due to his brain trauma 
(CVA), but no more.

III.  Whether the Veteran is Entitled to a Rating Higher than 
30 Percent for his Superior Right Quadranopsia in Both Eyes, 
Another Residual of the CVA

Historically, the RO granted compensation for this in the 
October 2003 decision and assigned a 30 percent rating 
retroactively effective from August 1, 1998 (the date his 
temporary 100 percent rating expired).  His appeal concerns 
his request for an even higher rating.  See AB v. Brown, 6 
Vet. App. 35, 38-39 (1993).



Governing Statutes and Regulations

Just like the residual memory loss, the RO partly rated this 
additional disability under DC 8007 for an embolism of brain 
vessels.  And, as mentioned, the notes for DC 8007 provide 
that, following an initial rating of 100 percent for six 
months, the disability shall be rated based on residuals, at 
a minimum rating of 10 percent.

To account for the residuals, the RO partly rated this 
disability under DC 6080 for impairment of field vision.

Under DC 6080, concentric contraction of visual field to 15 
degrees but not to 5 degrees warrants a 70 percent rating for 
bilateral loss, and 20 percent rating for unilateral loss, or 
rate as 20/200 (6/60); concentric contraction of visual field 
to 30 degrees but not to 15 degrees warrants a 50 percent 
rating for bilateral loss, and a 10 percent rating for 
unilateral loss, or rate as 20/100 (6/30); concentric 
contraction of visual field to 45 degrees but not to 30 
degrees warrants a 30 percent rating for bilateral loss, and 
a 10 percent rating for unilateral loss, or rate as 20/70 
(6/21), concentric contraction of visual field to 60 degrees 
but not to 45 degrees warrants a 20 percent rating for 
bilateral loss, and a 10 percent rating for unilateral loss, 
or rate as 20/50 (6/15).  38 C.F.R. § 4.84a, DC 6080.  The 
concentric contraction ratings require contraction within the 
stated degrees, temporally; the nasal contraction may be 
less.  38 C.F.R. § 4.84a, Diagnostic Code 6080, Note (2) 
(2007).  VA rates unilateral loss of temporal half as 10 
percent disabling, or rated as 20/70 (6/21); and unilateral 
loss of nasal half as 10 percent disabling, or as 20/50 
(6/15).  38 C.F.R. § 4.84a, DC 6080 (2007).

Analysis

Following his coronary artery surgery in January 1998, the 
record shows the veteran complained of problems with his 
vision - including blurriness, double vision and depth 
perception with right neglect.



A September 1998 VA record indicates evidence of mildly 
diminished peripheral vision by confrontation, right greater 
than the left.  A neurological examination that same month 
noted he exhibited moderately diminished peripheral vision by 
confrontation bilaterally.

As alluded to, the veteran had three VA compensation 
examinations to determine the severity of his superior right 
quadranopsia in both eyes.  During an August 2001 VA 
compensation examination, he complained of decreased vision.  
Objective findings noted his best corrected visual acuity of 
20/25 in the right eye and 20/30 in the left eye.  His visual 
fields showed decreased peripheral vision, the right greater 
than the left.  The Goldmann visual field test showed 
evidence of decreased peripheral vision in the right eye with 
an average contraction to 39 degrees.  The left eye had an 
average contraction to 42 degrees.  The examiner indicated 
there were no objective findings showing residual deficits 
other than some mild decrease in peripheral vision on 
Goldmann Bowl perimetry.

During a subsequent VA examination in September 2003, the 
veteran complained of blurry vision in his right eye.  
Objective findings noted his best corrected visual acuity was 
20/25 in the right eye and 20/30 in the left eye.  His visual 
fields were full to careful confrontation bilaterally.  
Goldmann visual field testing found the right eye showed good 
cooperation, fixation and reliability, but there was an 
obvious supratemporal scotoma.  The Goldman Bowl Field test 
showed an average concentric contraction to 38 degrees and a 
superior temporal quadrant scotoma.  Goldmann visual field 
testing of the left eye showed good cooperation, fixation, 
reliability and a significant scotoma.  The Goldmann Bowl 
Field of Vision showed an average concentric contraction to 
54 degrees.  The examiner noted two Goldmann visual fields 
together and a right superior quadrant anopsia.  
This examiner diagnosed right superior homonymous 
quadrantanopsia, indicating it was most likely due to the 
history of the CVA.  The examiner concluded the veteran had a 
visual field deficit with classic symptoms of a stroke.  This 
examiner further indicated this condition limits some of the 
veteran's activities of daily living and causes some 
difficulty when he reads.  

During the most recent VA examination in April 2005, the 
veteran complained that his vision problems were getting 
worse, and he noted problems reading.  When examined, he had 
corrected visual acuity of 20/25 in his right eye and 
20/30 plus in his left eye.  Visual field testing to 
confrontation indicated a superior right quadranopsia.  
Goldmann visual field testing exhibited an average 
contraction to 39 degrees in both eyes.  Both eyes had a 
dense superior right quadranopsia perfectly respecting both 
the horizontal and vertical mid lines.  The examiner 
indicated this is consistent with a left Meyer's loop as a 
result of a CVA involving the temporal lobe.  Due to this 
injury, the veteran has a pie in the sky defect in his right 
visual field.  This would be expected to affect his reading 
abilities significantly.  The examiner further indicated the 
veteran could compensate for this problem to some extent by 
wearing prisms.

As the veteran's bilateral concentric contraction of visual 
field is to 39 degrees, so between 45 and 30 degrees, his 
right quadranopsia most closely approximates the criteria for 
a 30 percent rating.  To warrant a higher 50 percent rating, 
the record would have to show average bilateral concentric 
contraction of visual fields limited to 30 degrees or less, 
and there is no objective clinical indication of this.  
Hence, since the record does not support this level of 
disability, his superior right quadranopsia in both eyes does 
not warrant a rating higher than 30 percent under DC 6080.

Extraschedular Consideration

Moreover, the veteran has not shown that his service-
connected memory loss and superior right quadranopsia in both 
eyes have caused marked interference with his employment, 
meaning above and beyond that contemplated by his current 
schedular ratings (now 10 and 30 percent, respectively).  
Records show he retired a number of years ago because of 
disability from nonservice-connected conditions.  Generally, 
the degrees of disability specified in the rating schedule 
are considered adequate to compensate for considerable loss 
of working time from exacerbations or illnesses proportionate 
to the severity of the several grades of disability.  
See 38 C.F.R. § 4.1.  


The veteran also has not shown his disabilities have 
necessitated frequent periods of hospitalization or otherwise 
rendered impracticable the application of the regular 
scheduler standards.  He has not been frequently hospitalized 
on account of these conditions.  Instead, except for his CVA 
- the cause of these conditions, his evaluation and treatment 
has been primarily as an outpatient, not inpatient.  
Consequently, the Board does not have to remand this case to 
the RO for further consideration of this issue.  See Bagwell 
v. Brown, 9 Vet. App. 237, 238-9 (1996); Shipwash v. Brown, 
8 Vet. App. 218, 227 (1995).


ORDER

A higher 10 percent rating is granted for the residual memory 
loss from the CVA, subject to the laws and regulations 
governing the payment of VA compensation.

However, the claim for a rating higher than 30 percent for 
the superior right quadranopsia in both eyes, also from the 
CVA, is denied.



____________________________________________
KEITH W. ALLEN
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs