Citation Nr: 0909818 Decision Date: 03/17/09 Archive Date: 03/26/09 DOCKET NO. 05-03 490A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to a disability rating in excess of 70 percent for dementia due to head trauma with deficits in memory, abstract thinking, and verbal fluency, and mood disorder. 2. Entitlement to a disability rating in excess of 20 percent for a splenectomy. 3. Entitlement to a compensable disability rating for chronic lumbosacral strain, status post-left sacral fracture. 4. Entitlement to a compensable disability rating for residuals of left inferior and superior pubic rami fractures. 5. Entitlement to a compensable disability rating for residuals of a left ankle medial malleolar fracture. 6. Entitlement to a compensable disability rating for scars of the head. 7. Entitlement to a compensable disability rating for scars of the body. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Stephanie L. Caucutt, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1999 to October 2001. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2004 rating determination of a Regional Office (RO) of the Department of Veterans Affairs (VA) in Cleveland, Ohio. The issues of entitlement to a compensable disability rating for chronic lumbosacral strain, status post-left sacral fracture, residuals of left inferior and superior pubic rami fractures, residuals of a left ankle medial malleolar fracture, scars of the head, and scars of the body, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Dementia due to head trauma with deficits in memory, abstract thinking, and verbal fluency, and mood disorder, has been manifested throughout this appeal by severe cognitive impairment resulting in grossly inappropriate behavior, illogical thought content and process, impaired speech, poor hygiene, difficulty completing daily tasks, memory impairment, obsessional rituals, depression, social isolation, and reliance on a social worker for many of his activities of daily living, including appointment-keeping, grocery shopping, and medication management. 2. The Veteran is already in receipt of the maximum schedular disability rating for splenectomy; there is no competent evidence that this disability presents exceptional or unusual circumstances with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. CONCLUSIONS OF LAW 1. The criteria for a 100 percent disability rating for dementia due to head trauma with deficits in memory, abstract thinking, and verbal fluency, and mood disorder, have been met for this entire appeal. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.130, Diagnostic Code 9304 (2008). 2. The criteria for a disability rating in excess of 20 percent for splenectomy have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.117, Diagnostic Code 7706 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist With respect to the Veteran's claim for an increased disability rating for dementia due to head trauma, the entire benefit sought on appeal has been granted. Thus, no purpose would be served by undertaking an analysis of whether there has been compliance with the notice and duty to assist requirements set out in the Veterans Claims Assistance Act (VCAA) of 2000 (codified at 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002)). As for the issue of a higher disability rating for splenectomy, the Veteran is already in receipt of the maximum schedular rating. As discussed below, there is nothing to suggest that this disability warrants referral for extraschedular consideration pursuant to 38 C.F.R. § 3.321 (2008). Nevertheless, the Board observes that the Veteran was provided appropriate notice in April 2004 and June 2008 that complies with the VCAA, including notice that is consistent with the Court of Appeals for Veterans Claims' holdings in Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006), and Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), in April 2004 and June 2008. He was also provided multiple examinations for the specific purpose of evaluating his residuals of an in-service splenectomy. Analysis In accordance with 38 C.F.R. §§ 4.1, 4.2 (2008) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed the service treatment records and all other evidence of record pertaining to the history of the Veteran's service- connected disabilities rated herein. The Board has found nothing in the historical record that would lead to the conclusion that the current evidence of record is not adequate for rating purposes. The Board is of the opinion that this case presents no evidentiary considerations, except as noted below, that would warrant an exposition of the remote clinical history and findings pertaining to the disabilities at issue. Disability evaluations are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R. Part 4. The Board attempts to determine the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.10 (2008). Generally, the Board has been directed to consider only those factors contained wholly in the rating criteria. See Massey v. Brown, 7 Vet. App. 204, 208 (1994); but see Mauerhan v. Principi, 16 Vet. App. 436 (2002) (finding it appropriate to consider factors outside the specific rating criteria in determining level of occupational and social impairment). Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2008). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the veteran. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 4.3 (2008). I. Dementia due to Head Trauma with Mood Disorder By way of history, the Veteran was awarded service connection for dementia due to head trauma by RO rating decision dated in September 2002 and assigned an initial disability rating of 30 percent effective October 11, 2001, the day after his separation from active duty service. The Veteran's service treatment records show that he was involved in a motor vehicle accident during service and suffered a closed-head injury. The Veteran did not appeal the initial rating assigned; thus, it became final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. § 20.1103 (2008). In January 2004, the Veteran submitted an informal claim for increased compensation. In April 2008, the RO increased the Veteran's disability rating from 30 percent to 70 percent, effective January 17, 2004, the date of his informal claim for an increase; this rating encompassed service connection for dementia due to head trauma with deficits in memory, abstract thinking, and verbal fluency, and an associated mood disorder. The Veteran did not withdraw his appeal; thus, it continues. See AB v. Brown, 6 Vet. App. 35 (1993) (on a claim for an original or increased rating, a veteran will generally be presumed to be seeking the maximum benefit allowed by law and regulation, and it follows that such a claim remains in controversy, even if partially granted, where less than the maximum benefit available is awarded). The record reflects that prior to the filing of the Veteran's increased rating claim, in October 2003, he was involved in another motor vehicle accident which resulted in another closed head injury. See Treatment Records from University Hospital and Drake Center. When a claimant has both service- connected and nonservice-connected disabilities or injuries, the Board must attempt to discern the effects of each disability/injury and, where such distinction is not possible, attribute such effects to the service-connected disability. Mittleider v. West, 11 Vet. App. 181, 182 (1998). In the present case, the Veteran was evaluated by a VA physician in June 2004; the examination report reflects that the examining physician attributed most of the Veteran's present symptomatology, as well as his unemployability, to the second, nonservice-connected traumatic brain injury (TBI). However, the Veteran was reevaluated in January 2008, and the examining physician opined that the Veteran "seems to have a continuous decline in his psychosocial functional. All of this is more likely than not secondary to the traumatic brain injury from both MVA [motor vehicle accidents] rather than any other medical causes [emphasis added]." Similarly, the claims file contains reports of neuropsychiatric testing completed at VA by the same physician in October 2002 (pre-October 2003 motor vehicle accident), September 2004, and May 2006. As discussed below, the examiner noted in September 2004 that while the Veteran's neurocognitive functions were "surprisingly intact" in October 2002 and that he now showed more variability in his memory, the Veteran's psychological status was just as severe in 2002 as in 2004. Moreover, the physician noted that the Veteran's behavioral presentation was consistent throughout this appeal. The neuropsychiatric examiner did not identify any specific effects of the October 2003 nonservice-connected TBI or any symptoms that could not be attributed to the Veteran's in-service TBI. In light of the above, the Board is of the opinion that there is, at the very least, equipoise as to the issue of whether the effects of the October 2003 post-service TBI can be distinguished from his service-connected head trauma. Similarly, some of the Veteran's treatment records reflect that he may have had a preexisting verbal learning disability which accounts, in part, for his severely impaired language skills. See, e.g., VA Neuropsychiatric Evaluation Report dated September 29, 2004; VA Neuropsychiatric Evaluation Report dated May 15, 2006. However, no physician has ever diagnosed the Veteran with a preexisting learning disability, nor has any physician indicated what degree of impairment is due to a preexisting learning disability and what degree is due to his in-service TBI. In May 2006, a VA physician indicated that residual TBI effects "could not be ruled out" as the cause of his language problems. It is VA's defined and consistently applied policy to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt it is meant that an approximate balance of positive and negative evidence exists which does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2008). Seeing as there is relative equipoise as to whether the effects of the second TBI and any preexisting learning disability can be separated from the symptoms associated with the Veteran's service- connected TBI, the Board will attribute all of the Veteran's current symptomatology to his service-connected disability. The Veteran's dementia due to head trauma with deficits in memory, abstract, thinking, and verbal fluency, and mood disorder, is presently rated as 70 percent disabling pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9304 (2008), which is applicable to dementia due to head trauma. A 70 percent disability rating is warranted when there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, 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 the 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 worklike setting); inability to establish and maintain effective relationships. Id. A 100 percent disability rating is warranted when there is total occupational and social impairment, due to such symptoms as: persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time and place; memory loss for names of close relatives, own occupation, or own name. Id. For the reasons discussed below, the Board is of the opinion that the Veteran's dementia due to head trauma with deficits in memory, abstract thinking, and verbal fluency, and mood disorder, is characterized by symptomatology that results in total occupational and social impairment. In this regard, the Veteran's TBI residuals, including his service-connected mood disorder, have caused significant cognitive impairment which impacts his ability to function socially as well as his ability to obtain and maintain employment. In light of this severe disability picture, the Board concludes that a 100 percent disability rating is warranted for the entirety of this appeal. One of the most significant effects of the Veteran's service- connected disability is the impact the TBI had on his cognitive abilities. More specifically, throughout this appeal, the Veteran has demonstrated impairment in his memory, thought process and content, and language and speech skills consistent with a 100 percent disability rating. In this regard, the Veteran's thoughts have been noted to be "irrational, almost delusional," "loosely organized," "severely disturbed" with flight of ideas, "bizarre," and "disjointed." See VA Psychiatry Note dated March 19, 2004; June 2004 VA Examination Report; VA Inpatient Mental Health Note dated November 6, 2004; VA Psychology Evaluation Note dated June 9, 2006; VA Psychiatry Note dated February 8, 2007. As far as expressing himself, nearly all of the Veteran's examining and treating physicians have commented on his inability to communicate what he is thinking and/or feeling. See, e.g., VA Neuropsychiatric Evaluation Report dated September 29, 2004. His speech is often blocked (consistent with aphasia), and the Veteran has demonstrated an inability to name objects. See June 2004 VA Examination Report. Memory functions have been measured as low to average. See VA Neuropsychiatric Evaluation Report dated September 29, 2004. In addition to his thought and speech problems, the Veteran consistently exhibits bizarre, and often inappropriate, behavior, including ritualistic behaviors. Treatment records are rife with reference to his constant movements, including rocking back and forth and tapping his feet. He is often described as figidity. See VA Psychology Evaluation Note dated June 9, 2006; VA Psychiatry Note dated February 8, 2007; January 2008 VA Examination Report. The Veteran has also been noted to laugh (or smile) inappropriately during conversation; one examiner indicated that it appeared the Veteran was in own world. See VA Neuropsychiatric Evaluation Report dated September 29, 2004. Multiple examiners noted during this appeal that the Veteran will often stop talking during a conversation and that he will then display a vacant stare. The Veteran does not endorse audio or visual hallucinations; however, in February 2007 he indicated that he wished he did so. See VA Psychiatry Note dated February 8, 2007. Further evidence of inappropriate behavior is shown by the Veteran's act of removing his shoes and clipping his toenails during a June 2004 VA examination. He has also been observed to pick at the floor. See VA Psychiatry Note dated February 8, 2007. Regarding ritualistic behaviors, the Veteran often makes repetitive comments; at a June 2006 psychological evaluation he indicated disappointment with not being allowed to close the door and proceeded to straighten the examiner's coat hangers. See VA Psychology Evaluation Note dated June 9, 2006; VA Neuropsychiatric Evaluation Report dated September 26, 2004; VA Psychiatry Note dated February 8, 2007. All of the above symptoms demonstrate an individual that has cognitive impairment suggestive of a 100 percent disability rating. See VA Mental Health Note dated August 11, 2005 (the Veteran is obviously brain injured); January 2008 VA Examination Report (the Veteran has "really impaired" cognitive functions). In addition to his cognitive problems, the competent evidence of record reveals symptomatology demonstrative of total social and occupational impairment. First, despite living in an apartment by himself throughout this appeal, the Veteran's VA records reflect that he is closely monitored and assisted by a social worker. The role of the Veteran's social worker has varied during this appeal, but in general, includes near-daily to daily contact with the Veteran, assistance with grocery shopping, medication management, and appointments. See VA Case Management Notes dated May 3, 2005, and November 2, 2005. The Veteran's records reflect that he receives little to no support from his family, and that he relies heavily on the VA social work service for maintaining his activities of daily living. As early as June 2005, it was suggested by social work that the Veteran consider living in a group home or assisted living facility; he refused. See VA Psychotherapy Note dated June 2, 2005. See also VA Neuropsychiatric Evaluation Report dated May 15, 2006. Regarding employment, the Veteran did work as a janitorial volunteer at the VA Medical Center for a period during this appeal. However, there is sufficient competent evidence that his dementia due to head trauma with deficits in memory, abstract thinking, and verbal fluency, and mood disorder prevents him from obtaining and maintaining any substantially gainful employment. The June 2004 VA examiner opined that the Veteran was unemployable in either a physical or sedentary capacity other than in a sheltered workshop setting. Similarly, the Veteran's psychotherapist indicated that the Veteran's ambitions of becoming a police officer, masseur, or infantryman, were likely unattainable in light of his cognitive impairments. See VA Psychotherapy Note dated April 23, 2004. Rather, the Veteran was judged to be capable of only simple filing tasks. Id.; see also VA Mental Health Note (states that the Veteran is "incapable of gainful employment"). The Veteran's difficulties with maintaining his activities of daily living also suggests that employment would be difficult. In this regard, although the Veteran was handling his own finances up through 2007, there is evidence that he consistently had money shortage problems. He was declared incompetent for VA purposes in February 2008, and he no longer handles his VA compensation benefits. Regarding his personal hygiene, the Veteran informed his social worker in March 2006 that he does not bathe or brush his teeth on a regular basis. His hygiene was noted to be poor in November 2004 while hospitalized. Also contributing to the Veteran's occupational impairment is his inability to function socially. Throughout this appeal, the Veteran has shown, for all intents and purposes, complete social isolation. There is evidence that he may occasionally spend time with an older female neighbor; however, the status of this relationship is questionable since the Veteran also reported in August 2006 that this neighbor indicated that she did not want to see the Veteran any longer. See VA Case Management Note dated August 1, 2006. When asked about friendships, the Veteran indicated that he was unsure whether he had any friends. See VA Neuropsychiatric Evaluation Report dated September 29, 2004. Most of his time is spent alone in his apartment watching television and playing video games. As noted above, he does not have a close relationship with his family. The Veteran indicated in May 2006 that he was lonely. In addition to reporting loneliness in May 2006, the Veteran demonstrated a heightened endorsement of clinical depression. Review of the claims file reflects that he has shown symptoms of depression throughout this appeal. The most recent VA examination indicates that he is on medication for his depression. See January 2008 VA Examination Report. The Veteran's depression appears to be quite severe; one examiner described him as "depressed, angry, socially isolated with low self-esteem and hopelessness." See VA Neuropsychiatric Evaluation Report dated September 29, 2004. He has also endorsed suicidal ideation on multiple occasions. See VA Psychiatry Note dated March 19, 2004; VA Psychology Evaluation Note dated June 9, 2006. In November 2004, the Veteran was admitted for inpatient evaluation following an intentional drug overdose. The record contains Global Assessment of Functioning (GAF) scores ranging from 45 to 58 throughout this appeal. GAF scores are a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995). The DSM-IV contemplates that the GAF scale will be used to gauge a person's level of functioning at the time of the evaluation (i.e., the current period) because ratings of current functioning will generally reflect the need for treatment or care. The Veteran's scores indicate symptomatology ranging from moderate to serious or evidence of moderate to serious impairment in social, occupational, or school functioning. While these scores may not be especially supportive of a 100 percent disability rating, the Board observes that GAF scores are not to be viewed outside the context of the entire record. Therefore, they will not be relied upon as the sole basis for the Board's determination. As discussed above, the Board is of the opinion that the Veteran's dementia due to head trauma with deficits in memory, abstract thinking, and verbal fluency, and mood disorder, is characterized by severe cognitive impairment which significantly impacts his social and occupational functioning. Moreover, a number of medical professionals have deemed the Veteran to be unemployable as a result of his impairments. Therefore, with consideration of all the competent evidence of record, the Board finds that the Veteran has demonstrated symptomatology warranting a 100 percent disability rating for dementia due to head trauma with deficits in memory, abstract thinking, and verbal fluency, and mood disorder for the entirety of this appeal. Thus, his appeal is granted. II. Splenectomy The Veteran's service-connected splenectomy has been evaluated under the provisions of 38 C.F.R. § 4.117, Diagnostic Code 7706 (2008). This diagnostic code provides for a 20 percent maximum schedular rating for a splenectomy. The Veteran was evaluated during the pendency of this appeal; however, other than his already-service-connected residual splenectomy scar, there was no competent medical evidence of any residuals or complications of the Veteran's in-service splenectomy. See, e.g., January 2008 VA Examination Report (no subjective complaints of bleeding, gastrointestinal symptoms, lymph node, or other symptoms, nor any objective signs of splenomegaly, hepatomegaly, bleeding, anemia, jaundice, etc...). Absent any other residuals with which to rate the Veteran's disability, it appears that he is already in receipt of the maximum schedular disability rating applicable to his service-connected disability. As such his claim must be denied. The Board observes that it considered whether a referral for extraschedular consideration was raised by the record. See 38 C.F.R. § 3.321 (2008). In other words, the Board considered whether the evidence VA "presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate." Thun v. Peake, 22 Vet. App. 111, 115 (2008). However, as noted above, there is no competent medical evidence of any residuals of the Veteran's splenectomy other than his service-connected scar. Thus, it appears that the schedular criteria adequately compensate for any loss in earning capacity, and referral for extraschedular consideration is not warranted. Id. ORDER A 100 percent disability rating is granted for dementia due to head trauma with deficits in memory, abstract, thinking, and verbal fluency, and mood disorder, for the entire period of this appeal. Entitlement to a disability rating in excess of 20 percent for splenectomy is denied. REMAND The record reflects that the Veteran is currently in receipt of Social Security disability benefits, presumably for the disabilities that are a result of his motor vehicle accidents and traumatic brain injury. See VA Case Management Record dated April 2, 2007. In order to ensure that the Veteran's remaining increased rating claims are adjudicated on the basis of a complete evidentiary record, the Board is of the opinion that all evidence, including medical records and SSA evaluations, relating to these benefits should be obtained. See Murincsak v. Derwinski, 2 Vet. App. 363 (1992); see also 38 C.F.R. § 3.159(c)(2) (2008). Accordingly, the case is REMANDED for the following action: 1. Obtain copies of any SSA disability benefit determinations as well as any copies of the records on which such determinations were based. A response, negative or positive, should be associated with the claims file. Requests must continue until the agency of original jurisdiction determines that the records sought do not exist or that further efforts to obtain those records would be futile. 2. After completion of the above, and any other development deemed necessary, review the expanded record and determine if the Veteran has submitted evidence sufficient to warrant entitlement to the benefits sought. Unless the benefits sought on appeal are granted, the Veteran and his representative, if any, should be furnished an appropriate supplemental statement of the case and afforded an opportunity to respond. The appellant has the right to submit additional evidence and argument on the matter or matters 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 of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims 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). ______________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs