Citation Nr: 1126296 Decision Date: 07/13/11 Archive Date: 07/19/11 DOCKET NO. 09-45 198 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to a disability rating in excess of 10 percent for fatigue. 2. Entitlement to a compensable disability rating for memory loss. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. WITNESSES AT HEARING ON APPEAL Appellant and her friend ATTORNEY FOR THE BOARD Rebecca Feinberg, Counsel INTRODUCTION The Veteran served on active duty from September 1983 to May 1990. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which issued the decision. The Veteran's claims were thereafter handled by the Pittsburgh, Pennsylvania RO. In January 2010, the Veteran and her friend testified at a hearing before a Decision Review Officer at the RO. A transcript of the hearing is associated with the claims file. The issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran's fatigue is characterized by near-constant symptoms which sometimes restrict her daily activities. 2. The Veteran's memory loss is characterized by mild symptoms, which occasionally interfere with her ability to complete tasks. CONCLUSIONS OF LAW 1. The criteria for a 20 percent rating, and no higher, for service-connected fatigue have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.88b, Diagnostic Code 6399-6354 (2010). 2. The criteria for a 10 percent rating, and no higher, for service-connected memory loss have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.130, Diagnostic Code 9399-9326 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010). Proper notice from VA must inform the claimant of any information and 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 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including: (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). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. The Board acknowledges that, in the present case, complete notice was not issued prior to the adverse determination on appeal. Under these circumstances, such notice errors may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as an SOC or SSOC, is sufficient to cure a timing defect). In this case, the VCAA duty to notify was satisfied through letters dated in June 2007, which was prior to the initial adjudication of the claims, and February 2009, which was following the initial adjudication of the claims. Thereafter, the claims were readjudicated with the issuance of a supplemental statement of the case in February 2010. Consequently, the Board finds that any timing deficiency has been appropriately cured and that such deficiency did not affect the essential fairness of the adjudication. Next, VA has a duty to assist the Veteran in the development of the claims. To that end, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claims for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2010). The RO has obtained the Veteran's VA treatment records. Furthermore, the Veteran was afforded VA examinations in July 2007 and April 2008. She also underwent VA neuropsychological evaluation in October 2008. Together, these records, which were completed by medical professionals, provide the Veteran's history and current symptoms with conclusions regarding their impact on her functioning. Therefore, the examinations and evaluation, taken as a whole, are adequate to rate the claims on appeal. Furthermore, while the Veteran has reported that she has been in receipt of Social Security Administration benefits, she indicated that this began in 2000, many years before she initiated this claim for an increased rating. Therefore, those records are not pertinent to the claims currently on appeal. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). In addition to the evidence discussed above, the Veteran's written and oral statements are of record. No available outstanding evidence has been identified. For the above reasons, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the appellant in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Analysis Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and there must be emphasis upon the limitation of activity imposed by the disabling condition. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Staged ratings are appropriate in any increased rating or initial rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). Fatigue The Veteran's fatigue is rated 10 percent disabled under the criteria of 38 C.F.R. § 4.88b, Diagnostic Code 6399-6354 (2010). When an unlisted disease or injury is encountered, it will be rated by analogy under a diagnostic code built up using the first 2 digits from that part of the Rating Schedule most closely identifying the body part or system affected and by using "99" for the last 2 digits. Hyphenated diagnostic codes will be used where a disability is rated on the basis of its residuals. 38 C.F.R. § 4.27. Here, the Veteran's fatigue is rated by analogy to the criteria for chronic fatigue syndrome. Under Diagnostic Code 6354, debilitating fatigue, cognitive impairments (such as inability to concentrate, forgetfulness, confusion), or a combination of other signs and symptoms, which wax and wane but result in periods of incapacitation of at least one but less than two weeks total duration per year, or; symptoms controlled by continuous medication warrants a 10 percent rating. Symptoms which are nearly constant and restrict routine daily activities by less than 25 percent of the pre-illness level, or; which wax and wane, resulting in periods of incapacitation of at least two but less than four weeks total duration per year, warrant a 20 percent rating. Symptoms which are nearly constant and restrict routine daily activities to 50 to 75 percent of the pre-illness level, or; which wax and wane, resulting in periods of incapacitation of at least four but less than six weeks total duration per year warrants a 40 percent rating. Symptoms which are nearly constant and restrict routine daily activities to less than 50 percent of the pre-illness level, or; which wax and wane, resulting in periods of incapacitation of at least six weeks total duration per year warrant a 60 percent evaluation. A 100 percent disability rating is assigned for symptoms which are nearly constant and so severe as to restrict routine daily activities almost completely and which may occasionally preclude self-care. A note following the rating criteria indicates that, for purposes of evaluating this disability, the condition will be considered incapacitating only while it requires bed rest and treatment by a physician. A July 2006 VA outpatient treatment record shows that the Veteran complained of mildly increased fatigue. The August 2006 VA examination report shows that the Veteran complained of increased fatigue. In September 2006 written statements, the Veteran's sister and friend indicated that she was always tired. A June 2007 VA outpatient treatment record shows that the Veteran noted an increase in problems with daytime sleepiness, which required frequent naps. In July 2007, the Veteran underwent VA examination. She reported increased fatigue. She has noticed no improvement with medication and reports fatigue 100 percent of the time. She napped in the afternoon. The Veteran had no difficulty bathing or dressing due to fatigue. She did have difficulty with home activities, including cooking, cleaning, yard work, and laundry. It did not interfere with her bathing or dressing. She experienced progressive weakness during the day and complained of more fatigue and weakness for up to two days following her weekly interferon injections. In April 2008, the Veteran underwent VA examination. She endorsed fatigue that had been very slowly progressive since her initial diagnosis of multiple sclerosis. The examiner noted that the Veteran demonstrated some fatigue that was resistant to medication. An October 2008 VA treatment record shows that the Veteran routinely performed household chores, such as cleaning, meal preparation, and shopping. She was independent in the performance of all activities of daily living. In January 2010, the Veteran testified before a Decision Review Officer at the RO. She stated that her fatigue could last up to a month. Even when it disappeared, it returned every couple of months. On those occasions, she felt completely worn out and was unable to do anything but lay on the couch. Several medications were ineffective, so she was no longer taking any. When she was having one of her fatigue spells, her friend testified that she came and took care of the household work for the Veteran. She reported instability and indicated that her fatigue severely limited her activities. She estimated that she had six to eight episodes of this fatigue every year. Based on a review of the record, the Board finds that the evidence supports a finding that the Veteran's fatigue warrants a 20 percent rating under the criteria of Diagnostic Code 6354. Specifically, it appears that the Veteran suffers from fatigue that is near-constant, which she reported during her July 2007 VA examination. However, while she reported some impact on her home activities at that time, she indicated during October 2008 VA treatment that she regularly performed cleaning, meal preparation, and shopping and was independent in all of her activities of daily living. Therefore, while the Board finds that the Veteran's fatigue symptoms, as reported by her, are near-constant, there is no evidence that they resulted in routine daily activities being reduced to 50 to 75 percent of their pre-illness level. Nor is there evidence that she experienced incapacitation of at least four weeks duration per year. While the Veteran reported such incapacitation, there is no evidence that it required bed rest and treatment by a physician, as the rating criteria outlines. The Board has also considered the applicability of other diagnostic codes for rating this disability, but finds that no other diagnostic code provides a basis for higher rating. As such, the Board finds that the evidence is at least in equipoise as to whether the Veteran's fatigue disability warrants a 20 percent rating. Therefore, this rating is granted. With regard to any rating in excess of 20 percent, the evidence preponderates against the claim, and it is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Memory Loss The Veteran's memory loss is rated noncompensable under the criteria of 38 C.F.R. § 4.130, Diagnostic Code 9399-9326 (2010). The Veteran's memory loss is rated as analogous to dementia due to other neurologic or general medical conditions or that are substance-induced. Such disability is evaluated under the General Rating Formula for Mental Disorders. Under these criteria, when a mental condition has been formally diagnosed, but symptoms are not severe enough either to interfere with occupational and social functioning or to require continuous medication, a noncompensable (zero percent) evaluation is warranted. Occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication warrants a 10 percent evaluation. A 30 percent disability rating is in order when there is 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 conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is warranted 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; difficulty in establishing and maintain effective work and social relationships. A 70 percent rating is warranted where 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 a worklike setting); inability to establish and maintain effective relationships. A 100 percent rating is warranted where there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; 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 or place; memory loss for names of close relatives, own occupation, or own name. Psychiatric examinations frequently include assignment of a Global Assessment of Functioning (GAF) score. According to the Fourth Edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-IV), GAF is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." There is no question that the GAF score and interpretations of the score are important considerations in rating a psychiatric disability. See e.g., Richard v. Brown, 9 Vet. App. 266, 267 (1996); Carpenter v. Brown, 8 Vet. App. 240 (1995). However, the GAF score assigned in a case, like an examiner's assessment of the severity of a condition, is not dispositive of the evaluation issue; rather, the GAF score must be considered in light of the actual symptoms of the Veteran's disorder, which provide the primary basis for the rating assigned. See 38 C.F.R. § 4.126(a). The August 2006 VA examination report shows that the Veteran complained of decreased concentration and difficulty following conversations. Short-term memory had decreased. On examination, attention and concentration was normal. In September 2006 written statements, the Veteran's sister and friend indicated that her memory had noticeably gotten worse. In July 2007, the Veteran underwent VA examination. She reported memory loss and forgetfulness for years. She forgot conversations or things that had been told to her. Her Mini Mental Status Exam was 28/30, and she was only able to recall one of three on an examination. In a November 2007 written statement, the Veteran indicated that her memory problems were mostly limited to her repeating herself or forgetting entire conversations. In April 2008, the Veteran underwent VA examination. She endorsed slowed cognition that had been very slowly progressive since her initial diagnosis of multiple sclerosis. On examination, she had normal serial 7s. She had 2/3 recall with no cues and then 3/3 with cues. She was able to follow commands. The examiner noted that the Veteran demonstrated some mild memory loss. October 2008 VA treatment records show that the Veteran underwent neuropsychological testing due to her complaints of memory loss. She indicated that she forgot complete conversations. She also occasionally forgot to give herself medication. She underwent testing due to her complaints of memory loss. With regard to attention and concentration, simple span and complex divided auditory attention fell in the average range. However, variability across trials suggested difficulties in sustaining complex attention. Visuo-spatial attention and concentration appeared to be intact. Verbal memory appeared to be intact. Short and long delay free recall and recognition performance fell in the average range. There were mild difficulties in visual memory. Executive function was mildly impaired. Simple numeric and alphanumeric sequencing abilities were intact, but they were hampered by slowed processing speed. Complex problem solving and concept formation were impaired. In conclusion, it was noted that test results were most notable for motor difficulties. Cognitively, difficulties were observed in complex divided auditory attention, verbal encoding, visuo-constructional skills, and executive/frontal function. Executive difficulties included poor problem solving, poor concept formation, and poor abstract thinking abilities. The diagnoses were cognitive disorder, not otherwise specified; depression, not otherwise specified; and alcohol abuse. Her GAF score was 60. In January 2010, the Veteran testified before a Decision Review Officer at the RO. She testified that she often forgot conversations that happened the day before. Her friend testified that she constantly repeated things. This happened every day and every time she talked to the Veteran. She forgot to take care of hygiene and household things. Based on the record, the Board finds that a 10 percent disability rating is warranted for the Veteran's memory loss under the criteria of the General Rating Formula for Mental Disorders. Specifically, the October 2008 VA outpatient treatment record documenting that the Veteran was tested shows that she had a cognitive disorder that resulted in mild memory loss. This memory loss, as described by the Veteran and her friend during her January 2010 RO hearing, causes some occupational and social impairment. Therefore, a 10 percent rating is warranted. However, a rating higher than 10 percent is not warranted here, because there is no evidence that the Veteran's memory loss, alone, causes occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. As noted above, the Veteran reported in October 2008 that she routinely completed household chores and tasks. While the Veteran was assigned a GAF score of 60 in October 2008, she was also diagnosed with depressive disorder and alcohol abuse, and this GAF score was provided on the basis of all three diagnosed disorders. Therefore, it does not provide a basis to assign a disability rating in excess of 10 percent. As such, the Board finds that the evidence is at least in equipoise as to whether the Veteran's memory loss disability warrants a 10 percent rating. Therefore, this rating is granted. With regard to any rating in excess of 10 percent, the evidence preponderates against the claim, and it is denied. Gilbert v. Derwinski, supra. Extraschedular Consideration The Board has also considered whether referral for extraschedular consideration is suggested by the record. There is neither evidence nor allegation of symptoms of and/or impairment due to fatigue and memory loss that are not encompassed by the schedular rating assigned. The functional impairment shown, of decreased ability to complete activities and mild memory loss are fully encompassed by the schedular rating criteria. Therefore, those criteria are not inadequate, and referral for extraschedular consideration is not warranted. 38 C.F.R. § 3.321(b); Thun v. Peake, 22 Vet. App. 111 (2008). ORDER A 20 percent disability rating for fatigue is granted, subject to the laws and regulations governing the payment of VA benefits. A 10 percent disability rating for memory loss is granted, subject to the laws and regulations governing the payment of VA benefits. REMAND The August 2006 VA examination report shows that the Veteran indicated that she last worked in 2000 and was unable to continue that job due to her multiple sclerosis, fatigue, forgetfulness, and decreased concentration. She stated on her October 2009 VA Form 9 that she was unable to work because of her chronic fatigue, back problems, and memory loss. Given the Veteran's assertions made in connection with the claim for higher rating on appeal, the Board finds the claim for a TDIU is essentially a component of the claims for higher ratings. See Rice v. Shinseki, 22 Vet. App. 447 (2009). See also Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001) (holding that where a veteran submits evidence of a medical disability; makes a claim for the highest rating possible; and submits evidence of unemployability, the requirement in 38 C.F.R. § 3.155(a) that an informal claim "identify the benefit sought" has been satisfied and VA must consider whether the veteran is entitled to a TDIU). The Board notes, however, that the RO has not considered the Veteran's entitlement to a TDIU. Thus, the Board finds that, after giving the Veteran an opportunity to file a formal claim for a TDIU, the RO should adjudicate this matter in the first instance, to avoid any prejudice to the Veteran. See e.g. Bernard v. Brown, 4 Vet. App. 384, 393 (1993). Accordingly, the case is REMANDED for the following action: 1. Furnish to the Veteran a VA Form 21-8940, to enable her to file a formal application for a TDIU. 2. Send to the Veteran and her representative a letter requesting that the Veteran furnish any additional information and/or evidence pertinent to the claim for a TDIU. The RO's letter should specifically explain how to establish entitlement to a TDIU. The RO should also clearly explain to the Veteran that she has a full one-year period to respond (although VA may decide the claim within the one-year period). 3. After completion of the above and any additional development deemed necessary, adjudicate the claim for a TDIU. If any benefit sought remains denied, the Veteran should be furnished an appropriate supplemental statement of the case and be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. 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. 2010). ______________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs