Citation Nr: 1132576 Decision Date: 09/02/11 Archive Date: 09/12/11 DOCKET NO. 06-19 045 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to an increased disability evaluation for chronic encephalitis residuals and chronic brain syndrome, currently evaluated as 10 percent disabling. 2. Entitlement to a total rating on the basis of individual unemployability due to service- connected disability (TDIU). ATTORNEY FOR THE BOARD T. Stephen Eckerman, Counsel INTRODUCTION The Veteran had active service from November 1968 to March 1970. This matter came before the Board of Veterans' Appeals (Board) on appeal from an April 2006 rating decision of the Detroit, Michigan, Regional Office (RO) which denied an increased disability evaluation for the Veteran's chronic encephalitis residuals and chronic brain syndrome. In July 2008 and April 2009, the Board remanded the claim for additional development. The issue of entitlement to a total rating on the basis of individual unemployability due to service-connected disability (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. FINDING OF FACT The Veteran's service-connected chronic encephalitis residuals and chronic brain syndrome is shown to be productive of complaints of nervousness; his disorder is not shown to have not resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. CONCLUSION OF LAW The schedular criteria for the assignment of a rating in excess of 10 percent for service-connected chronic encephalitis residuals and chronic brain syndrome have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.130, Diagnostic Code 9301 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION I. Increased Rating The Veteran asserts that he is entitled to an increased disability evaluation for chronic encephalitis residuals and chronic brain syndrome, currently evaluated as 10 percent disabling. In June 1970, the RO granted service connection for chronic encephalitis residuals and chronic brain syndrome evaluated as 10 percent disabling. There was no appeal, and the RO's decision became final. See 38 U.S.C.A. § 7105(c) (West 2002 & Supp. 2009). In July 2005, the Veteran filed a claim for an increased rating. In April 2006, the RO denied the claim. The Veteran has appealed. The Board notes that in May 2011, the RO granted service connection for essential tremor. Therefore, the Veteran may not be compensated for the symptoms of this disorder in association with his claim for chronic encephalitis residuals and chronic brain syndrome. See 38 C.F.R. § 4.14 (2010). Disability evaluations are determined by comparing the veteran's present symptomatology with the criteria set forth in the VA's Schedule for Ratings Disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § Part 4. 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The RO has evaluated the Veteran's encephalitis residuals and chronic brain syndrome under 38 C.F.R. § 4.130, Diagnostic Code (DC) 9301. Under DC 9301, a 10 percent evaluation is assigned for 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. A 30 percent rating is assigned 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 satisfactory, 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; or mild memory loss (such as forgetting names, directions, recent events). Id. The Global Assessment of Functioning (GAF) scale is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health- illness." Diagnostic and Statistical Manual of Mental Disorders 32 (4th ed. 1994). Global assessment of functioning (GAF) scores ranging between 61 to 70 reflect some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, and has some meaningful interpersonal relationships. Scores ranging from 51 to 60 reflect more moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co- workers). Scores ranging from 41 to 50 reflect serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational or school functioning (e.g., no friends, unable to keep a job). See Quick Reference to the Diagnostic Criteria from DSM-IV at 47 (American Psychiatric Association 1994) ("QRDC DSM-IV"). The Board first notes that each disability must be viewed in relation to its history. 38 C.F.R. § 4.1 (2010). The Veteran's service treatment reports show that in July 1969, he was hospitalized for about ten days, with diagnoses of encephalitis, Japanese B, and chronic brain syndrome. He was noted to have a history of fever and grand mal seizures. Reports, dated in 1970, indicate that he exhibited depression and signs of personality changes, that he had a "definite impairment of social and industrial adaptability," and that he was found to be unfit for service. The post-service medical evidence includes a May 1970 VA examination report which noted that no clear-cut neurological disease was found, and that there was a history of organic brain syndrome with "almost complete remission - now only manifested by absent-mindedness by the veteran's account." The report further noted "slight, if any, degree of either vocational or social inadaptability on a neurological or psychiatric basis," with a good prognosis for a continued adjustment at this level, or "even for some further improvement." A May 1985 VA examination report noted complaints of nervousness and hand-shaking, and showed that the Veteran reported drinking two cases of beer per day. The diagnosis noted that history of encephalitis viral type with organic brain syndrome was "in almost complete remission," and "indications of excessive use of alcohol with concomitant complaint of tremors." VA examination reports, dated in 1991, noted complaints of depression, worsening "nerves," and hand tremors "which are often present in the morning but usually go away." He was noted to have anxiety characterized by symptoms that included muscle tension, trembling, and irritability. The Axis I diagnosis was anxiety disorder, not otherwise specified. The Axis V diagnosis was a GAF score of 70. A neuropsychological examination report noted mild to moderate neuropsychological impairment, with losses in intellectual ability, memory, certain cognitive skills, and problem-solving. An August 2000 private treatment report noted complaints of hand-shaking and arm tremors that "the tremor is improved somewhat after he drinks beer." The impression noted a benign essential tremor, and history of encephalitis. A June 2001 private treatment report noted complaints of memory problems, shaking hands, nervousness, and impairment with higher cognitive skills. The Axis I diagnosis was generalized anxiety, and organic brain syndrome. The Axis V diagnosis was a GAF score of 50. A May 2003 VA progress note shows that the Veteran reported a 40-year history of alcoholism, getting intoxicated for 30 years, drinking daily, public intoxication times two, and DWI (driving while intoxicated) times three. The relevant medical evidence for consideration during the time period on appeal includes a VA brain and spinal cord examination report, dated in December 2005, which shows that the Veteran denied any history of recurrence of seizures since his service. He denied being on any anti-convulsants, or a history of hospitalization. He complained of feeling nervous, and having tremors "mainly in the morning." He complained that he could not hold onto jobs, and that he had had three jobs in the past 11/2 years. He asserted that he could not drive due to his tremors. On examination, he could do serial 3's without any difficulty. Object recall was 3 out of 3 after five minutes. Power was 5/5, and tendon reflexes were 3+. There were no cerebellar signs. The assessment was encephalitis in service in 1969, with no recurrence of seizures since 1969. A VA mental disorders examination report, dated in April 2006, shows that the examiner stated that the Veteran's C-file had been reviewed. The Veteran reported that he had divorced his second wife in 1995. He gave a more-than 30-year history of heavy alcohol consumption, and was noted to self-identify as an alcoholic. He stated that he had lost his most recent job when he was demoted from chef to dishwasher due to slowness, forgetfulness, and irritability, and he walked off of the job. He complained of poor sleep. On examination, he smelled of alcohol. Speech was fluent and goal-directed and spontaneously conversational; rate, flow and intensity were increased. He was alert and fully oriented. He had logical thought processes, intact critical judgment, and minimal insight. Immediate recall and remote memory were fair to good, short-term memory was at least mildly impaired. He was not thought-disordered or delusional. He denied auditory and visual hallucinations. Mood was anxious. The Veteran endorsed suicidal thoughts, without plan or intent. He was fully independent in all activities of daily living. The Axis I diagnoses were generalize anxiety disorder, alcohol dependence, cognitive disorder, not otherwise specified. The Axis V diagnosis was a GAF score of 50. The examiner noted that in addition to a generalized anxiety disorder, the Veteran had a mild neurocognitive disorder, and that there had not been a significant abatement or remission of his symptoms since his last VA examination. His symptoms were noted to be serious and to result in marked industrial impairment and moderate social and familial impairment. A VA mental disorders examination report, dated in November 2008, shows that the examiner stated that the Veteran's C-file had been reviewed. The Veteran denied depression, suicidal or homicidal ideation, or any past suicide attempts. He denied hearing voices or seeing things, manic episodes, panic attacks, or anxiety attacks. He reported having a good appetite and sleeping about six hours per day, and feeling rested in the morning. He stated that he rode his bike about ten miles per day. He denied receiving any relevant medical treatment, or medications. He gave a history of being in jail multiple times for drinking-related problems, most recently in 2005. He denied any current legal problems. On examination, there were no signs of psychosis. Speech was spontaneous, coherent and relevant. He was alert and oriented to person, place, and time. He had fair insight and judgment. The Axis I diagnosis was alcohol dependence in early partial remission. The Axis V diagnosis was a GAF score of 61. The examiner noted that the Veteran denied feeling anxious and that he did not meet the criteria for an anxiety disorder, that there were no current signs of memory impairment, that he did not have signs or symptoms of a cognitive disorder, and that he did not have a mental disorder other than his alcohol dependence. The examiner stated that he had mild symptoms, lived in his parent's house, was taking care of himself and enjoying his life, and that he was generally functioning pretty well. A VA examination report, dated in September 2009, shows that the examiner stated that the Veteran's C-file had been reviewed. The Veteran stated that he had not worked since 2005 due to "excessive nervousness and handshaking," and that he was living with his brother. He complained of symptoms that included feeling nervous, a moderate shaking of his hands, and tremors. He reported not having a driver's license, and being unable to drive. The report notes that he did not have crying spells, and indicates that he had occasional suicidal ideation, with no previous attempt. He denied auditory or visual hallucinations, or paranoid thoughts. The report notes that he is not on any medication. On examination, thought processes and communication were intact. He was slightly irritable. There was no psychosis. He was able to carry out independent living activities. There was no suicidal or homicidal ideation, or paranoid thoughts. There were no delusions. He was alert and oriented times three. He remembered 3/3 after five minutes. There was no significant psychomotor agitation, restlessness or fidgetiness. The Axis I diagnosis was organic brain syndrome secondary to chronic encephalitis residual. The Axis V diagnosis was a GAF score of 50. The examiner stated that the Veteran was not on any medication for his Axis I diagnosis, but that use of medications may be helpful. A VA examination report, dated in October 2009, shows that the examiner stated that the Veteran's C-file had been reviewed. The Veteran stated that he had trouble with his nerves, and that he occasionally felt shaky. He denied cranial nerve symptoms. The report notes he has no blackouts or seizures. He reported "a little trouble with his memory but denied other cognitive impairments." Motor strength was 5/5 with tremor, left greater than right, that came out when concentrating on keeping his pencil still. Sensory was intact. The assessment notes an essential tremor, mild in degree. A VA examination report, dated in February 2010, shows that the examiner stated that the Veteran's C-file had been reviewed. The Veteran complained of symptoms that included feeling nervous, a moderate shaking of his hands, and tremors. The report notes that he did not have crying spells, and indicates that he had occasional suicidal ideation, with no previous attempt. He denied auditory or visual hallucinations, paranoid thoughts, delusions, or phobias. The report notes that he is not on any medication. Thought processes and communication were intact. He was slightly irritable. There was no psychosis, and there were no noticeable tremors. No significant depression, and no memory difficulties, were exhibited or reported. There was no history of relevant treatment "for many years." There was no extreme nervousness observed. Thought processes and communication were intact. He was able to carry out independent living activities. On examination, hygiene was "very good." He was tense, anxious, guarded and reserved, with poor to fair eye contact, and restricted affect. There were no suicidal or homicidal ideation, hallucinations, or paranoid thoughts. There were no delusions. He was alert and oriented times three. He remembered that the three words given to him for his "3/3 test" were the same as those from the September 2009. The Axis I diagnosis was organic brain syndrome secondary to chronic encephalitis residual. The Axis V diagnosis was a GAF score of 50. The examiner stated that the Veteran was doing "fairly well" given that he was not on any medication, and that there were no clinically significant memory problems. The examiner essentially indicated that any past memory problems were not due to "Japanese encephalitis which occurred in Vietnam more than 40 years ago." To the extent that the Veteran had reported a desire for a 100 percent rating, the examiner stated that this "does not match with objective findings" as seen in two evaluations. The examiner concluded that the Veteran was functioning "very well," and that there was no point in any additional reevaluation of his organic brain syndrome, which "is not an issue at all." After reviewing the totality of the evidence, the Board finds that a rating in excess of 10 percent is not warranted for the Veteran's encephalitis residuals and chronic brain syndrome. The medical evidence shows that he his complaints primarily related to nervousness. He has always been found to be alert and oriented, with no significant defects in speech. There is no evidence of such symptoms as hallucinations or delusions, phobias, or suicidal or homicidal ideation with plan or intent. Thought processes and communication have been found to be intact. With regard to employment, the evidence indicates that he last worked in 2005. Although he asserts that he cannot work due to psychiatric and/or neurological symptoms, this is not corroborated by his history, or by objective medical findings. In this regard, the Veteran is not shown to have received any treatment for the disability in issue during the entire time period on appeal, nor is he shown to have been taking any relevant medication. In addition, the February 2010 VA examination report shows that the examiner essentially stated that it was unclear whether the Veteran was having withdrawal symptoms from alcohol which caused his tremor and impaired his work, thus "making them prone to fire him." The examiner added, "Please note that patient has not been forthcoming with his current and past alcohol history." The Board points out that a separate rating has been assigned for his essential tremors. The February2010 VA examination report further shows that the examiner stated that the Veteran was functioning "very well," and that there was no point in any additional reevaluation of his organic brain syndrome, which "is not an issue at all." See also November 2008 GAF score of 61 (indicating mild symptoms). To the extent that it may be argued that the two GAF scores of 50 (in 2009) warrant an increased rating, the Board has determined that these GAF scores are not supported by the accompanying findings. Id.; see also Brambley v. Principi, 17 Vet. App. 20, 26 (2003) (indicating that although a GAF Scale score may be indicative of a certain level of occupational impairment, it is only one factor in determining an appellant's degree of disability). In summary, there is insufficient evidence of such symptoms as depressed mood, anxiety, suspiciousness, panic attacks, chronic sleep impairment, or mild memory loss, and the Board finds that the Veteran's encephalitis residuals and chronic brain syndrome are not shown to have been manifested by symptomatology that approximates, or more nearly approximates, the criteria for an evaluation in excess of 10 percent under DC 9301. See 38 C.F.R. § 4.7. Accordingly, the claim must be denied. In deciding the Veteran's increased rating claim, the Board has considered the determination in Hart v. Mansfield, 21 Vet. App. 505 (2007), and whether the Veteran is entitled to an increased rating for separate periods based on the facts found during the appeal period. The Board does not find evidence that the Veteran's chronic encephalitis residuals and chronic brain syndrome should be increased for any separate period based on the facts found during the whole appeal period. The evidence of record in connection with this claim supports the conclusion that the Veteran is not entitled to additional increased compensation during any time within the appeal period. For the reasons stated above, the preponderance of the evidence is against a rating higher than 10 percent for the Veteran's chronic encephalitis residuals and chronic brain syndrome. Thus, the benefit-of-the doubt doctrine does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). II. The Veterans Claims Assistance Act of 2000 The Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2007); 38 C.F.R. § 3.159 (2010). The notification obligation in this case was accomplished by way of letters from the RO to the Veteran dated in August 2005 and July 2008. Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). The RO has provided assistance to the appellant as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. It appears that all known and available service treatment reports, and post-service records relevant to the issue on appeal have been obtained and are associated with the Veteran's claims file. The RO has obtained the Veteran's VA medical records. The Veteran has been afforded several examinations. The Board concludes, therefore, that a decision on the merits at this time does not violate the VCAA, nor prejudice the appellant under Bernard v. Brown, 4 Vet. App. 384 (1993). In April 2009, the Board remanded this claim. The Board directed that the Veteran be scheduled for a VA examination for compensation purposes in order to determine the current nature and severity of the Veteran's chronic encephalitis residuals and chronic brain syndrome. The examiner was requested to specifically state whether or not the Veteran's chronic encephalitis residuals are currently symptomatic. Between September 2009 and February 2010, the Veteran was afforded three examinations. All of the examiners stated that the Veteran's C-file had been reviewed. A review of the February 2010 VA examination report shows that the examiner stated that the Veteran had a history of "Japanese encephalitis which occurred in Vietnam more than 40 years ago," and that he concluded that the Veteran's organic brain syndrome "is not an issue at all." When the 2009 and 2010 findings in the VA examination reports are read in context, the Board finds that there has been substantial compliance with its remand. See Dyment v. West, 13 Vet. App. 141, 146-147 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where Board's remand instructions were substantially complied with); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). Based on the foregoing, the Board finds that the Veteran has not been prejudiced by a failure of VA in its duty to assist, and that any violation of the duty to assist could be no more than harmless error. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). ORDER The appeal is denied. REMAND Once a veteran submits evidence of a medical disability, makes a claim for the highest rating possible, and submits evidence of unemployability, an informal claim for a total disability rating for compensation purposes based on individual unemployability (TDIU) is raised. Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001); 38 C.F.R. 3.155 (2003). In this case, in its decision, supra, the Board noted that the Veteran has repeatedly asserted that he cannot work due to psychiatric and/or neurological symptoms. Therefore, a TDIU claim has been raised. In Rice v. Shinseki, 22 Vet. App. 447 (2009) (per curiam) the Court stated that when the issue of entitlement to a TDIU rating for a particular service-connected disability or disabilities is raised in connection with a claim for an increased rating for such disability or disabilities, the Board has jurisdiction to consider that issue. The Court indicated that if the Board determines that further action by the RO is necessary with respect to the issue, the Board should remand that issue. Here, the RO has not yet adjudicated a claim for TDIU, nor has the Veteran been afforded VCAA notice. Accordingly, the case is REMANDED for the following action: 1. Send the Veteran a VCAA notice letter with respect to the issue of entitlement to TDIU. 2. Develop and adjudicate the issue of entitlement to TDIU. The appellant has the right to submit additional evidence and argument on the matter 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. 2007). ____________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs