Citation Nr: 1306918 Decision Date: 02/28/13 Archive Date: 03/01/13 DOCKET NO. 06-28 071 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to an initial compensable rating for residuals of a ruptured aneurysm of the left internal carotid artery. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and a friend ATTORNEY FOR THE BOARD J. T. Hutcheson, Counsel INTRODUCTION The Veteran had active service from May 1985 to September 1993. This matter came before the Board of Veterans' Appeals (Board) on appeal from a February 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia, which granted service connection for the following: residuals of a ruptured aneurysm of the left internal carotid artery at 0 percent, left lower extremity weakness as a residual at 10 percent, and headaches as a residual at 30 percent, all with an effective date of September 11, 2000. In May 2007, the RO denied a total rating for compensation purposes based on individual unemployability (TDIU). In September 2008, the Veteran was afforded a hearing before the undersigned Veterans Law Judge sitting at the Columbia, South Carolina, RO. A hearing transcript was prepared and incorporated into the record. In February 2009, the Board denied earlier effective dates, granted a TDIU, and remanded the claims for higher ratings to the RO for additional development. In December 2009, the RO granted service connection for a left eye disability as a residual at 10 percent. In December 2011, the Board increased the rating for left lower leg weakness to 20 percent and again remanded the issue of an increased rating for aneurysm residuals to the RO for additional development. The Board has reviewed both the Veteran's physical claims files and her "Virtual VA" file so as to insure a total review of the evidence. The issue of the evaluation for the Veteran's aneurysm residuals for the period on and after March 11, 2001, is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required on her part. FINDING OF FACT The Veteran experienced a hemorrhage from a brain vessel. CONCLUSION OF LAW The criteria for a 100 percent rating for residuals of a ruptured aneurysm of the left internal carotid artery for a 6 month period commencing September 11, 2000, have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.326, 4.124a, Diagnostic Code (DC) 8009 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified 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. 38 C.F.R. § 4.1 (2012). Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2012). However, 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 separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. 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 C.F.R. § 4.3. While a veteran's entire history is reviewed when assigning a disability evaluation, where service connection has already been established and an increase in the rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). In determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. Historically, the Veteran experienced a sudden onset of headache in December 1995. She was diagnosed with a subarachnoid hemorrhage and a 4 mm aneurysm of the left internal carotid artery was identified. She subsequently underwent a left frontotemporal craniotomy, an oval osteotomy, and clipping and wrapping of the aneurysm. In February 2006, the RO granted service connection for a ruptured aneurysm of the left internal carotid artery and she was assigned a noncompensable rating under DC 7110 (by analogy to aortic aneurysm). In December 2011, the Board remanded the issue with instructions to rate the disability as a large artery under DC 7111. In the VA examination undertaken a part of that remand, the examiner pointed out that the examination for DC 7111 was not applicable to the Veteran; rather, he notes that her residuals included left upper and lower extremity weakness and numbness, headaches, visual changes, and numbness across the temple. Upon further consideration, the Board finds that the appropriate diagnostic code under which to rate the Veteran's disability is DC 8009 (hemorrhage from a brain vessel). Under this code, a hemorrhage from vessels of the brain is to be evaluated as 100 percent disabling for six months. Thereafter, the disability is to be evaluated based upon any chronic residuals thereof. A minimum 10 percent evaluation will be assigned. 38 C.F.R. § 4.124a, DC 8009 (2012). VA's prior utilization DCs 7110 (pertaining to aortic aneurysms) and 7111 (pertaining to aneurysms of any large artery) and assignment of an initial noncompensable evaluation for the Veteran's ruptured aneurysm of the left internal carotid artery under either of those codes was erroneous given the specific applicability of DC 8009. Therefore, the Board makes the following finding: service connection for the Veteran's ruptured aneurysm was established as of September 11, 2000, and the Board denied an effective date prior to that time. Although by the time of the effective date of the award, the ruptured aneurysm had occurred nearly 5 years previously, DC 8009 does not limit the commencement of the 6-month period for a 100 percent rating. As such, applying the rule of resolving interpretive doubt in a veteran's favor, the Board finds that a 100 percent rating is warranted for a 6-month period commencing September 11, 2000, pursuant to DC 8009. See Brown v. Gardner, 513 U.S. 115 (1994) ("interpretive doubt is to be resolved in the veteran's favor") (as quoted in Hazan v. Gober, 10 Vet. App. 511, 521 (1997)). The evaluation of the Veteran's chronic residuals subsequent to the 6-month period commencing September 11, 2000, is the subject of the Remand portion of the decision below. The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper VCAA notice must inform the claimant of any information and evidence not of record that: (1) is necessary to substantiate the claim; (2) VA will seek to provide; and (3) the claimant is expected to provide. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (1) (2012). In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable decision on the claim for VA benefits. In the decision above, the Board grants a 100 percent schedular evaluation for the Veteran's ruptured aneurysm for a 6-month period commencing September 11, 2000. Therefore, no discussion of VA's duties to notify and to assist is necessary. ORDER A 100 percent schedular evaluation is warranted for residuals of a ruptured aneurysm of the left internal carotid artery for a 6-month period commencing September 11, 2000, subject to the law and regulations governing the award of monetary benefits. REMAND As noted above, the provisions of DC 8009 direct that after an initial 6-month period, the residuals of a blood vessel hemorrhage are to be evaluated. The Veteran is already in receipt of ratings for residuals related to the left lower extremity, headaches, and visual impairment; however, she has also reported weakness in the left upper extremity and numbness/swelling at the site of the surgical scar. In light of the claim of additional residuals, an examination is needed for evaluation purposes. Further, clinical records dated after February 2012 are not associated with the claims file. VA should obtain all relevant VA and private clinical documentation which could potentially be helpful in resolving the claim. Accordingly, the case is REMANDED for the following actions: 1. Obtain VA clinical records from the Columbia and Charleston (SC) VAMCs for the period since February 2012. Any relevant treatment records contained in the Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review. 2. Schedule the Veteran for an examination in order to determine the current nature and severity of chronic residuals associated with a ruptured aneurysm of the left internal carotid artery, with emphasis on the left upper extremity and the surgical scar site. All relevant medical records, including those in the claims folders, should be made available to the examiner for review of pertinent documents therein. The examination report should specifically state that such a review was conducted. A rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. However, if the requested opinion cannot be provided without resort to speculation, the examiner should so state and explain why an opinion cannot be provided without resort to speculation. 3. After the requested examination has been completed, the examination report or reports should be reviewed to ensure that they are in compliance with the directives of this Remand. The report or reports should be returned to the examiner or examiners if they are deficient in any manner. 4. Thereafter, ensure that the development above has been completed in accordance with the remand instructions and undertake any other development action that is deemed warranted. Then readjudicate the Veteran's claim. If the benefits sought on appeal remain denied, the Veteran and her representative should be provided a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for response before the case is returned to the Board. The Veteran 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 or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ L. HOWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs