Citation Nr: 1325304 Decision Date: 08/09/13 Archive Date: 08/13/13 DOCKET NO. 07-18 025 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to a rating higher than 10 percent for anoxic encephalopathy with residual impairment of cognitive and cerebral functions. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD L. Edwards, Associate Counsel INTRODUCTION The Veteran had active service from October 1980 to May 1982. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a January 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In February 2011, the Board remanded this claim for additional development. That development having been completed, the claim is now ready for appellate review. The Board notes that the appeal also included entitlement to service connection for a left hand and finger disorder; however, this issue was granted in a March 2012 rating decision, and as such, is no longer on appeal. As noted in the February 2011 Board decision, during the pendency of the appeal, the Veteran raised a claim for entitlement to a total disability rating based on individual unemployability (TDIU) due to his service-connected anoxic encephalopathy with residual impairment of cognitive and cerebral function. The RO considered and subsequently denied his claim in the January 2007 rating decision. However, as the Veteran did not submit a notice of disagreement with this issue, a claim regarding TDIU is not in appellate status at this time. The Board notes that the Veteran has resubmitted claims for entitlement to service connection for a low back disorder, a right and left arm and shoulder disorder, a right and left knee disorder, and a right hand and finger disorder. See February 2011 statement. These claims are REFERRED to the RO for appropriate action. FINDINGS OF FACT 1. Prior to March 17, 2011, the Veteran's anoxic encephalopathy with residual impairment of cognitive and cerebral functions was not manifested by multi-infarct dementia with brain trauma. 2. From March 17, 2011, the Veteran's anoxic encephalopathy with residual impairment of cognitive and cerebral functions was manifested by mild impairment in the facets of memory loss, concentration and attention and moderate impairment in the facets of visual spatial orientation, and subjective complaints due to such symptoms as difficulty reading maps, judging distance, fatigability, headaches, and vision problems. CONCLUSIONS OF LAW 1. Prior to March 17, 2011, the criteria for a rating higher than 10 percent for Veteran's anoxic encephalopathy with residual impairment of cognitive and cerebral functions are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.124a, 4.130, Diagnostic Codes 8045, 9304 (effective prior to October 23, 2008); 38 C.F.R. § 4.124a, Diagnostic Code 8045 (2012). 2. From March 17, 2011, the criteria for a rating of 40 percent, but no higher, for the Veteran's anoxic encephalopathy with residual impairment of cognitive and cerebral functions, are met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.124a, 4.130, Diagnostic Codes 8045, 9304 (effective prior to October 23, 2008); 38 C.F.R. § 4.124a, Diagnostic Code 8045 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist As set forth in the Veterans Claims Assistance Act of 2000 (VCAA), the Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012). Under the VCAA, when VA receives a claim, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim; that VA will seeks to provide; and that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the regional office. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In a claim for an increased evaluation, the VCAA requirement is generic notice, that is, namely, evidence demonstrating a worsening or increase in severity of the disability, the effect that worsening has on employment, and general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). Here, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in August 2006 that fully addressed all notice elements. The letter informed the Veteran of what evidence was required to substantiate the claim and of the Veteran and VA's respective duties for obtaining evidence. The Veteran received an additional letter in March 2011. In any event, in his statements and testimony, the Veteran demonstrated his actual knowledge of the elements necessary to substantiate his claim. See Short Bear v. Nicholson, 19 Vet. App. 341, 344 (2005). Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records, pertinent post service medical records, and providing an examination when necessary. Bernard v. Brown, 4 Vet. App. 384 (1993). Service treatment records are associated with the claims folder, as are post-service treatment records. Virtual VA records have been reviewed. The Veteran has been afforded VA examinations pertinent to the issue on appeal. There is no indication that there are any outstanding pertinent documents or records that have not been obtained, or that are not adequately addressed in documents or records contained within the claims folder. The Veteran has also not indicated any intention to provide additional evidence in support of his claim. Thus, VA's duty to assist in the development of the claim is complete, and no further notice or assistance to the Veteran is required to fulfill the duty. 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). II. Entitlement to a Rating Higher Than 10 Percent for Anoxic Encephalopathy with Residual Impairment of Cognitive and Cerebral Functions The Veteran seeks an increased rating for his anoxic encephalopathy with residual impairment of cognitive and cerebral functions. Disability ratings are based on the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 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. In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The determination of whether an increased evaluation is warranted is to be based on a review of the entire evidence of record and the application of all pertinent regulations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The Board has considered the entire record, including the Veteran's VA clinical records and private treatment records. These show complaints and treatment, but will not be referenced in detail. The Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). Therefore, the Board will discuss the evidence pertinent to the rating criteria and the current disability. The Veteran was involved in a motor vehicle accident during service. As a result of his injuries, the Veteran was granted service connection for anoxic encephalopathy with residual impairment of cognitive and cerebral functions in a July 1982 rating decision, at which time a 30 percent rating was assigned, effective May 1982. In a May 1984 rating decision, the Veteran's disability rating was reduced to 10 percent, effective August 1984. In February 2006, the Veteran submitted a claim for entitlement to a rating higher than 10 percent. The criteria for rating traumatic brain injuries (TBI) were revised during the pendency of this appeal. See 73 Fed. Reg. 54693 (Sept. 23, 2008). The effective date for these revisions is October 23, 2008. See 38 C.F.R. § 4.124, Note (5). For claims received by VA prior to that effective date, a Veteran is to be rated under the old criteria for any periods prior to October 23, 2008 but under the new criteria or the old criteria, whichever are more favorable, for any period beginning on October 23, 2008. The claim is to be rated under the old criteria unless applying the new criteria results in a higher disability rating. See VBA Fast Letter 8-36 (October 24, 2008). If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C.A. § 5110(g); VAOPGCPREC 3-2000. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003); VAOPGCPREC 7-2003. Therefore, in this case, prior to October 23, 2008, the Board may apply only the previous version of the rating criteria. As of October 23, 2008, the Board must apply whichever version of the rating criteria is more favorable to the Veteran. Under the previous regulations, Diagnostic Code 8045 provides for the evaluation of brain disease due to trauma. 38 C.F.R. § 4.124a (2008). This Diagnostic Code specifies that purely neurological disabilities are rated under the applicable diagnostic code. Purely subjective complaints, such as headache, dizziness, or insomnia, which are recognized as symptomatic of brain trauma, are rated at 10 percent and no more under Diagnostic Code 9304 (dementia due to head trauma) and may not be combined with any other rating for a disability due to brain trauma. Under Diagnostic Code 9304, a 10 percent rating is warranted when there is occupational and social impairment due to mild or transient symptoms that decrease work efficiency and the ability to perform occupational tasks only during periods of significant stress, or symptoms are controlled by continuous medication. 38 C.F.R. § 4.130, Diagnostic Code 9304 (2008). A rating in excess of 10 percent for brain disease due to trauma under Diagnostic Code 9304 may not be assigned in the absence of a diagnosis of multi-infarct dementia associated with brain trauma. 38 C.F.R. § 4.124a, Diagnostic Code 8045 (2008). Revised Diagnostic Code 8045 states that there are three main areas of dysfunction that may result from TBI and have profound effects on functioning: cognitive (which is common in varying degrees after TBI), emotional/behavioral, and physical. Each of these areas of dysfunction may require evaluation. 38 C.F.R. § 4.124a, Diagnostic Code 8045 (2012). Evaluation assigned is based upon the highest level of severity for any facet, where 0 is equal to 0 percent; 1 is equal to 10 percent; 2 is equal to 40 percent; and 3 is equal to 70 percent. The evidence of record was reviewed. The Veteran asserts that he experiences headaches, as well as dizziness and problems with his memory and balance. See April 2006 statement and April 2012 statement. The Board notes that the Veteran is capable of testifying as to observable symptoms of an injury or illness, as well as the length of time those symptoms have persisted. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). Additionally, VA examination records also provide medical evidence that the Veteran suffers from a mild memory loss, decrease in cognitive function, moderate impairment in visual spatial orientation, and moderate impairment due to subjective symptoms such as headaches, vision problems, and fatigue. The Veteran was afforded a VA examination in September 2006. He reported having balance problems. He did not report memory problems or headaches; however, when prompted, he reported he had headaches approximately one to two times per week. His general appearance was clean and neatly groomed, his psychomotor activity was unremarkable, but his speech was garbled, possibly due to missing teeth. There was no stuttering noted. His affect was appropriate, and he was cooperative and euthymic. The Veteran was intact to person, time, and place. He had no delusions, hallucinations, or inappropriate behavior. His attention was intact, and he was able to repeat digits at a high average rate for his age. He was assigned a global assessment of functioning score of 73, indicating no more than slight impairment in social or occupational functioning. The Veteran was afforded a VA examination in March 2011. The Veteran reported having decreased memory since his accident, as well as headaches that occur about once a month and are prostrating. He also reported problems with stumbling and occasionally falling. The Veteran reported insomnia, moderate fatigue during the day, occasional anxiety, and difficulty with attention and concentrating. The examiner noted that the Veteran complained of mild memory loss, which corresponds to a level "1" in the new regulations. Judgment, social interaction, orientation, and motor activity were all normal, resulting in a level "0" for each category. The Veteran was noted to have moderately impaired visual spatial orientation, resulting in a level "2." The examiner also noted that the Veteran had three or more subjective symptoms that moderately interfere with his work, activities of daily living or work, family, or other close relationships. These symptoms were noted as marked fatigability, blurred or double vision, and headaches requiring rest periods during most days. These symptoms result in a level "2" rating. The Veteran had no neurobehavioral effects, and communication and consciousness were normal, resulting in a "0" for each of these categories. As noted previously, for claims received by VA prior to the effective date of the new regulations, as is the case here, a Veteran is to be rated under the old criteria for any periods prior to October 23, 2008 but under the new criteria or the old criteria, whichever are more favorable, for any period beginning on October 23, 2008. As such, the Board finds that the evidence does not warrant a rating higher than 10 percent, under the prior criteria. Under the prior criteria, purely subjective complaints such as headaches, dizziness, insomnia, etc., recognized as symptomatic of brain trauma, were to be rated as 10 percent and no more under Diagnostic Code 9304 for dementia due to head trauma. This 10 percent rating was not to be combined with any other rating for a disability due to brain trauma. Ratings in excess of 10 percent for brain disease due to trauma under Diagnostic Code 9304 were not assignable in the absence of a diagnosis of multi-infarct dementia associated with brain trauma. The Veteran has not been diagnosed with multi-infarct dementia associated with his brain trauma. Therefore, a rating higher than 10 percent, under the prior criteria, is not warranted at any point during this appeal. Importantly, however, the Board finds that the evidence establishes the Veteran should be assigned a 40 percent rating, under the new criteria, effective March 17, 2011, the date of the VA examination. There is no evidence of record that establishes the 40 percent rating prior to March 17, 2011. The evaluation assigned for residuals of a traumatic brain injury, under the new criteria, is based upon the highest level of severity for any facet as determined by examination. Only one evaluation is assigned for all the applicable facets. The Board finds the Veteran would be entitled to a 40 percent rating, based upon the highest severity level of "2" which was assigned for visual spatial orientation and subjective symptoms. The next highest rating available of 70 percent is not warranted, as the Veteran did not score a "3" in any of the applicable facets. The Board has considered whether any other applicable Diagnostic Codes could result in a higher rating, but the Board finds that the Diagnostic Codes applied herein are the most appropriate. III. Extraschedular Consideration The Board finds that the Veteran's anoxic encephalopathy with residual impairment of cognitive and cerebral functions does not warrant referral for extraschedular consideration. In exceptional cases where schedular ratings are found to be inadequate, consideration of an extraschedular disability rating is made. 38 C.F.R. § 3.321(b)(1). There is a three-step analysis for determining whether an extraschedular disability rating is appropriate. Thun v. Peake, 22 Vet. App. 111 (2008). First, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability and the established criteria found in the rating schedule to determine whether the Veteran's disability picture is appropriately contemplated by the rating schedule. Id. If not, the second step is to determine whether the claimant's exceptional disability picture exhibits other related factors identified in the regulations as "governing norms." Id.; see also 38 C.F.R. § 3.321(b)(1) (governing norms include marked interference with employment and frequent periods of hospitalization). If the factors of step two are found to exist, the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. The Board finds that the evidence does not warrant referral of the Veteran's claim for extraschedular consideration. The level of severity of his disability is appropriately contemplated by the applicable diagnostic criteria. For example, the Veteran's symptoms of memory problems, headaches, and visual spatial orientation are considered in the applicable rating criteria. The criteria provide for higher ratings, but as has been thoroughly discussed above, the ratings assigned herein are appropriate. In view of the adequacy of the disability ratings assigned under the applicable diagnostic criteria, consideration of the second step under Thun is not for application in this case. Accordingly, the claim will not be referred for extraschedular consideration. ORDER Prior to March 17, 2011, entitlement to a rating higher than 10 percent, for anoxic encephalopathy with residual impairment of cognitive and cerebral functions, is denied. From March 17, 2011, entitlement to a rating of 40 percent, but no higher, for anoxic encephalopathy with residual impairment of cognitive and cerebral functions, is granted, subject to statutory and regulatory provisions governing the payment of monetary benefits. ____________________________________________ JENNIFER HWA Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs