Citation Nr: 1609960
Decision Date: 03/11/16	Archive Date: 04/25/16

DOCKET NO. 10-04 114     DATE  MAR 11 2016


On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUES

1. Appropriate stabilization rating from July 1, 1980 to October 3, 2006, for a cognitive disorder, previously evaluated pursuant to 38 C.F.R. § 4.28 (pre stabilization rating).

2. Entitlement to a total disability rating due to individual unemployability.

3. Entitlement to an effective date earlier than October 3, 2006, for the assignment of a 100 percent rating for a cognitive disorder, not otherwise specified (formerly rated as a organic brain syndrome, brain trauma, epidermal hematoma, postoperative with dysarthria (claimed as speech disorder) hereinafter (cognitive disorder).


REPRESENTATION

Veteran represented by:	Texas Veterans Commission


ATTORNEY FOR THE BOARD

J. Acosta, Associate Counsel


INTRODUCTION

The Veteran served on active duty in the U.S. Army from September 1974 to May 1976.

This matter comes before the Board of Veterans' Appeals (Board) on appeal of a May 2007 rating decision of the Houston, Texas, Regional Office (RO) of the Department of Veterans Affairs (VA).

The Board notes that the Veteran submitted a motion to set aside a March 8, 1984, Board decision on the basis of clear and unmistakable error (CUE).  The 1984 decision addressed the issue of the appropriate stabilization rating for the Veteran's cognitive disorder, which had previously been assigned a 100 percent pre stabilization rating under 38 U.S.C. § 4.28. The 1984 decision denied a stabilization rating in excess of 50 percent as well as denying entitlement to TDIU.  In a separate Board decision, the Board found CUE in the 1984 Board decision, and set aside the decision.  Accordingly, the issue of the appropriate stabilization rating for the Veteran's cognitive disorder for the period from July 1, 1980, to October 3, 2006, has been added to the title page of this decision.


FINDINGS OF FACT

1. From July 1, 1980 to November 6, 1996, the Veteran's cognitive disorder manifested with impairment of intellectual functions, orientation, memory and judgment, lability and shallowness of effect of such extent, severity, depth, and persistence as to produce complete social and industrial inadaptability.

2. From November 6, 1996 to October 3, 2006, the Veteran's cognitive disorder manifested with symptoms which equate to total occupational and social impairment.

3. The Veteran has been granted a 100 percent schedular rating beginning the day after his separation from service, and there is no longer a case or controversy as to the issue of entitlement to TDIU.

4. The Veteran has been granted a 100 percent schedular rating beginning the day after his separation from service and there is no longer a case or controversy as to the issue of entitlement to an effective date earlier than October 3, 2006, for the assignment of a 100 percent rating for a cognitive disorder.


CONCLUSIONS OF LAW

1. The schedular criteria for a 100 percent rating have been met for the period from July 1, 1980 to October 3, 2006.  38 U.S.C. § 355 (1980); 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. § 4.132, Diagnostic Code 9304 (1980); 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9304 (2015).

2. Entitlement to TDIU is moot.  38 U.S.C.A. §§ 1155, 7104 (West 2014); 38 C.F.R. §§ 3.40, 3.41 4.16, 20.101 (2015).

3. Entitlement to an effective date earlier than October 3, 2006, for the assignment of a 100 percent rating for a cognitive disorder is moot. 38 U.S.C.A. § 5110, 7104 (West 2014); 38 C.F.R. §§ 3.400, 20.101 (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

Since the Board is granting a 100 percent schedular rating for the Veteran's cognitive order for the entire time period on appeal, there is no need to discuss whether the Veteran has received sufficient notice or assistance, given that any error would be harmless.


Increased rating

Disability ratings are determined by comparing a veteran's present symptomatology with the criteria set forth in the VA Schedule for Rating Disabilities, which is based upon average impairment in earning capacity.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. Part 4 (2015).  When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7 (2015).  After careful consideration of the evidence, any reasonable doubt is resolved in favor of the Veteran.  38 C.F.R. § 4.3 (2015).

The Veteran's entire history is considered when assigning disability ratings. 38 C.F.R. § 4.1 (2015); Schafrath v. Derwinski, 1 Vet. App. 589 (1995).  A review of the recorded history of a disability is necessary in order to make an accurate rating.  38 C.F.R. §§ 4.2, 4.41 (2015).  The regulations do not give past medical reports precedence over current findings where such current findings are adequate and relevant to the rating issue. Francisco v. Brown, 7 Vet. App. 55 (1994); Powell v. West, 13 Vet. App. 31 (1999). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).


Cognitive Disorder

Under the diagnostic code 9304 in effect at the time in July 1980 to November 1996, a 100 percent rating was warranted when there were symptoms which led to impairment of intellectual functions, orientation, memory and judgment, !ability and shallowness of effect of such extent, severity, depth, and persistence as to produce complete social and industrial inadaptability. See 38 C.F.R. § 4.132, Diagnostic Code (DC) 9304 (1980).

Beginning on November 6, 1996, the criteria for a 100 percent rating under DC 9304 changed to require symptoms which led to 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. See 38 C.F.R. § 4.130, Diagnostic Code (DC) 9304 (1996). These criteria are still in effect.


Merits

The Board finds that evidence established that from July 1, 1980 to November 6, 1996, the Veteran's disability manifested with such symptoms impairment of intellectual functions, orientation, memory and judgment, !ability and shallowness of effect of such extent, severity, depth, and persistence as to produce complete social and industrial inadaptability.

The 1981 VA examiner noted that Veteran could not recall the presidents prior to Carter, and he could not do subtraction of serial 7s from 100, the March 1983 examiner noted that he could not recall former President Carter's last name, and could only recall "some" recent news events. More significantly, the August 1982 examiner stated that the Veteran "should have further psychological testing including some evaluation of memory function to determine if at this point he is able to go to school or get involved with further rehabilitative efforts." The Veteran also stated to the examiners that he was unable to coordinate his left sided extremities as well as the right, and while his memory has improved he has trouble learning new information and that he attempted to go to school on a couple of occasion but could not learn the lessons.  The examiners noted that the Veteran was continually frustrated by his inability to learn or get a satisfactory job.  Thus, the examiners corroborated the Veteran's trouble learning new information and his frustration in his inability to do things like he once could, despite improvement. Further, the 1983 examiner also indicated that there had been very little change in his status since his last examination.

The Veteran provided credible statements that he had attempted to go to school on two occasions but that if he read too much or studied too hard he got headaches and dizziness, and he was unable to complete any education successfully since his head trauma.  Additionally, the evidence indicates that he was not living independently, but with his mother.  As noted above, these lay statements are further supported by the VA examiners reports. There is no indication in the record that the Veteran's condition improved from 1983.

This evidence in total leads the Board to conclude that the Veteran's cognitive disability met the diagnostic criteria for a 100 percent rating from July 1, 1980 to November 6, 1996. His inability to focus, concentrate, and complete basic tasks, led to such an impairment of intellectual functions, orientation, memory and judgment, lability and shallowness of effect of such extent, severity, depth, and persistence as to produce complete social and industrial inadaptability.

The Board finds that the criteria for a 100 percent rating for a cognitive disorder have been met from November 6, 1996 to October 3, 2006, the date in which the RO assigned a 100 percent rating for the same disability.

On this matter the Board finds that the VA examination from February 2007 is probative.  In this examination, the VA examiner began her analysis as the initial injury to the Veteran's head.  Quoting the service treatment records, the VA examiner notes, "[h]e was separated from the Army with a 100% disability rating and with a prognosis stated as 'His remaining impairments are sufficiently severe to preclude viable employment. His condition is not expected to improve significantly."' The examiner continued to note that the Veteran has not worked since his accident because he knows what would happen and he does not want to fail again, he recognizes his limitations and tries to live within them. The examiner reported how the Veteran was angry after the accident and frustrated with his mental limitations, and had at times resorted to drugs and alcohol to cope. When the examiner administered an objective test to determine the Veteran's cognitive abilities, he had to terminate the test because the Veteran performed so poorly. He noted that the "claimant was unable to make sense of the design and could not develop a strategy even to copy the figure." He goes on to note that the Veteran could not perform serial 7s test and finally diagnosed the Veteran with a chronic brain syndrome with an inability to function in society except marginally.

The Board in considering this examination notes both the level of severity of the Veteran's symptoms and the chronic nature of this severity.  The VA examiner's last statements on the Veteran's cognitive disability are especially informative as he wrote "Claimant should be considered unemployable.  He has not attempted to enter the workforce since 1976 and performs so poorly on current psychometric testing that the probability of his ever being able to enter the workforce in any capacity except the most simple is very unlikely.  Veteran should be considered permanently and totally disabled secondary to brain injury." Given that this examination mirrors earlier examinations from the early 1980s, the Board finds that the evidence establishes that the Veteran's symptomatology equates to his being totally occupationally and socially impaired due to his cognitive disorder.  Therefore, a 100 percent rating from November 6, 1996 to October 3, 2006 is warranted.

Given that the Veteran has been assigned a 100 percent disability rating from July 1, 1980, in this decision, and had previously been assigned a total rating from the day after service, his claim for an earlier effective date for a 100 percent rating for his cognitive disability and his claim for TDIU are both moot.  In essence, the Veteran has now been assigned a 100 percent rating from May 11, 1976, the day after he was separated from service.


ORDER

A 100 percent schedular rating from July 1, 1980 to October 3, 2006 is warranted.

Entitlement to an effective date prior to October 3, 2006, for the award of a total rating for a cognitive disorder is dismissed.

Entitlement to TDIU is dismissed.


GAYLE E. STROMMEN
Veterans Law Judge, Board of Veterans' Appeals