Citation Nr: 1751528 Decision Date: 11/09/17 Archive Date: 11/17/17 DOCKET NO. 02-14 335 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to an initial disability rating in excess of 10 percent for residuals of a cerebral accident from May 18, 2001 to October 15, 2003, and in excess of 70 percent from October 16, 2003 to December 13, 2009. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL The Veteran and T.T. ATTORNEY FOR THE BOARD T. Minot, Associate Counsel INTRODUCTION The Veteran served on active duty in the Army from January 1969 to February 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2002 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania, which granted service connection for cerebral vascular accident with hemorrhage and assigned an initial 10-percent disability rating, effective May 18, 2001. In July 2003, the Veteran testified before a Veterans Law Judge (VLJ) at a videoconference hearing. A transcript of the hearing is of record. In February 2017, the Board advised the Veteran that the VLJ who presided over the hearing was no longer available to participate in the decision on his appeal, and that the Veteran was entitled to another hearing before a different VLJ. The Veteran was advised that if he did not respond within 30 days, the Board would assume he did not want another hearing and would proceed accordingly. The Veteran did not respond, and therefore the Board will proceed with the adjudication of the claim. In August 2004, May 2007, March 2008, May 2010, June 2011, and May 2017, the claim on appeal was remanded by the Board for evidentiary and procedural development. Notably, the May 2017 Board remand directed the Agency of Original Jurisdiction (AOJ) to request all available Social Security Administration (SSA) records pertaining to the Veteran. In June 2017, VA received a response from SSA indicating that all such records had been destroyed. The Veteran was notified of such in July 2017. In a December 2009 rating decision, the RO granted a separate award of service connection for cognitive deficits and major depressive disorder as secondary to cerebral vascular accident with hemorrhage, assigning a staged rating of 10 percent from January 18, 2002 to October 15, 2003, and 50 percent thereafter. As a result, the Veteran's initial 10-percent rating for cerebral vascular accident with hemorrhage was discontinued. In an April 2015 rating decision, the RO granted an increased rating from 50 percent to 70 percent from October 16, 2003 to December 13, 2009, and assigned a 100-percent rating from December 14, 2009. As that decision constitutes a full grant of the benefits sought on appeal from December 14, 2009 to the present, this period is no longer under consideration. The Board notes that in a June 2014 rating decision, the RO granted a total disability rating based on individual unemployability (TDIU) from August 1, 1998 to November 1, 2012, at which point the Veteran was in receipt of the maximum available benefits. The Veteran has also been awarded special monthly compensation (SMC) pursuant to 38 U.S.C. § 1114(s). FINDINGS OF FACT 1. From May 18, 2001 to October 15, 2003, the Veteran's service-connected cerebral vascular accident with hemorrhage, to include cognitive deficits and major depressive disorder, has been productive of mental disturbance resulting in occupational and social impairment with no more than occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. 2. From October 16, 2003 to December 13, 2009, total occupational and social impairment due to service-connected cognitive deficits and major depressive disorder associated with cerebral vascular accident with hemorrhage has not been shown. CONCLUSIONS OF LAW 1. From May 18, 2001 to October 15, 2003, the criteria for a 30-percent rating, but no higher, for mental disturbance due to cognitive deficits and major depressive disorder associated with cerebral vascular accident with hemorrhage have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.3, 4.10, 4.124(a), 4.130, Diagnostic Codes (DC) 8009, 9434 (2017). 2. From October 15, 2003 to December 13, 2009, the criteria for a rating in excess of 70 percent for cognitive deficits and major depressive disorder associated with cerebral vascular accident with hemorrhage have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.3, 4.10, 4.124(a), 4.130, Diagnostic Codes (DC) 8009, 9434 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Applicable Laws and Regulations Disability ratings are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). "Staged" ratings may are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The disability on appeal involves two different DCs. Specifically, the Veteran is in receipt of a 10-percent disability rating for cerebral vascular accident with hemorrhage from May 18, 2001 to January 18, 2002, under DC 8009. See 38 C.F.R. § 4.124(a). Thereafter, he is in receipt of a 10-percent rating from January 19, 2002 to October 15, 2003, and a 70-percent rating from October 16, 2003 to December 13, 2009 for cognitive deficits and major depressive disorder associated with cerebrovascular accident with hemorrhage, under DC 9434. See 38 C.F.R. § 4.130. (As noted above, a 100-percent rating is in effect from December 14, 2009.) DC 8009 applies to hemorrhage of the brain vessels. Under DC 8009 (as well as 8007 and 8008), a 100-percent rating is warranted for the six months following hemorrhage, embolism, or thrombosis of the brain vessels, with a minimum 10-percent rating assigned thereafter and separate ratings for any residuals. 38 C.F.R. § 4.124(a). Neurological conditions, except as otherwise provided, will be rated in accordance with a schedule of ratings set out at 38 C.F.R. § 4.124(a), which provides that, with the exceptions noted, disability from the following diseases and their residuals may be rated from 10 percent to 100 percent in proportion to the impairment of motor, sensory, or mental function. Consideration is to be given to psychotic manifestations, complete or partial loss of use of one or more extremities, speech disturbances, impairment of vision, disturbances of gait, tremors, visceral manifestations, etc., referring to the appropriate bodily system of the schedule. With partial loss of use of one or more extremities from neurological lesions, rating shall be by comparison with the mild, moderate, severe, or complete paralysis of peripheral nerves. Id. A Note to 38 C.F.R. § 4.124(a) provides that it is required for the minimum ratings for residuals under DCs 8000-8025, that there be ascertainable residuals. Determinations as to the presence of residuals not capable of objective verification, i.e., headaches, dizziness, fatigability, must be approached on the basis of the diagnosis recorded; subjective residuals will be accepted when consistent with the disease and not more likely attributable to other disease or no disease. It is of exceptional importance that when ratings in excess of the prescribed minimum ratings are assigned, the DCs utilized as the bases of evaluation can be cited, in addition to the codes identifying the diagnoses. Thus, the Board's inquiry is twofold. First, the Board must address whether the Veteran has suffered a new embolism, thrombosis, or hemorrhage during the appeal period, warranting a six-month total (100 percent) rating. Then, the Board must address the residuals found during the period under consideration. DC 9434 governs disability ratings for major depressive disorder. See 38 C.F.R. § 4.130. However, all types of mental disturbance are evaluated under a general rating formula for mental disorders. Under the general rating formula, a 30-percent rating is assigned for 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). Id. A 50-percent rating is assigned for 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; and difficulty in establishing and maintaining effective work and social relationships. Id. A 70-percent evaluation is warranted for 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 situations (including work or a worklike setting); and inability to establish and maintain effective relationships. Id. Finally, a total schedular rating of 100 percent is warranted when the disorder results in 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 mental and personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. The symptoms listed in the rating schedule are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). Nevertheless, all ratings in the general rating formula are associated with objectively observable symptomatology, and in Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013), the Federal Circuit stated that "a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." The Federal Circuit further noted that "§ 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas." Id. Thus, "[a]lthough the veteran's symptomatology is the primary consideration, the regulation also requires an ultimate factual conclusion as to the veteran's level of impairment in 'most areas.'" Id. at 118. As such, the Board will consider both the Veteran's specific symptomatology as well as the occupational and social impairment associated with the DC to determine whether an increased evaluation is warranted. Factual Background In 1998, the Veteran suffered a cerebral hemorrhage and was hospitalized for several weeks. Service connection for cerebral vascular accident with hemorrhage was granted in a January 2002 rating decision. The Veteran contends that his residual symptoms-to include headaches, dizziness, generalized weakness, cognitive difficulties (including memory loss and speech impairment), and psychiatric symptoms-warrant an increased rating. As noted above, he is in receipt of a minimum 10-percent evaluation under DC 8009 from May 18, 2001 to January 18, 2002; a 10-percent evaluation under DC 9434 for cognitive deficits and major depressive disorder from January 19, 2002 to October 15, 2003; and a 70-percent evaluation under DC 9434 for cognitive deficits and major depressive disorder from October 16, 2003 to December 13, 2009. A review of the record reveals that at the time the Veteran filed his claim for service connection in May 2001, he was being treated at VA facilities for psychiatric problems. For instance, VA progress notes from August 2001 reflect that he was diagnosed with adjustment disorder with mixed anxiety and depressed mood. In October 2001 he developed memory loss. In December 2001, he underwent a VA examination for heart-related symptoms; during the examination, he reported experiencing memory changes since the 1998 cerebral hemorrhage. He also reported having low intensity headaches on a daily basis, as well as dizziness. He reported that he had not worked in a couple of years. In January 2002, the Veteran was admitted to the Erie VA Medical Center for chest pain. His discharge notes included a diagnosis of mild cognitive dysfunction secondary to cerebral hemorrhage. In August 2002, the Veteran underwent another VA examination during which he reported that his memory was "not that great for certain things." He indicated that he had headaches on a daily basis and occasional dizziness. On neurologic examination, the Veteran reported that the only residual he had at the present time was intermittent confusion. The examiner noted that the Veteran lived by himself and was able to do "most everything around the house," including self-care. On his September 2002 VA Form 9, the Veteran stated that he had "very serious residuals" from his cerebral hemorrhage, including "chronic headaches, dizziness, memory loss, impaired speech, and constant fatigue." He stated that his "life has been totally destroyed since these problems have developed." He also reported suffering from "constant mental distress." In February 2003, the Veteran underwent a VA examination for his diabetes mellitus. The report noted that he had problems with slow speech and memory changes. He also reported generalized weakness and "loss of words" at times. The impression was, in pertinent part, cerebral hemorrhage with residuals of memory deficit and speech difficulties. In October 2003, a VA behavioral health consult confirmed a diagnosis of adjustment disorder with depressed mood. A subsequent evaluation later in the month revealed that the Veteran experienced problems with both recent and remote memory. The Veteran indicated that he felt depressed following his 1998 heart attack and subsequent cerebral hemorrhage. Other symptoms noted were depressed affect, loss of appetite, insomnia, and feelings of hopelessness and helplessness. The Veteran was given a Global Assessment of Function (GAF) score of 50. In February 2004, VA sleep lab consult notes reflect that the Veteran was experiencing cognitive deficits and was having difficulty finding words and understanding speech. In March 2004, neurological testing revealed that the Veteran was easily confused and forgetful. The Veteran described the onset of these symptoms as abrupt following his 1998 cerebral hemorrhage. The examiner noted that the Veteran was alert, oriented, and cooperative during the interview. His mood was euthymic and his thought associations were often circumstantial. Thought content was normal and non-delusional. He denied hallucinations. Mild word finding difficulties were observed; otherwise the Veteran's speech was normal. Psychomotor activities were within normal limits. Cognitive functioning tests indicated slowed processing speech, mild executive/frontal dysfunction, and mild motor difficulties. Other cognitive function was within normal limits. The examiner noted that the Veteran's pattern of deficits was consistent with his history of cerebrovascular disease. Additionally, the Veteran endorsed significant depression. The diagnosis was cognitive disorder, mild, with mood disorder due to cerebrovascular changes. A GAF score of 50 was assigned. In August 2004, the Veteran underwent a VA examination of the brain and spinal cord. He reported chronic headaches of a dull nature in the frontal area but denied dizziness. He reported that he was receiving treatment for depression. He also reported memory changes. The impression was residuals of cerebral hemorrhage with chronic headaches. Cognitive defects were also noted. In October 2009, for the first time, the Veteran underwent a VA examination for mental disorders. He reported that his psychiatric symptoms began in 1998 following his cerebral hemorrhage. At that time, he discovered that he had difficulty recognizing the workings of a radio. (He had previously worked as a mechanic.) Since then, the Veteran reported having intermittent memory problems, as well as problems losing track of time. On examination, psychomotor activity was unremarkable, speech was spontaneous, clear, and coherent, and the Veteran was cooperative. His affect was flat and appropriate. His mood was depressed. Attention was intact and he was orientated to person, time, and place. His thought process was unremarkable. There was no indication of delusions or hallucinations. No panic attacks or obsessive or ritualistic behaviors were noted. The examiner noted that the Veteran had suicidal thoughts but had not considered means and had no current intention or desire to act on these thoughts. Impulse control was good, and no episodes of violence were noted. The examiner noted that the Veteran's memory problems led to a dependence on GPS for navigation. Additionally, the Veteran might plan to engage in chores but discover hours later that time had passed unaccounted for and none of the chores had been completed. The Veteran's recent memory was mildly impaired. In terms of social relationships, the Veteran reported that he was divorced but had good relationships with his children and had adopted his former girlfriend's grandchild. He also reported close relationships with his seven siblings. He reported that he liked to play cards with a group of friends. He reported that two years prior he was involved in a road rage dispute and was charged with assault, but the charges were dropped. Psychological testing was performed which corresponded to severe depression. Objective assessment of memory functioning revealed significant problems, particularly in the areas of attention and with immediate (short-term) memory, related to residuals associated with his 1998 cerebral hemorrhage. With regard to his major depressive disorder, the examiner opined that the Veteran's symptoms appeared to be the direct result of multiple losses associated with his cerebral vascular accident and heart attack. The examiner further opined that there was not total occupational and social impairment. However, the Veteran's mental disorders resulted in deficiencies in the areas of judgment, thinking, work, and mood. Specifically, the Veteran's judgment was impacted in that, due to memory problems, he would often go along with things against his better judgment. He also had gotten into financial obligations forgetting that he had others that were due. With respect to impairments in thinking, the examiner noted that the Veteran would forget directions, landmarks, medical appointments, important holidays, people's names, and even would forget to pick up his son. With respect to work impairment, the Veteran was unable to solve even easy mechanical problems. Finally, with respect to impairment of mood, the Veteran reported that he would often get depressed, cry frequently, and think that he would be better off dead. Analysis At the outset, the Veteran does not contend, and the record does not reflect, that he has had any additional episodes of embolism, thrombosis, or hemorrhage of the brain vessels during the period under consideration. Hence, a total rating is not warranted for any six-month period pursuant to DC 8009. 38 C.F.R. § 4.124(a). The Board is aware that the Veteran suffered an embolism in December 2009; however, as noted above, he has already been awarded a total rating from that point forward. As discussed above, during the period under consideration the Veteran's cerebral hemorrhage residuals included headaches, dizziness, generalized weakness and fatigue, memory loss, speech impairment, insomnia, and mental distress. The symptoms of memory loss, speech impairment, insomnia, and mental distress are contemplated in the criteria for mental disorders. See 38 C.F.R. § 4.130. After careful review, the Board finds that the Veteran is entitled to a 30-percent rating from May 18, 2001 to October 15, 2003, pursuant to the applicable criteria. In short, when resolving reasonable doubt in the Veteran's favor, his psychiatric symptoms more nearly approximate mental disturbance resulting in occupational and social impairment with no more than occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. See 38 C.F.R. §§ 4.7, 4.130. As discussed above, the record demonstrates that the Veteran was diagnosed with adjustment disorder with mixed anxiety and depressed mood within months of filing his claim, thus indicating that he experienced psychiatric distress for the duration of the period under consideration. VA progress notes and examination reports also reflect that he had memory loss and mild cognitive impairment, as well as speech impairment. Notably, the Veteran reported during an August 2002 VA examination that the only residuals for his cerebral vascular hemorrhage was intermittent confusion. While he subsequently reported, in his September 2002 VA Form 9, that he was experiencing residual symptoms including memory loss, impaired speech, and "constant mental distress," the Board finds that these symptoms are consistent with a 30-percent rating. In sum, the above evidence reflects cognitive impairment along with mental disturbance more nearly approximating the criteria for a 30 percent rating. See 38 C.F.R. § 4.130. The record establishes that a 30-percent rating pursuant to DC 9434 is warranted for the period from May 18, 2001 to October 15, 2003. See 38 C.F.R. § 4.124(a). (noting that residuals from brain hemorrhage should be rated in proportion to the impairment of, inter alia, mental function). To this extent, therefore, entitlement to an increased rating prior to October 16, 2003 is warranted. A rating in excess of 30 percent based on mental disturbance is not warranted, however, as the preponderance of the evidence is against a finding of occupational and social impairment with reduced reliability and productivity prior to October 16, 2003. "[A] veteran may only qualify for a given disability rating under [] § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." Vazquez-Claudio v. Shinseki, 713 F.3d at 117. Indeed, evaluation under § 4.130 is "symptom driven," meaning that "symptom[s] should be the fact finder's primary focus when deciding entitlement to a given disability rating" under that regulation. Id. However, the enumerated in § 4.130 are not an exhaustive list, as "the presence or lack of evidence of a specific sign or symptom listed in the evaluation criteria is not necessarily dispositive of any particular disability level." Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017). And § 4.130 requires "not only the presence of certain symptoms[,] but also that those symptoms have caused occupational and social impairment in most of the referenced areas." Vazquez-Claudio, 713 F.3d at 118. Give the aforementioned, the record does not conclusively demonstrate such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. See 38 C.F.R. § 4.130. Moreover, there is no evidence that, prior to October 16, 2003, the Veteran exhibited any other psychiatric symptoms of the type and degree that would justify a rating in excess of 30 percent or occupational and social impairment that rose to the level of reduced reliability and productivity. See Mauerhan, 16 Vet. App. 436. As noted above, the evidence shows that the Veteran was able to live alone and perform the necessary activities of daily living, and that his residual symptoms of mental disturbance were productive of depression, memory loss, and mild cognitive impairment consistent with a 30-percent rating. Likewise, the criteria for a 70-percent evaluation have not been met, as the evidence does not demonstrate occupational and social impairment with deficiencies in most areas, such as work, family relations, judgment, thinking, or mood, prior to October 16, 2003. The Board further finds that a 100-percent rating based on mental disturbance is not warranted at any point during the appeal period, as the weight of the evidence is against a finding of total occupational and social impairment due to mental disturbance at any time during the period under consideration. See 38 C.F.R. § 4.130. As noted above, the Veteran regularly appeared at VA appointments on time, and was consistently alert and socially appropriate. He has denied persistent delusions or hallucinations, and the lay and medical evidence of record indicates that he is able to communicate, albeit with some speech disturbance, memory loss, and word finding issues. There is no evidence of psychosis; indeed, the record shows that the Veteran has been orientated to time and place. Although the Board recognizes that the Veteran has reported suicidal ideation, there is no evidence to indicate that he is a danger to himself or others. In light of the above, the Board finds that the Veteran's symptoms of mental disturbance do not demonstrate total impairment, as illustrated by the criteria for a 100-percent rating. See id. As the Veteran is receiving a 30-percent rating prior to October 16, 2003 and a 70-percent rating thereafter based on mental disturbance, he exceeds the 10-percent minimum rating for residuals prescribed by DC 8009. Regardless, the Board finds that none of the Veteran's other residual symptoms warrant separate compensable ratings. Specifically concerning his reports of headaches, the Board finds that his symptoms do not rise to the level of a compensable rating under the applicable diagnostic criteria. See 38 C.F.R. § 4.124(a), DC 8100 (providing that in order to warrant a compensable rating the Veteran must experience prostrating attacks averaging once every two months over the last several months). The Veteran's remaining residuals, including dizziness and generalized weakness, appear to be transient and intermittent and likewise do not warrant separate compensable ratings. Notably, the record documents that the Veteran has neurological impairment of the upper and lower extremities; however, he has already been awarded separate evaluations for these symptoms. See 38 C.F.R. § 4.124(a), DCs 8514 and 8520. For the aforementioned reasons, an increased 30-percent rating is warranted based on mental disturbance from May 18, 2001 to October 15, 2003. A rating in excess of 70 percent thereafter is not justified by the evidence, and separate ratings for other residual symptoms are likewise not warranted. ORDER From May 18, 2001 to October 15, 2003, entitlement to a 30-percent disability rating, but no higher, based on mental disturbance for cognitive deficits and major depressive disorder associated with cerebral vascular accident with hemorrhage is granted. Prior to December 14, 2009, entitlement to a rating in excess of 70 percent for cognitive deficits and major depressive disorder associated with cerebral vascular accident with hemorrhage is denied. ____________________________________________ YVETTE R. WHITE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs