Citation Nr: A20013368 Decision Date: 08/20/20 Archive Date: 08/20/20 DOCKET NO. 191121-49097 DATE: August 20, 2020 REMANDED Entitlement to an initial evaluation in excess of 10 percent for service-connected status post encephalitis from November 16, 1953, to January 14, 1955, and from March 17, 1956, to September 29, 2009, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from September 1950 to September 1953 and January 1955 to March 1956. As the benefits sought on appeal and the appeal period for consideration are heavily dependent on several key events, the Board finds that a brief recitation of pertinent facts would be helpful. As noted above, the Veteran separated from his first period of active duty in September 1953. He subsequently served a second period of active duty before ultimately separating from the United States Army in September 1956. On August 18, 1965, the Department of Veterans’ Affairs’ (VA’s) Agency of Original Jurisdiction (AOJ), received from the Veteran a claim that noted several in-service disabilities, to include encephalitis. The Veteran was afforded a November 1965 VA examination, and in a December 1965 rating decision, the AOJ, among other actions, established service connection for “history of encephalitis;” a noncompensable (zero percent) initial evaluation was assigned, effective from August 18, 1965. The Veteran was apprised of these actions, but he did not express timely disagreement with the AOJ’s assigned effective date and/or initial evaluation for this award. As such, the downstream elements (the effective date for the award of service connection and the initial evaluation assigned for the disability) of this award became final. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.104, 3.156(b), 20.302, 20.1103; Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997). In 2008, the Veteran filed claims to establish service connection for several disabilities. These claims were adjudicated by the AOJ in a September 2009 rating decision. On September 30, 2009, the Veteran expressed disagreement with several determinations within that rating decision and asserted that he was unable to maintain a substantially gainful occupation due to his service-connected disabilities. Based on this latter assertion, the AOJ scheduled the Veteran for several VA examinations to determine the functional impairment stemming from his service-connected disabilities, to include his encephalitis, which were completed in January 2010. In a June 2011 rating decision, the AOJ explained that the Veteran’s September 2009 statement was accepted as an implied claim for an increased evaluation for his service-connected encephalitis, and based on the findings of the January 2010 VA examination, the evaluation for this disability was increased from zero percent to 100 percent, effective from September 30, 2009. The Veteran initiated an appeal concerning the effective dates for the award of service connection for encephalitis and for the assignment for a 100 percent evaluation for this disability; however, these appealed issues, among others, were denied by the Board of Veteran’s Appeals (Board) in a final June 2013 decision. In August 2013, the Veteran filed a motion for revision of the December 1965 decision based on clear and unmistakable error (CUE) in assigning a noncompensable evaluation for encephalitis from August 18, 1965. This motion was denied by the AOJ in an August 2014 rating decision that discussed the AOJ’s assignments of the effective date of the award of service connection the initial evaluation for this disability in the December 1965 rating decision. In September 2014, the Veteran initiated an appeal by expressing disagreement with the AOJ’s denial of “CUE for encephalitis.” For unclear reasons, when the AOJ readjudicated this motion in a May 2015 Statement of the Case (SOC), the issue was limited to entitlement to an earlier effective date for the award of service connection for encephalitis due to CUE in the December 1965 rating decision. More specifically, the matter of revision of the portion of the December 1965 rating decision in assigning a noncompensable initial evaluation for encephalitis was not addressed by the AOJ. The Veteran subsequently perfected an appeal to the Board. In a July 2016 decision, the Board found that the December 1965 rating decision contained CUE with regard to the assignment of the effective date of the award of service connection for the disability. As such, the Board found that the December 1965 rating decision warranted revision regarding the effective date assigned for the award of service connection for encephalitis. Specifically, the Board found that an effective date of November 16, 1953, for this award was warranted, not inclusive of the period of the Veteran’s second period of active duty (January 1955 to March 1956). Again, the Board notes that, due to the AOJ’s limitation of the Veteran’s CUE motion in the May 2015 SOC, the matter of revision of the portion of the December 1965 rating decision that assigned a noncompensable initial evaluation for encephalitis was not addressed by the Board. In a rating decision dated on July 25, 2016, the AOJ implemented the Board’s allowance, assigning a noncompensable evaluation from November 16, 1953, which included the Veteran’s second period of active duty; however, it does not appear that the AOJ released this rating decision to the Veteran or fully implemented such. In a rating decision dated on July 30, 2016, the AOJ implemented the Board’s allowance for a second time. In this rating decision, for unclear reasons, the AOJ stated that the Board’s finding of CUE in the December 1965 rating decision “abated” the AOJ’s assigned effective date and initial evaluation, even though the latter matter was not addressed by the Board in July 2016 decision. As such, the AOJ assigned a 10 percent initial evaluation for service-connected encephalitis from November 16, 1953, to January 14, 1955, and from March 17, 1956, to August 17, 1965, and increased the noncompensable evaluation to 10 percent from August 18, 1965, to September 29, 2009. It is unknown when the Veteran was notified of this decision, as the AOJ’s notification letter is undated. In March 2017, the Veteran requested that the AOJ reconsider assigning a 100 percent initial evaluation for encephalitis from the day after separation from his first period of active duty. In April 2017, the Veteran filed a formal claim seeking an increased evaluation for service-connected encephalitis. In May 2017, he clarified that the April 2017 claim was seeking a 100 percent evaluation for service-connected encephalitis from November 16, 1953. In June 2017, the AOJ notified the Veteran that the Administration would not reconsider entitlement to an initial evaluation in excess of 10 percent for service-connected encephalitis from November 1953 to August 2009, as he requested in March 2017. Later that month, the Veteran filed a formal Notice of Disagreement with the effective date assigned for the 100 percent evaluation for service-connected encephalitis. The AOJ noted this filing and the initiation of an appeal in a July 2017 letter. In August 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act of 2017 (Appeals Modernization Act or AMA), Pub. Law 115-55, which created a new claims and appeals process for pursuing VA benefits. In May 2018, the Veteran opted to withdrawn his pending appeal from VA’s “legacy” appeal system in favor of filing a Supplemental Claim seeking an earlier effective date for the assignment of a 100 percent evaluation for service-connected encephalitis via the Rapid Appeals Modernization Program (RAMP), a temporary program that allowed early participation in the new appeals process before the AMA became effective in February 2019. The AOJ readjudicated this issue in a December 2018 RAMP rating decision. Later that month, the Veteran filed a formal “legacy” Notice of Disagreement of this determination. In an August 2019 statement, the Veteran clarified that his appeal was seeking an initial evaluation in excess of 10 percent for service-connected encephalitis from November 1953, not including his second period of active duty. In September 2019, the AOJ notified the Veteran that his December 2018 “legacy” Notice of Disagreement was ineffective to appeal the December 2018 RAMP rating decision. Later that month, the Veteran filed a VA Form reflecting his wishes to continue his appeal to the Board through RAMP via the Board’s hearing docket. In October 2019, the AOJ notified the Veteran that his September 2009 request could not be accepted, as the RAMP program concluded in February 2019. In November 2019, the Veteran filed a VA Form 10182 reflecting his wishes to continue his appeal under the AMA via the Board’s hearing docket. Later in November 2019, the Veteran filed a Decision Review Request for Higher-Level Review of this issue by the AOJ. In a December 2019 letter, the AOJ notified the Veteran that his request for a Higher-Level Review of the December 2018 rating decision was not effective because the rating decision was promulgated prior to February 2019 – which is untrue under the governing laws. Nonetheless, the Board sent the Veteran a docketing letter for this appeal in December 2019, and the Veteran presented testimony before an Acting Veterans Law Judge in March 2020, as per his November 2019 request to continue his appeal under the AMA via the Board’s hearing docket. A transcript of the March 2020 Board hearing is associated with the file. Regarding the appeal period before the Board, as noted above, the AOJ erroneously limited the Veteran’s CUE motion in May 2015 SOC, as he made clear allegations of CUE in the December 1965 rating decision regarding the assignment of a noncompensable initial evaluation for service-connected encephalitis. As the AOJ limited the scope of the Veteran’s initial CUE motion, the Board’s July 2016 allowance was tailored to the Veteran’s assertions of CUE regarding the effective date assigned for the award of service connection for this disability. This distinction is critical, as the Board’s July 2016 allowance held that revision of the effective date of the award, but not the assigned initial evaluation, was warranted. However, in implementing the Board’s July 2016 allowance, the AOJ revised the portions of the December 1965 rating decision that assigned the effective date and initial evaluation for this award – even though the Board’s allowance did not address the latter matter. Notwithstanding the AOJ’s limitation of the Veteran’s initial appeal and expansion of the Board’s July 2016 allowance, in light of the AOJ’s actions, the Board concludes that the issue on appeal entail consideration of the propriety of the initial evaluation assigned for the Veteran’s service-connected encephalitis from November 16, 1953, to January 14, 1955, and from March 17, 1956, to September 29, 2009. 1. Entitlement to an initial evaluation in excess of 10 percent for service-connected status post encephalitis from November 16, 1953, to January 14, 1955, and from March 17, 1956, to September 29, 2009, is remanded. As described in detail above, the AOJ’s actions have resulted in an appeal period spanning nearly 55 years, during which VA must discern an appropriate initial evaluation for service-connected encephalitis. The Veteran’s encephalitis is evaluated under 38 C.F.R. § 4.124a, Diagnostic Code 8000, which remains unchanged since November 1953 and provides that epidemic and chronic encephalitis is rated at the 10 percent rate for minimum residuals and at 100 percent for an active febrile disease. 38 C.F.R. § 4.124a, Diagnostic Code 8000. The regulation also instructs that, aside from the exceptions noted, disability from organic diseases of the central nervous system and their residuals may be rated from 10 percent to 100 percent in proportion to the impairment of motor, sensory, or mental function. In doing so, the rater must consider 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, rate by comparison with the mild, moderate, severe, or complete paralysis of peripheral nerves. 38 C.F.R. § 4.124a. The regulation also requires that for the minimum ratings for residuals under diagnostic codes 8000 through 8025, there must be ascertainable residuals. Notably, 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. [Emphasis added by the Board]. It is of exceptional importance that when ratings in excess of the prescribed minimum ratings are assigned, the diagnostic codes utilized as bases of evaluation be cited, in addition to the codes identifying the diagnoses. 38 C.F.R. § 4.124a, Note (after Diagnostic Code 8025). In sum, the extensive appeal period for consideration is largely devoid of medical evidence pertinent to the matters at issue, which include: (1) whether the Veteran’s encephalitis was active for any time period(s) from November 16, 1953, to January 14, 1955, and from March 17, 1956, to September 29, 2009; (2) if so, whether such was manifested by a febrile disease for any time period(s) from November 16, 1953, to January 14, 1955, and from March 17, 1956, to September 29, 2009; (3) if not active, what were the residuals (subjective and objective) of encephalitis at all times from November 16, 1953, to January 14, 1955, and from March 17, 1956, to September 29, 2009; and (4) what were the frequency, severity, and functional impairment stemming from each of the subjective and objective residuals of encephalitis at all times from November 16, 1953, to January 14, 1955, and from March 17, 1956, to September 29, 2009. To this fourth point (i.e., rating the Veteran’s residuals of encephalitis), the Board notes that many of the regulations and Diagnostic Codes pertinent to the Veteran’s reported residuals of encephalitis have changed several times during the appeal period. As such, the rater must consider whether application of any iteration of pertinent former criteria is more favorable to the Veteran regarding each symptom. Further, due to the unique verbiage of 38 C.F.R. § 4.124a, subjective reports of symptoms are sufficient for rating purposes (i.e., no objective medical evidence of any symptoms and/or severity of such) as long as such are “consistent with the disease and not more likely attributable to other disease or no disease.” Further complicating matters, as noted by the Board in the June 2013 and July 2016 decisions, it appears that medical evidence pertinent to the issue on appeal has been lost or destroyed by VA. At the January 2010 VA examination, upon which the 100 percent evaluation for encephalitis from September 30, 2009, to the present was based, the examiner opined that the Veteran’s encephalitis had been present since 1951 and was active based on the Veteran’s reports of numbness in his lower lip, headaches, fatigue, dyspnea, memory impairment, sleep impairment, anxiety, agitation, dizziness, and slurred speech. At the March 2020 Board hearing, the Veteran testified that these symptoms, among others, have been present and chronic since 1953; however, the Board notes that the November 1965 VA examination notes that the Veteran was “fully recovered” from his in-service diagnosis of encephalitis. In light of above, the Board concludes that the AOJ’s failure to obtain retrospective medical examinations and opinions concerning the medical matters outlined above, which are beyond the purview of the Board and the AOJ, prior to readjudication of the Veteran’s appeal represents a pre-decisional error in the duty to assist that must be corrected on remand. The matters are REMANDED for the following actions: 1. The AOJ must request that the Veteran be scheduled for an appropriate VA examination, preferably with a neurologist, to determine the nature and residuals of the Veteran’s service-connected encephalitis from November 16, 1953, to January 14, 1955, and from March 17, 1956, to September 29, 2009. After a review of the complete record, to include this remand and the rating criteria provided by 38 C.F.R. § 4.124a, the examiner is requested to address the following: a. Has the Veteran’s service-connected encephalitis been active and manifested by febrile disease at any time from November 16, 1953, to January 14, 1955, and/or from March 17, 1956, to September 29, 2009? * For any response to part (a), the examiner must outline the date(s) of any such period(s) answered in the affirmative and provide an explanation of how any determination (negative or affirmative) was reached, to include citation to medical evidence within the file and the Veteran’s lay statements. b. For any period(s) where the response to (a) is negative, the examiner is requested to identify all of the residuals of service-connected encephalitis that the Veteran experienced from November 16, 1953, to January 14, 1955, and from March 17, 1956, to September 29, 2009. * In addressing the above, the examiner is on notice that the Veteran has already reported experiencing numbness in his lower lip, headaches, fatigue, dyspnea, memory impairment, sleep impairment, anxiety, agitation, dizziness, and slurred speech, since 1953, and 38 C.F.R. § 4.124a provides that “[T]he 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.” c. For each wholly subjective residual of encephalitis that the Veteran reports experiencing from November 16, 1953, to January 14, 1955, and from March 17, 1956, to September 29, 2009, the examiner is requested to comment as to whether each is: i. Consistent with the disease; ii. Not more likely attributable to other disease or no disease. d. The examiner is requested to fully describe the frequency and severity of each neurological residual of encephalitis identified in parts (b) and (c), to include the functional impairment and impact on the Veteran’s employability stemming from such, from November 16, 1953, to January 14, 1955, and from March 17, 1956, to September 29, 2009. * In addressing the above, the examiner must keep in mind that the residuals of encephalitis noted do not have to meet the criteria for any specific disability for rating purposes; rather, the symptoms will be rated independently under the appropriate rating criteria, which may have changed several times during the pendency of the appeal (from November 16, 1953, to January 14, 1955, and from March 17, 1956, to September 29, 2009). Further, if the examiner finds that any identified neurological residual of encephalitis has waxed or waned during the period under consideration, an explanation of this finding, citing to medical evidence and/or lay statements from the Veteran, must be provided. * As many parts of VA’s rating schedule have changed several times during the extended appeal period under consideration, the examiner is encouraged to request that the AOJ provide all iterations of pertinent rating criteria for each identified neurological residual identified from November 16, 1953, to January 14, 1955, and from March 17, 1956, to September 29, 2009, to ensure that the symptoms are described in a way that will allow for rating such. If the examiner cannot provide an opinion without resorting to mere speculation, this should be so stated along with supporting rationale. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to the particular question. 2. Thereafter, the AOJ must request that the Veteran be scheduled for appropriate VA examination(s) to determine the frequency and severity of each non-neurological residual of encephalitis identified by the VA neurologist in parts (b) and (c) above, to include the functional impairment and impact on the Veteran’s employability stemming from such, from November 16, 1953, to January 14, 1955, and from March 17, 1956, to September 29, 2009. All necessary testing must be completed. After a review of the complete record, to include this remand and the rating criteria provided by 38 C.F.R. § 4.124a, the examiners are requested to fully describe the frequency and severity of each non-neurological residual of encephalitis identified by the VA neurologist in parts (b) and (c) above, to include the functional impairment and impact on the Veteran’s employability stemming from such, from November 16, 1953, to January 14, 1955, and from March 17, 1956, to September 29, 2009. * In addressing the above, the examiners must keep in mind that the residuals of encephalitis noted by the VA neurologist do not have to meet the criteria for any specific disability for rating purposes; rather, the symptoms will be rated independently under the appropriate rating criteria, which may have changed several times during the pendency of the appeal (from November 16, 1953, to January 14, 1955, and from March 17, 1956, to September 29, 2009). Further, if any examiner finds that any identified non-neurological residual of encephalitis has waxed or waned during the period under consideration, an explanation of this finding, citing to medical evidence and/or lay statements from the Veteran, must be provided. * As many parts of VA’s rating schedule have changed several times during the extended appeal period under consideration, the examiners are encouraged to request that the AOJ provide all iterations of pertinent rating criteria for each identified non-neurological residual identified from November 16, 1953, to January 14, 1955, and from March 17, 1956, to September 29, 2009, to ensure that the symptoms are described in a way that will allow for rating such. If any examiner cannot provide an opinion without resorting to mere speculation, this should be so stated along with supporting rationale. In so doing, the examiners shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to the particular question. 3. Thereafter, the AOJ must readjudicate the Veteran’s appealed issue under all appropriate rating criteria based on the totality of the record. If the benefit sought is not granted to the fullest extent, the Veteran and his representative must be provided a copy of this readjudication and afforded an appropriate time to respond. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Scott W. Dale, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.