Citation Nr: 0000792 Decision Date: 01/11/00 Archive Date: 01/27/00 DOCKET NO. 97-29 106A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to a rating in excess of 50 percent for service-connected Huntington's disease, from June 16, 1996, to February 10, 1998. 2. Entitlement to a rating in excess of 80 percent for service-connected Huntington's disease, from February 10, 1998. REPRESENTATION Appellant represented by: Arizona Veterans Service Commission ATTORNEY FOR THE BOARD T. Hal Smith, Counsel INTRODUCTION The veteran served on active duty from August 1992 to June 1996. This matter comes to the Board of Veterans' Appeals (Board) from rating determinations of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. The veteran filed a claim for compensation benefits for Huntington's disease in July 1996. Service connection for this disorder was granted upon rating decision in March 1997 and a 30 percent rating was assigned, effective from June 16, 1996, (the day following the veteran's separation from service). The veteran expressed disagreement with this determination. Upon rating decision in May 1999, the 30 percent rating was increased to 50 percent from the June 16, 1996 date, and the 50 percent evaluation was increased to 80 percent, effective from February 10, 1998, the date of a private physician's statement. The RO also awarded a total rating based upon individual unemployability, effective February 10, 1998. Thus, the claim for an increased schedular rating remains at issue on appeal. AB v. Brown, 6 Vet. App. 35 (1993) (a claim remains in controversy where less than the maximum available benefits is awarded). For clarity, the issue on appeal has been separated into two issues as on the title page of this decision. FINDINGS OF FACT 1. During the period since the original grant of service connection for Huntington's disease on June 16, 1996, and the increased rating based on increased symptoms on February 10, 1998, manifestations of this disorder were not more than moderately severe. 2. Manifestations of Huntington's disease from February 10, 1998, are best described as severe. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 50 percent for Huntington's disease from June 16, 1996, to February 10, 1998, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321, 4.1, 4.7, 4.120, Diagnostic Code (DCs) 8105, 8106 (1999). 2. The criteria for an evaluation in excess of 80 percent from February 10, 1998, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321, 4.1, 4.7, 4.120, Diagnostic Code (DCs) 8105, 8106 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Factual Background A review of the service medical records (SMRs) reveals that the veteran was seen in April 1995 following symptoms of involuntary movements of the hands and feet. A family history of Huntington's disease was noted. Testing showed that he was positive for the Huntington's gene. At a medical evaluation board evaluation in December 1995, he was shown with episodic truncal singular myoclonic jerks, athetoid finger movements, and occasional bilateral knee extension jerks. Strength in the extremities was a full 5/5. There was a noted decrease in the upper extremity swing with walking, but otherwise, he had a normal gait. On VA examination in September 1996, he related that he experienced twitchings in the shoulders, knees, and fingers. The examiner noted that this symptom was not apparent at the time of the examination. Service connection for Huntington's disease was established upon rating determination in March 1997, and a 30 percent rating was assigned. Subsequently submitted statements by his mother in 1997 reflect that the veteran had involuntary body movements, particularly jerking movements of his hands, arms, and legs. He frequently lost his balance and appeared intoxicated at times. He also had problems with his memory. VA records from 1996 reflect continued treatment for Huntington's disease. In May 1996, it was noted that he had occasional knee extension jerks, and athetoid finger movements. Magnetic resonance imaging (MRI) of the brain in November 1996 was normal. Upon neuropsychiatric evaluation in November 1996, he was alert, attentive, and cooperative. His affect appeared mainly anxious. He was normally oriented. Cognitive testing showed that he was functioning barely in average range in verbal cognitive abilities. Nonverbal abilities were significantly higher and approached high average. This pattern was often associated with functional causes such as depression. It was noted that his performance appeared low in verbal tests requiring attention and concentration. Memory functions showed the same verbal and nonverbal difference. Verbal measures of memory functions were quite below average. He also showed reduced performance in attention and concentration and in verbal delayed recall. In September 1997, he was seen essentially for a toe problem, but it was noted that he had Huntington's disease, and that he experienced occasional involuntary movements of the trunk. In a February 10, 1998 statement, a private physician, Lawrence Z. Stern, M.D., reported that the veteran was a patient with Huntington's chorea. Due to his condition, he had difficulties with walking, standing, sitting, handling objects, and writing. In a statement dated on February 16, 1998, the veteran's mother asserted that the appellant's condition had deteriorated in the past two years. He was unable to perform any tasks that required fine motor skills, and his walk had become more unnatural. He dropped and spilled things and was no longer able to drive a car. In April 1998, the RO requested that Dr. Stern provide his medical records pertaining to the veteran. In an April 1998 statement, Dr. Stern again reported that he treated the veteran for his Huntington's chorea. He noted that this was a progressive heredogenerative disease of the brain that was characterized by abnormal involuntary movements, personality disorder, and dementia. Upon VA examination in April 1998, the examiner noted that the veteran's father and other relatives also had Huntington's disease. The veteran related that his condition had worsened since it was first diagnosed. He believed that his chorea had increased in frequency and stated that he frequently dropped objects due to sudden jerks. He had also had to stop driving as his reflexes had been slow, and had apparently been involved in more than one automobile accident. All four of his extremities had been affected, and his arms appeared to be more affected than his legs. He was still able to dress himself and perform his ordinary activities of daily living through it had been gradually worsening over time. The veteran also experienced trouble with his memory. He was unable to hold a job due to his symptoms. He believed that manifestations of Huntington's disease worsened with stress or illness. On physical examination, he was alert and oriented. He had frequent choreiform movements involving all four limbs and his head. His gait was somewhat broad based and "bouncy" in nature. He seemed to sway a bit from side to side as he walked. He was able to do toe gait and heel gait with difficulty and was unable to do tandem gait at all. His pupils were equal and reactive to light. His pursuits were normal, but his saccades were markedly slow and tended to look more like pursuits. His face was symmetric and his tongue was midline though he was unable to keep his tongue protruded when asked to do so, and he had multiple ticks of his tongue causing him to withdraw it. His neck was supple. His strength was 5 over 5 throughout through he frequently had brief episodes of give away due to a sudden choreiform movement involving that extremity when it was tested, but when the movements were not present, he seemed to be fairly strong. His deep tendon reflexes were 3 over 4 in the knees and left ankle, 3+ over 4 in right ankle and 3 over 4 with spread in the biceps, brachial radialis and triceps bilaterally. His toes were down going bilaterally. Finger to nose was slow and difficult but on target in the right hand, but slightly off target in the left. Rapid alternating motions were clumsy and slowed bilaterally, more so in the left hand than the right. Sensory examination was unremarkable. Upon rating decision in May 1999, the 30 percent rating was increased to 50 percent, effective from June 16, 1996, and increased to 80 percent, effective from February 10, 1998. Pertinent Laws and Regulations A person who submits a claim for benefits under a law administered by the VA shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. 38 U.S.C.A. § 5107(a) (West 1991). Where a disability has already been service-connected and there is a claim for an increased rating, a mere allegation that the disability has become more severe is sufficient to establish a well-grounded claim. Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). Accordingly, the Board finds that the veteran's claims for increased ratings are well grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). Disability evaluations are based upon the average impairment of earning capacity as determined by a schedule for rating disabilities. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1999). Separate rating codes identify the various disabilities. 38 C.F.R. Part 4. In determining the current level of impairment, the disability must be considered in the context of the whole-recorded history, including service medical records. 38 C.F.R. §§ 4.2, 4.41 (1999). An evaluation of the level of disability present also includes consideration of the functional impairment of the veteran's ability to engage in ordinary activities, including employment, and the effect of pain on the functional abilities. 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.49 (1999); DeLuca v. Brown, 8 Vet. App. 202, 204-06 (1995). The determination of whether an increased evaluation is warranted is based on review of the entire evidence of record and the application of all pertinent regulations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Once the evidence is assembled, the Secretary is responsible for determining whether the preponderance of the evidence is against the claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). If so, the claim is denied; if the evidence is in support of the claim or is in equal balance, the claim is allowed. Id. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (1999). DC 8106 provides that Huntington's chorea will be rated as Sydenham's chorea. It was noted that this disorder, though a familial disease, has its onset in late adult life, and is considered a ratable disability. Under DC 8105 Sydenham's chorea pronounced, progressive types of this disease warrant a 100 percent rating. Severe disease warrants an 80 percent rating. Moderately severe disease warranted a 50 percent rating. Moderate disease warranted 30 percent, and mild disease warranted a 10 percent evaluation. A "Note" indicates that consideration is to be given to rheumatic etiology and complications. Analysis The United States Court of Appeals for Veterans Claims (Court) entered a decision in Fenderson v. West, 12 Vet. App. 119 (1999), that held that there is an important distinction between where a claimant is dissatisfied with the initial or original rating assigned to a disability following the grant of service connection, and claims for an increased rating. At the time of initial ratings, ratings may be assigned for separate periods of time based on the facts found, a practice characterized by the Court as a "staged rating." Thus, the adjudicators and the Board can not limit consideration to just the evidence that pertains to the present level of disability. Hence, Francisco v. Brown, 7 Vet. App. 55 (1994), does not control. In this case, after reviewing the evidence of record and the rating decision over the years since the appeal process started, it is clear to the Board that the adjudicators considered all the evidence reflecting on the manifestations of Huntington's disease since the original claim was filed. They clearly did not consider only the evidence showing the "present" level of disability. It is by no means clear that requiring the RO to revisit the question of a "step rating" would be in the veteran's interest in this matter. The RO has, in fact, reviewed all the evidence and has awarded a "staged rating." The RO set the effective date of the increased "step" award as the date of the change of what was deemed increased symptoms. Accordingly, the Board finds that there is no prejudice to the claimant by proceeding on the record. Bernard v. Brown, 4 Vet. App. 384 (1993). Entitlement to a rating in excess of 50 percent for service- connected Huntington's disease, from June 16, 1996, to February 10, 1998, and entitlement to a rating in excess of 80 percent for service-connected Huntington's disease, from February 10, 1998. The record demonstrates overwhelmingly that the claimant currently has very disabling manifestations associated with his service-connected Huntington's disease. It does not show that these manifestations were as disabling, however, at the time of initial VA examination in September 1996, or earlier than February 1998. While it was noted that the veteran had twitchings in various areas, these twitchings were not evident at the time of the 1996 examination. Such involuntary movements had been demonstrated, however, at the time of medical evaluation board in December 1995. His condition was described as stable and "inactive" at the time of the September 1996 examination. VA records from 1996 and 1997 reflect continued treatment and occasional involuntary movements. Additionally, the veteran was shown to have decreased memory function and increased depression and anxiety. His mother asserted that he decreased motor function and memory in March 1997, but a persuasive, clinical increase in manifestations of this disorder is not indicated until the private physician's statements on February 10, 1998, when he reported that the veteran had difficulty walking, standing, sitting, handling objects, and writing. A statement provided by the veteran's mother dated several days later also reported increased severity of symptoms. While it was reported that the veteran last worked in September 1997, the actual functional limitations of his service-connected disability are not documented clinically at that time. The RO properly attempted to obtain the clinical records of the private physician both to provide a clearer picture of the disability and to better assess when the acknowledged progressive disability had increased in severity. Regrettably, no clinical records were provided and the terse reports of Dr. Stern now of record provide no basis to support a conclusion that the level of severity shown, at best, as of February 1998 existed for any time prior to that date. In light of these considerations, the Board agrees with the RO that there is no basis to award and evaluation in excess of 50 percent for manifestations of Huntington's disease from June 16, 1996, to February 10, 1998. This disability rating reflects moderately severe disease. Making an award of this level of disability compensation all the way back to the date after separation from service is a liberal interpretation of the record. The Board also believes that the RO was correct in assigning an 80 percent rating from the date of the private physician's February 1998 statement. This rating reflects severe disease. While the private physician's February 1998 statement is not particularly detailed, it does reflect that the veteran was experiencing problems with motor skill activities. A subsequently dated VA examination substantiates his statement with more clearly delineated clinical findings. The evidence of record describing the natural course of the disability indicates that the actual current manifestations more closely approximate severe, rather than pronounced disability. The VA examination report, however, also indicates that the overall impact of the actual current symptoms made the veteran unable to work. Records dated prior to February 10, 1998, do not reflect such severe symptoms. They show symptoms of early disease with continued occasional involuntary movements, some memory loss, and depression, and anxiety. While the Board has considered the lay evidence, it must attach greater weight to the clinical findings in assessing the level of disability. Accordingly, the Board concludes that the RO correctly determined that the disability should be rated at 80 percent on a schedular basis as of February 1998, but as it produced actual inability to obtain and retain employment, a total rating based upon individual unemployability also was warranted from that date. To find that an increased schedular award was proper prior to February 1998 on this current record would effectively require that the Board indulge in pure speculation. ORDER Entitlement to a rating in excess of 50 percent for service- connected Huntington's disease, from June 16, 1996, to February 10, 1998, is denied. Entitlement to a rating in excess of 80 percent for service- connected Huntington's disease, from February 10, 1998, is denied. Richard B. Frank Member, Board of Veterans' Appeals