BVA9501838 DOCKET NO. 93-05 719 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to a finding that total disability based on individual unemployability due to service-connected disabilities is permanent. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD James A. Frost, Associate Counsel INTRODUCTION The veteran served on active duty from August 1966 to August 1969, including service in the Republic of Vietnam. He was born in July 1947. This appeal arises from a rating decision in August 1992 by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that residuals of non-Hodgkin's lymphoma, including headaches, paresthesias, and organic brain syndrome with cognitive impairment, have rendered him totally disabled on a permanent basis. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the record supports a finding of permanency of the veteran's total disability evaluation based on individual unemployability. FINDING OF FACT The current total disability based on individual unemployability caused by the veteran’s service connected disorders is reasonably certain to continue throughout the remainder of his life. CONCLUSION OF LAW The veteran’s service connected disorders warrant a permanent and total disability evaluation based on individual unemployability. 38 U.S.C.A. § 5107 (West 1991); 38 C.F.R. § 3.340(b) (1994). REASONS AND BASES FOR FINDING AND CONCLUSION Initially, the Board notes that the veteran's claim is "well- grounded" within the meaning of 38 U.S.C.A. § 5107(a). That is, he has presented a claim which is plausible. The Board is also satisfied that all relevant facts have been properly developed. No further assistance to the veteran is required to comply with the duty to assist the veteran mandated by 38 U.S.C.A. § 5107(a). Service connection is in effect for non-Hodgkin’s lymphoma, status post excision of an intracranial tumor, without evidence of metastasis, but with residuals of a well healed scar, associated headaches and migratory paresthesia, evaluated as 60 percent disabling; organic brain syndrome, with decreasing cognitive abilities and progressive multifocal leukoencephalopathy, evaluated as 30 percent disabling; and for residuals of a fractured ileum, evaluated as 20 percent disabling. The veteran’s combined rating is 80 percent, and since March 12, 1992, he has been entitled to a total disability evaluation due to individual unemployability. In January 1982 the veteran underwent brain surgery at a private hospital. The pathological diagnosis was extraosseous subgaleal tumor, malignant lymphoma, diffuse, well-differentiated, lymphocytic type. Frances Fan, M.D., a private internist, reported that the veteran had a non-Hodgkin's lymphoma of the brain. In May 1987, he was admitted to a private hospital in a state of confusion and a decreased level of consciousness. A computerized tomography scan of the brain was unremarkable. Patricia J. Burcar, M.D., a private neurologist, reported in May 1987, that the veteran had a left hemisphere lesion either on the basis of a complicated migraine, recurrent lymphoma, or a central nervous system infection. Dr. Burcar in June 1987, reported that the veteran remained hospitalized due to a fever and right hemiparesis of unknown etiology. The veteran’s prognosis remained uncertain. The veteran was judged to be severely disabled. Later in June 1987, Alvin L. Otuska, M.D., reported that the veteran had an encephalopathy of unknown cause. The veteran’s condition was such that he was unable to take care of himself. The prognosis for rehabilitation was judged to be totally unknown. In November 1987, Drs. Burcar and Otuska judged that the veteran was able to return to work full time without restriction. In May 1990, Joyce E. Mauk, M.D., a private neurologist, reported that the veteran was under her care for complaints of numbness affecting the face, arm, and the leg, followed by severe migraine-type headaches. Treatment consisted of various medications. In December 1989, Dennis V. Barcz, M.D., a private otolaryngologist, reported that the veteran had sinusitis; his nasal mucosa were atrophic, perhaps secondary to radiation therapy for lymphoma. At a VA compensation examination in September 1990, the veteran reported that he had been diagnosed with non-Hodgkin’s lymphoma, and that he continued to have episodes of migratory numbness and headaches, which occasionally were accompanied by nausea and vomiting. He was taking Isocom, as needed, for headaches. A neurological examination was within normal limits. The diagnosis was non-Hodgkin's lymphoma, status post excision of an intracranial tumor, without evidence of metastases, with residuals of a well-healed scar and associated headaches with migratory paresthesias. In September 1991, the veteran was admitted to a private hospital with a history of a craniotomy secondary to lymphoma and a severe cerebral vascular accident. He complained of a throbbing headache for five days. A MRI (magnetic resonance imaging) of the brain showed a pattern of white matter consistent with progressive multifocal leukoencephalopathy. A repeat MRI confirmed deep white matter disease. C. M. Wiener, M.D., a private neurologist, reported that the veteran had memory problems and difficulty with concentration and cognitive tasks related, at least partially, to previous whole brain radiation. In October 1991, Dr. Wiener reported to the veteran's employer that the veteran was having spells of confusion which were probably seizures, and headaches which might represent small seizures. The veteran was recommended not to drive for six months. Dr. Wiener thought that the veteran would need anti- convulsant medication for the rest of his life, and that his higher cognitive functioning may deteriorate gradually. At a VA examination in December 1991, the veteran gave a history of progressive white matter disease of the brain (leukoencephalopathy), with continued numbness, headaches and problems with memory, communication and balance. The examiner reviewed the veteran's medical records, which showed that he had had non-Hodgkin's lymphoma in the parietotemporal region, status post resection, status post radiation therapy. Thereafter, he had developed severe frontal and bilateral headaches (diagnosed as migraines), with photophobia and numbness in the right arm. On examination, the veteran's short and long term memory were impaired; he had problems following multistep directions; and his answers were very tangential. The examiner found that the veteran had headaches, paresthesias, decreasing cognitive ability and progressive multifocal leukoencephalopathy. At a VA neuropsychiatric examination in December 1991, the veteran reported that he had feelings of depression, crying episodes, thoughts about dying, and increasing memory loss. He slept only four hours per night, and his daily activities were limited. On mental status examination, his speech was generally logical but hesitant and, at one point, mildly tangential. He had memory impairment. He denied suicidal plans or intent. The examiner found him to have clear symptoms of mild to moderate organic brain syndrome, secondary to both underlying lymphoma and past radiation treatment. The examiner judged that it was likely that the veteran's organic condition would continue to slowly deteriorate, and that he would have further cognitive and memory dysfunction, with variable progression, depending on his lymphoma. The veteran was also found to have a dysthymic disorder. A rating decision in February 1992 granted service connection for organic brain syndrome with decreasing cognitive abilities and progressive multifocal leukoencephalopathy. A rating decision in August 1992 granted a total disability rating based on individual unemployability due to service-connected disabilities, but did not find permanency. In June 1992, the Burlington Northern Railroad, the veteran’s employer, reported that he last worked in August 1991 and that he was placed on disability retirement in February 1992. In October 1992, Dr. Wiener reported that the veteran was taking a new medication and no longer had periods of confusion. The veteran, however, was reported to still have occasional left- sided headaches with numbness in his hand. Recent MRI's had shown leukomalacia, probably secondary to irradiation. The veteran had mild cognitive deficits and personality changes secondary to the initial tumor or to radiation, and Dr. Wiener opined that he might be at risk of deterioration of his higher cognitive functioning. The veteran was further judged to require anticonvulsant therapy for the rest of his life, and it was suggested that he would probably continue to have episodes of headaches and tingling. Dr. Wiener thought that the veteran's cognitive functioning, which was very gradually deteriorating, would continue to do so. Applicable regulations provide that, "Permanence of total disability will be taken to exist when such impairment is reasonably certain to continue throughout the life of the disabled person...diseases and injuries of long standing which are actually totally incapacitating will be regarded as permanently and totally disabling when the probability of permanent improvement under treatment is remote." 38 C.F.R. § 3.340(b). In this case, the veteran’s leukoencephalopathy, which was a result of his service-connected non-Hodgkin's lymphoma, has been found by numerous specialists in neurology to have resulted in organic brain syndrome and to be progressive in nature. The symptomatology of the veteran's service-connected disability, including headaches, paresthesias and decreasing cognitive ability, has rendered him totally disabled from his prior occupation as a railroad clerk, as well as from any other substantially gainful employment. More importantly, there is no evidence showing or even suggesting that any permanent improvement in the disabling extent of the veteran’s lymphoma or organic brain syndrome is anything other than remote. Consequently, notwithstanding the veteran’s young age and the fact that neither his lymphoma, nor his organic brain syndrome, nor his ileum fracture residuals warrant an individual permanent rating of 100 percent, there is no evidence suggesting that the combined effect of these disabilities will ever permanently improve to the point that substantially gainful employment is realistic. The Board therefore concludes that "the probability of permanent improvement under treatment is remote" in the veteran's case and, accordingly, a finding of permanency of his total disability is appropriate. 38 C.F.R. § 3.340(b). ORDER The veteran's total disability based on individual unemployability due to service-connected disabilities having been found to be permanent, the benefit sought on appeal is granted. DEREK R. BROWN Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.