BVA9505662 DOCKET NO. 93-12 132 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an increased evaluation for organic brain syndrome, currently rated 50 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C.A. Skow, Associate Counsel INTRODUCTION The appellant served on active duty from January 1941 to January 1945. This matter came before the Board of Veterans' Appeals (the Board) on appeal from an August 1992 rating decision of the Waco, Texas, Department of Veterans Affairs Regional Office (VARO). CONTENTION OF APPELLANT ON APPEAL The appellant contends that his service-connected organic brain syndrome is sufficiently severe to warrant a disability evaluation in excess of the 50 percent rating currently assigned. 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 preponderance of evidence is against a disability rating in excess of 50 percent for the appellant's service- connected organic brain syndrome. FINDING OF FACT The appellant's organic brain syndrome is currently manifested by subjective complaints for poor memory, irritability, and some anxiety, with an assessment of functioning representative of no more than considerable social and industrial impairment. CONCLUSION OF LAW The schedular criteria for a disability evaluation in excess of 50 percent for the appellant's service-connected organic brain syndrome are not met. 38 U.S.C.A. §§ 1155, 5107(b) (West 1991); 38 C.F.R. § 3.321, Part 4, Diagnostic Code 9315 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, the Board finds that the appellant has submitted evidence which is sufficient to justify a belief that his claim is well grounded. 38 U.S.C.A. § 5107(a) (West 1991) and Murphy v Derwinski, 1 Vet.App. 78 (1990). Furthermore, the undersigned believes that this case has been adequately developed for appellate purposes by VARO and that a disposition on the merits is in order. Background A longitudinal review of the record reflects that the appellant experienced a nervous breakdown while stationed in the Panama Canal zone during the Second World War, and was subsequently discharged for his psychiatric condition. By rating action dated September 1945, the appellant was service connected for anxiety. On VA examination report dated December 1946, obsessive- compulsive behavior, occasional depressive moods, hostility, and anger were noted. The appellant was diagnosed with "psychoneurosis, mixed with anxiety and obsessive-compulsive features." Also, the appellant was reported to be socially and economically adaptable. On VA examination in December 1949, the appellant reported that his psychiatric condition had improved; he noted that he only occasionally becomes nervous with anxiety, and that he feels good. By history, the appellant was a veterinary medicine student. The appellant was diagnosed with "no disease, following careful examination for psychiatric disorder." A private medical statement dated July 1981 reflects that the appellant was seen for visual difficulties related to ultra violet ray exposure. The physician noted that the appellant had encephalitis in 1966, and that the appellant was very nervous and under stress. In view of nervousness and vision difficulties, retirement was recommended. A private medical statement received in September 1981 from A.L. Daniel, M.D., reflects that the appellant was seen for complaints of vision difficulty, mental confusion, and severe tremors (in July); the physician opined that the appellant was unable to continue his veterinary practice. On VA examination in March 1982, the appellant complained of visual difficulties, confusion, and a feeling of volatility. By history, the appellant practiced veterinary medicine and did well professionally until 1966 when he had encephalitis. After his bout with encephalitis, he reportedly experienced nervousness along with a poor memory and concentration. The appellant indicated that he had sunburned his eyes in 1952 and that he has subsequently had photophobia along with increased vision difficulties. He retired from his veterinary practice in 1981. The appellant was diagnosed with mild chronic brain syndrome, probably secondary to encephalitis by history, with residuals of forgetfulness, disorientation, and visual complaints. The severity of the appellant's psychosocial stressors was noted to be minimal; and his assessment of functioning was evaluated as poor industrially due to his physical and organic problems. By rating action dated May 1982, the appellant's service- connected organic brain syndrome, previously rated as anxiety, was rated 10 percent disabling. In May 1990, the appellant requested an increased disability evaluation for his service-connected organic brain syndrome. VA outpatient treatment reports dated July 1990 reflect complaints for irritability and forgetfulness. Clinical findings indicate the presence of a nervous tic and memory deficit but with good recall of remote events. The appellant was assessed with increased nervousness. In November 1990, a VA psychiatric examination was conducted. The appellant was reported to be a 71-year old male, retired from veterinary practice since 1981, who has been married for 45-years with 2 children. The appellant claimed he had to retire due to "nervousness." It was noted that the appellant was not presently followed by the Mental Hygiene Clinic nor was he on any psychoactive medications. The appellant reported no significant disturbance of energy, sleep, or appetite. On examination, the appellant's behavior was relaxed and cooperative; his affect and mood were stable, wide in range and appropriate to his mood and thought content; and his sensorium was clear, fully oriented, without significant cognitive deficits, and with intact decision making and judgment. It was noted that the appellant's recall problems were likely related to age. The appellant was diagnosed with chronic organic brain syndrome, secondary to encephalitis in 1966 by history; the examiner indicated that there were minimal residuals with some recall problems and forgetfulness which could also be age associated. The appellant was also diagnosed with psychoneurosis anxiety type, by history, in complete remission. The appellant's psychosocial stressors were noted to be minimal, and he was assessed with a score of 85 on the Global Assessment of Functioning Scale consistent with the American Psychiatric Association's DIAGNOSTIC AND STATISTICAL MANUAL FOR MENTAL DISORDERS (3d ed. rev., 1987). The examiner explained that the score of 85 represents only minimal impairment of social and industrial functioning with symptoms of irritability and anxiety at times, and that his symptoms were unrelated to any major psychiatric disorder. The examiner opined that the appellant was unemployable and retired due to neurological problems related to encephalitis and mainly visual problems. By rating action dated January 1991, the appellant's claim for an increased rating for organic brain syndrome was denied. VA outpatient treatment reports dated September 1990 to May 1991 reflect complaints for poor memory, disorientation, and visual difficulties. In October 1991, the appellant again requested an increased rating for organic brain syndrome. On VA examination in July 1992, the appellant complained of memory loss. Clinical findings indicated that the appellant's speech was somewhat halting but that he had good thought content. A marked flight of ideas in conversation was noted. The diagnosis for post-encephalitic organic brain syndrome was continued. In July 1992, a private neurologic examination was conducted at the request of VARO. Meige syndrome of unknown etiology was shown; but it was thought by the examiner to be organic in nature. Also, clinical findings for marked snout reflex suggested dementia, and the appellant's wife confirmed that the appellant experiences memory difficulties and occasional disorientation. The examiner concluded that the appellant has Meige syndrome, cardiac disease, and early dementia due to either vascular disease or Alzheimer's disease. The examiner opined that the appellant was totally disabled. By rating action dated August 1992, the appellant's service- connected organic brain syndrome was rated 50 percent disabling. In October 1992, the appellant indicated disagreement with that decision, and argued that he is entitled to a disability evaluation in excess of 50 percent. Analysis In evaluating the appellant's request for an increased rating, the Board considers the medical evidence of record. The medical findings are compared to the criteria in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4 (1994). In so doing, it is our responsibility to weigh the evidence before us. Gilbert v. Derwinski, 1 Vet.App. 49 (1990). 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 required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (1994). All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6 (1994). The Board has carefully reviewed the pertinent medical evidence, including the appellant's entire medical history in accordance with 38 C.F.R. § 4.1 (1994) and Peyton v. Derwinski, 1 Vet.App. 282 (1991), and concluded that the appellant is adequately evaluated for his service-connected organic brain syndrome at the 50 percent disability level. In order to be granted a 70 percent or greater disability evaluation under diagnostic code 9315, the objective evidence must show that the appellant's condition has increased in severity resulting in severe impairment of social and industrial adaptability, or total impairment of social and industrial adaptability. The objective medical evidence of record reflects complaints for irritability, forgetfulness, and nervousness, absent any significant disturbance of energy, sleep, or appetite. Clinical findings were negative for impairment of intellectual functioning, judgment, and lability and shallowness of affect. On VA psychiatric examination in November 1990, the appellant's behavior was relaxed and cooperative; his affect and mood were stable, wide in range and appropriate to his mood and thought content; and his sensorium was clear, fully oriented, without significant cognitive deficits, and with intact decision making and judgment. While memory recall problems were noted, they were deemed most likely related to the appellant's age. The appellant was diagnosed with chronic organic brain syndrome, secondary to encephalitis; the appellant was also diagnosed with psychoneurosis anxiety type, by history, in complete remission. The appellant's psychosocial stressors were noted to be minimal, and his level of social and industrial impairment was also deemed minimal. Although the appellant was found to be unemployable in the examiner's opinion, he scored an 85 on the Global Assessment of Functioning Scale which was explained by the examiner to represent only minimal impairment of social and industrial functioning, and it was noted by the examiner that the appellant was unemployable mainly due to visual problems. Upon consideration of the appellant's description of his symptoms coupled with the objective medical evidence of record, the Board believes that the record supports the 50 percent disability evaluation for organic brain syndrome currently assigned. The disability picture does not more nearly approximate the criteria for a 70 or 100 percent schedular evaluation. The current degree of the appellant's impairment, described on VA examination in November 1990 as "mild," and found by the Board, on consideration of the entire record and history of symptomatology to be considerable, is insufficient to warrant a rating consistent for severe or total social and industrial impairment as contemplated by the Rating Schedule. Application of the extraschedular provisions is not warranted in this case. 38 C.F.R. § 3.321 (b) (1994). There is no evidence that the organic brain syndrome presents such an exceptional disability picture with such related factors as marked interference with employment or frequent periods of hospitalization so as to render impractical the application of the regular schedular standards. While the appellant is deemed not employable, the objective evidence of record notes that it is primarily because of visual difficulties, and the reasons are not shown as being related to the mental disorder alone. ORDER A disability rating in excess of 50 percent for organic brain syndrome is denied. C.P. RUSSELL 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.