BVA9504061 DOCKET NO. 93-08 964 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to an increased evaluation for post-concussional headaches, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD Jeanne Schlegel, Associate Counsel INTRODUCTION The veteran served on active duty from January 1938 to January 1941 and from September 1942 to November 1945; he was a prisoner of war of the German government from October 1944 to May 1945. This matter comes before the Board of Veterans' Appeals (the Board) on a appeal from a June 1991 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) which denied an increased evaluation forthe appellant's service- connected post-concussional headaches. REMAND Initially, the Board has found the appellant's claim well grounded pursuant to 38 U.S.C.A. § 5107 (West 1991) in that his claim is capable of substantiation. Murphy v. Derwinski, 1 Vet.App. 78 (1990). This finding is based on the appellant's evidentiary assertion that his service connected disability has increased in severity. Proscelle v. Derwinski, 1 Vet.App. 629 (1992); King v. Brown, 5 Vet.App. 19 (1993). Once it has been determined that a claim is well grounded, the VA has a statutory duty to assist the appellant in the development of evidence pertinent to the claim. 38 U.S.C.A. § 5107. Disability evaluations are intended to compensate for the average impairment of earning capacity, insofar as can practicably be determined, resulting from a service-connected disability. They are primarily established by comparing objective examination findings with the criteria set forth in the Schedule for Rating Disabilities, 38 C.F.R. § 4.1 (1992). Purely neurological disabilities (such as hemiplegia, epileptiform seizures, facial nerve paralysis, etc.), following trauma to the brain, will be rated under the diagnostic codes specifically dealing with such disabilities with citation of a hyphenated diagnostic code (e.g., Codes 8045-8207). 38 C.F.R. Part 4, Code 8045. Purely subjective complaints (such as headache, dizziness, insomnia, etc.), recognized as symptomatic of brain trauma will be evaluated as 10 percent disabling and no more under 38 C.F.R. Part 4, Code 9304. This 10 percent evaluation will not be combined with any other evaluation for a disability due to brain trauma. Ratings in excess of 10 percent for brain disease due to trauma under Code 9304 are not assignable in the absence of a diagnosis of multi-infarct dementia associated with brain trauma. 38 C.F.R. Part 4, Code 8045. A 10 percent evaluation is warranted for dementia associated with brain trauma productive of mild impairment of social and industrial adaptability. A 30 percent evaluation requires definite impairment of social and industrial adaptability. 38 C.F.R. Part 4, Code 9304. Throughout the years since his capture during World War II service, the veteran has complained of almost constant headaches of varying degrees. He also has complained of dizziness, although no true vertigo has been found on examination. His symptomatology further includes difficulty sleeping, depression and anxiety. A schedular evaluation of 10 percent for service connected residuals of a concussion manifested by headaches, has been in effect since August 1984. The veteran is presently receiving the maximum schedular evaluation for purely subjective concussion residuals under 38 C.F.R. Part 4, Diagnostic Codes 8045-9304. The veteran is also service connected for major depression with post traumatic stress disorder (PTSD) under 38 C.F.R. Part 4, Diagnostic Codes 9207-9411. Although outpatient treatment records are on file which cover the period from June 1991 to June 1992, these records tend to reflect treatment mainly for the appellant's psychiatric disability. VA examinations dated May 1991 and April 1988 are of record, neither of which indicate a diagnosis or any substantial findings regarding the veteran's post-concussional headache disability. A diagnosis of post-traumatic organic mental disease (dementia) is not of record. A hearing was held in June 1992, at which time the appellant testified that his headaches are the result of a concussion which occurred when he was captured and became a prisoner of war. The hearing officer informed the appellant that he would request that examinations be scheduled to evaluate the appellant's nervous condition and headache problems. A VA examination was scheduled for July 1992. However, only the appellant's mental condition with regard to PTSD was evaluated. It was noted by the examiner on that occasion (a clinical psychologist, Ph. D.) that "[T]he present report does not cover issues concerning his chronic headaches, as the writer is not a medical physician." During the VA examination conducted in July 1992, the veteran complained that the frequency and severity of his headaches was increasing. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet.App. 55 (1994). Since the current level of the appellant's disability has not been recently evaluated nor has a definitive diagnosis been rendered, the Board is of the opinion that a thorough and contemporaneous examination would be of assistance in rendering a determination in this case. Littke v. Derwinski, 1 Vet.App. 90 (1990). Thus, to ensure that the VA has met its duty to assist the appellant in developing the facts pertinent to the claim, the case is REMANDED to the RO for the following: The appellant should be afforded VA neurological and psychiatric examinations to determine the nature and extent of his service-connected residuals of a cerebral concussion. As part of their examinations, the examiners should specify whether the appellant has organic mental disease (dementia associated with brain trauma). All testing and studies deemed necessary should be performed. If organic mental disease or dementia is found, the examiners should be asked to render an opinion as to its etiology and the nature and severity of the condition. The claims folder should be made available to the examiners in conjunction with the examination, so that the relevant medical history may be reviewed. Thereafter, the case should be reviewed by the RO. If the benefit sought on appeal is not granted, a supplemental statement of the case should be issued to the appellant and his representative, and they should be provided an opportunity to respond. Subsequently, the claims folder should be returned to the Board for further review, if necessary. By this action, the Board intimates no opinion legal or factual, as to the ultimate disposition warranted as to this specific issue. J. F. GOUGH 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. Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1994).