BVA9502307 DOCKET NO. 93-07 905 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an increased rating for post-traumatic organic brain syndrome, currently evaluated as 30 percent disabling. 2. Entitlement to an increased rating for post-traumatic seizure disorder, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD P. A. Dowdell, Associate Counsel INTRODUCTION The veteran served on active duty from July 1981 to October 1983. This matter came before the Board of Veterans' Appeals (hereinafter the Board) on appeal from a September 1990 rating decision from the St. Petersburg, Florida, Regional Office (RO). That determination, in pertinent part, restored a 10 percent evaluation for post-traumatic seizure disorder, secondary to head injury, effective from November 6, 1985. That determination also reduced the evaluation for frontal, right-sided, post-traumatic headaches from 30 percent to 10 percent effective from May 1, 1990. By rating action dated in January 1992, the veteran's frontal right sided, post-traumatic headaches was reclassified as post-traumatic organic brain syndrome manifested by headaches and memory impairment, and assigned a 30 percent evaluation, effective from November 6, 1985. A statement from the veteran's representative dated in March 1993, continued the appeal relative to an increased rating for post-traumatic brain syndrome. We note that the veteran appears to raise the additional issues of entitlement to service connection for a back disorder and entitlement to an increased rating for right upper extremity paresthesia, secondary to head injury. Inasmuch as these issues have not been developed for appellate consideration at this time, and such issues are not inextricably intertwined with the adjudication of the issues on appeal, they are referred to the RO for appropriate action. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends, in essence, that his post traumatic organic brain syndrome and post-traumatic seizure disorder has worsened and he should be entitled to an increased evaluation. 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 the evidence is against the claims for an increased rating for post-traumatic organic brain syndrome and post-traumatic seizure disorder. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained. 2. The veteran's post-traumatic organic brain syndrome is primarily manifested by headaches and memory impairment, productive of no more than definite social and industrial impairment. 3. The veteran's post-traumatic seizure disorder is currently controlled by Dilantin. The veteran has not experienced any recurrence of seizures since 1986 when he restarted on Dilantin. 4. Neither an unusual nor exceptional disability picture has been demonstrated so as to render impractical the application of the regular schedular standards. CONCLUSION OF LAW 1. The criteria for an evaluation in excess of 30 percent for post-traumatic organic brain syndrome have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 3.321(b), Part 4, §§ 4.3, 4.7, 4.132, Diagnostic Code 9304 (1993). 2. The criteria for an evaluation in excess of 10 percent for post-traumatic seizure disorder have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 3.321(b) Part 4, §§ 4.1, 4.2, 4.3, 4.7, 4.121, 4.122, 4.124a, Diagnostic Code 8910 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board notes that the veteran's claims are "well-grounded" within the meaning of 38 U.S.C.A. § 5107. That is, the Board finds that he has presented claims which are plausible. We are 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 mandated by 38 U.S.C.A. § 5107. In this regard, we note that the veteran's representative, in the Informal Hearing Presentation dated in November 1993, requested that the Board of Veterans' Appeals remand these claims, in order to accomplish additional development of the medical record. We find that the current record is sufficiently comprehensive for us to determine whether an increased rating for post-traumatic organic syndrome and post-traumatic seizure disorder is warranted, and that any additional development of the record at this time would not be productive. Service connection for headaches and post-traumatic seizure disorder, secondary to a head injury was granted by a rating action dated in October 1987, following a review of the evidence then of record, including, in particular, the service medical records and the report of VA examination conducted in April and May 1987. A 10 percent evaluation was assigned for each disability effective from November 6, 1985. By rating action dated in February 1988, the veteran was assigned a 30 percent evaluation for headaches effective from November 6, 1985. As indicated above, the veteran currently contends that his post- traumatic organic brain syndrome and post-traumatic seizure disorder are of such severity as to warrant an increased evaluation. After a review of the record, the Board finds that his contentions are not supported by the evidence of record, and that his claims for an increased evaluation for these disorders fails. Disability evaluations are based upon the average impairment of earning capacity as contemplated by a schedule for rating disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. The severity of a psychiatric disability is based upon actual symptomatology as it affects social and industrial impairment. Two of the most important determinates of disability are time lost from gainful employment and decrease in work efficiency. 38 C.F.R. § 4.130 (1993). The differences among no industrial impairment, mild impairment, definite impairment, considerable impairment, severe impairment, and total impairment are matters of degree. 38 C.F.R. Part 4, § 4.130, Diagnostic Code 9304. Unlike certain physical disorders that have clear-cut manifestations that either meet or do not meet the schedular criteria, the evaluation of a psychiatric disorder involves a significant degree of judgment. Impairment of social adaptability, in itself, the history and complaints provided by the veteran, or the categorization of the severity of impairment by a psychiatric examiner or treating physician, is not determinative. 38 C.F.R. §§ 4.126, 4.129, and 4.130 (1993). It must be shown that industrial impairment is the result of actual manifestations of the service-connected psychiatric disorder. The severity of post-traumatic organic brain syndrome is determined, for VA rating purposes, by application of the provisions of Parts 3 and 4 of the Code of Federal Regulations, and in particular 38 C.F.R. § 4.132 (1993) and Diagnostic Code Diagnostic Code 9304 of the VA's Schedule for Rating Disabilities, 38 C.F.R. Part 4 (1993). Under Diagnostic Code 9304, there are various disability levels for evaluating organic mental disorders, ranging from noncompensable to 100 percent. 38 C.F.R. Part 4, Diagnostic Code 9304. A 30 percent evaluation is warranted for a non-psychotic organic brain syndrome with brain trauma (dementia associated with brain trauma) with definite impairment of social and industrial adaptability. A 50 percent evaluation requires considerable impairment of social and industrial adaptability. 38 C.F.R. Part 4, Diagnostic Code 9304. In Hood v. Brown, 4 Vet.App. 301 (1993), the Court of Veterans Appeals stated that the term "definite" in 38 C.F.R. § 4.132 was "qualitative" in character, whereas the other terms were "quantitative" in character, and invited the Board to "construe" the term "definite" in a manner that would quantify the degree of impairment for purposes of meeting the statutory requirements that the Board articulate "reasons or bases" for its decision. 38 U.S.C.A. § 7104(d)(1) (West 1991). In a precedent opinion, dated November 9, 1993, the General Counsel of the VA concluded that "definite" is to be construed as "distinct, unambiguous, and moderately large in degree". It represents a degree of social and industrial inadaptability that is "more than moderate but less than rather large." O.G.C. Prec. 9-93 (Nov. 9, 1993); Fed. Reg. 4753 (1994). The Board is bound by this interpretation of the term "definite." 38 U.S.C.A. § 7104(c). The severity of post-traumatic seizure disorder secondary to head injury is determined, for VA rating purposes, by application of the provisions of Parts 3 and 4 of the Code of Federal Regulations, and in particular 38 C.F.R. §§ 4.121, 4.122, 4.124a (1993) and Diagnostic Code 8910 of the VA's Schedule for Rating Disabilities, 38 C.F.R. Part 4 (1993). Grand mal epilepsy is evaluated under the general rating formula for major seizures. A major epileptic seizure is characterized by a generalized tonic-clonic convulsion with unconsciousness. For rating purposes, there is no distinction between diurnal and nocturnal major seizures. A confirmed diagnosis of epilepsy with a history of seizures warrants a 10 percent evaluation. Ten percent is also the minimum evaluation when continuous medication is shown necessary for the control of epilepsy. (This minimum evaluation will not be combined with any other rating for epilepsy.) A 20 percent evaluation requires at least 1 major seizure in the last 2 years or at least 2 minor seizure in the last 6 months. 38 C.F.R. Part 4, Diagnostic Code 8910. The report of Department of Veterans (hereinafter VA) conducted in August 1990 noted that the veteran reported to the examiner that he has not had any recurrence of seizures since 1986 when he began retaking his Dilantin. The veteran stated that his Dilantin runs in the therapeutic range and he takes 400 milligram, at bedtime. He has great difficulty with thinking processes. The veteran indicated that he had noticed problems with speaking as well as writing. The veteran also admitted to daily headaches which were usually frontal and right sided in nature. He reported to the examiner that he used multiple medications for his headaches. On neurolo-gical examination, the veteran was awake and alert. His speech was slightly dysarthric. He was appropriate and followed commands without difficulty. His gait was normal with good toe-heel and tandem walking. Cranial nerves II-XII were normal with the exception of a mild ptosis of the right eye. Reflexes were +2 bilaterally. Toes were down going bilaterally. Strength was 5/5 in all groups tested. Sensation was normal to pinprick and vibration sense with the exception of the right arm and right facial area. There was no evidence of any craniocular, carotid and/or subclavian bruits. Finger to nose, and heel to shin, fine motor coordination testing were done well. The examiner's diagnostic impression included that the veteran sustained a head trauma resulting in a frontal lobectomy on the right by history. The examiner stated that the veteran has a seizure disorder as a result of this which was well controlled on Dilantin. The examiner noted that the veteran likely had many cognitive disabilities as a result of his injury in the service and that he would have to defer opinions on this to a neuropsychologist who should do some testing on the veteran as to the degree to which he is impaired and his ability to carry on a job. He recommended that the veteran continue on the Dilantin indefinitely at this time even though he has done well without seizures. The examiner indicated that if the veteran went off of the medicine because of his structural abnormality seizures might certainly reoccur. The examiner further noted that the veteran's headaches were post traumatic in nature and suggested a trial of Doxepin if this had not been done previously. VA outpatient treatment records dated from September 1990 to March 1991 primarily refer to treatment of disabilities that are not at this time the subject of Board review. However, we do note that a VA outpatient treatment record dated in December 1990 includes assessment of seizure disorder. Sworn testimony provided by the veteran at the RO hearing in May 1991 was essentially an elaboration of his previously mentioned contentions. The report of VA examination performed in November 1991 does not show findings relative to post-traumatic organic brain syndrome or post-traumatic seizure disorder. The report of VA examination conducted in December 1991 demonstrates that the veteran reported to the examiner that he takes 400 milligram of Dilantin per day to control his seizure disorder. The diagnoses included post traumatic seizure, controlled. The report of VA examination performed in January 1992 demonstrates that on mental status examination, the veteran was alert and responsive with no abnormal movements. He was cooperative and pleasant, had a good sense of humor and appeared to have made an excellent adjustment to his rather severe disability. The examiner described the veteran as one of those unique individuals who had little self pity and did not dwell on his deficits, but concentrated on his abilities. The veteran denied psychiatric symptomatology, hallucinations or delusions. He appeared to be well adjusted socially. There was no evidence of thought disorder. Although the examiner suspected that there may have been some considerable cognitive deficits, they were not apparent in ordinary conversation and the routine testing of a psychiatric examination of memory, fund of information, ability to calculate, etc. The examiner summarized that the veteran has a chronic organic brain syndrome with a number of problems in living as a result. The examiner noted that although patient's of this type can often benefit considerably from psychiatric treatment, the disability was not the result of a pure psychiatric disorder (despite the confusional classification of the DSM-III-R). He indicated that the veteran showed some of the personality characteristics of the temporal lobe syndrome, but they were not typical. The disability was less obvious than usually seen. The examiner noted that although a psychiatric examination may be essentially negative at any one point in time, the extent of disability could more validly be determined from a longitudinal clinical record. The examiner stated that these records were not furnished. The Board notes that the examiner indicated on the report of VA examination that the veteran reported to the examination accompanied by his C-file. The examiner's diagnostic impression was organic brain syndrome. Based on a review of all of the evidence of record, the Board finds that an evalua-tion in excess of 30 percent for post- traumatic organic brain syndrome is not warranted. The findings on the January 1992 VA examination are the most probative relative to the veteran's current disability status, and are not inconsistent with his medical history. Inasmuch as the veteran was alert, responsive with no abnormal behavior, cooperative, pleasant, had a good sense of humor, appeared to have made an excellent adjustment to his rather severe disability, denied psychiatric symptomatology, hallucinations or delusions, appeared to be well adjusted socially, and had no evidence of thought disorder, the evidence does not demonstrate that the veteran's service-connected post-traumatic organic brain disorder has considerably impaired his social and industrial adaptability so as to warrant the next higher evaluation, a 50 percent evaluation, under Diagnostic Code 9304. 38 C.F.R. § 4.7. Therefore, a rating in excess of 30 percent is not warranted. The Board also finds that an evaluation in excess of 10 percent for post-traumatic seizure disorder is not warranted. There has been no demonstration of at least one major seizure in the last 2 years of at least 2 minor seizures in the last 6 months, so as to warrant a greater evaluation under Diagnostic Code 8910. The reported clinical findings on VA examination in August 1990 reflect statements made by the veteran to the examiner that he has not experienced any recurrence of seizures since 1986 when he restarted his Dilantin. As noted above, the Schedule provides that when continuous medication is shown necessary for control of epilepsy, the minimum evaluation will be 10 percent, and that rating will not be combined with any other rating for epilepsy. Therefore, the veteran is not entitled to an additional 10 percent to be combined with the 10 percent rating assigned currently. Inasmuch as the schedular criteria for an increased evaluation are not met, we must accord-ingly conclude that the preponderance of the evidence is against the veteran's claim for an increased evaluation for post-traumatic seizure disorder. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4, Diagnostic Code 8910 (1993). In reaching this decision, the Board has considered the complete history of the disabilities in question as well as the current clinical manifestations and the impact the disabilities may have on the earning capacity of the veteran. 38 C.F.R. §§ 4.1, 4.2 (1993). In exceptional cases where the schedular evaluations are found to be inadequate, an extraschedular evaluation may be awarded commensurate with average earning capacity impairment due exclusively to the service-connected disability. 38 C.F.R. § 3.321. We do not find that this case presents such an exceptional or unusual disability picture inasmuch as there has been no demonstra-tion of such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. ORDER An increased rating for post-traumatic organic brain syndrome and post-traumatic seizure disorder is denied. LAWRENCE M. SULLIVAN 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.