Citation Nr: 0003622 Decision Date: 02/11/00 Archive Date: 02/15/00 DOCKET NO. 90-25 456A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to an increased evaluation for residuals of concussion with headaches and dizziness, currently evaluated as 10 percent disabling. 2. Entitlement to service connection for fracture of the spine, to include the issue of timeliness of substantive appeal. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Grace Jivens-McRae, Counsel INTRODUCTION The veteran served on active duty for training from January 1966 to July 1966. This matter comes before the Board of Veterans' Appeals (Board) of the Department of Veterans Affairs (VA) on appeal from a rating determination in June 1989 by the Washington, D.C., Regional Office (RO), which denied entitlement to an increased evaluation for residuals of concussion with headaches and dizziness. In July 1994, the Washington, D.C. RO transferred the veteran's claim to the Huntington, West Virginia RO. FINDINGS OF FACT The veteran's service-connected residuals of concussion with headaches and dizziness are manifested by weekly headaches; multi-infarct dementia associated with trauma is not shown. CONCLUSION OF LAW The criteria for an evaluation in excess of 10 percent for service-connected residuals of concussion with headaches and dizziness are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.124, Diagnostic Codes 8045-9304 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION At the outset, it is important to note that the veteran's claim for an increased evaluation for residuals of concussion with headaches and dizziness is well grounded within the meaning of 38 U.S.C.A. § 5107(a). That is, he has presented a claim that is plausible. A claim for an increased evaluation is well grounded when the claimant asserts that a condition for which service connection has been granted has worsened. Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). In this case, the veteran has asserted that his residuals of concussion with headaches and dizziness are more severe than currently evaluated; thus, his claim for an increase is well grounded. The Board also is satisfied that all relevant facts have been properly developed. The veteran has undergone VA examination in September 1989 and March 1998. He was scheduled a videoconference hearing in August 1999. He failed to report for this hearing. The record is now complete; there is no further obligation to assist the veteran in the development of his claim as mandated by 38 U.S.C.A. § 5107(a). In a rating decision of August 1968, the RO granted service connection for residuals of concussion with headaches and dizziness and assigned a 10 percent evaluation, effective from April 1968. This 10 percent evaluation was confirmed and continued by rating decisions in June 1989, December 1989, December 1990, and March 1995. The 10 percent evaluation has since remained in effect. Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. The provisions of 38 C.F.R. § 4.1 require that each disability be reviewed in relation to its history and that there be emphasis upon the limitation of activity imposed by the disabling condition. The provisions of 38 C.F.R. § 4.2 require that medical reports be interpreted in light of the whole-recorded history and that each disability must be considered from the point of view of the veteran working or seeking work. These requirements for evaluation of the complete medical history of the claimant's condition operate to protect the claimant against adverse decisions based on a single incomplete or inaccurate report and to enable the VA to make a more precise evaluation of the level of disability and of any changes in the condition. Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The diagnostic code numbers on the rating sheet appearing opposite the listed ratable disabilities are arbitrary numbers for the purpose of showing the basis of the evaluation assigned and for statistical analysis in the Department of Veterans Affairs, and as will be observed, extend from 5000 to a possible 9999. Great care will be exercised in the selection of the applicable code number and in its citation on the rating sheet. When an unlisted disease, injury, or residual condition is encountered, requiring rating by analogy, the diagnostic code number will be "built-up" as follows: The first 2 digits will be selected from that part of the schedule most closely identifying the part, or system of the body involved; the last 2 digits will be "99" for all unlisted conditions. This procedure will facilitate a close check of new and unlisted conditions, rated by analogy. In the selection of code numbers, injuries will generally be represented by the number assigned to the residual condition on the basis of which the rating is determined. With diseases, preference is to be given to the number assigned to the disease itself; if the rating is determined on the basis of residual conditions, the number appropriate to the residual condition will be added, preceded by a hyphen. 38 C.F.R. § 4.27 (1999). The veteran underwent VA examination in October 1989. The veteran gave a history of injury in an explosion in 1965. He related that he suffered a concussion and low back and neck injuries. Physical examination revealed intermittent left arm numbness and weakness accompanied by tingling paresthesias. He continued to have occasional dizzy spells. The pertinent diagnosis was post-concussion syndrome with episodic vertigo. In March 1998, the veteran underwent a VA examination. He reported that when he was subjected to an explosion in service in 1966, he landed on his head and was rendered unconscious. He was hospitalized for 3-4 days. He reported no known surgery. His symptoms included dysarthria, anterograde amnesia, trauma and headaches all which began at the time of the explosion. He continued to have headaches, located bitemporally, and in the periorbital regions. The frequency of the headaches were continuous but soon tapered off. At the time of the examination, he had the headaches weekly. The severity of the headaches was 7 over 10 (0 equals no pain; 10 equals worst pain imaginable). The pain was described as throbbing in the temples and pressure in the eyes. He noted no triggers such as food, weather, or stress. He described his headaches as "just bad." He noted that he had other head injuries which included a motor vehicle accident. He related that following the motor vehicle accident, the character of the headaches did not change. Physical examination revealed full visual fields on confrontation with fingers. Fundi showed sharp disc with normal vasculature, bilaterally. Pupils reacted briskly from 6mm to 4mm, bilaterally without afferent pupil defect. There was no nystagmus. Facial sensation was intact. There was no facial asymmetry or weakness. Light touch, pin, and vibration were intact throughout. The pertinent diagnosis was post-traumatic headaches. The examiner indicated that the headaches suffered at the time of the examination were due to the initial concussive injury in 1966. The veteran is rated under Diagnostic Code 8045 for brain disease due to trauma. Purely subjective complaints such as headache, dizziness, insomnia, etc., recognized as symptomatic of brain trauma, will be rated 10 percent and no more under diagnostic code 9304. This 10 percent rating will not be combined with any other rating for a disability due to brain trauma. Ratings in excess of 10 percent for brain disease due to trauma under diagnostic code 9304 are not assignable in the absence of a diagnosis of multi-infarct dementia associated with brain trauma. In this case, the veteran has been diagnosed with post- traumatic headaches. It was also noted that he had episodic vertigo. However, in order to warrant more than a 10 percent evaluation, he must show a diagnosis of multi-infarct dementia associated with brain trauma. This has not been diagnosed. Therefore, the veteran does not warrant an evaluation in excess of 10 percent for his service-connected residuals of concussion with headaches and dizziness. It is important to note that the RO also evaluated the veteran's service-connected residuals of concussion with headaches and dizziness under diagnostic code 8100 for migraine headaches. The RO determined that the veteran's headaches did not warrant a 30 percent evaluation under the diagnostic code for migraines because there was no evidence of characteristic prostrating attacks occurring on an average of once a month over the last several months. Under applicable criteria, the diagnostic code numbers appearing on the list of ratable disabilities are arbitrary numbers for the purpose of showing the basis of the evaluation assigned and for statistical analysis by the Department of Veterans Affairs. When an unlisted disease, injury or residual condition is encountered, requiring rating by analogy, the diagnostic code number will be "built up" as follows: The first two digits will be selected from that part of the schedule most closely identifying the part, or system, of the body involved; the last two digits will be "99" for all unlisted conditions. This procedure will facilitate a close check of new and unlisted conditions, rated by analogy. 38 C.F.R. § 4.27 (1999). The Board however, will not give further consideration to evaluating the veteran's disability by analogy to migraines because his condition is listed and does not require an evaluation by analogy. Finally, the above decision is based on application of pertinent provisions of the VA's Schedule for Rating Disabilities. The Board notes that there is no indication that the schedular criteria are inadequate to evaluate the veteran's concussion disability. In this regard, the Board notes that there has been no showing that the disability under consideration has caused marked interference with employment (i.e., beyond that contemplated in the assigned evaluation), has necessitated frequent periods of hospitalization, or otherwise has rendered impracticable the application of the regular schedular standards. In the absence of evidence of such factors, the Board is not required to remand this matter to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1). See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER An increased evaluation for the veteran's service-connected residuals of concussion with headaches and dizziness is denied. REMAND The veteran and his representative contend, in essence, that service connection is warranted for fracture of the spine based on service incurrence. In June 1989, the veteran raised the issue of entitlement to service connection for a back disability based on an injury sustained during an explosion in service. He also claimed an increased evaluation for residuals of concussion with headaches and dizziness based on a previous grant of service connection for this disability by rating decision in August 1968. By rating decision in June 1989, an increased evaluation for residuals of concussion with headaches and dizziness was denied. No mention was made of the veteran's claim for service connection for a back disability. He was notified by letter of the same month regarding his denial of an increased evaluation for residuals of concussion with headaches and dizziness, again with no mention of his claim for service connection for a back disability. In January 1990, a letter was received from the veteran's accredited representative indicating that they were submitting a VA Form 21-4138 in support of the veteran's claim. They requested that the VA Form 21-4138 be considered a notice of disagreement (NOD) rather than a reopened claim. The VA Form 21-4138 indicated that the veteran wanted to reopen his claim for service connection for fractures of the spine. The veteran also requested that all of his medical records be obtained from the Washington, D.C., VA medical center. In June 1990, a statement of the case (SOC) regarding an increased evaluation for residuals of concussion with headaches and dizziness was issued. That same month, a substantive appeal (VA Form 1-9) (SA) was submitted by the veteran's representative on his behalf for the increased rating claim for residuals of concussion with headaches and dizziness. Also, the veteran submitted on his own behalf a VA Form 1-9 in connection with his claim for service connection for fractures of the back. However, the RO at this point had not denied or otherwise acted on the veteran's claim for service connection for fracture of the spine. In August 1990, a Report of Contact was associated with the veteran's claims folder. This Report of Contact indicated that the veteran was canceling a personal hearing which was scheduled for September 6, 1990; he wanted it known that he was being treated at the VA medical center in Martinsburg, West Virginia; he requested that these records be obtained prior to his claim being reviewed by the Board; and he thought the issue presently on appeal was related to a spinal condition. A notation was made on the Report of Contact form that the veteran was requesting a reopened claim for a spinal condition be initiated (cervical and lumbar). It was also indicated that a new SOC for this issue should be provided. By rating decision of December 1990, an increased evaluation for residuals of concussion with headaches and dizziness and service connection for fracture of the spine was denied. In January 1991, the veteran was notified by letter of the aforementioned denials. A supplemental statement of the case (SSOC) was also issued. The issue as listed on the SSOC was "[s]ame as stated in previous Statement of the Case dated June 4, 1990." No new laws and regulations or reasons for denial were given. In December 1991, the veteran's representative submitted a NOD specifically disagreeing with the denial of service connection for fracture of the spine as reported in the January 1991 letter from the RO. This NOD was received within one year of the January 1991 letter from the RO informing of the denial of service connection for fracture of the spine. In August 1992, a SSOC was issued by the RO which reflected that the issues were entitlement to an increased evaluation for residuals of concussion with headaches and dizziness and service connection for fracture of the spine. The laws and regulations and the reasons for denial reflected the addition of the issue of service connection for fracture of the spine. The veteran was notified in a letter attached to the SSOC that if this SSOC contained an issue that was not included in any prior SOC or SSOC, he had to respond within 60 days to perfect his appeal as to that issue. The next correspondence regarding the issue of service connection for fracture of the spine received from the veteran or his representative was a VA Form 1-646, received by VA in January 1993. A VA Form 1-646 can be construed as a SA, but in this case it was received more than 60 days after the August 1992 SSOC. Appellate review is initiated by a NOD and completed SA after a SOC has been furnished. 38 U.S.C.A. § 7105(a) (West 1991); 38 C.F.R. § 20.200 (1999). A NOD or SA must be filed with the VA office from which the veteran received notice of the determination being appealed. 38 C.F.R. § 20.300. A SA is timely if it is received within one year of the date the veteran was notified of the denial of his claim, or within 60 days after the SOC was issued, whichever period is later. 38 U.S.C.A. § 7105(d)(3); 38 C.F.R. § 20.302(b). The 60-day period may be extended for a reasonable period on request for good cause shown. 38 U.S.C.A. § 7105(d)(3). Regulations further specify that a request for such an extension must be in writing and must be made prior to expiration of the time limit for filing. 38 C.F.R. § 20.303. Since the August 1992 SSOC was issued more than one year after the veteran's initial notification of denial (January 1991), the veteran had to submit a SA within 60 days of the SSOC for it to be timely. The RO received the VA Form 1-646 (accepted as the veteran's SA) in January 1993, nearly five months after the 60-day deadline. The record does not contain any written request for an extension of time in which to submit the appeal. Thus, it appears that the veteran's SA may not have been timely to the December 1990 rating; therefore, the Board may not have jurisdiction over the appeal. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.200, 20.203, 20.302. In various rating actions after receipt of the VA Form 1-646 in January 1993, the RO continued the denial of the claim for service connection for fracture of the spine, including a decision in March 1995 which found that new and material evidence has not been submitted to reopen the claim. SSOCs subsequent to January 1993 did not address the matter of timeliness of SA or the need to submit new and material evidence to reopen a finally denied claim. Accordingly, the veteran did not file a NOD to any ratings during this time period or submit a SA after any SSOC. Based on the failure of the RO to clearly set forth the issue, the Board will not question the timeliness of a NOD or SA dated after January 1993. Nevertheless, the Board may not, on its own, consider whether there has been a timely SA filed to the December 1990 rating which denied service connection for fracture of the spine. The United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (Court) held that although the Board was required to assess its jurisdiction, such assessment must not prejudice the veteran's procedural rights. Marsh v. West, 11 Vet. App. 468, 471 (1998). According to Marsh, before it may adjudicate the timeliness of a NOD in the first instance, the Board is required to determine whether the veteran has had an opportunity to present evidence or argument on the jurisdictional issue, or explain why adjudication of the jurisdictional issue in the first instance will not prejudice the veteran. Id. (citing Bernard v. Brown, 4 Vet. App. 384 (1993) and Sutton v. Brown, 9 Vet. App. 553 (1996)). The Court emphasized that timeliness of a NOD is itself an appealable issue. Id. At 470; See 38 C.F.R. §§ 19.34, 20.101(c). Accordingly, to ensure full compliance with due process requirements, this matter is remanded to the RO for the following development. 1. The veteran should be afforded the opportunity to submit evidence and argument on whether a timely and adequate SA to the December 1990 rating has been submitted on the issue of service connection for fracture of the spine. Thereafter, the RO should make a formal adjudication on the matter of whether a timely SA to the December 1990 rating has been submitted on the service connection issue. 2. If it is determined by the RO that a timely and adequate SA to the December 1990 rating has not been submitted, the veteran should be informed of the right to file a NOD on the issue of timeliness. If the veteran or his representative voices disagreement with that decision, standard procedures should be followed, which include issuance of a (S)SOC and an opportunity for a hearing. If an appeal as to timeliness is properly and timely perfected, the claim should be returned to the Board for adjudication of the timeliness issue. The RO should also determine whether new and material evidence has been received sufficient to reopen the claim following the December 1990 rating and a (S)SOC should be issued which includes citation to and discussion of pertinent law and regulation. If the RO finds that a timely SA to the December 1990 rating was received on the issue of service connection for fracture of the spine, the RO should issue a (S)SOC on this issue, providing the veteran and his representative with the appropriate law and regulations. The veteran and his representative should be given the opportunity to respond to the (S)SOC. By its REMAND, the Board expresses no opinion, either favorable or unfavorable, as to the ultimate outcome warranted. No action is required of the veteran until he receives further notice. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. BARBARA B. COPELAND Member, Board of Veterans' Appeals