BVA9505553 DOCKET NO. 93-08 586 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a restoration of the 100 percent evaluation for organic mood disorder (previously evaluated as dementia). 2. Entitlement to an increase in the 20 percent evaluation assigned for a partial complex seizure disorder. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD B. P. Gallagher, Counsel INTRODUCTION The appellant had active service from August 1976 until February 1987. This appeal arises from rating decisions by the Department of Veterans Affairs (VA) St. Petersburg, Florida, Regional Office (RO). Following discharge, the RO granted service connection for the postoperative residuals of a left frontal anaplastic astrocytoma. A 100 percent rating was assigned. A rating decision in July 1989, evaluated this condition as 100 per cent disabling from February 6, 1987 to February 3, 1989. The residuals of the anaplastic astrocytoma were then to be evaluated as follows: a 100 per cent evaluation for dementia from February 4, 1989; a 70 per cent evaluation for residual malignant astrocytoma, affecting the right upper extremity, a 40 percent evaluation for residual malignant astrocytoma, affecting the right lower extremity, and a 10 percent evaluation for partial complex seizure disorder. This resulted in entitlement to special monthly compensation under 38 U.S.C. § 314(s) on account of the dementia being rated 100 percent and additional service-connected disabilities, including the residuals of malignant astrocytoma of the right upper extremity and right lower extremity rated at least 60 percent disabling. A rating decision in December 1991 proposed reducing the evaluation for the service-connected dementia from 100 percent to 50 percent disabling. A rating decision in March 1992 reduced the 100 percent evaluation for dementia to 50 percent as of June 1, 1992. This resulted in the loss of entitlement to special monthly compensation under 38 U.S.C.A. § 1114(s) (formerly 38 U.S.C. 314(s)). Specific disagreement with the loss of the special monthly compensation has not been set forth. That matter is moot in view of the action taken below. A rating decision in August 1992 continued a 50 percent evaluation for organic mood disorder (previously evaluated as dementia) and granted the appellant entitlement to a total rating by reason of individual unemployability from June 1, 1992. In the informal hearing presentation, reference was made to the issue of entitlement to basic eligibility for benefits under 38 U.S.C.A. Chapter 35 based on permanence of total disability. Accordingly, this issue is referred to the RO for further consideration. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends, in substance, that as a result of the service-connected organic mood disorder, he suffers from disturbances in orientation, impairment in intellectual functions and, particularly, memory impairment. It is contended that memory has not improved and that he has distinct problems forgetting conversations taking place and requires a list if he goes to the store, even if it is for two items. In addition, it is stressed that this is a case of a reduction and not a question of an increased evaluation. It is also contended that the veteran is entitled to an increased evaluation for his seizure disorder based on the frequency of the seizures he has manifested. 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 warrants a restoration of a 100 percent evaluation for organic mood disorder and that the preponderance of the evidence warrants a grant of a 40 percent evaluation for the partial complex seizure disorder. FINDINGS OF FACT 1. The organic mood disorder is manifested by severe memory impairment, feelings of sadness and crying spells, anxiety and irritability, attention deficits symptoms of a major depression including a depressed mood. 2. The required material improvement in the veteran's overall disability stemming from the malignant astrocytoma has not been demonstrated. 3. The veteran's partial complex seizure disorder has produced at least one major seizure in the last six months and averages two minor seizures a week. CONCLUSIONS OF LAW 1. The criteria for restoration of a 100 percent evaluation for organic mood disorder (previously evaluated as dementia) are met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 3.343(a), Part 4, Code 9309 (1994). 2. The criteria for a 40 percent evaluation for a partial complex seizure disorder are met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. Part 4, § 4.7, Code 8914 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS After reviewing the evidence on file, we conclude that the claims are well grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). That is, the claims are not inherently implausible. Moreover, we conclude that all pertinent facts have been developed, and that as such there is no further duty to assist in developing the claims. Id. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4, § 4.1 (1994). Separate diagnostic codes identify the various disabilities. I. Entitlement to a Restoration of a100 Percent Evaluation for Organic Mood Disorder The Board is aware, as the United States Court of Veterans Appeals (the Court) stressed in Dofflemyer v. Derwinski, 2 Vet.App. 277 (1992), that this is a rating reduction issue and not a rating increase issue. In evaluating this claim, the Board also notes that the veteran had a 100 percent evaluation for a postoperative left frontal anaplastic astrocytoma from February 6, 1987, under Diagnostic Code 8002, through February 3, 1989, and then this disability was evaluated as dementia, as 100 percent disabling, from February 4, 1989, through May 31, 1992. As of June 1, 1992, the evaluation for the dementia was reduced to 50 percent. Subsequently, this was evaluated as an organic mood disorder. The Board stresses that the evaluation for the service-connected condition, initially classified as postoperative left frontal anaplastic astrocytoma and then as dementia, was in effect for several years. In other words, no matter how classified, the veteran had a total disability rating warranted by the severity of the condition. Accordingly, the Board has referred to the provisions of 38 C.F.R. § 3.343. 38 C.F.R. § 3.343(a) provides that in total disability ratings when warranted by the severity of the condition, and not granted purely because of hospital, surgical, or home treatment, or individual unemployability will not be reduced, in the absence of clear error, without examination showing material improvement in the physical or mental condition. Examination reports showing material improvement must be evaluated in conjunction with all the facts of record, and consideration must be given particularly to whether the veteran attained improvement under the ordinary conditions of life, that is, while working or actively seeking work or whether the symptoms have been brought under control by prolonged rest, or generally, by following a regimen which precludes work and, if the latter, reduction from total disability ratings will not be considered pending re-examination after a period of employment (3 to 6 months). The Board stresses that, when the RO reduced the evaluation for dementia from 100 percent to 50 percent, there is no indication that 38 C.F.R. § 3.343(a) was considered and that the necessary determination showing material improvement was made. Dementia or organic mood disorder will be evaluated 100 percent disabling where the impairment of intellectual functions, orientation, memory and judgment, and lability and shallowness of affect of such extent, severity, depth, and persistence as to produce total social and industrial inadaptability. Where symptoms are of less severity, a 70 percent rating is assigned for symptoms producing severe impairment of social and industrial adaptability. Symptoms that are productive of considerable impairment of social and industrial adaptability will be rated 50 percent disabling. 38 C.F.R. Part 4, Code 9309. The veteran had a VA examination in March 1989. Diagnoses included history of malignant astrocytoma, left forebrain with surgery, and follow-up chemotherapy and radiation, right-sided hemiplegia, seizure disorder, and failing memory. The examiner reported the prognosis was very guarded and that his disability was permanent and nearly total and that his unemployability was total. The veteran was examined by the VA in June 1989. The examiner reported his impression was that the right hemiparesis was no better and maybe a little worse and that his speech sounded a little bit more slurred. He stated the vision was more blurred than it was before. He stated the veteran was very disabled mentally and physically and that this was permanent and almost total. The prognosis was poor and he was totally unemployable. The veteran was examined by the VA in August 1991. It was reported he had been unemployed since the surgery in 1986. It was reported he had failing memory since the surgery and was very forgetful. He believed that it may be due to the Dilantin, but the examiner stated it also could be due to the brain damage. He indicated the right hemiplegia had gradually healed. Diagnoses included postoperative astrocytoma of the left frontal region of the brain and moderate dementia secondary to the above. On a VA examination in October 1991, the veteran reported that his memory had failed since the surgery. He stated that when he went to the store, unless he made a list, he would forget what he had to go for. He would go from one room to another and forget what he was going for at that time. He could not travel by car in unfamiliar places without getting lost. He had a memory deficit to the point where he could only recall 2 out of 3 objects. He stated that he was dependent upon his wife to keep him straight and he considered her his secretary. He was able to subtract serially 7 from 100 without any difficulty. He was oriented to time, place and person. The examiner stated the memory deficit was consistent with the diagnosis of postoperative astrocytoma of the left frontal region of the brain. The veteran was concerned because he felt he could not work primarily because of the memory deficit. The diagnosis was dementia secondary to postoperative astrocytoma on the left frontal region. The dementia was probably moderate. On a VA special neurological examination later in October 1991, the examiner reported the veteran had permanent disability and was unemployable. In April 1992, a physician Director of the Hematology-Medical Oncology Service of an Air Force Base Medical Facility stated he firmly disagreed with the assumption that the disability had improved. The veteran underwent very aggressive treatment for his glioblastoma and the treatment included partial resection, high-dose chemotherapy and autologous bone marrow transplant and radiation therapy. He indicated the veteran was still totally disabled and reported since the discovery of the tumor, he had a seizure disorder which was not totally controlled. He stated due to the high doses of radiation, he developed dementia which was still getting worse. He had markedly decreased short-term memory and attention span and this would absolutely preclude employment of any significance. He also had somnolence and lightheadedness as symptoms of the prior treatment. The veteran had a VA examination in June 1992. His subjective complaints included fatigue, right frontal muscular headaches and memory loss in addition to the seizure disorder. Lately, he had also experienced right hip pain. Objective findings disclosed that he was abulic. He made no eye contact. He required two attempts to learn three objects. His recent recall at three minutes was normal with cuing. The examiner stated that he did not find any significant memory deficiency on the current examination, but this type of problem was better addressed with detailed neuropsychiatric testing. His diagnoses included a history of high grade left frontal glioma, seizure disorder, and clinical depression. The veteran underwent a special psychiatric evaluation in June 1992. He stated that over the past years, his memory had become more poorer. He indicated he would walk from one room to another to get something and on the way, forget what he was going to get. He noted that he must write everything down, as his memory was not good enough to remember to go into the store to get a particular item. At times, he forget where his children were or where they were scheduled to be. He stated that this was probably the most annoying of all his symptoms. He also noted a significant number of crying spells. He was socially withdrawn and easily upset. His affect was very labile and he noted that he cried at the drop of a hat. He stated that he felt that he was sad, but that he was not depressed. He also noted a significant amount of chronic fatigue and decreased energy. His sleep was poor and he had virtually no appetite. He stated that occasionally, he became anxious and irritable. He indicated that he felt very worthless. He missed his job and he felt now less than a man. His self-esteem was very low and he stated that he sometimes wondered why he should bother to go on. Objective findings on examination showed that he sat slumped in his chair. His posture was somewhat atypical. His facial expression suggested depression and sadness. There was a slightly decreased variability of expression. He was noted to have some anxiety. He was ambulatory, but moved slowly. His affect was somewhat depressed and exceptionally labile. The predominant mood was one of depression and sadness, although at times, he went from crying to talking as if nothing had happened. No hallucinations or delusions were noted. The examiner stated that the veteran's memory was exceptionally poor to immediate, recent and remote recall. He denied suicidal or homicidal ideations, and there were no ideas of reference or ideas of influence noted. The primary diagnosis was organic mood disorder. The stressors included long-standing illness and insult to body integrity. The Global Assessment of Functioning was 55 (current) and 58 (past year). The examiner stated it was obvious the veteran was overly emotionally labile and had a significantly depressed mood. He had many symptoms of major depression and these were more than likely secondary to the astrocytoma and its sequelae. It was noted that the veteran's functioning was greatly decreased and his memory was very poor. The examiner stated, at this point, it would be safe to say the veteran did not have the ability to hold a job secondary to his physical illness and psychiatric complications. In November 1992, the veteran underwent a VA neuropsychological evaluation. The conclusions were that the veteran had a mild to moderate global cognitive decline consistent with a diagnosis of dementia. Although all intellectual modes were decreased from premorbid levels, his deficits were most prominent in attention and memory. His attention deficits were pervasive, resulting in significantly slowed mentation, increased distractability, shortened attention span and decreased ability to track more than one stimulus at a time. These difficulties compounded his problems in all other cognitive areas. It was reported the veteran suffered from permanent neuropsychological deficits that rendered him unemployable. In December 1992 the veteran testified concerning his service connected conditions. In evaluating the veteran's claim for restoration of the 100 percent evaluation for the service-connected dementia, the Board stresses that in addition to his memory deficit, the veteran has numerous other symptoms, such as crying spells. He is socially withdrawn and easily upset. Also, he had chronic fatigue and decreased 38 C.F.R. § 3.343(a) energy and very low self-esteem. In addition, on the most recent VA psychiatric examination, the examiner characterized his memory as exceptionally poor to immediate, recent and remote recall. Also, the examiner reported he had a significantly depressed mood and many symptoms of a major depression more likely secondary to the astrocytoma and its sequelae. Furthermore, the psychological evaluation revealed he had pervasive attention deficits resulting in significantly slowed mentation. Accordingly, the Board has determined that the evidence does not demonstrate the required material improvement in his condition. Therefore, restoration of the 100 percent evaluation for the organic mood disorder (previously evaluated as dementia) and as the postoperative residuals of a left frontal anaplastic astrocytoma is warranted under the provisions of 38 C.F.R. § 3.343(a). This results in the restoration of entitlement to special monthly compensation under 38 U.S.C.A. § 1114(s) on account of the organic mood disorder being rated 100 percent and additional service-connected disabilities, including the residuals of malignant astrocytoma of the right upper extremity and right lower extremity rated at least 60 percent disabling. II. Entitlement to an Increase in the 20 Percent Evaluation Assigned for Partial Complex Seizure Disorder Secondary to the Malignant Astrocytoma The veteran's seizure disorder is evaluated under Diagnostic Code 8914 which provides for a 20 percent evaluation for at least one major seizure in the last two years or at least two minor seizures in the last six months. A 40 percent evaluation contemplates at least one major seizure in the last six months or two in the last year or averaging at least 5 to 8 minor seizures weekly. A 60 percent evaluation contemplates averaging at least one major seizure in four months over the last year or 9 to 10 minor seizures per week. On a VA examination of March 1989, it was reported that he had a seizure disorder with only fair control. In April 1989, a service physician reported that the veteran had had recurrent seizures for the past two years, despite being on Dilantin/phenobarbital. On a VA special neuropsychological examination in June 1989, it was reported that his seizures were fairly well controlled on Dilantin and phenobarbital, but that he did have occasional seizures, and the last one was two weeks ago. On VA examination in August 1991, it was reported that he had had grand mal seizures, but now had Jacksonian seizures in the right arm, hand and shoulder. These seizures came often and were unpredictable, anywhere from two a week to once a month. Reference was made to Jacksonian epilepsy in the right upper extremity on a VA examination in October 1991. In April 1992, an Air Force physician reported that the veteran's seizure disorder is not totally controlled even with high doses of Dilantin and phenobarbital. He reported he had frequent focal seizures of his right arm and occasional grand mal seizures. On a VA examination in June 1992, it was reported that the veteran suffered from focal seizures approximately biweekly and stress-induced grand mal type of generalized tonic-clonic seizures that may occur anywhere from once a month to every other week. VA outpatient record indicated the veteran had focal and grand mal seizures. In November 1992, it was reported he still had occasional seizures most often focal beginning in the right arm. It was reported he had noted continuing worsening of his memory deficits. At his hearing, he reported occasional grand mal seizures, sometimes months apart, sometimes only one month apart. In evaluating the veteran's seizure disorder, the Board notes the current 20 percent evaluation contemplates at least one major seizure in the last two years or at least two minor seizures in the last six months. The Board notes that the clinical record indicates the veteran has experienced several focal seizures. In August 1991, it was reported he had two focal seizures a week and one grand mal seizure a month. Furthermore, the Air Force physician stressed that the veteran had frequent focal seizures and occasional grand mal seizures. On a VA examination in June 1992, it was reported that the veteran suffered from focal seizures approximately biweekly and stress-induced grand mal type of generalized tonic-clonic seizures that may occur anywhere from once a month to every other week In November 1992, it was indicated that the seizures were under some control. It appears that the seizures are more frequent than contemplated for 20 percent. Therefore, considering the provisions of 38 C.F.R. § 4.7, the Board finds that the seizure disorder more appropriately warrants a classification of 40 percent. It is concluded however, that the seizures are not objectively shown to be so frequent as to warrant a 60 percent rating. ORDER Entitlement to restoration of a 100 percent evaluation assigned for organic mood disorder is granted. Entitlement to a 40 percent evaluation assigned for partial complex seizure disorder secondary to malignant astrocytoma is granted. The appeal is allowed as indicated subject to the law and regulations governing the award of monetary benefits. MICHAEL D. LYON 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.