Citation Nr: 0002634 Decision Date: 02/02/00 Archive Date: 02/10/00 DOCKET NO. 94-24 038 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for organic brain syndrome, to include loss of memory, loss of concentration, and dizziness. 2. Determination of initial rating for headaches, currently rated as 10 percent disabling. 3. Determination of initial rating for adjustment disorder, currently rated as 10 percent disabling. REPRESENTATION Appellant represented by: John Stevens Berry, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. D. Parker, Counsel INTRODUCTION The veteran served on active duty from May 1952 to May 1955. He also served in the National Guard on active duty for training or inactive duty training from July 1950 to August 1950, in August 1956, in August 1975, in July 1976, in February 1977, from February 1978 to March 1978, in June 1979, and from June 1983 to July 1983. These matters come before the Board of Veterans' Appeals (Board) on appeal from March 1996, February 1997, and February 1998 rating decisions of the Department of Veterans Affairs (VA) Regional Office in Lincoln, Nebraska (RO). The March 1996 rating decision denied a reopening of a claim for service connection for organic brain syndrome, to include loss of memory, loss of concentration, and dizziness. An October 1998 Board decision found new and material evidence to reopen this claim. The February 1997 rating decision granted service connection for headaches and assigned a 10 percent rating. A September 1996 rating decision denied service connection for an anxiety disorder, though a subsequent February 1998 rating decision granted service connection for an adjustment disorder (originally claimed as an anxiety disorder) and assigned a 10 percent rating. As the 10 percent ratings represents less than the maximum available under the applicable diagnostic criteria, the veteran's claims for the initial assignment of a rating in excess of 10 percent remain viable on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). During the course of this appeal, the veteran has indicated that he has a history of alcohol abuse beginning during service until 1968. A VA physician who examined the veteran in December 1998 diagnosed alcohol dependence secondary to an anxiety disorder. That examiner also indicated that the veteran's alcohol abuse began during service. It is the Board's judgment that, since the veteran is service connected for an adjustment disorder, the recent physician's findings and diagnosis raise a claim for service connection for alcohol abuse/dependence on direct and secondary bases. However, since the veteran's statements indicate that alcohol abuse ended many years ago, the RO should clarify the matter; if the veteran wishes to pursue such a claim, all indicated action should follow. The Board parenthetically notes that it has been held that while compensation may not be paid for any disability resulting from abuse of alcohol or drugs, the plain language of 38 U.S.C.A. § 1110 does not preclude the granting of service connection for the abuse of alcohol or drugs. Barela v. West, 11 Vet. App. 280 (1998). The determination of initial rating for adjustment disorder is addressed in the REMAND portion of this decision. FINDINGS OF FACT 1. The veteran's organic brain syndrome, to include loss of memory, loss of concentration, and dizziness, is not etiologically related to service, including a motor vehicle accident in April 1955. 2. The veteran's service-connected headaches are primarily manifested by subjective intermittent headaches due to trauma; there is no medical evidence of a diagnosis of multi- infarct dementia associated with brain trauma. CONCLUSIONS OF LAW 1. The veteran's organic brain syndrome, to include loss of memory, loss of concentration, and dizziness, was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 1991); 38 C.F.R. § 3.303 (1999). 2. The schedular criteria for a rating in excess of 10 percent for the veteran's service-connected headaches have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.124a, Diagnostic Code 8045 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Initially, the Board notes that the veteran has presented claims for service connection for organic brain syndrome and for the initial rating of service-connected disabilities of headaches and adjustment disorder that are "well grounded" within the meaning of 38 U.S.C.A. § 5107(a). That is, he has presented claims as to these issues that are plausible. With regard to initial ratings, an appeal from an award of service connection and initial rating is a well-grounded claim as long as the rating schedule provides for a higher rating and the claim remains open. See Shipwash v. Brown, 8 Vet. App. 218, 224 (1995). The Board is 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 him mandated by 38 U.S.C.A. § 5107(a). In this regard, the Board notes that in 1996 and 1997 the veteran's attorney requested new examinations. Such examinations, which the Board finds adequate for rating purposes, subsequently have been afforded the veteran. I. Service Connection: Organic Brain Syndrome Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a) (1999). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b) (1999). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (1999). The veteran contends that his organic brain syndrome, including loss of memory, loss of concentration, and dizziness, are causally related to a head injury in service. The veteran's attorney has entered various letters pertaining to procedural or duty-to-assist issues, but has entered no substantive argument in support of the veteran's claim for service connection. The evidence reflects that, on April 2, 1955, during service, the veteran was involved in an automobile accident as a passenger in a private vehicle, which hit a cement truck after the driver fell asleep at the wheel. Service medical records reflect treatment for a concussion of the brain, laceration of the scalp, and simple fracture of the nasal septum. There appeared to be no sequale from the accident, other than nasal fracture and contusion around the right eye (for which service connection has been established). A service medical record entry 9 days after the accident reflects that the veteran was doing well except for pain around the right eye. A January 1968 report of VA examination reflects that the veteran's head was found to be normal. The report included a diagnosis of a history of brain concussion, with no sequelae. The examination report also resulted in the diagnosis of alcoholism, by history. A September 1991 private treatment report discloses that the veteran complained of dizziness and lightheadedness. The diagnoses included poorly controlled hypertension; peripheral edema was also noted. A July 1992 treadmill exercise report reflects that the veteran felt weak and dizzy after several minutes of exercise. Service personnel records, and records compiled by the National Guard, are devoid of evidence that the veteran was treated for, or diagnosed with, organic brain syndrome, to include loss of memory, loss of concentration, or dizziness, during any period of active duty for training. The veteran's January 1996 Statement in Support of Claim and October 1996 statement on a VA Form 9 contain his statements that he believes he developed organic brain syndrome secondary to his 1955 accident. A November 1996 report of VA examination shows that the veteran reported residuals of his 1955 head injury, and that headaches (which are now service connected) were diagnosed. A March 1997 report of VA examination includes a diagnosis of cognitive impairment, etiology undetermined, to rule out residual effects of a head injury. That diagnosis was confirmed on VA examination in July 1997. The July 1997 VA examination resulted in the opinion that "[t]here seems to be a direct connection between his motor vehicle accident and subsequent . . . cognitive impairment." In a September 1997 report of VA examination, the examiner indicated that he could not determine whether the veteran's cognitive impairment resulted from his accident or alcohol abuse. As well, he suggested that a further medical opinion be obtained regarding whether structural damage had occurred secondary to the cognitive impairment. An examination was scheduled in December 1997, but was canceled. Based on this additionally submitted evidence, in an October 1998 decision, the Board found that new and material evidence had been presented to reopen the veteran's claim for service connection for organic brain syndrome. The claim was reopened and remanded for a VA neurological examination and medical opinion as to etiology. A VA fee basis examination in December 1998 included the assessment of possible cognitive impairment. However, the examiner indicated that such impairment may have been present prior to the veteran's injury. A VA mental disorders examination in December 1998 noted a history which included the veteran's auto accident injury in April 1955 and resulting post-compression type syndrome, and heavy alcohol intake during service and until about 1968, with several hospitalizations for alcohol dependence. The veteran reported a post-service history of symptomatology which included loss of memory and loss of attention span and comprehension (concentration). The resulting diagnoses were a service-connected moderately severe chronic generalized anxiety disorder and alcohol dependence, secondary to generalized anxiety disorder, in remission. The examiner summarized that the veteran may have memory and cognitive impairments due to drinking or to head injury. At a VA psychiatric examination in April 1999, the veteran complained of forgetting things and increased memory problems, which he believed were related to his in-service motor vehicle accident. Examination noted memory impairment. The Axis I diagnoses included cognitive impairment of undetermined etiology, to rule out residual effects of head injury. The examiner included in a discussion section of the examination that a determination as to whether the veteran's cognitive impairment was resulting from his motor vehicle accident or from alcohol abuse/dependence in the past was "still debatable." He indicated that, while the head trauma could have contributed to a lot of brain damage, alcoholism could do the same, although in a more chronic course. The examiner indicated that the veteran's "cognitive functioning may be just a representation of a chronic depression of which memory loss and poor recall, with difficulty of attention and concentration, may be part and parcel of." He indicated that the non-service-connected depression was a reaction to current medical problems and not necessarily a reaction to the residual of injuries from the motor vehicle accident. Neuropsychological testing was recommended. A VA fee basis examination in April 1999 noted that the veteran did not report any thinking problems after the in- service motor vehicle accident, and that, after service, the veteran had passed the Postal Service examination and worked there, apparently for 15 years. Neurologic examination revealed normal mental status. The assessments included the opinion that "I doubt that he has a cognitive impairment related to the closed head injury," noting that the veteran "was able to function in a fairly complex manner after the injury," and that, prior to the injury, the veteran had what sounded like a learning disorder. In this case, the evidence reflects that, nine days after the accident in service in April 1955, the veteran was noted to be doing well, and the residuals noted (pain around the right eye) did not pertain to the concussion of the brain. Thereafter, the evidence reflects normal brain functioning, with only a history of brain concussion with no sequela (January 1968). The evidence reflects that the veteran did not have any thinking problems after the motor vehicle accident, had passed the Postal Service examination and worked there for 15 years, and was otherwise able to function in a fairly complex manner after the injury (April 1999 VA examination), including successful service in the National Guard as soon as 1956 and as late as 1983. The record contains medical opinions on the question of etiology of the veteran's currently diagnosed organic brain syndrome. Some of the opinions attribute the veteran's currently diagnosed organic brain syndrome to sources other than the veteran's in-service head injury, or they opined that they were unable to determine attribute the etiology of such impairment, and include the opinion that the veteran's cognitive impairment is not the result of the in-service head injury. As the evidence reflects, VA examiners reached differing conclusions regarding whether the currently diagnosed organic brain syndrome was etiologically related to the veteran's service, specifically to a head injury in service in 1955. The United States Court of Appeals for Veterans Claims (Court) has stated that "[i]t is the responsibility of the BVA . . . to assess the credibility and weight to be given the evidence." Hayes v. Brown, 5 Vet. App. 60, 69 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). With regard to the weight to assign to these opinions, the Court has held that "[t]he probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches . . . As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the [BVA as] adjudicators . . ." Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). In determining what weight to assign the various VA medical opinions of record, the Board notes that one VA opinion indicated that there was a connection between the motor vehicle accident cognitive impairment (July 1997), several VA medical opinions indicated they were unable to determine if the etiology of such impairment was a head injury in service or the veteran's history of alcohol abuse (March 1997, July 1997, September 1997), and other medical etiology opinions of record attributed the veteran's currently diagnosed organic brain syndrome to a source other than the veteran's in- service head injury. The medical etiology opinions which attributed the veteran's currently diagnosed organic brain syndrome to a source other than the veteran's in-service head injury included that such impairment may have been present prior to the in-service injury (December 1998) or the result of chronic depression (April 1999), or attributable to alcohol abuse/dependence. The evidence shows that the veteran had a history of alcoholism and heavy drinking from about 1952 until 1968, as indicated by the veteran's histories, which included that he had multiple hospital admissions for alcoholism until 1968. The VA examinations which were unable to determine the etiology of the veteran's current cognitive impairments (September 1997, December 1998) included the veteran's alcohol abuse/dependence as part of the etiology of current cognitive impairment. The September 1997 VA examination indicated that the veteran's "alcohol indulgence earlier on and up to the time he quit in 1968, has produced a significant impairment of his cognitive functioning whereby areas of his memory and recall are basically impaired." The July 1997 VA medical opinion weighs in favor of the veteran's claim for service connection. The July 1997 VA opinion was that "[t]here seems to be a direct connection between his motor vehicle accident and subsequent . . . cognitive impairment." The examination did not enter specific current clinical findings. While the examiner wrote that this examination was based on a review of the claims file, the examination was primarily focused on the veteran's (service-connected) adjustment disorder, and did not include a history of the veteran's difficulties with alcohol abuse or dependence. Weighing against the veteran's claim is the April 1999 VA medical etiology opinion that the veteran's cognitive impairment is not related to a closed head injury in service. The April 1999 VA examination appears to be the most comprehensive of the examinations, and included both psychiatric and neurological examinations, and is the most recent examination, based upon a review of the entire evidence of record. While the April 1999 VA psychiatric examination entered an Axis I diagnosis which included that the cognitive impairment was of undetermined etiology, and the etiology question was debatable, the examiner indicated that alcoholism could cause brain damage "in a more chronic course," and also indicated that the veteran's (nonservice- connected) depression could be a source of cognitive impairment. This examination recommended neurological testing, which in turn revealed normal mental status and the neurological opinion of "doubt that the veteran has a cognitive impairment related to the closed head injury," notably a medical opinion which weighs against the veteran's claim. The Board finds this April 1999 VA medical opinion evidence to be more highly probative than the July 1997 VA medical opinion evidence in support of the veteran's claim. The April 1999 VA medical opinion was based on clinical testing, which was more comprehensive, including psychiatric testing and neurological examination, included an accurate history which included a history of alcohol abuse or dependence to 1968, and specifically focused on the question posed on remand of whether any organic brain syndrome was due to the head injury in service in 1955 (as opposed to focusing primarily on a separate service-connected adjustment disorder). With regard to the weight to assign the veteran's lay statements, while the veteran is competent to relate the symptomatology he experienced during service, and at any time thereafter, he is not competent to relate his current organic brain syndrome to service. A lay person is competent to describe symptoms, but is not competent to offer evidence which requires medical knowledge, such as diagnosis or a determination of etiology. Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). As there are some opinions of record which attribute the veteran's currently diagnosed organic brain syndrome to a source other than the veteran's in-service head injury, there is strong evidence regarding the effect of alcohol abuse on current cognitive impairment, there is VA medical opinion evidence of record which weighs in favor of a finding that the veteran's current cognitive impairment is not related to a closed head injury in service, which is more probative than the medical opinion evidence that cognitive impairment resulted from an injury in service, the Board finds that the weight of the evidence is against the veteran's claim for service connection for organic brain syndrome, to include loss of memory, loss of concentration, and dizziness. While the Board has considered the doctrine of affording the veteran the benefit of any existing doubt with regard to this issue on appeal, the record does not demonstrate an approximate balance of positive and negative evidence as to warrant the resolution of this matter on that basis. The weight of the evidence is against the veteran's claim. 38 U.S.C.A. § 5107(b) (West 1991); 38 C.F.R. § 3.102 (1999). II. Rating: Headaches The Court recently held that, in a claim of disagreement with the initial rating assigned following a grant of service connection, separate ratings may be assigned for separate periods of time, based on the facts found. Fenderson v. West, 12 Vet. App. 119 (1999). The record reflects that a rating decision in February 1997 granted service connection for headaches and assigned a 10 percent rating, effective from January 1996. A rating decision in February 1998 granted service connection for an adjustment disorder and assigned a 10 percent rating, also effective from January 1996. The veteran's appeals from these determinations are thus appeals from the original assignments of a disability rating. Therefore, the severity of the disabilities is to be considered during the entire period from the initial assignment of disability ratings to the present time. See Fenderson, 12 Vet. App. 119. Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (1999). The veteran's headaches are currently rated 10 percent disabling under 38 C.F.R. § 4.124, Diagnostic Code 8045. Under that Diagnostic Code, purely subjective symptoms such as headache due to trauma are rated 10 percent and no more under Diagnostic Code 9304. However, a rating in excess of 10 percent may be granted with a diagnosis of multi-infarct dementia associated with brain trauma. As indicated in the October 1998 Remand, the Board finds that, given the fact that the veteran's headaches have been attributed to an in- service head injury, at least in part, they would more appropriately be rated under 38 C.F.R. § 4.124a, Code 8045, rather than 38 C.F.R. § 4.124a, Diagnostic Code 8100 (1999). The veteran contends generally that his headaches have increased. By rating decision dated in February 1997, the RO granted the veteran service connection for headaches on the bases of the service medical records, which showed that the veteran sustained a head wound as a result of an accident in 1955, and a National Guard enlistment examination report dated in July 1955, which revealed that the veteran reported frequent headaches since the accident. A 10 percent rating was assigned based on: a March 1964 VA hospitalization report, which referred to an August 1962 admission for headaches that occurred once monthly and responded to three Anacin, and included a diagnosis of brain concussion, no sequela; the veteran's report of episodic headaches on a February 1996 VA examination; and the veteran's report of painful, dull aching, recurrent headaches in the neck and infra-orbital region, and the examiner's diagnosis of recurrent muscle contraction headaches on the November 1996 VA examination. During a VA neurological examination in June 1997, the veteran reported intermittent headaches located in the frontal and occipital regions. He had no aura, and his headaches were not accompanied by vomiting or visual changes. The examiner diagnosed headaches probably secondary to a combination of several factors, including sinusitis, degenerative disc disease of the cervical spine, and prior injury. A July 1997 VA mental disorders examination noted the veteran's Axis III diagnosis of headaches of undetermined etiology, for which the veteran was currently receiving treatment. At a VA examination in December 1998, the veteran reported a history of migraine headaches since the motor vehicle accident. At a VA examination in April 1999, the veteran reported that he continually had headaches, diagnosed as headaches of undetermined etiology being treated. At a VA fee basis examination in April 1999, the veteran reported a history of headaches since the motor vehicle accident, which were light headaches, but that about every other day he had a bad headache for which he had to sit and relax or he could not tolerate it. The veteran reported that he could not function during these headaches and, if he was working, he would have to stop. The veteran reported that he had no visual disturbance, but occasional flashes in his vision. The assessment was that the closed head injury was the cause of the veteran's headaches. In this veteran's case, the evidence of record demonstrates purely subjective symptoms of intermittent headache due to trauma. Such symptomatology is appropriately rated as 10 percent disabling, as Diagnostic Code 8045 specifically provides that subjective symptoms such as headache due to trauma are rated 10 percent and no more under Diagnostic Code 9304. 38 C.F.R. § 4.124a. As the evidence does not demonstrate a diagnosis of multi-infarct dementia associated with brain trauma, a rating in excess of 10 percent for the veteran's service-connected headaches is not warranted. 38 C.F.R. § 4.124a, Diagnostic Code 8045. The Board notes that the veteran was previously rated under 38 C.F.R. § 4.124, Diagnostic Code 8100, which requires characteristic prostrating attacks occurring on an average of once monthly over the last several months for a 30 percent rating. While the record shows that the veteran suffers headaches intermittently, there is no medical evidence of characteristic prostrating attacks averaging once monthly. While the veteran, at the April 1999 VA examination, reported that he had to sit and relax or could not function during these headaches, and that he would have to stop working if headaches occurred, this evidence does not demonstrate prostrating attacks, especially when considered in light of the veteran's previous report of his headaches as intermittent, and not productive of symptomatology of aura, vomiting or visual changes. Therefore, even if the criteria for rating migraine headaches are considered, a higher rating under Diagnostic Code 8100 is, likewise, not warranted. For these reasons, the Board finds that the schedular criteria for a rating in excess of 10 percent for the veteran's service-connected headaches have not been met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 4.124a, Diagnostic Code 8045. While the Board has considered the doctrine of affording the veteran the benefit of any existing doubt with regard to the issue on appeal, the record does not demonstrate an approximate balance of positive and negative evidence as to warrant the resolution of this matter on that basis. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (1999). ORDER Service connection for organic brain syndrome, to include loss of memory, loss of concentration, and dizziness, is denied. A rating in excess of 10 percent for service-connected headaches is denied. REMAND In the February 1998 rating decision granting service connection and initially assigning a 10 percent rating for an adjustment disorder, the RO rated the veteran's adjustment disorder under the rating criteria in effect from November 7, 1996. In the June 1999 supplemental statement of the case, the RO also informed the veteran of the General Rating Formula for Mental Disorders in effect from November 7, 1996. However, as a claim for service connection for anxiety was received by the RO in January 1996 (dated in December 1995), the eventual grant of service connection for an adjustment disorder must also be rated under the criteria in effect when the veteran filed his claim for service connection, to determine which version of the rating criteria is most favorable to the veteran. See Karnas v. Derwinski, 1 Vet. App. 308, 312-13 (1991) (where the law or regulations change while a case is pending, the version most favorable to the claimant applies). The schedular criteria for rating mental disorders which became effective November 7, 1996 does not retroactively apply to the period prior to that date. See Rhodan v. West, 12 Vet. App. 55, 57 (1998) (where compensation is awarded or increased "'pursuant to any Act or administrative issue, the effective date of such an award or increase . . . shall not be earlier than the effective date of the Act or administrative issue.'"); 38 U.S.C.A. § 5110(g) (West 1991). A REMAND to the RO is appropriate in order to afford the veteran the due process of having the RO adjudicate the his service-connected adjustment disorder under the schedular criteria for rating mental disorders in effect prior to November 7, 1996. Therefore, this case is remanded for the following action: The RO should adjudicate the veteran's claim of an appeal from the assignment of an initial rating for service-connected adjustment disorder under the schedular criteria for rating mental disorders in effect prior to November 7, 1996, for the entire period of the claim received in January 1996. If the full potential benefit is not granted, the RO must issue a supplemental statement of the case to the veteran and his representative, which includes the schedular criteria for rating mental disorders in effect prior to November 7, 1996, and they must be provided with an opportunity to respond, before the case is returned to the Board. The purpose of this remand is to afford the veteran due process of law. The Board intimates no opinion as to the eventual determination to be made in this case. The veteran has the right to submit additional evidence and argument on the matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). R. F. WILLIAMS Member, Board of Veterans' Appeals