Citation Nr: 0004604 Decision Date: 02/23/00 Archive Date: 02/28/00 DOCKET NO. 90-28 440 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for post-traumatic stress disorder. 2. Entitlement to an increased evaluation for organic brain syndrome with conversion symptoms, currently rated 30 percent disabling. 3. Entitlement to a compensable evaluation for residuals of fractures of the right mandible, zygomatic arch and frontal bones. 4. Entitlement to a compensable evaluation for residuals of a right eye injury. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARINGS ON APPEAL The appellant ATTORNEY FOR THE BOARD R. A. Caffery, Counsel INTRODUCTION The veteran served on active duty from December 1945 to April 1947. By rating action dated in January 1988, the Department of Veterans Affairs (VA) Regional Office, Los Angeles, California, confirmed and continued a 30 percent evaluation for organic brain syndrome and noncompensable evaluations for residuals of fractures of the right mandible, right zygomatic arch and frontal bones, and postoperative residuals of a right eye injury. The veteran appealed from those decisions. The case was before the Board of Veterans' Appeals (Board) in February 1991 and May 1992 when it was remanded for further action. In a February 1996 rating action the Regional Office denied entitlement to service connection for post-traumatic stress disorder. The veteran appealed from that decision. In May 1996 the veteran testified at a hearing at the Regional Office before a Regional Office hearing officer. In July 1999 he testified at a hearing before a member of the Board sitting at the Regional Office. The case is again before the Board for further appellate consideration. The record discloses that in an October 1989 rating action the veteran was determined to be permanently and totally disabled for pension purposes effective from November 1988 due to all of his conditions including a skin disorder, hernia, and essential hypertension for which service connection had not been established. The record further reflects that in the February 1996 rating action the Regional Office denied entitlement to a total rating based on individual unemployability. The veteran was sent a supplemental statement of the case on that question in July 1996. However, at the July 1999 Board hearing, a determination was made that that issue was not in an appellate status. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal regarding the issues of increased ratings for the organic brain syndrome; residuals of fractures of the right mandible, zygomatic arch and frontal bones and residuals of a right eye injury has been obtained by the Regional Office. 2. The veteran's service medical records reflect that he sustained various injuries in an October 1946 automobile-train accident, including a skull fracture, cerebral concussion and a fracture of the right mandible. 3. By rating action dated in February 1948 service connection was established for residuals of a skull fracture, rated 30 percent disabling. 4. When the veteran was hospitalized by the VA from February to April 1965 a diagnosis was made of chronic brain syndrome associated with brain trauma. 5. By rating action dated in June 1965 the veteran's service-connected disability was reclassified as chronic brain syndrome associated with brain trauma, rated 30 percent disabling under Diagnostic Code 9304. 6. In an October 1993 statement a VA physician indicated that the veteran had been under his care since April 1992 for treatment of chronic brain syndrome with seizure disorder resulting from a combat-related head injury and post- traumatic stress disorder with hypervigilance and intermittent explosive disorder. 7. VA outpatient treatment records reflect that the veteran was observed and treated for various conditions from 1987 to 1998. The diagnosed disorders recorded included post- traumatic stress disorder, organic brain syndrome and panic disorder. 8. The veteran has submitted a plausible claim for service connection for post-traumatic stress disorder. 9. The veteran's organic brain syndrome is manifested by symptoms including irritability, social isolation and episodes of explosive behavior. 10. The organic brain syndrome is productive of severe social and industrial impairment with deficiencies in most areas due to symptoms which interfere with routine activities and the ability to function independently, appropriately and effectively and cause impaired impulse control. 11. The fractures of the right mandible, zygomatic and frontal bones have not resulted in any current significant functional impairment. There is no tenderness or swelling of the temporomandibular joint. No medical authority has related his current dental problems to these fractures. 12. The veteran's corrected visual acuity is only slightly diminished (20/25) in one eye. Corrected visual acuity in the other eye is normal (20/20). His visual fields are full. CONCLUSIONS OF LAW 1. The veteran has submitted a well-grounded claim for service connection for post-traumatic stress disorder. 38 U.S.C.A. § 5107(a) (West 1991). 2. An evaluation of 70 percent is warranted for the veteran's organic brain syndrome. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. Part 4, Code 9304 (1999). 3. A compensable evaluation for residuals of fractures of the right mandible, zygomatic arch and frontal bones is not warranted. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. Part 4, Codes 6009, 6079 (1999). 4. A compensable evaluation for residuals of a right eye injury is not warranted. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. Part 4, Code 9904 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Claim for Service Connection for Post-Traumatic Stress Disorder. The veteran's service medical records reflect that he sustained various injuries in an October 1946 automobile-train accident, including a skull fracture, cerebral concussion, fracture of the right mandible, fracture of the right zygomatic arch and frontal bones, fracture of the left occipital bone and paralysis of the right lateral rectus muscle. By rating action dated in February 1948 service connection was established for residuals of a skull fracture, rated 30 percent disabling. In January 1965 the veteran submitted a claim for service connection for a nervous condition. He maintained that he had become extremely nervous because of headaches and pains in his jaw whenever he chewed anything. The veteran was hospitalized by the VA from February to April 1965 and a diagnosis was made of chronic brain syndrome associated with brain trauma, manifested by irritability, loss of self-confidence, insomnia, extreme tension and some memory lapses. By rating action dated in June 1965 the veteran's service- connected disability was reclassified as chronic brain syndrome associated with brain trauma, rated 30 percent disabling under Diagnostic Code 9304. Service connection was granted for residuals of fractures of the right mandible, right zygomatic arch and frontal bones; and postoperative residuals of a right eye injury, both rated noncompensable. The veteran appealed from the evaluations assigned for these service-connected disabilities and in May 1967 the Board of Veterans' Appeals denied the appeal. In a May 1968 rating action the Regional Office confirmed and continued the prior evaluations for these service-connected disabilities. The veteran appealed from that decision and in May 1969 the Board of Veterans' Appeals again denied the appeal. In an October 1993 statement a VA physician indicated that the veteran had been under his care since April 1992 for treatment of chronic brain syndrome with seizure disorder resulting from a combat-related head injury and post- traumatic stress disorder with hypervigilance and intermittent explosive disorder. VA outpatient treatment records were received by the Regional Office reflecting that the veteran was observed and treated on various occasions from 1987 to 1998. Diagnoses included post-traumatic stress disorder, organic brain syndrome and panic disorder. The veteran was scheduled for a VA examination in October 1998 but failed to report for the examination. During the course of the July 1999 Board hearing, the veteran testified that he had explosions and usually wound up in mental hospitals under maximum security. He did not like to be around people because he was frightened. He was currently seeing a doctor at a VA clinic. With regard to the claim for service connection for post- traumatic stress disorder, there is competent evidence of a current disability (a medical diagnosis); of incurrence or aggravation of the disability in service; and a nexus between the inservice incident and the current disability. Caluza v. Brown, 7 Vet.App. 498 (1995). The Board accordingly considers the claim for service connection for post-traumatic stress disorder to be well grounded. The VA accordingly has a duty to assist the veteran in the development of that claim. The claims for increased ratings for the disabilities at issue have been established as well grounded by the previous remands from the Board. The Board is satisfied that all relevant facts regarding those claims have been properly developed. II. The Claim for an Increased Evaluation for Organic Brain Syndrome with Conversion Symptoms, Currently Rated 30 Percent Disabling. When the veteran was examined by the VA in December 1952 he showed no tension, anxiety or restlessness during the interview. :His speech was entirely relevant and coherent. He was not depressed or euphoric. There were no abnormal mental trends. No delusions, hallucinations, phobias or obsessions were elicited. His memory showed a mild gross defect. His insight and judgment were good. The diagnosis was encephalopathy manifested by cephalalgia. The veteran was hospitalized by the VA from February to April 1965. The diagnosis was chronic brain syndrome associated with brain trauma manifested by irritability, loss of self- confidence, insomnia, extreme tension and some memory lapses for the past. The veteran was again examined by the VA in November 1988. He could not remember any details of his early life or his recent life except sporadically. He had worked at odd jobs and as a civilian employee for the U.S. Air Force for 15 years. He reported that he had not worked at all since about the mid-1960's. He had been married for 19 years and divorced in 1968. His children lived apart from him. He lived alone and he did not do any work around the house except cooking to provide for himself. He stated that he was unable to read and that he was essentially illiterate. He did watch television. The diagnoses included organic brain syndrome with significant mental deterioration. The veteran was afforded a VA neurological examination in December 1988. His complaints included problems of forgetfulness, diminished memory, and difficulties in concentration. He also described a grand mal seizure disorder. The veteran was hospitalized by the VA during October and November 1992. On mental status examination the veteran was very irritable. He isolated himself. He had headaches at least once a month. Dementia and organic personality disorder were to be ruled out. During the course of a May 1996 hearing at the Regional Office, the veteran reported that his medication had been controlling his seizures. He suffered from confusion and also suffered from a periodic explosive disorder and lost his temper. He indicated that he liked to be isolated. He did not like crowds. His medical records disqualified him from his Civil Service position with the Air Force. He had last worked about 10 years previously as a pizza maker. He received Social Security benefits but they were based on age rather than disability. The veteran was afforded as VA neurological examination in April 1997. Since he had been begun on Tegretol he had had no more of the violent behavior episodes or "spells" to which he referred. The examiner indicated that the veteran would have to be hospitalized to determine whether or not he had a seizure disorder that manifested itself as the previously well-described episodes. VA outpatient treatment records reflect that the veteran was observed and treated on numerous occasions from 1987 to 1998 for psychiatric problems. His symptoms included paranoid ideation, depression, confusion, anxiety, restlessness, panic attacks, agitation, forgetfulness, mood swings, and irritability. In June 1998 the veteran was contacted to arrange for his hospitalization for purposes of observation and evaluation; however, the veteran declined the hospitalization. During the July 1999 Board hearing, the veteran related that he had explosions and usually wound up in mental hospitals under maximum security. He did not like to be around people because he was frightened. He was currently seeing a doctor at a VA clinic. A 30 percent evaluation is warranted for a nonpsychotic organic brain syndrome with brain trauma with definite impairment of social and industrial adaptability. A 50 percent evaluation requires considerable impairment of social and industrial adaptability. A 70 percent evaluation requires symptomatology which is less than that required for a 100 percent evaluation but which nevertheless produces severe impairment of social and industrial adaptability. A 100 percent evaluation requires impairment of intellectual functions, orientation, memory and judgment together with lability and shallowness of affect of such extent, severity, depth and persistence as to produce complete social and industrial inadaptability. 38 C.F.R. § Part 4, Code 9304; effective prior to November 7, 1996. A 30 percent evaluation is provided for dementia due to head trauma when there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care and conversation normal), due to such symptoms as: Depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and a mild memory loss (such as forgetting names, directions, and recent events). 38 C.F.R. § Part 4, Code 9304; effective November 7, 1996. A 50 percent evaluation is provided for dementia due to head trauma when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: Flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § Part 4, Code 9304; effective November 7, 1996. A 70 percent evaluation is provided for dementia due to head trauma when there is occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: Suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and the inability to establish and maintain effective relationships. 38 C.F.R. § Part 4, Code 9304; effective November 7, 1996. A 100 percent evaluation is provided for dementia due to head trauma when there is total occupational and social impairment, due to such symptoms as: Gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation or own name. 38 C.F.R. § Part 4, Code 9304; effective November 7, 1996. The record discloses that the veteran's organic brain syndrome has resulted in symptoms including irritability, social isolation, episodes of explosive behavior, paranoid ideation, depression, confusion, anxiety, restlessness, panic attacks; agitation, forgetfulness, and mood swings. The veteran's difficulties resulting from his organic brain syndrome have necessitated treatment on frequent occasions, both as an inpatient and as an outpatient. The veteran has not been employed on a regular basis for many years although his unemployment has stemmed in large part from disabilities for which service connection has not been established. The evidence in the Board's judgment establishes that the manifestations of the veteran's organic brain syndrome are productive of severe impairment of social and industrial adaptability so as to warrant entitlement to a 70 percent evaluation under the provisions of Diagnostic Code 9304 that were in effect prior to November 1996. He has occupational and social impairment with deficiencies in most areas and with symptoms which interfere with routine activities and the ability to function independently, appropriately and effectively and with impaired impulse control. These findings are consistent with a 70 percent evaluation under the provisions of Diagnostic Code 9304 that became effective in November 1996. The record does not reflect that the organic brain syndrome has resulted in total social and industrial inadaptability or total occupational and social impairment so as to warrant entitlement to the next higher evaluation of 100 percent under the provisions of Diagnostic Code 9304 that were effective either prior to or after November 1996. In arriving at its decision with regard to the veteran's claim for an increased rating for his organic brain syndrome, the Board has resolved all doubt in favor of the veteran. 38 U.S.C.A. § 5107. III. The Claim for Compensable Evaluations for Residuals of Fractures of the Right Mandible, Zygomatic and Frontal Bones. When the veteran was examined by the VA in December 1952 his complaints included pain involving his jaw. Physical examination of the head and face was reported to be normal. When the veteran was afforded a VA general medical examination in March 1997 he complained of pain in the temporomandibular joint on the right side when chewing. On physical examination the head was normal and the face was symmetrical. There was no tenderness or swelling of the temporomandibular joint on the right side. The veteran was able to occlude his mouth properly although he claimed that he had pain while chewing. He had dentures in his upper and lower jaws. The examiner indicated that with regard to the veteran's jaw condition there were no findings on the physical examination. During the July 1999 Board hearing, the veteran claimed that his fractured jaw had never been wired and had healed in a crooked manner. He believed that, as a result, he had ground his teeth all the way down to the gums and the teeth had to be extracted. He acknowledged that no medical authority had ever told him that his teeth had been extracted because of his jaw problem. A zero percent evaluation is provided when there is slight displacement due to malunion of a mandible. A 10 percent evaluation requires moderate displacement. 38 C.F.R. Part 4, Code 9904, effective prior to and after February 1994. In this case, when the veteran was afforded the VA general medical examination in March 1997, he complained of pain in the temporomandibular joint on the right side when chewing. However, on physical examination his face was noted to be symmetrical and there was no tenderness or swelling of the temporomandibular joint on the right side. It was further indicated that the veteran was able to occlude his mouth properly. The veteran has not reported any residual disability attributable to the other fractures which are contemplated within the current rating-the fractures of the zygomatic arch and frontal bones-and no manifestations of disability directly attributable to any fracture have been noted recently by any medical authority. Consequently, there does not appear to be a medical basis for increasing the noncompensable evaluation currently in place. A zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. The veteran's primary contention appears to be that he has a dental disability due to the fractures. During the July 1999 Board hearing, he maintained that his fractured jaw had never been wired and had healed in a crooked manner. He theorized that as a result he had ground his teeth all the way down to the gums and the teeth had to be extracted. However, an abnormality of his jaw had not been shown on any post service medical examination and at the April 1999 hearing the veteran conceded that he had never been told by a physician that his teeth had had to be extracted because of a jaw disorder. While teeth lost due to traumatic loss of substance of the mandible may be recognized as service connected for compensation purposes, 38 C.F.R. § 4.150, Diagnostic Code 9913, such loss has simply never been medically shown. In short, the evidence in its entirety does not indicate that the fracture of the right mandible has resulted in any disability, other than a possible slight displacement of the mandible and as such would not warrant entitlement to a compensable evaluation under the provisions of Diagnostic Code 9904 that were in effect either prior to or after February 1994, or any other Diagnostic Code. IV. The Claim for a Compensable Evaluation for Residuals of a Right Eye Injury. When the veteran was examined by the VA in June 1947 visual acuity in the right eye was 20/40 and in the left eye was 20/20. It was noted that he had had four muscle operations on the right eye and his muscle balance was currently normal. The media was clear and eye grounds were normal in both eyes. The diagnosis was myopia. When the veteran was examined by the VA in December 1949 corrected visual acuity in the right eye was 20/20. Visual acuity in the left eye was 20/20. The pupils reacted to light and accommodation and were round, equal and regular. The external ocular structures were normal. There was no muscle imbalance. The field of vision was normal. The fundus examination was negative. The diagnosis was hyperopic astigmatism of both eyes. When the veteran was examined by the VA in December 1952 corrected vision in both eyes was 20/20. The extraocular motions were normal. The left pupil was larger than the right but both reacted to light and accommodation. Fundoscopic examinations showed the cornea, lens and media to be clear. The disc, macules and vessels were normal. The diagnoses were minimal bilateral myopia and anisocoria of undetermined etiology. When the veteran was examined by the VA in July 1965 vision in both eyes was 20/20 corrected. Both pupils reacted to light and the media and adnexae were clear. The eyes were straight. No strabismus was present. The fundi were well visualized. There were no hemorrhages or exudates. The discs and maculi were free of active disease. A diagnosis of mild bilateral myopia was made. There was no evidence of any residuals of an eye injury found on the examination. VA outpatient treatment records reflect that the veteran was seen in August 1988. His only complaint was chronic itchiness involving his eyes. He indicated that the artificial tears that had been prescribed on the previous occasion burned and made his eyes redder. Medication and cool compresses were prescribed. When the veteran was examined by the VA in late 1988 his distant vision was 20/20 in both eyes. There was a full finger counting field. The fundi were normal. When the veteran was hospitalized by the VA during October and November 1992 he reported that he had double vision involving the right eye on gazing to the right. His visual fields were intact bilaterally. The visual acuity was 20/40 on the right and 20/30 on the left with corrective lenses. Fundoscopic examination showed the left disc margin clear without arteriosclerotic narrowing. Cranial Nerves III, IV and VI showed extraocular motion within normal limits with mild lateral gaze nystagmus on extreme right lateral gazing that extinguished. His cranial Nerve V was intact in terms of corneal reflex and sensation. When the veteran was seen on an outpatient basis by the VA in April 1996 the assessments included hyperopic astigmatism, presbyopia and diplopia on right gaze secondary to surgery. When the veteran was afforded the VA general medical examination in March 1997 his complaints included double vision. Examination of the eyes showed the conjunctiva to be pinkish. The sclera was not jaundiced and the pupils were three millimeters in size with normal reaction to light and accommodation. His eye movements were normal. His field of vision was full. The retinae were unremarkable. The examiner indicated that an eye condition had not been found on the physical examination. VA outpatient treatment records reflect that the veteran was seen in October 1995 and October 1996 when corrected visual acuity in both eyes was reported to be 20/30. When he was seen in April 1997, corrected visual acuity in one eye was 20/30 and in the other eye was 20/40. When he was seen in September 1997, corrected visual acuity in both eyes was 20/25. When he was seen in October 1997, corrected visual acuity in one eye was 20/25 and in the other eye 20/20. The veteran testified at the July 1999 Board hearing that he had double vision whenever he looked to his right. He indicated that his eye also watered often. An unhealed injury of the eyes is evaluated from 10 percent to 100 percent on the basis of resulting impairment of visual acuity or visual field loss, pain, rest requirements or episodic incapacity. An additional 10 percent is combined during the continuance of active pathology. 10 percent is the minimum evaluation during active pathology. 38 C.F.R. Part 4, Code 6009. Corrected visual acuity of 20/40 (6/12) in one eye warrants a noncompensable evaluation when corrected visual acuity in the other eye is also 20/40 (6/12). 38 C.F.R. Part 4, Code 6079. In this case, the evidence indicates that the veteran's right eye injury has healed and his current corrected visual acuity is only slightly diminished in one eye (20/25). Corrected visual acuity in the other eye is normal (20/20). There is no loss of visual field. Accordingly, under the circumstances, it follows that entitlement to a compensable evaluation for the veteran's right eye condition under the provisions of Diagnostic Codes 6009-6079 would not be in order. When the veteran was hospitalized by the VA during October and November 1992 there was mild lateral gaze nystagmus on extreme right lateral gazing that extinguished. Central nystagmus so as to warrant entitlement to a 10 percent evaluation under Diagnostic Code 6016 has not been demonstrated. Although the veteran has complained of double vision on gazing to the right, that disorder was not demonstrated on the March 1997 VA general medical examination. Furthermore, such a limited symptom does not equate to a described compensable disability under any pertinent vision Disability Code. 38 C.F.R. § 4.84a. Accordingly, it follows that entitlement to a compensable evaluation for the veteran's right eye condition would not be warranted. The Board has carefully reviewed the entire record in this case with regard to the veteran's claims for compensable evaluations for residuals of fractures of the right mandible, zygomatic arch and frontal bones and residuals of a right eye injury; however, the Board does not find the evidence to be so evenly balanced that there is doubt as to any material matter regarding those issues. 38 U.S.C.A. § 5107. ORDER Entitlement to an increased evaluation to 70 percent for organic brain syndrome with conversion symptoms is established. The veteran has submitted a well grounded claim for service connection for post-traumatic stress disorder. The appeal is granted to this extent. Entitlement to a compensable evaluation for residuals of fractures of the right mandible, zygomatic and frontal bones or for residuals of a right eye injury is not established. The appeal is denied to this extent. REMAND In view of the fact that the Board has found the veteran's claim for service connection for post-traumatic stress disorder to be well grounded, the VA has a duty to assist him in the development of his claim. The case is therefore REMANDED to the regional office for the following action: 1. The Regional Office should contact the VA Outpatient Clinic, East Los Angeles and request that that facility furnish copies of all records of treatment of the veteran since July 1998. Any such records obtained should be associated with the claims file. 2. The veteran should then be afforded a special psychiatric examination in order to determine the presence of post- traumatic stress disorder. All indicated special studies should be conducted. The claims file should be made available to the examiner for review in conjunction with the examination. The veteran must be informed of the consequences of his failure to appear for the examination without good cause being shown. 38 C.F.R. § 3.655. 3. The veteran's claim for service connection for post-traumatic stress disorder should then be reviewed by the Regional Office. If the determination regarding that matter remains adverse to the veteran, he and his representative should be sent a supplemental statement of the case and be afforded the appropriate time in which to respond. When the above action has been completed the case should be returned to the Board for further appellate consideration, if otherwise in order. No action is required of the veteran until he receives further notice. The purpose of this REMAND is to obtain clarifying information. The Board intimates no opinion as to the disposition warranted in this case pending completion of the requested action. ROBERT D. PHILIPP Member, Board of Veterans' Appeals