Citation Nr: 1229578 Decision Date: 08/28/12 Archive Date: 09/05/12 DOCKET NO. 08-28 166 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Whether a rating reduction of 40 percent to 20 percent for a seizure disorder was proper. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Andrew Mack, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from July 1981 to June 2001. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in December 2007 of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The claim for increase for a seizure disorder raised by the Veteran is referred to the RO for appropriate action. FINDINGS OF FACT 1. By rating decision in July 2001, the RO granted a 40 percent rating for a seizure disorder, effective July 1, 2001; that decision was based on a statement by the Veteran and March 2001 medical report contained in the service treatment records, reflecting that the Veteran had had at least one major seizure in the last six months. 2. On VA examination in December 2004, it was noted that the Veteran had had his last seizure two years before, that he had only had two episodes of seizures, that his seizures were very well-controlled on medication, and that the Veteran was able to drive and work at the time. 3. By rating decision in January 2005, the RO continued the 40 percent rating for a seizure disorder on the basis that, although recent evidence showed improvement in his condition, sustained improvement had not been definitively established. 4. On VA examination in October 2007, it was noted that the Veteran had last had a seizure in September 2006, and no complex partial seizure over 12 months and that the seizure disorder had no significant effects on usual occupation and no effects on usual daily activities. 5. Following the VA examination in October 2007, in a rating decision in October 2007, the RO proposed to reduce the 40 percent rating for a seizure disorder; by a letter dated in November 2007, the RO notified the Veteran of the proposal to reduce the 40 percent rating, and enclosed the October 2007 rating decision discussing the medical evidence reflecting improvement in the seizure disorder. 6. By a rating decision dated in December 2007, the RO implemented a reduction of the seizure disorder rating of 40 percent to 20 percent, effective March 1, 2008; notice of the reduction was mailed to the Veteran in December 2007. 7. The evidence at the time of the rating reduction reflects material improvement in the Veteran's seizure disorder under the ordinary conditions of life, and clearly warrants the conclusion that sustained improvement in the Veteran's seizure disorder had been demonstrated, and it was reasonably certain that the improvement would be maintained under the ordinary conditions of life. 8. The VA examination in October 2007 was full and complete as any examination on which the Veteran's 40 percent rating was based. CONCLUSION OF LAW The rating reduction from 40 percent to 20 percent for a seizure disorder, effective March 1, 2008, was proper. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.105(e), 3.344, 4.1, 4.124a, DC 8910 (2011). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. Rating Reduction On a reduction of a rating, the reduction stems from an action initiated by the RO, not the Veteran, and the reduction is not a claim or application for benefits under the VCAA. For this reason, the notice and assist provisions of the VCAA do not apply to a rating reduction. With a rating reduction, VA must comply with the notice procedures of 38 C.F.R. § 3.105(e). Kitchens v. Brown, 7 Vet. App. 320, 325 (1995); Brown v. Brown, 5 Vet. App. 513 (1993); Venturella v. Gober, 10 Vet. App. 340, 342-43 (1997) (defining evidence which may be used in such determinations); see also Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc) (standards for review of evidence). For the reasons set forth below, the Board finds that there has been full compliance with the procedures of 38 C.F.R. § 3.105(e). In November 2007, the RO provided the Veteran with the required notification of a proposed rating reduction. The Veteran was afforded the opportunity to have a hearing but did not request a hearing. In December 2007, the Veteran submitted evidence in the form of a note from his private physician, Dr. Hoffman, dated in November 2007, regarding treatment of the Veteran's seizure disorder. In a rating decision in December 2007, the RO effectuated the reduction from 40 percent to 20 percent, effective March 1, 2008, more than 60 days after the last day of the month of the rating decision in December 2007. Therefore, the procedural due process requirements of 38 C.F.R. § 3.105(e) were complied with. REASONS AND BASES FOR FINDINGS AND CONCLUSION Procedural Due Process The provisions of 38 C.F.R. § 3.105(e) allow for a rating reduction when warranted by the evidence, but only after following certain procedural guidelines. The RO must issue a rating action proposing the reduction and setting forth all material facts and reasons for the reduction. The Veteran must then be given 60 days to submit additional evidence and to request a predetermination hearing within 30 days of notification. Then a rating action will be taken to effectuate the reduction. 38 C.F.R. § 3.105(e). The effective date of the reduction will be the last day of the month in which a 60 day period from the date of notice to the Veteran of the final action expires. 38 C.F.R. § 3.105(e), (i)(2)(i). In this case, the requirements under 38 C.F.R. § 3.105(e) for reduction of the schedular disability rating from 40 to 20 percent for a seizure disorder were followed by the RO. In November 2007, the RO notified the Veteran of the proposed rating reduction and sent him a copy of the proposed rating reduction. The RO instructed the Veteran to submit within 60 days any additional evidence to show that his rating should not be reduced. The Veteran was notified that he had 30 days to request a predetermination hearing before the RO. The Veteran did not request a predetermination hearing. In December 2007, the Veteran submitted evidence in the form of a statement from his private physician, dated in November 2007, regarding treatment of the Veteran's seizure disorder. The RO took final action to reduce the disability rating in a rating decision in December 2007, in which the rating was reduced from 40 percent to 20 percent, effective March 1, 2008. The RO properly adhered to the procedural requirements under 38 C.F.R. § 3.105(e) for reduction of the schedular disability rating from 40 to 20 percent for a seizure disorder. The Veteran does not contend otherwise. Legal Criteria In considering the propriety of a reduction, the Board must focus on the evidence available to the RO at the time the reduction was effectuated, although post-reduction medical evidence may be considered in the context of evaluating whether the disability had demonstrated actual improvement. Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-82 (1992). In order for a rating reduction to be sustained, it must be shown by a preponderance of the evidence that the reduction was warranted. Sorakubo v. Principi, 16 Vet. App. 120, 123-24 (2002). The burden of proof is on VA. Brown v. Brown, 5 Vet. App. 413, 421 (1993). Specific requirements for reducing a rating are set forth in 38 C.F.R. § 3.344(a) and (b), which prescribe that only evidence of sustained material improvement under the ordinary conditions of life, as shown by full and complete examinations, can justify a reduction. It is essential that the entire record of examinations and the medical-industrial history be reviewed to ascertain whether the recent examination was full and complete, including all special examinations indicated as a result of general examination and the entire case history. Examinations less full and complete than those on which payments were authorized or continued will not be used as a basis of reduction. Ratings on account of diseases subject to temporary or episodic improvement, e.g., epilepsy, will not be reduced on any one examination, except in those instances where all the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. Moreover, though material improvement in the physical condition is clearly reflected the rating agency will consider whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. 38 C.F.R. § 3.344(a). If doubt remains, after according due consideration to all the evidence developed, the rating agency will continue the rating in effect. 38 C.F.R. § 3.344(b). The requirements of § 3.344(a) and (b), apply to ratings in effect for five years or more. 38 C.F.R. § 3.344(c). The relevant period for this purpose is calculated from the effective date of the establishment of the former rating, to the effective date of the reduction. Since the 40 percent rating was in effective from July 7, 2001, and reduced to 20 percent, effective March 1, 2008, the 40 percent rating had been in effect for the requisite five-year period of time as set forth in 38 C.F.R. § 3.344(c). Therefore, the provisions of 38 C.F.R. § 3.344(a) and (b) are applicable in this case. A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. The Veteran has been service-connected for a seizure disorder since July 1, 2001. The Veteran's seizure disorder is rated under Diagnostic Code (DC) 8910, which is the Diagnostic Code for grand mal epilepsy. The various forms of epilepsy are evaluated according to the General Rating Formula for Major and Minor Epileptic Seizures. A 20 percent rating is warranted when there has been at least one major seizure in the last two years or there have been at least two minor seizures in the last six months. A 40 percent rating requires at least one major seizure in the last six months or two major seizures in the last year; or an average of at least five to eight minor seizures weekly. 38 C.F.R. § 4.124a, DC 8910. Facts The service treatment records contain a statement by the Veteran indicating that he had a seizure on January 24, 2001, which was witnessed by his co-workers, who informed him that he had been unconscious for four or five minutes. The Veteran was taken to a hospital where he suffered another seizure, which was witnessed by a nurse and the Veteran's wife. In March 2001, an electroencephalogram (EEG) showed changes most prominent in the parietal regions, and a magnetic resonance imaging (MRI) was unremarkable except for an asymmetry of the lateral ventricles. The diagnosis was seizure disorder, and the Veteran was prescribed a medication to take three times a day. The Veteran was asked not to drive for the next two months, so that he would be seizure free for three months before driving. In July 2001 in a rating decision, the RO granted service connection for a seizure disorder and assigned an initial rating of 40 percent, effective July 1, 2001. The RO based its grant of service connection on the statement by the Veteran and March 2001 report contained in the service treatment records. The RO assigned the 40 percent rating on the basis that the Veteran had had at least one major seizure in the last six months, as he was noted to have had a seizure in January 2001. The Veteran was examined by a VA examiner in December 2004. At that time, it was noted that the Veteran was on the same medication and that the Veteran had not had a seizure in two years. The Veteran stated that his last seizure occurred when he missed a couple doses of his medication and that he had only had the two seizures. The examiner stated that the Veteran had seizures that were very well-controlled on medication, that the Veteran seemed compliant with his medication, and that the last seizure had occurred two years earlier, and that the Veteran was able to drive and to work. In January 2005 in a rating decision, the RO continued the 40 percent rating noting that, although recent evidence showed improvement, sustained improvement had not been definitively established. VA records from May 2006 to July 2007 and private treatment records in September 2006 show that the Veteran was still on the same medication. On VA examination in October 2007, the Veteran stated that in September 2006 he had a seizure and he had been hospitalization, and that his medication was increased, but that he had not had any additional seizures since September 2006. It was noted that the Veteran had not had complex partial seizure over the last 12 months. It was noted that the method to determine the frequency of seizures was the Veteran's statements and the medical records, and that the Veteran's last seizure had been in September 2006. It was noted that the Veteran was employed full time. The diagnosis was seizure disorder with a history of grand mal seizure in September 2006 with no significant effects on usual occupation and no effects on usual daily activities. On the basis of the VA examination in October 2007, the RO proposed reducing the rating for the seizure disorder from 40 percent to 20 percent. In November 2007, the Veteran submitted a statement from his private neurologist. The neurologist stated that the Veteran was being treated for a chronic seizure disorder with medication. The neurologist stated that except for a seizure in September 2006 the Veteran's condition had been stable and had not changed significantly over the past several years, but the Veteran would require continued long-term monitoring. After giving the Veteran procedural notice under 38 C.F.R. § 3.105(e), the RO took final action to reduce the disability rating in a rating decision in December 2007, in which the rating was reduced from 40 percent to 20 percent, effective March 1, 2008. In January 2008, in the notice of disagreement, the Veteran stated that he had had many minor seizures in the past year that had not been reported. In January 2008, the private neurologist stated that it was necessary for the Veteran to take his medication three times a day and that the seizures had been relatively well-controlled except for a seizure in September 2006 and a few mild seizures that occurred while the Veteran was doing yard work, when he became overheated, but that his condition had otherwise been fairly stable over the past several years although he would require long-term continued monitoring. Analysis The evidence subsequent to the rating decision in July 2001, awarding a 40 percent rating, particularly the VA examination in December 2004 and in October 2007 show material improvement in the Veteran's seizure disorder under the ordinary conditions of life. In July 2001, the Veteran was awarded a 40 percent rating for his seizure disorder under DC 8910 on the basis that he had had at least one major seizure in six months, as the Veteran was noted to have had a seizure in January 2001, which is the criteria for a 40 percent rating under the General Rating Formula for Major and Minor Epileptic Seizures. See 38 C.F.R. § 4.124a, DC 8910. In December 2004 on VA examination, it was noted that the Veteran's last seizure had been two years earlier. In October 2007 on VA examination it was noted that the Veteran's last seizure had been in September 2006, more than one year prior to the examination, and that he had not had additional seizures since then. Also, there were no complex partial seizures over the previous 12 months. By the VA examinations in December 2004 and in October 2007, the Veteran's seizure disorder showed actual, material improvement from the time of the July 2001 rating decision, at which time he had one major seizure in six months. Also, since December 2004 the Veteran did not average of at least one major seizure every six months, two major seizures every year, or at least five to eight minor seizures weekly. The 40 percent rating was continued in a rating decision in January 2005 after the VA examination in December 2004 although there was evidence of improvement, the RO did not find sustained improvement. In the proposed rating reduction in October 2007, the Veteran's seizure disorder no longer approximated at least one major seizure in the last six months or two major seizures in the last year. The rating reduction was proper because the evidence of record at the time clearly warranted the conclusion that sustained improvement in the seizure disorder had been demonstrated. Also, the private neurologist stated that the Veteran's medical condition had been stable and had not changed significantly over several years. In his notice of disagreement, the Veteran stated that he had had many minor seizures in the past year that he had not been reported. Also, the private neurologist submitted a second letter, stating that the seizure disorder had been relatively well-controlled except for a seizure in September 2006 and a few mild seizures that occurred while the Veteran was doing yard work. The Veteran's statements of having minor seizures that he had not reported is inconsistent with the Veteran's statement on VA examination in October 2007, when he stated that his last seizure had been in September 26, 2006, and that he had not had any seizures since September 2006. Also the Veteran's private physician had stated on one occasion that the Veteran's seizure disorder had been relatively well-controlled except for a seizure in September 2006 and a few mild seizures that occurred while the Veteran was doing yard work, which was inconsistent with a previous statement that except for a seizure in September 2006 the Veteran's medical condition had been stable and had not changed significantly over the last several years. A mere recitation of the Veteran's self-reported history does not constitute competent medical evidence. LeShore v. Brown, 8 Vet. App. 406 (1996). Even accepting as credible the Veteran's assertion that he had had minor seizures, the Veteran does not describe that he suffered an average of at least five to eight minor seizures a week and there is no other evidence of the frequency of the minor seizures. Even if such small seizures had occurred, and considering that the Veteran's most recent major seizure occurred more than one year prior to October 2007, the Veteran's seizure disorder had materially improved since the time that he had experienced at least one major seizure in six months, and that the record reflects sustained improvement over the Veteran's initial condition that was rated 40 percent disabling. Moreover, in addition to clearly reflecting material improvement in the Veteran's seizure disorder, the evidence of record made it reasonably certain that the improvement would be maintained under the ordinary conditions of life as the Veteran was able to drive and work full time. At the time of the rating reduction in December 2007, the Veteran's seizure disorder had been stable and well-controlled on medication with no significant effects on the Veteran's occupation or daily activities. While the Veteran asserted that his medication had been increased, the record since March 2001 shows that the Veteran has been on the same medication and the same dose for years. Finally, the VA examination in October 2007 was full and complete as the examinations on which the 40 percent rating was authorized. The VA examination in October 2007 included a physical examination and elicited information pertinent to rating the disability and determining whether a rating reduction was proper, including the following: the frequency of seizures; current medication and treatment; the existence of complications, and the effects of the Veteran's seizure disorder on his occupation and daily activities. In March 2001, there was a review of an EEG and an MRI, which were not done for the VA examination in October 2007. The Board finds that this does not render the October 2007 VA examination any less full or complete for the purposes of the rating reduction. In this regard, the rating of a seizure disorder under the General Rating Formula for Major and Minor Epileptic Seizures is based on the frequency of major and minor seizures; such criteria was addressed on the VA examination. As any EEG or MRI results are not pertinent to the evaluation of the Veteran's seizure disorder under the applicable rating criteria, or to determining the effects of the Veteran's disorder on his occupation or daily life, the Board finds that the fact that no such diagnostic results were available does not render the examination any less full or complete than any examination on which the Veteran's initial rating was authorized. Therefore, the Board finds that the evidence at the time of the rating reduction established material improvement in the seizure disorder under the ordinary conditions of life. Accordingly, the Board finds that the rating reduction of 40 percent to 20 percent for a seizure disorder was proper. In reaching this conclusion, the Board finds that the preponderance of the evidence compels the conclusion that the rating reduction was proper and in accordance with 38 C.F.R. § 3.105 and § 3.344, and the benefit-of-doubt standard of proof does not apply. Brown, 5 Vet. App. at 421. ORDER A rating reduction of 40 percent to 20 percent for a seizure disorder was proper, and the appeal is denied. ____________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs