Citation Nr: 1236469 Decision Date: 10/22/12 Archive Date: 11/05/12 DOCKET NO. 10-36 079A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUES 1. Entitlement to an initial evaluation (rating) in excess of 10 percent for a seizure disorder. 2. Entitlement to an initial evaluation (rating) in excess of 10 percent for a left ankle strain with lateral ligament instability. 3. Entitlement to a total rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran (Appellant) and his wife ATTORNEY FOR THE BOARD T. Sherrard, Counsel INTRODUCTION The Veteran, who is the Appellant in this case, had active service from December 27, 2005 to May 25, 2007. This matter comes before the Board of Veterans' Appeals (BVA or Board) from March 2008 and March 2009 rating decisions by the above Department of Veterans Affairs (VA) Regional Office (RO). The Veteran filed a claim for service connection in June 2007, which was within the one year period after service separation in May 2007. The March 2008 rating decision granted service connection for left ankle strain with lateral ligament laxity, and assigned an initial disability rating of 10 percent, effective from May 26, 2007 (the first day after separation from service). The March 2009 rating decision granted service connection for a seizure disorder, and assigned an initial disability rating of 10 percent, effective from May 26, 2007, and denied a TDIU. The Veteran provided testimony at an August 2012 Board personal hearing before the undersigned Veterans Law Judge in Washington, D.C. A transcript is associated with the claims folder. The Board notes that the additional issues of entitlement to higher initial ratings for chronic lumbar strain, bilateral shoulder impingement syndrome, and residuals of scrotal trauma were addressed in the December 2010 Supplemental Statement of the Case and were also certified to the Board on appeal; however, because in the September 2010 VA Form 9 the Veteran indicated that he only wished to appeal the issues listed above on the title page of this Board decision, he specifically limited the issues on appeal. The result is that the Veteran did not file a timely substantive appeal as to issues of entitlement to higher initial ratings for chronic lumbar strain, bilateral shoulder impingement syndrome, and residuals of scrotal trauma; thus, these issues are not before the Board for appellate consideration. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. Throughout the rating period on appeal from May 26, 2007, the Veteran's seizure disorder has been productive of between two and five major seizures and multiple minor seizures per month. 2. At the August 2012 Board hearing before the undersigned, prior to the promulgation of a decision in the appeal, the Veteran indicated that he wished to withdraw the appeal on the issue of a higher initial rating for left ankle strain. 3. As a 100 percent schedular disability rating is assigned for service-connected seizure disorder throughout the entire increased rating period from May 26, 2007, there remain no questions of law or fact to be decided regarding TDIU. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran's favor, the criteria for an initial 100 percent rating for seizure disorder have been met for the entire rating period on appeal from May 26, 2007. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.10, 4.124a, Diagnostic Code 8914 (2011). 2. The criteria for withdrawal of an appeal by the Veteran have been met with regard to the issue of a higher initial rating for a left ankle strain with lateral ligament instability. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002 & Supp. 2011); 38 C.F.R. § 20.204 (2011). 3. The assignment of a 100 percent schedular evaluation for the seizure disorder in this case renders the TDIU appeal moot. 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. § 4.16(a) (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2011). The Board herein grants a 100 percent schedular disability rating for seizure disorder throughout the entire increased initial rating period on appeal from May 26, 2007, which is a complete grant of all benefits sought. Given the fully favorable outcome, no conceivable prejudice to the Veteran could result from this decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). As explained in this decision, the grant of a 100 percent schedular disability rating that covers the entire period of TDIU claim moots the TDIU claim on appeal. In such cases where the law is dispositive, the claim must be denied due to a lack of legal merit. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). As such, discussion of VA's duty to notify and assist is not necessary on the appealed issue of entitlement to TDIU. In cases such as this, VA is not required to meet the duty to notify or assist a claimant, where a claim (for TDIU) cannot be substantiated because there is no longer any legal basis for the claim. See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001); Mason v. Principi, 16 Vet. App. 129 (2002); see also VAOPGCPREC 5-2004. Disability Rating Criteria Disability evaluations (ratings) are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability will be resolved in the veteran's favor. 38 C.F.R. § 4.3. The Veteran's seizure disorder has been evaluated under Diagnostic Code 8914, which addresses psychomotor epilepsy. 38 C.F.R. § 4.124a. Under Diagnostic Code 8914, psychomotor epilepsy is to be rated based on major or minor seizures under the General Rating Formula for Major and Minor Epileptic Seizures. Id. Psychomotor seizures will be rated as "major seizures" when characterized by automatic states and/or generalized convulsions with unconsciousness. Psychomotor seizures will be rated as "minor seizures" when characterized by brief transient episodes of random motor movements, hallucinations, perceptual illusions, abnormalities of thinking, memory or mood, or autonomic disturbances. See 38 C.F.R. § 4.124a, DC 8914. 38 C.F.R. § 4.122 (2011) further describes the characteristics of psychomotor epilepsy. Under the General Rating Formula for Major and Minor Epileptic Seizures, a 10 percent evaluation is assigned when there is a confirmed diagnosis of epilepsy with a history of seizures. A 20 percent evaluation is assigned when there is at least 1 major seizure in the last 2 years, or at least 2 minor seizures in the last six months. A 40 percent evaluation is assigned when there is at least 1 major seizure in the last six months or 2 in the last year, or averaging at least 5 to 8 minor seizures weekly. A 60 percent evaluation is assigned when there is an average of at least 1 major seizure in 4 months over the last year, or 9 to 10 minor seizures per week. An 80 percent evaluation is assigned when there is an average of at least 1 major seizure in 3 months over the last year, or more than 10 minor seizures weekly. A 100 percent evaluation is assigned when there is an average of at least 1 major seizure per month over the last year. 38 C.F.R. § 4.124a. Where there is doubt as to the true nature of epileptiform attacks, there must be neurological observation in a hospital adequate to make such a study. The seizures must be witnessed or verified at some time by a physician to warrant a rating. Regarding the frequency of attacks, competent, consistent lay testimony emphasizing convulsive and immediate post-convulsive characteristics may be accepted. The frequency of seizures should be ascertained under the ordinary conditions of life (while not hospitalized). 38 C.F.R. § 4.121. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21 (2011). At the time of an initial rating, separate ratings can be assigned for separate periods of time based on facts found, a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." See Layno, 6 Vet. App. at 469; 38 C.F.R. § 3.159(a)(2). The U.S. Court of Appeals for Veterans Claims (Court) has emphasized that when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by a veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Seizure Disorder Initial Rating Analysis In the present case, service connection for a seizure disorder was granted in the March 2009 rating decision that is the subject of this appeal. An initial 10 percent evaluation was assigned, effective from May 26, 2007, the day after the Veteran separated from active service. The Veteran, including through his representative, contends that that he has continuously through the initial rating period experienced between two and five major seizures per month, and, as such, his seizure disorder warrants a 100 percent initial evaluation. After reviewing all the lay and medical evidence of record, the Board finds that the criteria for a higher initial evaluation of 100 percent have been more nearly approximated for the entire initial rating period on appeal from May 26, 2007. The evidence shows that the Veteran's seizure disorder was productive of at least one major seizure per month, which more nearly approximates the criteria for a 100 percent rating under Diagnostic Code 8914. 38 C.F.R. § 4.124a. Review of service treatment records indicates that the Veteran experienced his first seizure in April 2007, just prior to separation from service. He reported that he stood up to remove his jacket when he passed out, fell against the wall, and was convulsing. On physical examination during service in April 2007, the Veteran had an unsteady gait, was disoriented, and unable to remember events from the prior weekend. He stammered when speaking, was slurring words together, and was unable to complete a sentence. A CT scan revealed a very small right posterior parietal scalp hematoma with no intracranial hemorrhage. An EEG study was abnormal and was suggestive of epilepsy. The Veteran was afforded a VA examination in July 2007. He reported experiencing four seizures in the last year, which were characterized by loss of consciousness and generalized evulsions, but no tongue biting or incontinence. The VA examiner assessed a seizure disorder, noting that there was no evidence of migraines, ticks, or Coreform activity. Moreover, the examiner noted that the Veteran did not require any assistive devices, was not unsteady, and was able to perform activities of daily living. An August 2009 private treatment note from Dr. O indicates that, during the Veteran's most recent seizure in July 2009, he fell forward and had convulsions for five minutes; his lips turned blue, and he was confused and disoriented for several hours after the event. The Veteran stated that he started taking Keppra after the July 2009 seizure, but had experienced another episode while on the medication. A November 2009 private treatment note from Dr. O indicates a history of the Veteran having 9 major seizures and numerous minor seizures in the past 11 months. These seizures were characterized by falling backwards and convulsions lasting several seconds. The Veteran denied blurry vision, speech problems, or swallowing problems. It was also noted that an August 2009 EEG study confirmed the diagnosis of epilepsy. In a November 2009 independent medical evaluation, Dr. B wrote that the Veteran experienced 8 major seizures over the last few months and averaged 2 to 3 minor seizures per month, even while taking anti-seizure medications. Moreover, Dr. B stated that the Veteran was unable to drive due to the possibility of experiencing a seizure while driving. At a May 2010 VA examination, the Veteran reported experiencing 2 to 4 generalized seizures per month. These seizures were characterized by shaking and purple lips with rare incontinence. He also reported seizures which resulted in confusion. The VA examiner assessed generalized seizures and complex partial seizures, stating that the Veteran's daily activities would be limited with regard to driving and working at heights or with dangerous machinery. In an October 2010 letter, Dr. O wrote that the Veteran had 15 seizures and an unknown number of staring episodes over the last year, concluding that the Veteran was unable to work due to safety issues. In a December 2008 letter, the Veteran stated that he experienced two seizures while in Texas, and four since moving to Maryland. He also submitted several letters from family members regarding his seizure disorder. In an undated letter, the Veteran's wife wrote that the Veteran experienced 2 to 4 major seizures per month, as well as multiple minor seizures, characterized by muscle jerks in the arms and legs, staring episodes, and falls. In an August 2012 letter, the Veteran's mother stated that she had witnessed the Veteran have a seizure, and that the seizures occurred between 1 and 3 times per month. At the August 2012 personal hearing before the Board, the Veteran and his wife credibly testified that he experienced between 2 and 5 major seizures per month. In addition, letters from each of the Veteran's two daughters endorse the occurrence of at least 2 major seizures per month. The specific and detailed descriptions of the seizures by the Veteran and his wife at the August 2012 personal hearing before the Board were consistent with those of major seizures. The Veteran and his spouse also gave plausible explanations reconciling the apparent discrepancies between the number of seizures reported in the earlier histories with those reported in later histories. For example, the Veteran clarified that his mother was at his house for only half a day, thus limiting her exposure to his seizures, and that his daughters were often intentionally in a different part of the house out of sight of the Veteran because they were trying to protect them from seeing the Veteran have the major seizures. In sum, the lay and medical evidence, including the lay statements, histories, and hearing testimony of symptoms and frequency of seizures experienced by the Veteran, is at least in relative equipoise as to whether a higher initial 100 percent evaluation is warranted by the evidence for the entire initial rating period from May 26, 2007. Namely, the contentions of the Veteran and his family members support the occurrence of at least one major seizure per month throughout the period on appeal, including during the early initial rating period. The Board finds the statements of the Veteran and his family members to be credible, as the reports of the frequency and nature of the seizures, including as documented in private treatment records have been relatively consistent, or plausible explanations regarding the limited opportunities for observation by the lay witnesses were offered to reconcile the inconsistencies. The histories provided by the Veteran to his treating physicians regarding the frequency and nature of his seizures are considered to be especially probative as they were provided for treatment purposes. For these reasons, and resolving reasonable doubt in favor of the Veteran, the Board finds that the criteria for an initial 100 percent rating for a seizure disorder have been met for the entire initial rating period from May 26, 2007. 38 C.F.R. § 4.124a, Diagnostic Code 8914. As the Veteran is in receipt of the maximum schedular rating of 100 percent for the entire period, there remains no additional extraschedular rating available under 38 C.F.R. § 3.321 (2011). Withdrawal of Appeal for Higher Initial Rating for Left Ankle Strain The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In the present case, at the Board personal hearing in August 2012, the Veteran has knowingly and explicitly withdrawn the appeal as to the issue of a higher initial rating for the left ankle strain; hence, there remain no allegations of errors of fact or law for appellate consideration on this issue. Accordingly, the Board does not have jurisdiction to review the appeal as to this issue, and the appeal as to this issue is dismissed. Dismissal of TDIU Claim The Veteran contends that his service-connected seizure disorder has rendered him unable to secure or follow a substantially gainful occupation. Specifically, he avers that he has always worked as a truck driver, and that he is unable to drive due to his seizure disorder. TDIU may be assigned where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a) (2011). Based on the Board's findings in this decision, the Veteran has been awarded a 100 percent (total) schedular disability rating for the service-connected seizure disorder, resulting in a combined schedular 100 percent rating for his service-connected disabilities, effective from May 26, 2007, the day after separation from active service. May 26, 2007 is also the earliest possible date for an award of a TDIU, even if, hypothetically, in this case the Veteran were rated less than totally disabled as required by 38 C.F.R. § 4.16(a) or otherwise met the criteria for consideration of a TDIU which, as explained below, he does not. Accordingly, the Board finds that the Board's grant of a 100 percent schedular rating for seizure disorder in this case for the entire initial rating period to May 26, 2007 renders the TDIU claim moot, and it must be dismissed. See Green v West, 11 Vet. App. 472, 276 (1998) (holding that, if a 100 percent schedular rating is granted, a veteran is not also entitled to TDIU for the same period). Service connection is in effect for seizure disorder, evaluated as 100 percent disabling; panic disorder with agoraphobia and depressive features, evaluated as 50 percent disabling; chronic lumbar strain, evaluated as 40 percent disabling; left shoulder impingement syndrome with partial rotator cuff tear, evaluated as 20 percent disabling; right shoulder impingement syndrome with partial rotator cuff damage, evaluated as 20 percent disabling; left ankle strain with lateral ligament instability, evaluated as 10 percent disabling; and residuals of scrotal trauma, evaluated as noncompensably disabling, all effective from May 26, 2007. With the Board's grant of a 100 percent evaluation for seizure disorder herein, the Veteran now has a combined schedular 100 percent (total) rating for his service-connected disabilities, effective from May 26, 2007, the day after he separated from active service; therefore, the issue of entitlement to a TDIU is rendered moot by reason of both the 100 percent rating for seizure disorder and the combined 100 percent schedular rating. The Board is cognizant of the decision of the Court in Bradley v. Peake, 22 Vet. App. 280 (2008), in which the Court held that, although no additional disability compensation may be paid when a total schedular disability rating is already in effect, a separate award of TDIU predicated on a single disability may form the basis for an award of special monthly compensation. In view of the issuance by the Court of its decision in Bradley, which recognized that it was possible for a veteran first to be awarded TDIU based on a single disability and subsequently receive schedular disability ratings for other conditions that would not duplicate in the count of disabilities for special monthly compensation purposes (that is, separate disabilities that could combine for a 60 percent disability rating), in November 2009 the VA General Counsel partially withdrew VAOPGCPREC 6-99 to the extent it was inconsistent with Bradley. The facts in this Veteran's case distinguish the current appeal from the Court's holding in Bradley, where only a 70 percent schedular disability rating for PTSD was granted, a TDIU ("total rating") was granted based primarily on the PTSD disability, the TDIU substituted for the "total" rating, and the Veteran only later claimed and was granted service connection and multiple separate disability ratings that, apart from the PTSD, combined to at least 60 percent to be considered one 60 percent rating. In the current Veteran's case, as distinguished from Bradley, the Board has granted a 100 percent ("total") schedular disability rating for the service-connected seizure disorder, which results in the 100 percent schedular disability rating being assigned for seizure disorder and a combined 100 percent rating for all service-connected disabilities, as distinguished from a less than total schedular rating (of 70 percent) in Bradley that was only made "total" by operation of TDIU. Also, in the current Veteran's case, subsequent to the grant of the "total" (100 percent schedular) disability rating for seizure disorder, the Veteran also has not claimed or been granted service connection and/or ratings that combined to a separate 60 percent disability rating. In the current case, where the claim for service connection for seizure disorder was received on June 11, 2007, and the TDIU claim has been inferred as arising from the initial ratings for service-connected disabilities. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (suggesting that an appeal for higher rating somehow includes TDIU). For this reason, there is no subsequent claim for TDIU following the date of grant of higher initial rating herein, and the schedular 100 percent disability rating covers the entire period of TDIU claim on appeal. As distinguished from Bradley, no service connection claim or increased rating claim for disability or disabilities other than seizure disorder has been filed subsequent to the March 26, 2007 effective date of the 100 percent (total) schedular disability rating for seizure disorder. In November 2009, the VA General Counsel interpreted that the logic of Bradley suggested that, if a veteran had a schedular total rating for a particular service-connected disability and subsequently claimed TDIU for a separate disability, VA must consider the TDIU claim despite the existence of the schedular total rating (100 percent schedular) and award special monthly compensation if VA finds the separate disability supports a TDIU rating independent of the other 100 percent disability rating. The Veteran's case currently on appeal is factually distinguished from even the logical extension of Bradley indicated by the VA General Counsel because neither the Veteran nor the evidence has subsequently claimed TDIU based on a separate service-connected disability (other than the service-connected seizure disorder). Although the Veteran filed a VA Form 21-8940 in December 2008, a claim for TDIU was inferred from the initial rating appeal coupled with the Veteran's assertions of unemployability, primarily due to seizure disorder. See Rice, 22 Vet. App. 447. The Veteran is service connected for disabilities of low back pain (40 percent), left shoulder impingement syndrome with partial rotator cuff tear (20 percent), right shoulder impingement syndrome with partial rotator cuff damage (20 percent), left ankle strain with lateral ligament instability (10 percent), and residuals of scrotal trauma (0 percent). In the claim for TDIU, the Veteran indicated that the TDIU should be based on the low back disability, bilateral shoulder disabilities, seizure disorder, and depression; however, it is apparent from his August 2012 letter that the Veteran is contending that his seizure disorder is primarily responsible for his unemployability. Consistent with this assertion, the private physicians have consistently stated that it is the seizure disorder that renders the Veteran unemployable. For instance, in a July 2012 letter, Dr. K. stated that the Veteran's prognosis for gainful employment was poor given his chronic multiple medical and psychiatric problems, but especially due to his seizures. The May 2010 VA examiner opined that, due to the Veteran's seizures, he would be limited in regard to driving and working at heights or with dangerous machinery. Moreover, the Veteran has repeatedly stated that he is unable to drive due to his seizures, thus rendering him unable to work as a truck driver (his sole previous occupation). In contrast to the hypothetical scenario in which the VA General Counsel (in November 2009) interpreted a logical extension of Bradley where a veteran had a schedular total rating for a particular service-connected disability and subsequently claimed TDIU for a separate disability, in this case, first, the Veteran did not make a subsequent claim for TDIU; rather, the claim for service connection for multiple disabilities was interpreted as an inferred claim for a TDIU, resulting in the claim for TDIU arising at the same time as the claims for service connection for all disabilities for which service connection was granted and initial ratings were assigned, rather than subsequent to such claims. See Rice. Second, the Veteran has neither claimed nor asserted that unemployability is primarily due to the other service-connected disabilities of panic disorder with agoraphobia and depressive features, chronic lumbar strain, bilateral shoulder impingement syndrome, left ankle strain with lateral ligament instability, or residuals of scrotal trauma. Rather, the Veteran's assertions of unemployability have been based on the effects of his seizure disorder on his occupation as a truck driver. In this case, the Veteran has not in fact subsequently claimed TDIU based on a separate disability (separate from seizure disorder). For these reasons, the Board finds that the TDIU claim was rendered moot by the grant of a 100 percent disability rating for seizure disorder herein for the entire period of initial rating appeal from March 26, 2007, which is also the entire period of an inferred TDIU claim, because there remain no questions of law or fact to be decided regarding TDIU. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law is dispositive, the claim must be denied due to a lack of legal merit). ORDER A 100 percent evaluation for seizure disorder, for the entire initial rating period on appeal, is granted. The appeal for a higher initial rating for a left ankle strain with lateral ligament instability is dismissed. The appeal for TDIU, having been rendered moot by the grant of a 100 percent schedular disability rating for seizure disorder, is dismissed. ____________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs