93 Decision Citation: BVA 93-07418 Y93 BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 DOCKET NO. 91-45 056 ) DATE ) ) ) THE ISSUE Entitlement to an increased rating for a seizure disorder, currently rated 10 percent disabling. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD D. Dean, Counsel INTRODUCTION The appellant had active military service from May to December 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 1990 rating action by the New Orleans, Louisiana Regional Office (RO) of the Department of Veterans Affairs (VA) in which the schedular disability rating assigned for the service-connected seizure disorder was increased from 10 percent to 20 percent, effective December 15, 1989. The appellant's notice of disagreement with that determination was received in March 1990, and a statement of the case was issued to him in April 1990. A supplemental statement of the case was issued to the appellant in November 1990, and his substantive appeal was received in December of that year. The appellant had initially requested to appear before a traveling section of the Board, but that request was withdrawn in September 1991. The claim initially arrived at the Board in October 1991. In a decision entered in March 1992, the Board remanded this appeal to the RO for further development. By rating action dated in October 1992, service connection was granted for peripheral neuropathy of both upper and both lower extremities, each rated 10 percent disabling, as secondary to the medication (Dilantin) taken by the appellant for many years in order to control his service-connected seizure disorder. By the same rating action, the 20 percent schedular disability rating previously assigned for the service-connected seizure disorder under Diagnostic Code 8912 was revoked as erroneous, and the prior 10 percent rating assigned for that disability from 1970 was confirmed. A supplemental statement of the case was issued to the appellant in October 1992, and the case was returned to the Board in January 1993. Throughout this appeal, the appellant has been represented by The American Legion, and that organization has submitted additional written argument in support of the claim in September 1991, November 1991, January 1993, and February 1993. In February 1992, the RO received correspondence from the office of the appellant's Congressman in which it was reported that the appellant was claiming to be having difficulty maintaining any type of employment due to his illness. According to the United States Court of Veterans Appeals (Court), VA has a duty to assist a veteran in the development of any claim reasonably raised from a liberal reading of any document or oral testimony reflected by the evidence of record. EF v. Derwinski, 1 Vet.App. 324 (1991). It appears from a liberal reading of the aforementioned document that the appellant may be attempting to pursue a claim seeking a total disability rating on the basis of individual unemployability as provided by 38 C.F.R. § 3.341 (1993). However, since that communication did not originate with the appellant but, instead, from the office of the appellant's Congressman, we are not certain as to the appellant's wishes in this matter. In any event, the issue of entitlement to a total disability rating on the basis of individual unemployability is not so "inextricably intertwined" with the issue presently on appeal so as to require the Board to defer appellate review of the present appeal. Accordingly, the question of the appellant's possible entitlement to a total disability rating on the basis of individual unemployability is hereby referred to the attention of the RO for further clarification by the appellant as to his intentions, appropriate further development and/or other action deemed appropriate. The case is now ready for appellate review. CONTENTIONS OF APPELLANT ON APPEAL The appellant generally contends that his service-connected seizure disorder is more than 10 percent disabling. It is contended on his behalf that the RO improperly revoked the schedular 20 percent rating previously assigned for that disability by rating action dated in March 1990. During the course of this appeal, the appellant has also generally contended on occasion that his seizure disorder should be rated even more than 20 percent disabling. DECISION OF THE BOARD In accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), following review and consideration of all evidence and material of record, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against the claim seeking a disability rating in excess of 10 percent for the service-connected seizure disorder. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the present appeal has been obtained by the RO. 2. As pertinent to the present appeal, the appellant has established entitlement to service connection for a seizure disorder, rated 10 percent disabling from 1970. 3. The appellant suffered two major post-traumatic seizures, in July and September 1969. 4. With the exception of a minor seizure which occurred in December 1989, the appellant has suffered no confirmed seizures, either major or minor, since January 1970. 5. The present case does not present an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization so as to render impractical the application of the regular schedular standards with relation to the rating of the service-connected seizure disorder. CONCLUSION OF LAW An evaluation in excess of 10 percent for a seizure disorder is not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.105, 3.321, 3.400, 3.500 and Part 4, including Code 8912 (1992). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, we note that we have found that the appellant's claim is well grounded within the meaning of 38 U.S.C.A. § 5107(a). That is, we find that he has presented a claim which is plausible, if not conclusive, and which is capable of substantiation. We are also satisfied that all relevant facts have been properly developed, and that no further assistance to the appellant is required in order to comply with the duty to assist him mandated by 38 U.S.C.A. § 5107(a). Most of the basic facts are not in dispute. Following a head injury in service, the appellant experienced two major post-traumatic seizures, in July and September 1969. Afterwards, he experienced one or more minor seizures, the last of which occurred in approximately January 1970. Subsequently, the appellant's seizure disorder was well-controlled by Dilantin for many years. In early December 1989, the appellant experienced a minor seizure manifested by jerking of the right arm, for which he was later hospitalized at a VA facility for treatment. During that period of hospitalization, the appellant also reported experiencing a similar minor seizure on Thanksgiving Day of 1987 which consisted of right arm jerking and right eye twitching. Observation and evaluation of the veteran in December 1989 and January 1990 indicated that he had developed peripheral neuropathy in both upper and both lower extremities due to his prolonged use of Dilantin. Accordingly, he was switched to another anticonvulsant medication, Tegretol. Following this, the evidence of record reflects no confirmation of further seizure activity up until the present time. Disability evaluations are 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. Under the provisions of the Rating Schedule, a seizure disorder will be rated 10 percent disabling with evidence of a confirmed diagnosis of epilepsy with a history of seizures and/or when continuous medication is shown to be necessary for the control of seizures. 38 C.F.R. Part 4, Code 8912. The next higher evaluation of 20 percent is only appropriate where the evidence establishes the occurrence of at least one major seizure in the last two years; or at least two minor seizures in the last six months. For rating purposes, a major seizure is characterized by the generalized tonic-clonic convulsion with unconsciousness; a minor seizure consists of a brief interruption in consciousness or conscious control associated with staring or rhythmic blinking of the eyes or nodding of the head ("pure" petit mal), or sudden jerking movement of the arms, trunk, or head (myoclonic type) or sudden loss of postural control (akinetic type). 38 C.F.R. Part 4, Code 8912. The appellant's service-connected seizure disorder has required continuous medication, first Dilantin and then Tegretol, in order to control his seizure activity. However, under that medical regime, the appellant has been virtually seizure-free since early 1970, with the exception of a confirmed episode of a minor seizure in December 1989 and a possible additional minor seizure in November 1987. The appellant's other continuing complaints over the years, such as dizziness, headaches, nausea and blurry vision are not indicative of seizure activity, either major or minor, under the Rating Schedule. Likewise, the increasingly frequent episodes of falling experienced by the appellant have been attributed by his treating physicians to peripheral neuropathy in the lower extremities, rather than to seizure activity. The appellant's medical history and current symptoms are precisely those contemplated by the current 10 percent rating assigned under Code 8912. In exceptional cases where the schedular evaluations are found to be inadequate, an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability can be authorized. This requires a finding, however, that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). As mentioned previously in this decision, the appellant's medical history and current symptoms are precisely those contemplated by the 10 percent disability rating under Code 8912. Moreover, the appellant's case does not present such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards. By rating action dated in March 1990, the RO increased the schedular disability rating under Code 8912 for the appellant's seizure disorder from 10 percent to 20 percent, effective December 15, 1989. However, an examination of that rating action clearly indicates that the increased rating was not assigned based upon an increase in seizure activity, as is required under Code 8912, but rather because of peripheral neuropathy in both upper and both lower extremities which was felt to be possibly secondary to his seizure medication. This Section of the Board has no hesitation in holding the March 1990 rating action to be clearly and unmistakably erroneous and, therefore, not administratively final. 38 C.F.R. § 3.105(a). That erroneous rating action was later amended and corrected by the RO in a rating action dated in October 1992. At that time, entitlement to service connection on a secondary basis for peripheral neuropathy of both upper and both lower extremities was granted by the RO, effective from December 15, 1989. At the same time, a 10 percent schedular disability rating under Diagnostic Codes 8515 or 8521 was assigned for each affected extremity. Finally, the correct rating of 10 percent under Code 8912 was restored for the service-connected seizure disorder. The amendment was made under the authority of, and in accordance with, the provisions of 38 C.F.R. §§ 3.105(a), 3.400, 3.500. It should also be pointed out that the aforementioned amendment has had the effect of granting the appellant a substantial and retroactive increase in his payments of disability compensation benefits based upon a combined 40 percent rating, effective December 15, 1989, rather than upon a 20 percent rating effective from that same date. ORDER The appeal is denied. BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 * B. KANNEE C. J. STUREK (CONTINUED ON NEXT PAGE) *38 U.S.C.A. § 7102(a)(2)(A) (West 1991) permits a Board of Veterans' Appeals Section, upon direction of the Chairman of the Board, to proceed with the transaction of business without awaiting assignment of an additional Member to the Section when the Section is composed of fewer than three Members due to absence of a Member, vacancy on the Board or inability of the Member assigned to the Section to serve on the panel. The Chairman has directed that the Section proceed with the transaction of business, including the issuance of decisions, without awaiting the assignment of a third Member. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.