Decision Date: 10/13/95 Archive Date: 10/12/95 DOCKET NO. 93-22 200 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to restoration of an 80 percent evaluation for a seizure disorder, with secondary paresthesias. 2. Entitlement to restoration of a total disability evaluation based on individual unemployability due to service-connected disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and Spouse ATTORNEY FOR THE BOARD Charles G. Sener INTRODUCTION The appellant had active service from May 1975 to May 1987. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 1991 rating decision of the Department of Veterans Affairs (VA) St. Petersburg, Florida, Regional Office (RO), which reduced an evaluation for a service-connected seizure disorder, with secondary paresthesias, from 80 percent to 10 percent disabling, effective from September 1, 1991, and which also discontinued a total disability evaluation based on individual unemployability due to service-connected disabilities, effective from September 1, 1991. Review of the claims file indicates that the appellant may also be seeking entitlement to service connection for a nervous disorder, secondary to a service-connected seizure disorder. This claim is not inextricably intertwined with the current claim and has not been developed for appellate consideration by the RO. Therefore, this matter is referred to the RO for appropriate action. CONTENTIONS OF APPELLANT ON APPEAL The appellant avers that the RO committed error by reducing his disability evaluation for a seizure disorder, with secondary paresthesias, and by discontinuing his total disability evaluation based on individual unemployability due to service-connected disabilities. The appellant, through his representative, also maintains that the RO did not adequately consider evidence submitted pertaining to the frequency of his seizure attacks. Furthermore, the appellant's representative asserts that the RO did not properly apply the provisions of 38 C.F.R. §§ 3.343 and 3.344 as they relate to discontinuance of a total rating due to individual unemployability and stabilization of disability evaluations. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the appellant's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the evidence supports a restoration of the appellant's 80 percent evaluation for a seizure disorder, with secondary paresthesias. It is also the decision of the Board that the evidence supports restoration of the appellant's total disability evaluation based on individual unemployability due to service-connected disabilities. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appellant's appeal has been obtained by the agency of original jurisdiction. 2. In June 1991, the RO reduced an evaluation for a seizure disorder, with secondary paresthesias, from 80 percent to 20 percent disabling, and discontinued a total disability evaluation based on individual unemployability due to service-connected disabilities. 3. The appellant's service-connected seizure disorder, with secondary paresthesias, is manifested by a musty olfactory aura , followed by jerking of the left side of the body, and a throbbing sensation. 4. Clinical evidence of record and competent lay evidence demonstrate that the appellant has multiple, daily seizures, sometimes as often as five to six times per day. 5. The appellant's seizure disorder, with secondary paresthesias, is sufficiently severe as to preclude him from obtaining and maintaining a substantially gainful occupation consistent with his education and employment experience. 6. Neither an exceptional nor unusual disability picture has been presented so as to render impractical the application of the regular schedular standards. CONCLUSIONS OF LAW 1. The criteria for restoration of an 80 percent evaluation for a seizure disorder, with secondary paresthesias, have been met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 4.2, 4.7, 4.10, 4.20, 4.121, 4.124a, Diagnostic Code 8911 (1994). 2. The criteria for restoration of a total disability evaluation based on individual unemployability due to service-connected disabilities have been met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. § 3.343 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant alleges that his service-connected seizure disorder, with secondary paresthesias, is more severely disabling than currently evaluated and that it precludes him from obtaining and maintaining substantially gainful employment. Because a well-grounded claim is neither defined by the statute nor the legislative history, it must be given a common sense construction. A well-grounded claim is a plausible claim, one which is meritorious on its own or capable of substantiation. Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). In accordance with 38 U.S.C.A. § 5107 (West 1991), and Murphy v. Derwinski, 1 Vet.App. 78 (1990), the appellant's claims of entitlement to restoration of an 80 percent evaluation for a seizure disorder, with secondary paresthesias, and restoration of a total disability evaluation based on individual unemployability due to service-connected disabilities are well-grounded and have been adequately developed. I. Seizure Disorder Disability evaluations are based upon the average impairment of earning capacity as determined by a schedule for rating disabilities. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1994). Separate rating codes identify the various disabilities. In determining the current level of impairment, the disability must be considered in the context of the whole recorded history. 38 C.F.R. § 4.2 (1994). An evaluation of the level of disability present also includes consideration of the functional impairment of the appellant's ability to engage in ordinary activities, including employment. 38 C.F.R. §§ 4.10 (1994). 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. 38 C.F.R. § 4.7 (1994). When an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. Conjectural analogies will be avoided, as will the use of analogous ratings for conditions of doubtful diagnosis, or for those not fully supported by clinical and laboratory findings. Nor will ratings assigned to organic diseases and injuries be assigned by analogy to conditions of functional origin. 38 C.F.R. § 4.20 (1994). When there is doubt as to the true nature of epileptiform attacks, neurological observation in a hospital adequate to make such a study is necessary. To warrant a rating for epilepsy, the seizures must be witnessed or verified at some time by a physician. As to frequency, 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 (1994). Petit mal epilepsy is evaluated under the general rating formula for minor seizures. 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 movements of the arms, trunk, or head (myoclonic type) or sudden loss of postural control (akinetic type). 38 C.F.R. § 4.124a, Diagnostic Code 8911 (1994). The "General Rating Formula for Major and Minor Epileptic Seizures" is listed, as follows. A confirmed diagnosis of epilepsy with a history of seizures warrants a 10 percent evaluation. Ten percent is also the minimum evaluation when continuous medication is shown necessary for the control of epilepsy. (This rating will not be combined with any other rating for epilepsy.) A 20 percent evaluation requires at least 1 major seizure in the last 2 years; or at least 2 minor seizures in the last 6 months. A 40 percent evaluation requires at least 1 major seizure in the last 6 months or 2 in the last year; or averaging at least 5 to 8 minor seizures weekly. A 60 percent evaluation requires an average of at least 1 major seizure in 4 months over the last year; or 9-10 minor seizures per week. An 80 percent evaluation requires 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 requires an average of at least 1 major seizure per month over the last year. (Note: In the presence of major and minor seizures, rate the predominating type. There will be no distinction between diurnal and nocturnal major seizures.) 38 C.F.R. § 4.124a, Diagnostic Code 8911 (1994). A March 1988 rating decision assigned the appellant an 80 percent disability evaluation for a seizure disorder, with secondary paresthesias. In accordance with the provisions of 38 C.F.R. § 3.105(e), a March 1991 rating decision proposed a reduction in rating to 10 percent, and the appellant received notice of that proposed reduction in March 1991. Subsequently, a June 1991 rating decision determined that the proposed reduction would be effective from September 1, 1991. We note that the instant claim is one for restoration which may require the application of 38 C.F.R. § 3.344 (1994), Stabilization of Disability Evaluations, as mandated by the United States Court of Veterans Appeals (Court) in Peyton v. Derwinski, 1 Vet.App. 282, 286 (1991). According to this regulation, a reduction in a rating that has "stabilized" for five years or more may not be reduced on the basis of only one examination, unless all the evidence clearly shows that a sustained improvement has occurred. Therefore, the provisions of 38 C.F.R. § 3.344 apply only to ratings that have continued for long periods at the same level (five years or more). 38 C.F.R. § 3.344(c). The Board notes that the appellant was assigned an 80 percent disability evaluation for a seizure disorder, with secondary paresthesias, effective from May 23, 1987, and that the reduction in rating was effective from September 1, 1991. Inasmuch as the appellant's 80 percent disability evaluation was in effect for only four years and some three months, we find that 38 C.F.R. § 3.344 (1994) is not applicable. However, before addressing the propriety of the appellant's rating reduction for a seizure disorder, with secondary paresthesias, it is essential that we review the appellant's entire medical history as it relates to a seizure disorder, with secondary paresthesias. Service medical records showed that the appellant suffered a head injury in October 1982, with an impression of superficial laceration of the scalp. It was reported that the laceration was sutured without complication and with no subsequent sign of infection. Review of the appellant's service medical records reveals that he was well until May 1986, when he noted the onset of intermittent paresthesias characterized as a tingling/crawling sensation "like ants." It was reported that those sensations would often begin over the cranium, primarily on the right, and had, prior to the institution of Tegretol, radiated down the entire left body. It was also stated that an episode usually lasted for less than a minute, and occurred between six to eight times daily. Associated symptoms included difficulty concentrating, along with episodes of "staring off into space," without associated rhythmic movements or automatisms. It was further reported that prior to a paroxysmal event, the appellant claimed that he occasionally noted a "musty" odor. After resolution of the paresthesias, the appellant complained of feeling "drawn out" and of having a dull biparietal headache. Finally, it was noted that the appellant's episodes could be precipitated by concentration. A December 1986 service "Report of Medical Board" showed that the appellant had been evaluated for a work-up for his recurrent paroxysmal paresthesias. Routine CT scan, EEG, and lumbar puncture, all performed in June 1986, were reported as within normal limits. Differential diagnoses listed included partial sensory seizures/localization related, and much less likely, migraine equivalent, and demyelinating disease. It was noted that both an outpatient sleep deprived EEG as well as somatosensory evoked potential of the upper extremities had been performed and were within normal limits. Final impression was listed as "probable simple partial/localization related seizures, sensory in type . . . [and] recurrent paroxysmal paresthesias. . . ." The Board notes that the appellant was separated from service with severance pay, in May 1987, due to physical disability related to the diagnosis of probable simple partial/localization related seizures, sensory in type, and recurrent paroxysmal paresthesias. A September 1987 private medical statement, from W. N., M.D., indicated that a bad smell heralded the onset of the appellant's seizures which were followed by jerking of the left side of the body and a throbbing sensation. It was reported that three times the appellant had lost consciousness. Furthermore, the appellant often had a headache after an episode. The physician stated that the appellant may have a seizure disorder, and noted that the appellant's mother had multiple sclerosis. A November 1987 VA medical examination showed that the appellant had had onset of episodic numbness and tingling in the left side of the body, with stiffness and cramping in the extremities and with slight jerking movement, but no reported loss of consciousness. The appellant stated that an episode could last up to 15 minutes and that episodes occurred daily, sometimes occurring four to five times per day. A physician stated that the appellant had been placed on Tegretol, apparently 1200 mg daily, which reduced the episodes by about 50 percent. Neurological examination disclosed intact cranial nerves, and extensive motor testing was normal. Skull films and an EEG, both dated in August 1987, were also shown to be normal. Seizure disorder, with a strong sensory element, was listed as a diagnosis. A March 1988 VA inpatient medical record showed that the appellant underwent 24 hour EEG monitoring. It was disclosed that the appellant had an abnormal EEG, in November 1987, showing occasional left mid and anterior temporal disorganization with slow and sharp activity, but without epileptiform activity. The medical record indicated that the appellant had an abnormal EEG on the basis of left temporal sharp activity that was paroxysmal and could be compatible with a seizure disorder of some type or some other left temporal dysfunction. However, there was no correlation between the EEG findings and the appellant's clinically videotaped symptoms. A physician stated that, when the appellant reported an episode of presumed neurologic dysfunction, his EEG was normal, and when his EEG was abnormal, his behavior was unremarkable. In an October 1990 VA inpatient medical record, a physician stated that the appellant had been tapered off of Tegretol, in the past, for two weeks and this resulted in "continuous spells 24 hours per day." The appellant was admitted for additional EEG and video monitoring, and the physician stated that a detailed neurological examination was normal. Although the results of the monitoring were unavailable to the physician, he opined that it was highly unlikely that the appellant's episodes represented epileptiform seizures, rather, they were most likely of "psychogenic origin or even malingering behavior." The physician stated that the fact that the appellant had had a previous abnormal EEG raised a question of a left temporal seizure focus that appeared to be controlled with current medication. Finally, it was commented that the appellant may have no seizure disorder at all and that an anticonvulsant was not needed. A November 1990 VA EEG report disclosed that the appellant had an abnormal EEG due to the presence of focal slowing and epileptiform activity over the left inferior frontal, mid- temple region, along with slowing over the right mid-temple region. It was noted that the "[f]indings may possess epileptogenic potential and may be consistent with a clinical diagnosis of seizure to partial onset." A November 1990 VA special medical examination noted that the appellant had frequent daily seizures even while taking Tegretol. A January 1991 private medical statement, from B. A. H., M.D., indicated that the appellant had been seen for an independent medical examination. It was reported that the appellant was continuing to have frequent partial complex seizures, as often as five to six times per day, which were preceded by a musty olfactory aura and a perception that his environment was altered. Also reported were complaints of numbness and tingling in the upper and lower extremities and an occasional sharp pain in the left side of his body. The physician noted that a past MRI scan of the brain revealed some questionable abnormalities. Physical examination was reported as essentially normal, and the final diagnosis was "[p]artial complex seizure disorder." Although the complaints of paresthesias and left side pain appeared "somewhat unusual," the physician opined that the appellant's history was "certainly consistent with a partial complex seizure disorder" and that Tegretol was an appropriate medication for him. A December 1991 record of hearing transcript indicated that the appellant testified that he was experiencing two to three seizures per day, sometimes more on a bad day. He stated that a seizure was preceded by an aura of a musty smell and a crawling of the skin, followed by pain in the leg, and after that he was tired and sleepy. It was emphasized that third parties had witnessed the appellant's seizures. The appellant's wife stated that she had witnessed the appellant's seizures. She testified that the appellant had experienced speech impairment, repeating himself, floor pacing, bad temper, midday sleep, involuntary bowel movement, etc., which she attributed to seizure activity. A February 1992 VA inpatient medical record showed that the appellant underwent three EEG studies for evaluation of anxiety neurosis, depression, and pseudo-seizures. Physical and neurological examinations were reported as normal. It was disclosed that one of the EEG's demonstrated episodes typical of the appellant's sensation of crawling paresthesias of his head and left-sided pain, as well as some jerking activity; but there was no epileptic activity noted. A physician commented that during hospitalization the appellant was weaned off of Tegretol, resulting in a dramatic increase in symptoms related to crawling paresthesias of the head and left-sided pain. The physician opined that the appellant could possibly be benefiting from the anti-neurotic effect of Carbamazepine, found in Tegretol, but that his episodes were of non-epileptic origin. An April 1992 VA psychiatric examination indicated that the appellant was "truly suffering from a complex partial seizure [disorder]." A physician opined that he did not believe that the appellant had the sophistication required to describe the occurrence of phenomena consistent with a neurological lesion on the right side of his brain. It was further opined that the appellant's response to Tegretol suggested that his seizure disorder was independent of his emotional problems, though possibly aggravated by them. A June 1992 VA psychological evaluation showed that during the appellant's interview he demonstrated twice what he referred to as a seizure. A physician described the episodes as total body muscular jerking lasting for a few seconds. Final diagnoses relating to the psychological evaluation included moderate to severe chronic major depressive disorder, somatization disorder, and borderline personality disorder. The Board notes that the appellant's claims file contains numerous lay statements showing that third parties had witnessed the appellant's "seizures." Voluminous amounts of VA outpatient records have been submitted, many indicating treatment for psychological problems but others showing complaints of seizures and requests for medication. Also of record is the appellant's log of seizure activity and related complaints for the period from August 1991 to December 1991. We observe that the handwritten entries alleging seizure activity were prepared by the appellant and by third parties who had witnessed the claimed episodes of seizure activity. Regarding the lay evidence that has been submitted, we recognize that "[i]t is the duty of the [Board] as the factfinder to determine credibility of the testimony and other lay evidence." Culver v. Derwinski, 3 Vet.App. 292, 297 (1992). The Board understands that, in accordance with the Physician's Guide for Disability Evaluations, ordinarily the patient is the best source of history and is the expert on his symptoms relating to epilepsy and other paroxysmal disorders. Furthermore, it is always advisable to corroborate or verify the history from others who have witnessed one or more of the patient's attacks. We acknowledge that the appellant's seizure disorder, with secondary paresthesias, represents a very difficult case to evaluate because it does not appear as a separate ratable entity in 38 C.F.R. Part 4 (1994). However, [38 C.F.R. s]ection 4.20 . . . provides that "when an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous." This regulation allows the VA to rate an unlisted ailment under the criteria provided for "a closely related disease or injury" that is listed. In deciding whether a listed disease or injury is "closely related" to the veteran's ailment, the VA may take into consideration three factors: (1) whether the "functions affected" by the ailments are analogous; (2) whether the "anatomical localization" of the ailments is analogous; and (3) whether the "symptomatology" of the ailments is analogous. Lendenmann v. Principi, 3 Vet.App. 345, 350-51 (1992). After careful and longitudinal review of the clinical evidence of record, we note that the appellant's service- connected seizure disorder, with secondary paresthesias, is most appropriately evaluated under Diagnostic Code 8911 as analogous to petit mal epilepsy. While we acknowledge that the appellant does not have petit mal epilepsy, we find that his seizure disorder represents a paroxysmal disorder that should be rated analogous to epilepsy. In the absence of a new diagnosis, we are compelled to evaluate the appellant's seizure disorder, with secondary paresthesias, in accordance with the general rating criteria for epileptic seizures. The appellant's was first diagnosed with a seizure disorder, with secondary paresthesias, in 1986 while in service. The appellant has been taking Tegretol and has still been experiencing seizures. The description of the symptomatology associated with the seizures has been consistent since the initial diagnosis. According to the appellant and the clinical evidence of record, a seizure episode is often preceded by a musty olfactory aura , followed by jerking of the left side of the body, and a throbbing sensation. A VA physician, during a June 1992 psychological evaluation, stated that he witnessed two of the appellant's seizures. Although the seizures may last for only seconds at a time, the evidence discloses that they may occur as often as five to six times daily. The appellant's testimony indicates that he experiences, on average, two to three seizures per day. Furthermore, the Board finds that the lay statements, testimony, and the appellant's handwritten seizure log are competent and sufficiently credible evidence which demonstrate the frequency of the appellant's seizures. The Board notes that under the general rating formula for major and minor epileptic seizures, under Diagnostic Code 8911, an 80 percent evaluation requires an average of at least 1 major seizure in 3 months over the last year, or more than 10 minor seizures weekly; and a 100 percent evaluation requires an average of at least 1 major seizure per month over the last year. Inasmuch as the appellant's seizures are more appropriately characterized as minor seizures without unconsciousness, we find that the symptomatology associated with the appellant's service- connected seizure disorder, with secondary paresthesias, satisfies the rating criteria required for an 80 percent disability evaluation. Accordingly, restoration of the previously assigned 80 percent disability evaluation for the appellant's seizure disorder, with secondary paresthesias, is in order. II. Total Disability Evaluation Based on Individual Unemployability In reducing a rating of 100 percent service-connected disability based on individual unemployability, the provisions of § 3.105(e) are for application but caution must be exercised in such a determination that actual employability is established by clear and convincing evidence. When in such a case the veteran is undergoing vocational rehabilitation, education or training, the rating will not be reduced by reason thereof unless there is received evidence of marked improvement or recovery in physical or mental conditions or of employment progress, income earned, and prospects of economic rehabilitation, which demonstrates affirmatively the veteran's capacity to pursue the vocation or occupation for which the training is intended to qualify him or her, or unless the physical or mental demands of the course are obviously incompatible with total disability. Neither participation in, nor the receipt of remuneration as a result of participation in, a therapeutic or rehabilitation activity under 38 U.S.C. § 1718 shall be considered evidence of employability. 38 C.F.R. § 3.343(c)(1) (1994). If a veteran with a total disability rating for compensation purposes based on individual unemployability begins to engage in a substantially gainful occupation during the period beginning after January 1, 1985, the veteran's rating may not be reduced solely on the basis of having secured and followed such substantially gainful occupation unless the veteran maintains the occupation for a period of 12 consecutive months. For purposes of this subparagraph, temporary interruptions in employment which are of short duration shall not be considered breaks in otherwise continuous employment. 38 C.F.R. § 3.343(c)(2) (1994). Review of the appellant's claims file reveals that the RO has not established actual employability of the appellant by clear and convincing evidence. Furthermore, the clinical evidence of record, as discussed in the previous section, does not show that the appellant's physical condition has demonstrated marked improvement. The Board finds that the criteria for reducing a total disability evaluation based on individual unemployability under 38 C.F.R. § 3.343 (1994) has not been met. Therefore, in view of the foregoing, and in light of the restoration of the 80 percent disability evaluation for the appellant's service-connected seizure disorder, with secondary paresthesias, the Board finds that restoration of the total disability rating based on individual unemployability is warranted. ORDER Restoration of the 80 percent evaluation for the appellant's seizure disorder, with secondary paresthesias, is granted, subject to the law and regulations governing the award of monetary benefits. Restoration of the appellant's total disability evaluation based on individual unemployability due to service-connected disabilities is granted, subject to the law and regulations governing the award of monetary benefits. JACK W. BLASINGAME Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. 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. - 2 -