Citation Nr: 0814698 Decision Date: 05/02/08 Archive Date: 05/12/08 DOCKET NO. 03-26 497 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUE Entitlement to a disability rating higher than 40 percent for a seizure disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Douglas E. Massey, Counsel INTRODUCTION The veteran served on active duty from September 1970 to April 1972. This appeal to the Board of Veterans' Appeals (Board) arose from an August 2002 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland, which denied the veteran's claim for a disability rating higher than 40 percent for his service-connected seizure disorder. In his September 2003 substantive appeal, VA Form 9, the veteran indicated he wanted a personal hearing at the RO before a Veterans Law Judge of the Board - often referred to as a travel Board hearing. In June 2005, the Board sent him a letter to determine whether he still wanted a hearing before the Board. The letter stated, if no response was received within 30 days, the Board would assume he does not want a hearing and proceed accordingly. Since no response was received from either him or his representative, the Board presumes he no longer wants a hearing. Therefore, his hearing request is considered withdrawn. See 38 C.F.R. § 20.704(e) (2007). The Board remanded this case in February 2006 to obtain additional treatment records and to provide the veteran a VA neurological examination to assess the current severity of his seizure disorder. Since all requested development has been accomplished, the case is once again before the Board for review. FINDING OF FACT The veteran's seizure disorder causes syncopal episodes approximately once a month, without convulsion or loss of consciousness. CONCLUSION OF LAW The criteria are not met for a disability rating higher than 40 percent for the seizure disorder. 38 U.S.C.A. § 1155 (West Supp. 2002); 38 C.F.R. §§ 4.1-4.14, 4.124a, Diagnostic Code 8910 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION The veteran is requesting a disability rating higher than 40 percent of his service-connected seizure disorder. In the interest of clarity, the Board will initially discuss whether this claim has been properly developed for appellate review. The Board will then address the claim on its merits, providing relevant VA laws and regulations, the relevant factual background, and an analysis of its decision. I. The Duties to Notify and Assist As provided by the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). Quartuccio v. Principi, 16 Vet. App. 183 (2002). To the extent possible, VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). If, however, for whatever reason it was not, or the notice provided was inadequate, this timing error can be effectively "cured" by providing any necessary VCAA notice and then going back and readjudicating the claim - such as in a statement of the case (SOC) or supplemental SOC (SSOC), such that the intended purpose of the notice is not frustrated and the veteran is given an opportunity to participate effectively in the adjudication of his claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In addition, the VCAA notice requirements apply to all five elements of a service-connection claim: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). Further, this notice must include information that a downstream disability rating and an effective date for the award of benefits will be assigned if service connection is granted. Id. at 486. VCAA notice errors are presumed prejudicial unless VA rebuts this presumption by showing the error did not affect the essential fairness of the adjudication. To overcome the burden of prejudicial error, VA must show (1) that any defect was cured by actual knowledge on the part of the claimant; (2) that a reasonable person could be expected to understand from the notice what was needed; or, (3) that a benefit could not have been awarded as a matter of law. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). For an increased-compensation claim, § 5103(a) requires, at a minimum, that VA notify the claimant that, to substantiate a claim, the medical or lay evidence must show a worsening or increase in severity of the disability, and the effect that such worsening or increase has on the claimant's employment and daily life. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). Further, if the diagnostic code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by demonstrating a noticeable worsening or increase in severity of the disability and the effect that worsening has on employment and daily life (such as a specific measurement or test result), VA must provide at least general notice of that requirement. VA must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation. Id. In this case, letters satisfying the notice requirements under 38 C.F.R. § 3.159(b)(1) were sent to the veteran in June 2002, March 2006, August 2006, October 2006, and March 2007, the first of which was sent prior to the initial RO decision that is the subject of this appeal. These letters informed the veteran of the evidence required to substantiate his claim and of his and VA's respective responsibilities for obtaining supporting evidence. He was also asked to submit evidence and/or information in his possession to the RO. Moreover, with respect to the Dingess requirements, the veteran was given notice of what type of information and evidence he needed to substantiate his increased-rating claim, as the premise of his claim is that his seizure disorder is more severe than is reflected by his current rating. It is therefore inherent that he had actual knowledge of the disability rating element of the claim. In addition, he was provided notice of the type of evidence necessary to establish a downstream effective date if a higher rating is granted. And in any event, any questions as to the appropriate effective date to be assigned are ultimately moot because the Board is denying the underlying claim for a higher disability rating. 38 C.F.R. § 20.1102 (discussing the concept of harmless error) The Board acknowledges that the VCAA letters sent to the veteran do not meet all of the requirements of Vazquez- Flores, creating a presumption of prejudice. In this regard, the letters notified the veteran that medical or lay evidence must show a worsening or increase in severity of his seizure disorder, but did not ask him about the effect that such worsening or increase has on his employment and daily life. Nevertheless, this, too, is nonprejudicial, harmless error. In particular, the SOC issued in August 2003 and the SSOC issued in October 2007 properly notified the veteran that he may submit evidence concerning the effects his seizure disorder has on his employment and daily life. The SOC and SSOC also explained that a higher disability rating could not be assigned based on all applicable rating criteria. It therefore is reasonable to conclude the veteran understands what is needed to support his increased-compensation claim. So the notice deficiencies do not affect the essential fairness of the adjudication. Therefore, the presumption of prejudice is rebutted. For this reason, no further development is required regarding the duty to notify. VA also fulfilled its duty to assist the veteran by obtaining all relevant evidence in support of his increased- compensation claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The RO obtained all relevant medical records identified by the veteran and his representative. The veteran also was provided four VA examinations to determine the severity of his seizure disorder. And these examination reports are adequate for rating purposes. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c)(4). Accordingly, the Board finds that no further action is necessary to meet the requirements of the VCAA or Court. II. Merits of the Claim Disability ratings are determined by comparing the veteran's symptoms, including their severity and frequency, to the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2007). The basis of disability evaluations is the ability of the body as a whole or of a system or organ of the body to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. If there is a question as to which evaluation to apply to the veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the veteran's favor. 38 C.F.R. § 4.3. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, irrespective of whether the veteran raised them, as well as the entire history of his disability in reaching its decision, to the extent it reflects on the current level of disability. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). The seizure disorder claim at issue arises from a request for an increased rating of an already established service- connected disability, as opposed to the appeal of the rating assigned following the initial grant of service connection. Consequently, the present level of disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, the Court recently held that VA's determination of the "present level" of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased-rating claim has been pending. Hart v. Mansfield, No. 05- 2424 (U.S. Vet. App. Nov. 19, 2007). That is to say, the Board must consider whether there have been times when the seizure disorder been more severe than at others. The relevant temporal focus for adjudicating the level of disability of an increased-rating claim is from the time period one year before the claim was filed until VA makes a final decision on the claim. See Hart, supra. See also 38 U.S.C.A. § 5110(b)(2) (West 2002); 38 C.F.R. § 3.400(o)(2) (2007). The record shows the veteran developed a seizure disorder following a traumatic head injury during an assault while on active duty. The RO granted service connection for the resulting disability and assigned a 40 percent rating. In May 2002, he filed a claim for a higher rating. But for the reasons set forth below, the Board finds that the preponderance of the evidence is against his claim, so it must be denied. The veteran's seizure disorder has been rated under Diagnostic Code (DC) 8910, which provides that epilepsy, grand mal, is to be rated under the General Rating Formula for Major and Minor Epileptic Seizures. Under these criteria, a 40 percent rating is assigned when there is at least one major seizure in the last six months or two in the last year; or averaging at least five to eight minor seizures weekly. 38 C.F.R. § 4.124a, DC 8910. The next higher rating of 60 percent is assigned when there is an average of at least one major seizure in 4 months over the last year; or nine to ten minor seizures per week. An 80 percent rating is assigned when there is an average of at least one major seizure in three months over the last year; or more than ten minor seizures weekly. And, lastly, a 100 percent rating is assigned when there is an average of one major seizure per month over the last year. Id. Major seizures are characterized by the generalized tonic- clonic convulsion with unconsciousness. A minor seizure is a brief interruption in the consciousness or conscious control associated with staring or rhythmic blinking of the eyes or nodding of the head, or sudden jerking movements of the arms, trunk, or head, or sudden loss of postural control. 38 C.F.R. § 4.124a. Applying these criteria to the facts of this case, the Board finds no basis to assign a disability rating higher than 40 percent for the veteran's seizure disorder. His claim fails because there is no evidence that he experiences a major seizure every four months or that he experiences nine to ten minor seizures a week, either of which is required for the next higher rating of 60 percent. The evidence for consideration includes his VA treatment records and the reports of four VA compensation examinations, all of which provide evidence against his claim. First, since the veteran filed his claim for increase in May 2002, there has been no medical evidence indicating he has experienced at least one major seizure every four months during a one-year period. Indeed, the most probative evidence shows that none of his claimed seizure activity during this period can be characterized as major - i.e., generalized tonic-clonic convulsion with unconsciousness. The absence of major seizure activity was first noted during a VA compensation examination in June 2002. At that time, the veteran reported a history of seizures in which he would shake, bite his tongue, and experience incontinence. But he explained that he had not experienced any such seizures during the past five years. He then described his current seizures as seeing black spots and feeling a tightening sensation in his chest, albeit with no falling or loss of consciousness. He also disclosed that he still drove a car. The diagnoses included generalized seizures and complex partial seizures. Since he denied experiencing loss of consciousness during the past five years, this examination report provides highly probative evidence against his claim. During another VA compensation examination in April 2004, the veteran reported that his most recent seizure in December 2003 had resulted in him passing out for a few minutes while on a treadmill. Such a loss of consciousness would therefore suggest that he had experienced a major seizure. But the VA treatment records from that treadmill test in December 2003 show he only experienced a brief syncopal episode, with no actual loss of consciousness. Since this report clearly contradicts his allegation that he lost consciousness, this episode cannot be characterized as a major seizure. But more importantly, this inconsistency calls into question his credibility when describing his seizures - or syncopal episodes, as referred to in the record. See Smith v. Derwinski, 1 Vet. App. 235, 237 (1991) (determining the credibility of evidence is a function for the Board); Hayes v. Brown, 5 Vet. App. 60, 69- 70 (1993), citing Wood v. Derwinski, 1 Vet. App. 190, 192-193 (1992) (VA decision makers have the responsibility to assess the credibility of evidence and determine the degree of weight to give the evidence). See also 38 C.F.R.§ 3.159(a)(2) and Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). During yet another VA compensation examination in October 2004, the veteran again mischaracterized his syncopal episode in December 2003, describing it as a "big seizure." Based on his interview, the diagnoses included "[c]omplex partial seizures (major) which occur several times a year." It thus appears the examiner indicated the veteran experiences major seizures several times a year, as required for a higher rating. But since this opinion is contradicted by the evidence of record, it is of limited probative value. See Owens v. Brown, 7 Vet. App. 429, 433 (1995) (holding that VA may favor the opinion of one competent medical expert over that of another when decision makers give an adequate statement of reasons and bases). In contrast, the opinions contained in a more recent March 2007 VA examination report are consistent with the evidence of record and make no reference to any major seizure activity since the veteran filed his claim for increase in May 2002. After reviewing the claims file and clinically evaluating the veteran, the examiner diagnosed psychogenic episodes. He then indicated there was no evidence of organic seizures, based on a description of the episodes, normal EEG's, normal CAT scans, and normal neurological evaluation. The examiner also thought it interesting that the veteran still drives. Since this opinion is consistent with the record, takes into account the results of comprehensive diagnostic studies (e.g., EEG's, CAT scans, neurologic evaluation, etc.), and is supported by sound rationale, it provides compelling evidence against the veteran's claim that he experiences major seizures, or even minor ones of sufficient frequency to warrant a higher rating. In addition to these examination reports, the Board has considered the veteran's VA outpatient treatment records dated from 2002 to 2007, none of which makes any reference to seizures characterized by convulsions with unconsciousness. Thus, the medical evidence in this case clearly shows that none of his seizures can be characterized as major, as defined by VA regulation. In addition, even were the Board to assume for the sake of argument that he has experienced major seizures since filing his claim for increase, such as the December 2003 syncopal episode, there is certainly no evidence these seizures have occurred every four months during a one-year period, as required for the next higher rating of 60 percent under the applicable regulation. Second, the medical evidence does not show, nor has the veteran alleged, that he experiences nine to ten minor seizures per week. During his June 2002 VA examination, he reported experiencing ten small seizures a year; during his April 2004 VA examination, he reported that his most recent seizure was in December 2003, approximately five months earlier; and during his October 2004 VA examination, he reported experiencing a mild seizure every two weeks. Moreover, he denied seizure activity when treated by VA in May 2002, August 2003, March 2004, September 2005, and January 2006. Therefore, since this evidence shows his minor seizures occur relatively infrequently - certainly far less than nine to ten times per week - there is no basis to assign a disability rating higher than 40 percent. Moreover, there are no grounds for assigning a "staged" rating either, under Hart, because the veteran has not met the requirements for a higher rating at any time since one year prior to filing his claim - so since May 2001. For these reasons and bases, the Board finds that the preponderance of the evidence is against the veteran's claim for a disability rating higher than 40 percent for his seizure disorder. In reaching this decision, the Board has carefully considered the doctrine of reasonable doubt. But as the preponderance of the evidence is clearly against his claim, this doctrine is not for application. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Accordingly, the appeal is denied. ORDER The claim for a disability rating higher than 40 percent for the seizure disorder is denied. ____________________________________________ Keith W. Allen Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs