Citation Nr: 1145895 Decision Date: 12/15/11 Archive Date: 12/21/11 DOCKET NO. 07-25 169 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to an initial evaluation in excess of 10 percent for a seizure disorder from October 1, 2006, forward. REPRESENTATION Appellant represented by: Susan Paczak, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Y. Hawkins, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1958 to January 1962. This matter comes before the Board of Veterans' Appeals ("Board") on appeal from a May 2006 rating decision issued by the Department of Veterans Affairs ("VA") Regional Office ("RO") in Pittsburgh, Pennsylvania, which granted service connection for a seizure disorder, with an initial rating of 10 percent, effective September 17, 2002. In a subsequent rating decision, dated June 2007, the Pittsburgh RO established an earlier effective date of August 5, 1997 for the grant of service connection for the Veteran's seizure disorder. In August 2008, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge at the Pittsburgh RO. A transcript of the hearing has been associated with the Veteran's claims folder. During the hearing, the Veteran stated that he was only requesting an increased initial rating from October 2006 forward (the approximate period in which he claims his seizure disorder worsened). (Transcript, pp. 3-4.) Accordingly, the Board deems the Veteran's request for an increased initial rating for the period prior to October 2006 withdrawn. In July 2009, the Board remanded the Veteran's claim for further development, specifically to afford him a VA examination to determine the severity of his seizure disorder. Although an examination was performed in April 2010, because the Board's remand instructions were not fully complied with, the RO scheduled the Veteran for another VA examination, which was performed in June 2010. In September 2010, the VA Appeals Management Center issued a Supplemental Statement of the Case ("SSOC"), in which it continued to deny the Veteran's claim. The claims folder was then returned to the Board for further appellate proceedings. At that time, however, the Board again noted that its remand instructions were not fully complied with; once again, the claims folder was remanded for another VA examination. The examination was completed in March 2011, and in June 2011, the Pittsburgh RO issued an SSOC, in which it continued to deny the Veteran's claim. The claims folder was again returned to the Board for further appellate proceedings. The Veteran's attorney submitted written argument in October 2011. FINDING OF FACT During the period October 1, 2006, forward, the Veteran's seizure disorder has been characterized by an average of 12-15 minor seizures per year. CONCLUSION OF LAW Resolving all doubt in favor of the Veteran, for the period October 1, 2006, forward, the criteria for an evaluation of 20 percent for seizure disorder, but no higher, have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. § 3.159, 4.7, 4.124a Diagnostic Code 8911 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 ("VCAA") With respect to the Veteran's claim decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2010). a.) Duty to Notify Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2010); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) ("Pelegrini II"), the United States Court of Appeals for Veterans Claims ("Court") held that VA must inform the claimant of any information and 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) request that the claimant provide any evidence in his or her possession that pertains to the claim. Element (4), the requirement of requesting that the claimant provide any evidence in his or her possession that pertains to the claim, was eliminated by the Secretary of VA (the "Secretary") during the course of this appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini, effective May 30, 2008). The VCAA notice requirements apply to all five elements of a service connection claim. These are: (1) veteran status; (2) existence of a disability; (3) a connection between a 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, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Of particular importance, in Dingess/Hartman, the Court held that the VCAA notice must include notice that a disability rating and an effective date of the award of benefits will be assigned if service connection is awarded. In this case, service connection for a seizure disorder has already been established, and the current appeal arose from a claim for an increased initial rating. In November 2002, the RO sent the Veteran a letter which informed him how to substantiate a claim of entitlement to service connection for a seizure disorder. This letter advised him of what he should do and what VA would do to assist him in obtaining evidence, including the specific types of evidence, both lay and medical, that could be submitted in support of a service connection claim. However, where, as here, service connection has been granted and an initial rating has been assigned, the claim for service connection has been more than substantiated, as it has been proven, thereby rendering 38 U.S.C.A. §5103(a) notice no longer required because the purpose that the notice was intended to serve has been fulfilled. Once the claim of service connection has been substantiated, the filing of a notice of disagreement with the RO's disability rating does not trigger additional 38 U.S.C.A. § 5103(a) notice. Accordingly, as the notice provided before service connection was granted was legally sufficient, VA's duty to notify the Veteran in this case was satisfied. See Hartman v. Nicholson, 483 F.3d 1311 (2006); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); Goodwin v. Peake, 22 Vet. App. 128, 136 (2008). Nonetheless, the Board notes that following the Veteran's notice of disagreement with the initially assigned disability rating, his claim was readjudicated in a June 2007 Statement of the Case, which provided the rating criteria under which his disability was evaluated and notified him of the evidence necessary to substantiate a higher disability rating. Accordingly, the Board finds no prejudicial error in this case because the record reflects that a reasonable person could be expected to understand what was needed to substantiate the claim after reading the aforementioned information. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009). b.) Duty to Assist The Board concludes that the duty to assist has been satisfied. The claims file contains the Veteran's service and post-service treatment records, as well as VA examination reports dated April 2010, June 2010 and March 2011. Additionally, the claims file contains the Veteran's statements in support of his claim. The Veteran has not referenced any outstanding, available records that he wanted VA to obtain or that he felt were relevant to the claim that have not already been obtained and associated with the record. Review of the examination reports show that, although, as noted above, the VA examiners who performed the April and June 2010 examinations did not follow the Board's remand instructions, a review of the March 2011 VA examination report shows that the examiner reviewed the Veteran's pertinent treatment records, performed a comprehensive physical examination, reviewed pertinent diagnostic test results, elicited from the Veteran his history of a seizure disorder, and provided clinical findings detailing the results of the examination. For these reasons, the Board concludes that the March 2011 VA examination is adequate upon which to base a decision in this case. In short, the Board has carefully considered the provisions of the VCAA in light of the record on appeal, and for the reasons expressed above finds that the development of the claim has been consistent with the provisions of the VCAA. The appellant has been provided with every opportunity to submit evidence and argument in support of his claim, and to respond to the VCAA notice. The purpose behind the notice requirement has been satisfied because the appellant has been afforded a meaningful opportunity to participate effectively in the processing of his appealed claim. II. Analysis. The Board has thoroughly reviewed all the evidence in the Veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, and by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined, the average impairment in earning capacity resulting from such diseases and injuries, and the residual conditions in civilian occupations. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2010). Separate Diagnostic Codes ("DCs") identify the various disabilities and the criteria for specific ratings. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2010). The Veteran's entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1 (2010). Where service connection has already been established, and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, in Fenderson v. West, 12 Vet. App. 119 (1999), it was held that evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder. The Court also discussed the concept of the "staging" of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. See also Hart v. Mansfield, 21 Vet. App. 505 (2009). The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14 (2010). The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Where there is a question as to which of two ratings shall be applied, the higher rating 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 (2010). The basis of disability evaluations is the ability of the body as a whole, or of the psyche, 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. The Veteran's seizure disorder was granted service connection and assigned a disability evaluation under 38 C.F.R. § 4.124a, DC 8911, petit mal epilepsy. Under this diagnostic code, petit mal epilepsy is rated under the General Rating Formula for minor seizures, in which both the frequency and type of seizure a claimant experiences are considered in determining the appropriate disability rating. A 10 percent rating is warranted when there is a confirmed diagnosis of epilepsy with a history of seizures. A 20 percent rating is warranted when there is at least 1 major seizure in the last 2 years; or at least 2 minor seizures in the last 6 months. A 40 percent rating is warranted when there is at least one 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 rating is warranted 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 warranted 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 warranted when there is an average of 1 major seizure per month over the last year. Note (1) of the rating criteria states that a major seizure is characterized by the generalized tonic-clonic convulsion with unconsciousness. Note (2) states that 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). Note (1) to the General Rating Formula for Major and Minor Epileptic Seizures provides that, when continuous medication is shown necessary for the control of epilepsy, the minimum rating will be 10 percent. This rating will not be combined with any other rating for epilepsy. Note (2) provides that, in the presence of major and minor seizures, the predominating type of epilepsy is to be rated. Note (3) provides that there will be no distinction between diurnal and nocturnal major seizures. 38 C.F.R. § 4.124a. As noted above, during the November 2008 hearing before the Board, the Veteran stated that his seizure disorder increased and/or became of greater severity around October 2006. Review of the claims folder reveals that, in March 1998, the Veteran began receiving private treatment for his seizure disorder from C. Marrero, M.D. See letter from J. Talbott, M.D., October 2003. The earliest treatment report of record from Dr. Marrero, however, is dated November 2000, and indicates that he diagnosed the Veteran with complex partial seizures; he also noted that he had prescribed medication for this disorder. Subsequent treatment reports from Dr. Marrero, beginning in May 2002, indicate that the Veteran was doing well on medication and was having no further seizures. A letter dated October 2005 further states that he had not experienced any recent "spells of passing out or blacking out." Dr. Marrero's diagnosis was changed to complex partial seizures, controlled. However, in a letter from Dr. Marrero, dated October 9, 2006, he noted that the Veteran reported recently having a "spell," in which he did not remember what had happened. He indicated that this was the first time something like this had ever happened to the Veteran. After examining the Veteran, Dr. Marrero changed his diagnoses to transient global amnesia and complex partial seizures. Subsequent treatment reports from Dr. Marrero indicate that the Veteran continued to experience complex partial seizures. In August 2010, VA received a letter from J. Ong, M.D., dated March 2010, in which he noted that, after performing a neurological examination of the Veteran, he diagnosed him with a history of complex partial seizures with rare generalization. He specifically noted that the Veteran was experiencing an average of 6 déjà vu episodes per year. He also stated that the Veteran was continuing to take medication to control his seizure disorder. In April 2010, the Veteran was afforded a VA compensation and pension examination pursuant to his claim of entitlement to an increased initial rating. At that time, although the examiner noted that he did not have access to updated treatment records, he nonetheless diagnosed the Veteran with an onset of partial seizures with a history of secondarily generalized tonic clonic seizures in 1968; he added that the Veteran continued to have partial seizures, but no recent history of generalized tonic clonic seizures. During the subsequent June 2010 VA examination, the examiner failed to ascertain an exact or approximate number of seizures (major or minor) that the Veteran had been experiencing. As a result, the claims folder was remanded to allow the Veteran to undergo another VA examination. Review of the March 2011 VA examination indicates that the VA examiner reviewed the claims folder, including the Veteran's pertinent treatment records. Although he did not note the exact dates in which the Veteran had recently experienced seizures, he stated that his seizure frequency was estimated at 12-15 per year, when he would experience a couple of seizures every couple of months with seizure-free periods in between. However, he noted that in 2010, the Veteran had experienced a total of 15 seizures, adding that his last such seizure had occurred in February 2011. He described these seizures as complex partial seizures with déjà vu feeling. He noted, however, that the Veteran had only experienced 4 tonic-clonic (major) seizures during his life, with the last episode occurring in 2007. He added that the Veteran was still taking medication to control his seizure disorder. Moreover, he noted that although his seizure disorder resulted in his avoiding potentially dangerous situation, such as climbing a ladder, it did not prevent his ability to perform the activities of daily living or remain independent. III. Conclusion Based on a review of the complete evidence of record, and resolving all reasonable doubt in favor of the Veteran, the Board concludes that, for the period October 1, 2006, forward, the Veteran's seizure disorder has more closely approximated the criteria for a 20 percent disability evaluation under DC 8911. As noted above, treatment records from Dr. Marrero beginning on October 9, 2006, indicate that the Veteran was again experiencing complex partial seizures, having had one "the other day.". Subsequent treatment reports, including the March 2010 letter from Dr. Ong, not only lend support to that diagnosis, but also show that the Veteran was experiencing at least 6 minor seizures per year, which averages out to 3 every 6 months. Finally, during the March 2011 VA examination, the examiner noted that, based on his review of the treatment reports of record and an examination of the Veteran, he estimated his seizure frequency at 12-15 seizures per year, which averages to between 6-7.5 seizures every 6 months. However, the Board further finds that the criteria for a higher, 40 percent disability rating were not met at any time during the period on appeal. In this regard, the Board observes that there is no probative evidence to suggest that the Veteran ever experienced at least 1 major seizure in the past 6 months or 2 in the last year, or an average of at least 5-8 minor seizures weekly, during the time period since October 2006. In addition, the Board notes that it has also considered the potential application of 38 C.F.R. § 3.321(b)(1) for exceptional cases where schedular evaluations are found to be inadequate. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted based upon a finding 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 that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2010); Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for his service-connected seizure disorder is inadequate. A comparison between the level of severity and symptomatology of the Veteran's condition with the established rating criteria shows that the rating criteria adequately describe the Veteran's symptomatology and disability level. The Board further observes that, even if the available schedular evaluation for the disability is inadequate (which it manifestly is not), the Veteran does not exhibit other related factors, such as those provided by the regulation as "governing norms." Here, there is no evidence that the Veteran was ever hospitalized for his seizure disorder during the period on appeal. Although the evidence of record reveals that he sought emergency medical treatment for what he believed to be a seizure in June 2007, the diagnosis was actually transient ischemic attack, also known as a "mini stroke." In essence, there is no unusual clinical picture presented, nor any other factor that takes his disability outside of the usual rating criteria. Finally, while marked interference with employment has not been shown in the current record, some difficulty in adapting to work is contemplated in the 20 percent rating being assigned by this decision. Hence, the Board does not find that, overall, marked interference with employment or any circumstance that takes this case out of the usual circumstances of a 20 percent rating is present. For these reasons, the Board finds that the requirements for referral for an extraschedular evaluation under 38 C.F.R. § 3.321(b)(1) have not been met. Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995). Accordingly, the Board concludes that, for the period October 1, 2006, forward, the symptoms of the Veteran's seizure disorder have been more consistent with the 20 percent rating being assigned by this decision. ORDER An evaluation of 20 percent, and no more, for the period October 1, 2006, forward, is granted, subject to the laws and regulations governing the payment of monetary awards. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs