Citation Nr: 1300707 Decision Date: 01/08/13 Archive Date: 01/16/13 DOCKET NO. 05-17 716 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an increased rating for a grand mal seizure disorder, in excess of 20 percent prior to February 15, 2011, and in excess of 40 percent as of February 15, 2011. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A. M. Clark, Counsel INTRODUCTION The Veteran served on active duty from October 1972 to October 1974. These matters come before the Board of Veterans' Appeals (BVA or Board) from a July 2004 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in St. Petersburg, Florida. This case was remanded by the Board in November 2008, August 2010, and March 2012 for additional development. In August 2010 the Board denied a service connection claim for a low back disability and remanded the other claims on appeal to afford the Veteran a current VA examination. That examination was conducted in February 2011. When the case was most recently before the Board in March 2012, the claims were remanded to obtain records from the Social Security Administration (SSA). A request for those records shows that the Veteran's SSA records have been destroyed. The issue of entitlement to a TDIU is REMANDED to the RO via the Appeals Management Center in Washington, D.C. FINDINGS OF FACT 1. For the entire period on appeal prior to February 15, 2011, the Veteran's grand mal seizure disorder has been manifested by at least one major seizure each month over a year. 2. Since February 15, 2011, the Veteran's grand mal seizure disorder has been manifested by more than 10 minor seizures weekly, but at least one major seizure per month for over a year has not been demonstrated. CONCLUSIONS OF LAW 1. For the entire period on appeal prior to February 15, 2011, the criteria for a schedular 100 percent rating for a grand mal seizure disorder had been met. 38 U.S.C.A. § 1155, 5103(a), 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.124a, Diagnostic Code 8910 (2012). 2. Since February 15, 2011, the criteria for a schedular 80 percent rating for a grand mal seizure disorder have been met. 38 U.S.C.A. § 1155, 5103(a), 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.124a, Diagnostic Code 8910 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. §§ 3.159, 3.326(a) (2012). Proper notice from VA must inform the claimant, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The notice requirements apply to all five elements of a service-connection claim, including Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability. Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The duty to notify was satisfied by way of a letter sent to the Veteran in February 2004 that fully addressed all notice elements and was sent prior to the initial RO decision in this matter. The letter informed him of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. In November 2008, the RO provided the Veteran with notice of what type of information and evidence was needed to establish a disability rating, and notice of the type of evidence necessary to establish an effective date. With that letter, the RO effectively satisfied the remaining notice requirements with respect to the issue on appeal. As a matter of law, the provision of adequate notice prior to a readjudication cures any timing problem associated with inadequate notice or the lack of notice prior to an initial adjudication. Prickett v. Nicholson, 20 Vet. App. 370 (2006). After the Veteran was provided the November 2008 notice, the matter was readjudicated in a February 2010 supplemental statement of the case. Therefore, adequate notice was provided to the Veteran prior to the transfer and certification of his case to the Board. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012). VA also has a duty to assist a veteran in the development of the claim. That duty includes assisting a claimant in the procurement of service medical records and other pertinent records, and providing an examination when necessary. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). After a careful review of the file, the Board finds that all necessary development has been accomplished, and that appellate review may proceed without prejudice to the Veteran. Bernard v. Brown, 4 Vet. App. 384 (1993). The RO obtained the Veteran's service medical records and VA treatment records. The Veteran also submitted personal statements in support of his appeal. Additionally, although the Veteran identified outstanding SSA records, when the RO attempted to obtain these records it was determined that they had been destroyed and further efforts to obtain them would be futile. The Veteran has not submitted any SSA records. No other outstanding evidence has been identified that has not been obtained. Next, VA examinations and opinions were obtained in March 2004, December 2009 and February 2011 with respect to the increased rating claim. The examiners personally interviewed and examined the Veteran, including eliciting a history from the Veteran, and together provide the information necessary to rate his disability under the applicable rating criteria. The Veteran's most recent examination is now over a year old. The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate examination was conducted. Here, there is no objective evidence indicating that there has been a material change in the severity of the Veteran's grand mal seizure disorder since the February 2011 VA examination. The Veteran does not contend otherwise. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4) (2012). The Board concludes that all the available records and medical evidence have been obtained in order to make an adequate determination as to this claim. Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Disability ratings are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1 (2012). Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2012). In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2012). Consideration of the whole-recorded history is necessary so that a rating may accurately determine the elements of disability present. 38 C.F.R. § 4.2 (2012); Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the veteran's entire history is reviewed when assigning a disability evaluation, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. 38 C.F.R. § 4.1 (2012); Francisco v. Brown, 7 Vet. App. 55 (1994). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board must consider only those factors contained in the rating criteria. Massey v. Brown, 7 Vet. App. 204 (1994); Mauerhan v. Principi, 16 Vet. App. 436 (2002) (finding it appropriate to consider factors outside the specific rating criteria in determining level of occupational and social impairment). Where there is a question as to which of two separate rating shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria required for that particular rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, reasonable doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2012). Epilepsy, whether grand mal under Diagnostic Code 8910 or petit mal under Diagnostic Code 8911, is rated under the General Rating Formula for Major and Minor Epileptic Seizures. 38 C.F.R. § 4.124a (2012). The General Rating Formula for Major and Minor Epileptic Seizures provides that a confirmed diagnosis of epilepsy with at least one major seizure in the last two years; or at least two minor seizures in the last 6 months, is rated 20 percent disabling. Epilepsy averaging one major seizure in the last 6 months or two in the last year; or averaging at least five to eight minor seizures weekly, is rated 40 percent disabling. Epilepsy averaging at least one major seizure in 4 months over the last year; or nine to ten minor seizures per week, is rated 60 percent disabling. Epilepsy averaging at least one major seizure in 3 months over the last year; or more than ten minor seizures weekly is rated 80 percent disabling. Epilepsy averaging at least one major seizure per month over the last year is rated 100 percent disabling. 38 C.F.R. § 4.124a (2012). 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 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 8910, Note (1), (2) (2012). The General Rating Formula for Major and Minor Epileptic Seizures provides that there will be no distinction between diurnal and nocturnal major seizures. 38 C.F.R. § 4.124a, Note (3) (2012). The record establishes that the Veteran suffers from grand mal epilepsy with major seizures of the tonic-clonic type occurring at night, when the Veteran is asleep. VA records and VA examinations show that the Veteran's seizures are often tonic-clonic in nature, which describe major seizures. 38 C.F.R. § 4.124a, Diagnostic Code 8910, Note (1) (2012). Although the Veteran's seizures occur when he is asleep, there is no distinction made between diurnal (daytime) and nocturnal (nighttime) major seizures. 38 C.F.R. § 4.124a, Note (3), to the General Rating Formula for Major and Minor Epileptic Seizures (2012). At a December 2003 VA treatment visit the Veteran reported having approximately three seizures per month, mostly nocturnal. It was noted that the Veteran had been started on Neurontin in November and had no seizures since that time. At a subsequent March 2004 VA examination, he reported tonic-clonic seizures occurring at a rate of about three monthly. He indicated that family members had witnessed the episodes. At an April 2004 VA treatment visit, the Veteran reported general tonic-clonic seizures happening one to three times per month. He reported that he had last experienced a seizure five days prior. A September 2004 VA treatment record shows that the Veteran was still experiencing three seizures per month. A December 2004 treatment record shows that through the use of 900 milligrams of Gabapentin, the Veteran had not experienced any seizures since September 2004. In the next available VA treatment record, dated in April 2008, it was noted that the Veteran had experienced good results with Gabapentin and had decreased his seizure frequency from three per month to one per month. He reported improving since his change to Gabapentin for five years although he was still experiencing seizures nocturnally and while sleeping in the day. At a December 2009 VA examination, the Veteran reported experiencing at least one seizure per month. For the period on appeal prior to February 2011, while there are brief periods of respite, the overall disability picture presented is of at least one, and usually several, major seizures a month. Based on all of the evidence of record, the Board finds that a 100 percent schedular rating for the Veteran's grand mal seizure disorder is warranted for the period on appeal prior to February 15, 2011. However, when the Veteran was most recently evaluated in February 2011, he reported that he had experienced no seizure episodes in approximately six months due to modifications of his medication. Nevertheless, the report later indicated that the Veteran had experienced more than 10 episodes of generalized non-convulsive epilepsy per week during the past 12 months. Although this evidence shows that the Veteran was no longer experiencing at least one major seizure per month, the requirement for a 100 percent disability rating, the evidence was consistent with an 80 percent disability rating because the evidence showed more than 10 minor seizures weekly. Therefore, the Board finds that an 80 percent schedular rating, but not higher, for the Veteran's grand mal seizure disorder is warranted since February 15, 2011. The Board has also considered the statements of the Veteran that his disability is worse. 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. Gabrielson v. Brown, 7 Vet. App. 36 (1994); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter 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 (1997); Layno v. Brown, 6 Vet. App. 465 (1994); Cartright v. Derwinski, 2 Vet. App. 24 (1991) (although interest may affect the credibility of testimony, it does not affect competency to testify). In this case, the Veteran is competent to report symptoms of his grand mal seizure disorder because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465 (1994). He is not, however, competent to identify a specific level of disability of his disability when applied to appropriate diagnostic codes. Competent evidence concerning the nature and extent of the Veteran's grand mal seizure disorder has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings as provided in the examination reports directly address the criteria under which his disability is rated. Based on the evidence, the Board finds that a 100 percent schedular rating for the Veteran's grand mal seizure disorder is warranted for the period on appeal prior to February 15, 2011, and a rating of 80 percent is warranted as of February 15, 2011. In addition, the Board is normally required to consider whether the Veteran is entitled to a greater level of compensation on an extra-schedular basis. 38 C.F.R. 3.321(b)(1) (2012). However, the Remand below regarding the Veteran's claim for TDIU may shed light on the necessity of referral for consideration of an extraschedular rating for the Veteran's grand mal seizure disorder. Therefore, the issues are inextricably intertwined. Issues are considered inextricably intertwined when a determination on one issue could have a significant impact on the outcome of another issue. The appropriate remedy where there is an issue on appeal inextricably intertwined with a pending issue is to defer adjudication of the appellate issue until the issue pending has been adjudicated. Harris v. Derwinski, 1 Vet. App. 180 (1991). Thus, adjudication regarding referral for consideration of an extraschedular rating is deferred until completion of the action directed on remand. ORDER Prior to February 15, 2011, a 100 percent schedular rating for a grand mal seizure disorder, is granted. As of February 15, 2011, an 80 percent schedular rating, but not higher, for a grand mal seizure disorder, is granted. REMAND VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. §§ 3.159, 3.326(a) (2012). A TDIU may be granted upon a showing that the Veteran is unable to secure or follow a substantially gainful occupation due solely to service-connected disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2012). The Veteran now meets the schedular requirements of 38 C.F.R. § 4.16(a). The Board acknowledges that the Veteran underwent a Social and Work Survey in December 2009. However at that time the VA examiner focused on the Veteran's psychological symptomatology when evaluating his employability. Although a February 2011 VA examiner once again considered the Veteran's employability, the Veteran did not meet the schedular requirements of 38 C.F.R. § 4.16(a) at the time of that examination. The Veteran now meets these requirements. Based on the fact that the Veteran now meets the schedular criteria for TDIU, another VA examination should be undertaken. Accordingly, the case is REMANDED for the following actions: 1. Schedule the Veteran for a VA examination, with an examiner other than the February 2011 or December 2009 VA examiners, to assess the cumulative impact his service-connected disabilities would be expected to have on his employability and disregarding the effects of any disabilities that are not service-connected. The examiner must review the claims file and must note that review in the report. The rationale for all requested opinions should be provided. Based on review of the record and examination of the Veteran, the examiner should provide opinions responding to the following; (a) Please discuss the functional limitations associated with, and expected impact on employment resulting from, each of the Veteran's service-connected disabilities, grand mal seizure disorder and postoperative residuals of a pilonidal cyst. (b) Please discuss the functional limitations associated with, and expected impact on employment resulting from, the Veteran's service-connected disabilities cumulatively. (c) Please opine whether it is at least as likely as not (50 percent or greater probability) that the grand mal seizure disorder and postoperative residuals of a pilonidal cyst, when considered together, render the Veteran incapable of securing or following substantially gainful employment consistent with his education and work experience. (d) If it is determined that the Veteran is capable of employment, the examiner is asked to identify the types of accommodations that would be necessary for the service-connected disability and the types of employment that would be possible with the limitations caused solely by service-connected disability. 2. Then readjudicate the claim for TDIU and whether an extraschedular rating for grand mal seizure disorder is warranted. If the decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the claim to the Board. The Appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011). ______________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs