Citation Nr: 1301673 Decision Date: 01/15/13 Archive Date: 01/23/13 DOCKET NO. 11-10 804 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for a bilateral hip disorder, to include as secondary to service-connected grand mal epilepsy. 2. Entitlement to service connection for essential tremors, to include as secondary to service-connected grand mal epilepsy. 3. Entitlement to an increased compensable rating for service-connected grand mal epilepsy. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD R. Erdheim, Counsel INTRODUCTION The Veteran served on active duty from March 1943 to November 1943. These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. A video conference hearing was held in December 2011, with the Veteran sitting at the RO, and the undersigned Veterans Law Judge sitting in Washington, DC. A transcript of the hearing testimony is associated with the claims folder. The case was remanded in January 2012 for additional development. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran does not have a current hip disability. 2. The Veteran's tremors are not shown to be causally or etiologically related to any disease, injury, or incident during service, or caused or aggravated by the service-connected grand mal epilepsy. 3. Throughout the pendency appeal, the Veteran has not had a confirmed diagnosis of epilepsy. CONCLUSIONS OF LAW 1. A hip disability was not incurred in or aggravated by the Veteran's active duty military service, nor was it caused or aggravated by a service-connected disability. 38 U.S.C.A. §§ 1110 , 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102 , 3.159, 3.303, 3.304, 3.307, 3.309, 3.310 (2012). 2. Tremors were not incurred in or aggravated by the Veteran's active duty military service, nor were they caused or aggravated by a service-connected disability. 38 U.S.C.A. §§ 1110 , 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102 , 3.159, 3.303, 3.304, 3.310 (2012). 3. The criteria for a compensable rating grand mal epilepsy have not been met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1- 4.16, 4.124a, Diagnostic Code 8911 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations require VA to provide claimants with notice and assistance in substantiating a claim. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Proper VCAA notice must inform the claimant of any information and evidence not in the 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. Quartuccio v. Principi, 16 Vet. App. 183, 186 (2002). These notice requirements apply to all five elements of a service connection claim, including: (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. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Proper VCAA notice must be provided to a claimant prior to the initial unfavorable decision on the claim. Pelegrini v. Principi, 18 Vet. App. 112, 119-20 (2004). The Board finds that VA has satisfied its duty to notify under the VCAA. Specifically, a February 2009 letter, sent prior to the initial December 2009 rating decision, advised the Veteran of the evidence and information necessary to substantiate his claims for service connection and claim for increased rating, as well as his and VA's respective responsibilities in obtaining such evidence and information. Additionally, the February 2009 letter advised the Veteran of the evidence and information necessary to establish a disability rating and an effective date in accordance with Dingess/Hartman, supra. Relevant to the duty to assist, the Veteran's service treatment records and post-service VA and private treatment records have been obtained and considered. The Board notes that it is possible that the Veteran's complete service treatment records have not been obtained, however, the file does contain a number of records including those of when he was hospitalized for a seizure that ultimately led to his discharge. In cases where a Veteran's service treatment records are unavailable, there is a heightened obligation to assist the appellant in the development of the case, a heightened obligation to explain findings and conclusions, and a heightened duty to consider carefully the benefit of the doubt rule. See Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005); see also Cromer v. Nicholson, 19 Vet. App. 215, 217 (2005) (citing O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991)). In this case, the Board finds that it has satisfied the heightened duty to assist. The December 2009 rating decision stated that service treatment records were unavailable due to a 1973 fire. Moreover, the Veteran has expressed actual knowledge that his records were unavailable and in May 2011, submitted a record demonstrating his service discharge on a medical basis. Thus, the Board finds that the duty to assist has been fulfilled such that there is no prejudice to the Veteran in deciding his claim based upon the evidence of record. The Veteran has not identified any additional, outstanding records necessary to decide his pending appeal. The Board has also reviewed the Veteran's paperless Virtual VA claims file, a highly secured electronic repository that is used to store and review documents involved in the claims process. The Veteran has also been afforded VA examinations in October 2009 and in March 2012 in order to adjudicate his service connection and increased rating claims. The Board finds these examinations to be adequate in order to evaluate the severity of his seizures and to determine the etiology of his reported tremors and hip pain, as they include an interview with the Veteran, a review of the record, and a full physical examination, addressing the relevant rating criteria. Therefore, the Board finds that the examination reports of record are adequate to adjudicate the Veteran's service connection and increased ratings claims and no further examination is necessary. The appeal was remanded in January 2012 in order to obtain VA treatment records from specific VA doctors and to afford the Veteran with a VA examination. The RO contacted the physicians and reported to the Veteran that there were no further medical opinions to obtain in support of his claims. The Veteran stated that he wished for his claims to be decided based upon the evidence of record. Moreover, he was provided with a VA examination, as described above. Thus, there has been substantial compliance with respect to the remand directive. Thus, the Board finds that VA has fully satisfied the duty to assist. In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant are to be avoided). VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, he will not be prejudiced as a result of the Board proceeding to the merits of his claims. II. Analysis Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.304. See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, to include arthritis, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Hip Disability Available service treatment records are negative for indication of a hip disability. Post-service private treatment records dated from 1965 to 1992 are negative for complaints of hip pain. A May 2004 private treatment records reflects that the Veteran reported having hip pain. VA treatment records reflect that in January 2008, he had a continuing diagnosis of chronic hip pain. On March 2012 VA examination, the Veteran reported that his hip pain began several years previously. He had been told that his lumbar spine was causing his symptoms. Physical examination was essentially normal and his symptoms were not considered to be consistent with a hip disorder. He had diminished range of motion of the hip that was likely attributable to shakiness with deconditioning. There was a pulling sensation in the groin that was likely due to stretching rather than a hip disorder. His reported hip pain was actually buttock pain that was likely part of his lumbar spine disability. Thus, based upon review of the records and physical examination, the examiner determined that there was no current hip disability. In this case, the Board finds that there is no indication that the Veteran currently has chronic hip disability. To that extent, pain is not analogous to disability. Pain alone, without a diagnosed or identifiable underlying malady or condition, does not constitute a disability for which service connection may be granted. Sanchez-Benitez v. West, 13 Vet. App. 282 (1999). Thus, it appears that the Veteran has ongoing hip pain, but has no diagnosis of a hip disability either since separation from service or presently. Accordingly, service connection for a hip disability must be denied. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Caluza v. Brown, 7 Vet. App. 498, 505 (1995) (recognizing that "[a] service connection claim must be accompanied by evidence which establishes that the claimant currently has the claimed disability"). Tremors The Veteran contends that he has suffered from tremors in his hands ever since he had a seizure in service following a severe head injury. He additionally contends that his tremors were caused or aggravated by his already service-connected grand mal epilepsy for which he was discharged from service. Disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a nonservice-connected disability which is aggravated by a service connected disability. In this instance, the Veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Allen v. Brown, 7 Vet. App. 439, 448 (1995). Effective October 10, 2006, 38 C.F.R. § 3.310 was amended to implement the holding in Allen v. Brown, 7 Vet. App. 439 (1995) for secondary service connection on the basis of the aggravation of a nonservice-connected disorder by service-connected disability. See 71 Fed. Reg. 52744 (2006). The amendment sets forth language that requires that a baseline level of severity of the nonservice-connected disease or injury must be established by medical evidence created before the onset of aggravation. Service treatment records reflect that from October 1943 to November 1943, the Veteran was hospitalized for an epileptic convulsion. He had no previous history of convulsions. He denied a history of a head injury other than over the left malar region while playing football that month that had not caused unconsciousness. He had consumed excessive alcohol the night before the convulsion for which he was reprimanded. Shortly after talking with his captain about the alcohol incident, he became groggy and dizzy and the next thing he remembered he was being given pills by a medical officer. He had felt very tired and had slept for a few hours, but did not believe he had had a convulsion. The convulsion was observed by several officers as a tonic and clonic contraction during which he frothed at the mouth. The attack lasted five minutes. There was no indication of tremors or neurological deficit. The diagnosis was "epilepsy, idiopathic, epilepsy, traumatic(???)." He was discharged from service due to the threat of further seizure. Post-service records reflect that in January 1944, the Veteran reported that he had not had any further attacks since the one in service. On January 1945 VA examination, the Veteran reported that he had been injured in the head while in high school during a hockey game and while playing ball in service, without loss of consciousness either time. There was no evidence of tremors on examination. After interviewing and examining the Veteran, the diagnosis was convulsive episodes, secondary to alcoholic excess. Private treatment records reflect that in November 1965, the Veteran had stopped drinking alcohol, of which he had previously drunk one half to two-thirds of a pint daily. He had had four convulsive seizures from service discharge to 1960 following excessive alcohol consumption but had not had any in five years. In July 1971, he was having tremors following an alcoholic binge. In August 1981, he reported that his tremor was better. On November 1993 VA examination, the Veteran reported having had seizures in the 1970s but had not had any seizures since that time. He had dizzy spells and loss of balance. He had developed a tremor over the previous 10 to 15 years that involved the head and trunk to some degree, but mostly affected his hands. The diagnosis was history of seizure disorder, probably benign essential tremor, loss of balance, dizziness, probably cardiac in origin. On June 1998 VA examination, the Veteran reported that for the previous ten years he would be dizzy when getting up from a chair. He had been evaluated for irregular heartbeats. Physical examination resulted in the diagnosis of unconscious episode from 54 years, sometimes associated with thrashing probably syncopal, weak episodes relieved by changes in posture which were also probably orthostatic hypotension, complicated by irregular heartbeat, familial type tremor. On August 1998 VA examination, he stated that he had not had a convulsive episode in 20 years. He had episodes of dizziness and loss of balance twice per month. His episodic syncope was thought to be related to a previous head injury, as reported by the Veteran. He was also diagnosed with an essential tremor. There was a familial history of tremor that his children also suffered from. In September 2006, the Veteran was assessed for chronic obstructive pulmonary disorder, as well as prostate cancer, atrial fibrillation, a leaky heart valve, and hypertension. He was noted to have a history of an essential tremor. On October 2009 VA examination, the Veteran reported having had tremors in both hands for several years that worsened in 2006 and for which he took mediation. Examination of the hands and head resulted in a finding consistent with essential tremors. The examiner opined that the Veteran's current hand tremors were not secondary to, caused or aggravated by, grand mal epilepsy. Rather, his tremors were most likely a genetic condition and happened in old age. He did not have grand mal epilepsy. On March 2012 VA examination, the Veteran was concerned that he had injured his head in an airplane crash landing while he was in service, which he felt had caused his symptoms in service. He felt that he had not ever had a seizure. Physical examination was completed. The diagnosis was seizures, most likely alcohol-related, resolved. The examiner noted the two past head injuries reported in the claims file, but felt that absent a loss of consciousness, the seizures were most likely alcohol-related. There was no evidence of any current seizure disorder. There was a questionable mild traumatic brain injury, but generally speaking, residuals of a traumatic brain injury tended to improve and resolve with time, not worsen. Thus, it did not appear that his current symptoms were related to a head injury. With regard to his tremor, the examiner concluded that the tremor was not related to service. The tremors were first noted in 1969, related to alcohol and he was first diagnosed with essential tremor in 1993. He denied a familial history of a tremor but such was noted in 1998. According to medical literature, essential tremors were at least as likely as not a genetic condition with the other factor of age. In this case, the Board finds that service connection for tremors is not warranted on a direct or secondary basis. First, there was no indication of a tremor in service such that there is no indication of a chronic in-service disability. Next, the medical evidence is negative for a tremor for many years following service, indicating a lack of continuity of symptomatology. In that regard, a prolonged period without medical complaint can be considered, along with other factors concerning the claimant's health and medical treatment during and after military service, as evidence of whether a disability was incurred in service or whether an injury, if any, resulted in any chronic or persistent disability which still exists currently. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). The trier of fact should consider all the evidence including the availability of medical records, the nature and course of the disease or disability, the amount of time that elapsed since military service, and any other relevant facts in considering a claim for service connection. See Dambach v. Gober, 223 F.3d 1376, 1380-81 (Fed. Cir. 2000) (holding that the absence of medical records during combat conditions does not establish absence of disability). Thus, when appropriate, the Board may consider the absence of evidence when engaging in a fact finding role. See also, Jordan v. Principi, 17 Vet. App. 261 (2003) (Steinberg, J., writing separately) (noting that the absence of evidence may be considered as one factor in rebutting the aggravation part of the section 1111 presumption of soundness). In this case, the service treatment records demonstrate that the Veteran suffered from a seizure in service witnessed by medical officers and diagnosed as epilepsy. However, the hospital records do not demonstrate the presence of a tremor stemming from the episode. Treatment records dated following service, specifically in January 1945, specifically note the absence of a tremor. The first indication of a tremor is not until approximately 30 years following service discharge, noted in private treatment records dated in 1971, following an alcohol binge. The first indication of a diagnosis of essential tremors was not until 1993. Thus, the post-service evidence lacks a continuity of symptomatology. The lack of continuity of treatment may bear in a merits determination on the credibility of the evidence of continuity of symptoms by lay parties. Savage v. Gober, 10 Vet. App. 488, 496 (1997). In this regard, the Board notes first that the absence of any evidence of a tremor disability for more than 30 years after discharge from service constitutes negative evidence tending to disprove the claim that the Veteran developed this disability as a result of his in-service convulsive episode or that it otherwise began in service. See Forshey v. West, 12 Vet. App. 71, 74 (1998), aff'd sub nom. Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (noting that the definition of evidence encompasses "negative evidence" which tends to disprove the existence of an alleged fact); see also 38 C.F.R. § 3.102 (noting that reasonable doubt exists because of an approximate balance of positive and "negative" evidence). Moreover, the competent and probative medical opinions only weigh against the Veteran's claim. In that regard, the October 2009 and March 2012 VA examiners were in agreement that the Veteran's tremors were familial in nature and were not related to his service, to include the in-service convulsive seizure. The Board finds that the opinions provided contain clear conclusions with supporting data and a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet.App. 120, 124 (2007) ("[A]medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). Moreover, they take into account the service treatment records, the post-service medical history, as well as the Veteran's statements, in finding that the nature of his tremors were unrelated to service, to include his convulsive attacks, or to a head injury. Rather, the medical literature made it most likely that his tremors were genetic and age-related. Accordingly, and in the absence of any medical evidence to support the Veteran's claim, the Board finds that the preponderance of the evidence is against the Veteran's claim that his essential tremors were caused or aggravated by service or a service-connected disability. To that extent, the VA examiners found no relationship between his tremors and his epilepsy because he does not currently suffer from epilepsy and has not had a seizure during the appeal period. The Board has considered the Veteran's contention that a relationship exists between his current tremors, his service, and his service-connected grand mal epilepsy. Lay evidence may be competent to establish medical etiology or nexus. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). However, "VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to" and a mere conclusory generalized lay statement that service event or illness caused the claimant's current condition is insufficient to require the Secretary to provide an examination. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). In the instant case, the Board finds that the question regarding the potential relationship between the Veteran's tremors and any instance of his military service to be complex in nature. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Additionally, in a single-judge Memorandum Decision issued by the Court, it was noted that "in the absence of any medical evidence, the record must provide some evidence beyond an appellant's own conclusory statements regarding causation to establish that the appellant suffered from an event, injury or disease in service." Richardson v. Shinseki, No. 08-0357, slip. op. at 4 (Vet. App. May 10, 2010). While the Board recognizes that such single judge decisions carry no precedential weight, they may be relied upon for any persuasiveness or reasoning they contain. See Bethea v. Derwinski, 2 Vet. App. 252, 254 (1992). Here, while the Veteran is competent to describe his in-service symptoms and current tremors, the Board accords his statements regarding the etiology of such disorder little probative value as he is not competent to opine on such a complex medical question. Specifically, where the determinative issue is one of medical causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. See Jones v. West, 12 Vet. App. 460, 465 (1999). The Veteran has offered only conclusory statements regarding the relationship between his tremor and his service and service-connected disability. In contrast, the VA examiners took into consideration all the relevant facts in providing an opinion, to include the type of the Veteran's in-service complaints and diagnoses, the post-service type and onset of tremors, as well as the current nature of his tremors. The Board places the greatest weight on the VA opinions, as described above, finding that those opinions outweigh the Veteran's lay contentions. In sum, the Board is left with no documented complaints or findings of tremors until many decades after service, and two medical opinions to the effect that such tremors are not etiologically related to service. The Board also has a negative opinion that the Veteran's tremors were not caused or aggravated by his service-connected grand mal epilepsy, significantly, because there is no current diagnosis of epilepsy. Thus, the preponderance of the evidence of record is against the Veteran's claim of service connection for tremors, and the claim must be denied. Increased Rating Ratings for service-connected disabilities are determined by comparing the veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4 (2012). When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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 (2012). 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 Veteran's seizure disorder is currently rated as noncompensably disabling under Diagnostic Code 8911. Diagnostic Code 8911 pertains to epilepsy, petit mal, and encompasses the criteria in the general rating formula for major and minor epileptic seizures. Under that general rating formula, a 10 percent rating is warranted for a confirmed diagnosis of epilepsy with a history of seizures. A 20 percent rating is assigned when there has been at least one major seizure in the last two years, or at least two minor seizures in the last six months. A 40 percent rating is assigned when there has been at least one major seizure in the last six months or two in the last year, or an average of five to eight minor seizures weekly. A 60 percent rating is warranted when there has been at least one major seizure in four months over the last year, or nine to 10 minor seizures per week. An 80 percent rating is assigned when there has been at least one major seizure in three months over the last year, or more than 10 minor seizures weekly. A 100 percent rating is warranted when there has been at least one major seizure per month over the last year. 38 C.F.R. § 4.124a, Diagnostic Code 8911 (2012). A major seizure is characterized by the generalized tonic-clonic convulsion with unconsciousness. 38 C.F.R. § 4.124a, Diagnostic Code 8911, Note (1) (2012). 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, Note (2) (2012). Where continuous medication is required to control the epilepsy, 10 percent is the minimum rating assignable. To warrant a higher rating, a Veteran's 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 (2012). In this case, however, as described above, the Veteran has not had a seizure at anytime during the appeal period or for many years prior to appeal period. Rather, as he has consistently stated, he does not believe he suffers from s seizure disorder. No current seizure disorder, to include epilepsy, has been diagnosed since 2009, when the claim was filed. Thus, a compensable rating cannot be assigned in this case. Moreover, the Board has considered the Veteran's contentions that he suffers from the residuals of a head injury such that the criteria pertaining to traumatic brain injury would be applicable. However, the Board finds his statements that he was involved in a aircraft landing that resulted in head injury in service to not be credible. That is the case because the statements are starkly inconsistent with the service treatment records that instead relay a convulsive episode that occurred following excessive alcohol use and which occurred while sitting with an officer. Moreover, the football injury that had also incurred in service had not resulted in unconsciousness. Finally, the March 2012 VA examiner took those statements into account when determined that although there was a questionable traumatic brain injury, the Veteran's disability presentation was such that his current symptoms of dizziness and loss of balance were less likely due to a head injury. For, traumatic brain injuries tended to subside with time. Therefore, the Board concludes the competent and probative evidence weighs against a finding that the Veteran suffers from the residuals of a traumatic brain injury for which consideration under those diagnostic codes would be warranted. III. Other Considerations In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a total rating based on individual unemployability (TDIU) is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. The Court further held that when evidence of unemployability is submitted at the same time that the Veteran is appealing the initial rating assigned for a disability, the claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Id. In this case, the Board finds that a claim for a TDIU was not expressly raised by the Veteran or reasonably raised by the record. In this regard, the Veteran has not stated that his grand mal epilepsy prevents him from working and no such finding was made on VA examination. An extra-schedular disability rating is warranted if 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 application of the regular schedular standards would be impracticable. 38 C.F.R. § 3.321(b)(1). In Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), the Court explained how the provisions of 38 C.F.R. § 3.321 are applied. Specifically, the Court stated that the determination of whether a claimant is entitled to an extra-schedular rating under § 3.321 is a three-step inquiry. First, it must be determined whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. In this regard, the Court indicated that there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as "marked interference with employment" and "frequent periods of hospitalization." Third, when an analysis of the first two steps reveals that the rating schedule is inadequate to evaluate a claimant'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 extra-schedular rating. Id. The Board has carefully compared the level of severity and symptomatology of the Veteran's service-connected grand mal epilepsy with the established criteria found in the rating schedule. As discussed in detail previously, the Veteran's symptomatology is fully addressed by the rating criteria under which such disability is rated. There are no additional symptoms that are not addressed by the rating schedule. Therefore, the Board finds that rating criteria reasonably describes the Veteran's disability level and symptomatology for his service-connected disability. As such, the Board finds that the rating schedule is adequate to evaluate the Veteran's disability picture. Moreover, to the extent that the Veteran's grand mal epilepsy may interfere with his employability, such interference is addressed by the schedular rating criteria. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Therefore, the Board finds that there are no attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization. Consequently, the Board concludes that referral of this case for consideration of an extra-schedular rating is not warranted. Id.; Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996). The Board has considered whether a higher rating might be warranted for any period of time during the pendency of this appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). However, the weight of the credible evidence demonstrates that throughout the pendency of the appeal, the Veteran's grand mal epilepsy has not warranted a compensable disability rating. As the preponderance of the evidence is against the claim, the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a hip disability is denied. Service connection for tremors is denied. A compensable rating for grand mal epilepsy is denied. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs