Citation Nr: 1310133 Decision Date: 03/26/13 Archive Date: 04/02/13 DOCKET NO. 10-17 012 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to a rating in excess of 10 percent for epilepsy. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Jarrette A. Marley, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1961 to August 1962. This case comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision by the New York, New York Department of Veterans Affairs (VA) Regional Office (RO) that denied an increased rating for the Veteran's epilepsy. The Veteran testified before the undersigned Veterans Law Judge in a video conference hearing in August 2012. A transcript of the hearing is associated with the claims file. The Board notes that a March 2005 rating decision granted service connection for epilepsy. Within one year of the March 2005 determination, the Veteran did not express disagreement with this initial disability evaluation, nor was any relevant new and material evidence, medical or lay, physically or constructively received by VA prior to the expiration of the appellate period. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.156(b); 20.201 (2012); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2012). As such, the March 2005 rating decision is final. Finally, at the August 2012 video conference hearing, the Veteran expressly declined to raise the issue of entitlement to a total disability rating based on individual unemployability due to his service-connected epilepsy disability (TDIU) as an issue on appeal. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (where there is evidence of unemployability raised by the record during a rating appeal period, TDIU is an element of an initial rating or increased rating). Hence, such is not addressed in the opinion below. FINDINGS OF FACT 1. Prior to December 1, 2008, the Veteran's epilepsy was manifested by continuous medication for the control of his disability with no seizures. 2. For the period from December 1, 2008 to December 31, 2008, the Veteran's epilepsy was manifested by, on average more than 10 minor seizures per week. 3. From the period since January 1, 2009, the Veteran's epilepsy has been manifested by continuous medication for the control of his disability with no seizures. CONCLUSIONS OF LAW 1. Prior to December 1, 2008, the criteria for a rating in excess of 10 percent for the Veteran's epilepsy have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.3, 4.7, 4.124a, Diagnostic Codes (Codes) 8910, 8911 (2012). 2. For the period from December 1, 2008 to December 31, 2008, the criteria for a rating of 80 percent for the Veteran's epilepsy have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.3, 4.7, 4.124a, Codes 8910, 8911 (2012). 3. For the period since January 1, 2009, the criteria for a rating in excess of 10 percent for the Veteran's epilepsy have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.3, 4.7, 4.124a, Codes 8910, 8911 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claim. In a claim for increase, the VCAA requirement is notice of the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The appellant was advised of VA's duties to notify and assist in the development of his claim. June 2008, November 2008, and September 2009 letters explained the evidence necessary to substantiate his claim, the evidence VA was responsible for providing, and the evidence he was responsible for providing, as well as the evidence necessary to substantiate his claim for an increased rating for epilepsy. A March 2010 statement of the case readjudicated the matter after additional development was completed. The Veteran has not alleged that notice in this case was less than adequate. See Shinseki v. Sanders, 556 U.S. 396 (2009) (discussing the rule of prejudicial error). The RO also provided assistance to the Veteran as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances of the case. The Veteran's service treatment records are associated with the claims file, as are postservice private and VA treatment records. Notably, there appears to be outstanding VA treatment records for the period in December 2008. Rather than remanding this matter for additional development, the Board is granting a "staged" increased rating for the period from December 1, 2008 to December 31, 2008; hence, remand for such records is not necessary. The Veteran is not prejudiced by the Board's adjudication of this matter as the decision, particularly during the period of December 2008, is favorable to the Veteran's claim. The Veteran has also been afforded appropriate VA examination in regard to the claim on appeal. October 2008 and October 2009 VA examinations assessed the current severity of the Veteran's service-connected epilepsy, noting all findings necessary for a proper adjudication of the matter. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (VA must provide an examination that is adequate for rating purposes). The Veteran was also afforded a hearing before a VLJ at which he presented oral argument in support of his increased rating claim. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ who chairs a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. During the August 20111 Board hearing, the VLJ did not note the bases of the prior determination or the elements that were lacking to substantiate the claim. The VLJ asked specific questions, however, directed at identifying whether the Veteran had symptoms meeting the criteria for an increased rating. The VLJ indicated the types of evidence that would help substantiate the Veteran's claim and specifically sought to identify any pertinent evidence not currently associated with the claims file. In addition, the Veteran volunteered his pertinent treatment history and symptoms since service. Accordingly, he is not shown to be prejudiced on this basis. Finally, neither he nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate the claim. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). Accordingly, the Board finds that the duty to notify and the duty to assist have been satisfied and will proceed to the merits of the Veteran's appeal. Analysis Initially, the Board notes that it has reviewed all of the evidence in the Veteran's claims file and in Virtual VA (i.e., VA's electronic data storage system), with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA 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 claims. 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). Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. The percentage ratings in VA's Schedule for Rating Disabilities (Rating Schedule) represent as far as can practicably be determined the average impairment in earning capacity resulting from such disabilities and their residual conditions in civil occupations. 38 C.F.R. § 4.1. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Where entitlement to compensation has already been established and increase in disability is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, "staged" ratings are appropriate where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); see also Fenderson v. West, 12 Vet. App. 119 (1999). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d at 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that the Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996); Dalton v. Nicholson, 21 Vet. App. 23, 28 (2007). The Veteran's epilepsy is rated under Diagnostic Code 8910. Under Diagnostic Code 8910, epilepsy, grand mal, is to be rated under the general rating formula for major seizures, provided under Diagnostic Code 8911. Under Diagnostic Code 8911, a 10 percent evaluation is assigned for a confirmed diagnosis of epilepsy with a history of seizures. 38 C.F.R. § 4.124a. A 20 percent evaluation is assigned for 1 major seizure during the preceding 2 years or at least 2 minor seizures during the preceding 6 months. A 40 percent evaluation is warranted for at least 1 major seizure in the last 6 months or 2 in the last year, or averaging at least 5 to 8 minor seizures weekly. A 60 percent evaluation is warranted for averaging 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 for averaging 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 for averaging at least 1 major seizure per month over the last year. A major seizure is characterized by the generalized tonic-clonic convulsion with unconsciousness. 38 C.F.R. § 4.124a, Note (1). 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, Note (2). Where continuous medication is required to control the epilepsy, the minimum evaluation will be 10 percent. 38 C.F.R. § 4.124a. VA treatment records include a December 2005 report noting the Veteran had no complaints. The Veteran related that he had had no seizures for quite some time. A June 2006 report noted the Veteran was symptom free. He denied having a seizure for over 30 years. A July 2008 report noted the Veteran's treatment for his epilepsy consisted of Phenobarbital per day. He denied any migraines, ticks, or chorea, and related that his last epilepsy seizure was in 1972. The diagnosis was epilepsy in remission. On October 2008 VA examination, the Veteran reported he had had no episodes of epilepsy in the past 12 months. His medication includes Phenobarbital per day. It was noted that he can do his daily activities and there is a good response to the medication on the seizures. On physical examination, cranial nerve examination was normal; sensory, motor and deep tendon reflexes were normal; there was no evidence of headache, migraines, chorea, or tics. The diagnosis was epilepsy, in remission. A February 2009 private medical letter from Dr. Massoud Azar noted the Veteran discontinued his epilepsy medication (i.e., Phenobarbital) on approximately December 1, 2008, and he reported having 7 to 14 seizures per week for the month. After receiving more medication at the end of the month, he denied having any seizures. On physical examination, the Veteran was normal. It was noted that his seizures recurred when he stopped the Phenobarbital, but that his seizures were not perceived on examination since he resumed his medication. It was opined that the Veteran has to continue his Phenobarbital for the rest of his life to control the "spells" expressed as almost fainting, without dizziness, but with a loss of contact with his environment and representing partial complex seizures which is related to his service-connected epilepsy. On October 2009 VA examination, the Veteran reported that he discontinued his Phenobarbital in December 2008 and began having recurrent "blank spells", approximately 7 to 14 per day. Since re-continuing on his medication, he denied having any recurrence of seizures. It was noted that the Veteran's seizure disorder has no impact on his day-to-day activities and that he is working regularly. On neurological examination, there was normal motor, tone, and bulk examination, an absence of fasciculations, as well as normal strength (5/5), including grasp, in the major anterior and posterior muscle groups of the upper and lower extremities. Sensation revealed universally normal perception of touch, position, and temperature bilaterally. Cerebellar function was normal. Deep tendon reflexes were 2/4 at the biceps, triceps, brachioradialis, patella, and Achilles reflex sites bilaterally. No pathological reflexes were detected. The diagnosis was a seizure disorder, symptoms controlled with Phenobarbital. In October 2010 correspondence, the Veteran reported that he went off of Phenobarbital in December 2008 and had between 7 and 14 petite mal seizures per week for 4 weeks. At the August 2012 video conference hearing, the Veteran testified that the last time he had a seizure, major or minor, was 1972. He further characterized his seizures as "blank spells." Rating Prior to December 1, 2008 As noted above, the Veteran is rated 10 percent for the period prior to December 1, 2008, for his service-connected epilepsy. VA treatment records during this period and October 2008 VA examination show that the Veteran's disability was manifested by required continuous medication to control his epilepsy. Under 38 C.F.R. § 4.124a, Diagnostic Code 8911, such warrants a 10 percent rating. However, for the period prior to December 1, 2008, there is no evidence of, and the Veteran repeatedly denied, suffering any recurrent seizures. The Board therefore finds that the Veteran's epilepsy is consistent with a 10 percent rating for the period prior to December 1, 2008. See Jones v. Shinseki, 26 Vet. App. 56, 61-63 (2012) (holding that the Board may deny entitlement to an increased rating on the basis of relief provided by medication when those effects are specifically contemplated by the rating criteria). As the Veteran's disability specifically entails rating the disability based on the effect of the disability by medication, the Board finds that denying a rating in excess of 10 percent, in part on that basis, and also because there is no evidence of any recurrent seizures, is not in error. Rating for December 1, 2008 to December 31, 2008 The Veteran's service-connected epilepsy is also rated 10 percent for the period from December 1, 2008 to December 31, 2008. As noted above, VA treatment records for this period are not associated with the claims file. Nonetheless, the evidence of record indicates that the Veteran discontinued his Phenobarbital and suffered between 7 and 14 seizures per week during the month of December 2008. The Board notes that the Veteran is competent to indicate that he has had a seizure. See Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Veteran is also competent to indicate the frequency with which he has seizures. See 38 C.F.R. § 4.121. As the Board finds the Veteran credible, therefore, his reported 7 to 14 seizures per week for the month of December 2008 approximates the criteria for a "staged" rating of 80 percent, but no higher, for the period beginning December 1, 2008 and through December 31, 2008. See Hart v. Mansfield, 21 Vet. App. 505 (2007); see also Fenderson v. West, 12 Vet. App. 119 (1999). A further increased (100 percent) rating is not warranted for the period from December 1, 2008 to December 31, 2008, as there is no evidence of at least 1 major seizure per month over the last year. Rating Since December 31, 2008 For the period since December 31, 2008 to the present, the Veteran's service-connected epilepsy is rated 10 percent disabling. VA treatment records during this period and October 2009 VA examination show that the Veteran's disability has been manifested by required continuous medication to control his epilepsy. Under 38 C.F.R. § 4.124a, Diagnostic Code 8911, such warrants a 10 percent rating. However, for the period since December 31, 2008, there is no evidence of, and the Veteran has repeatedly denied, including at the August 2012 video conference hearing, suffering any recurrent seizures. The Board therefore finds that the Veteran's epilepsy is consistent with a 10 percent rating for the period since December 31, 2008. See Jones v. Shinseki, 26 Vet. App. 56, 61-63 (2012) (holding that the Board may deny entitlement to an increased rating on the basis of relief provided by medication when those effects are specifically contemplated by the rating criteria). As the Veteran's disability specifically entails rating the disability based on the effect of the disability by medication, the Board finds that denying a rating in excess of 10 percent, in part on that basis, and also because there is no evidence of any recurrent seizures, is not in error. Extraschedular Consideration The Board has also considered whether the Veteran is entitled to a greater level of compensation on an extraschedular basis. 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, thus, 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 the veteran's disability picture requires the assignment of an extraschedular rating. The Board finds that the rating criteria contemplate the symptomatology as reported by the Veteran concerning his epilepsy. As noted above, the Veteran has denied any residuals of his epilepsy, particularly while on continuous medication to treat the disability. Under Thun, the initial step in a determination as to whether there should be referral for extraschedular consideration is a comparison between the levels of symptoms shown with the schedular criteria for rating the disability. After a review of the evidence and the Veteran's claims file, the medical evidence fails to show anything unique or unusual about the Veteran's epilepsy. No symptoms have been described that would render the schedular criteria inadequate. The Board does not find that the Veteran's epilepsy interferes with his work beyond the interference contemplated by the currently assigned "staged" disability ratings. The functional loss self-reported by the Veteran is fully contemplated by the schedular criteria. See 38 C.F.R. § 4.1. Consequently, those criteria are not inadequate. See Thun v. Peake, 22 Vet. App. 111 (2008). Therefore, referral for consideration of an extraschedular rating is not warranted. ORDER An increased rating for epilepsy, prior to December 1, 2008, is denied. Subject to the law and regulations governing the payment of monetary benefits, a rating of 80 percent, and no higher, for the period from December 1, 2008 to December 31, 2008, is granted. A rating in excess of 10 percent for epilepsy since January 1, 2009, is denied. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs