Citation Nr: 1330891 Decision Date: 09/25/13 Archive Date: 09/30/13 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 extraschedular rating for grand mal seizures as of February 15, 2011. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD L. A. Rein, Counsel INTRODUCTION The Veteran served on active duty from October 1972 to October 1974. This matter comes before the Board of Veterans' Appeals (Board) from a July 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, that continued a 20 percent rating for grand mal seizure disorder. In November 2008, August 2010, and March 2012, the Board remanded the increased rating issue for grand mal seizure disorder for additional development. In a January 2013 decision, the Board granted schedular ratings of 100 percent prior to February 15, 2011, and 80 percent as of February 15, 2011, for grand mal seizure disorder. The Board also remanded the issue of entitlement to an extraschedular rating for grand mal seizure disorder as of February 15, 2011. Prior to February 15, 2011, the Veteran received a 100 percent rating, and thus the issue of an extraschedular rating prior to February 15, 2011, is moot. Consequently, at this point of the appeal, only the potential entitlement to an extra-schedular rating for the Veteran's service-connected grand mal seizure disorder under 38 C.F.R. § 3.321(b)(1) remains in question. A claim for TDIU was also added by the Board as an issue and the Board remanded that claim in August, 2010, March 2012, and January 2013 for additional development. Rice v. Shinseki, 22 Vet. App. 447 (2009). As the Board cannot make a determination as to an extraschedular rating in the first instance, in April 2013, the Board remanded the case to the AOJ for consideration of an extraschedular rating. Floyd v. Brown, 9 Vet. App. 88 (1996). In May 2013, in accordance with 38 C.F.R. § 3.321(b)(1) , the VA Appeals Management Center referred the claim to VA's Director of Compensation and Pension Service for consideration of an extraschedular rating. In a July 2013 memorandum decision, the Director of VA's Compensation and Pension Service denied entitlement to an extraschedular rating for grand mal seizures pursuant to 38 C.F.R. § 3.321(b)(1), for the period beginning on February 15, 2011. A July 2013 supplemental statement of the case continued the denial of both claims on appeal. FINDINGS OF FACT 1. As of February 15, 2011, the competent and probative evidence of record, shows that the Veteran's grand mal seizure disorder has not presented such an exceptional or unusual disability picture so as to render impractical application the regular rating schedule standards; there has not been, as examples, marked impairment with employment, frequent hospitalization, or other manifestations of the disability such that the available schedular ratings for the disability are rendered inadequate. 2. The preponderance of the medical opinion evidence of record shows that the Veteran's service-connected grand mal seizure disorder and postoperative residuals of a pilonidal cyst do not render him unable to obtain or retain substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for an extraschedular disability rating for grand mal seizure disorder are not met. 38 C.F.R. § 3.321(b)(1) (2012). 2. The criteria for entitlement to a TDIU have not been met. 38 U.S.C.A. § 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to notify and assist Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012); Pelegrini v. Principi, 18 Vet. App. 112 (2004). If VA does not provide adequate notice of any of element necessary to substantiate the claim, or there is any deficiency in the timing of the notice, the burden is on the claimant to show that prejudice resulted from a notice error. Shinseki v. Sanders, 129 S.Ct. 1696 (2009). The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claim with an adjudication of the claim by the RO subsequent to receipt of the required notice. The record does not show prejudice to the appellant, and the Board finds that any defect in the timing or content of the notices has not affected the fairness of the adjudication. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the Veteran was notified in letters dated in May 2009, February 2010, December 2011, and May 2013.. The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (burden of showing that an error is harmful or prejudicial falls on party attacking agency decision); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Board considers it significant that the subsequent statements made by the Veteran and his representative suggest actual knowledge of the elements necessary to substantiate the claim. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what is necessary to substantiate a claim). Thus, VA has satisfied its duty to notify the appellant and had satisfied that duty prior to the adjudication in the most recent July 2013supplemental statement of the case. Overton v. Nicholson, 20 Vet. App. 427 (2006) (Veteran afforded a meaningful opportunity to participate effectively in adjudication of claim, and therefore notice error was harmless). The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The appellant has not referred to any additional, unobtained, relevant, available evidence. VA has obtained examinations with respect to the claim on appeal. Thus, the Board finds that VA has satisfied the duty to assist provisions of law. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in development. 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). Extraschedular Ratings To accord justice in an exceptional case where the scheduler standards are found to be inadequate, the field station is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular rating commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1). Ratings shall be based as far as practicable, upon the average impairments of earning capacity with the additional proviso that VA shall from time to time readjust this schedule of ratings in accordance with experience. To accord justice, therefore, to the exceptional case where the schedular ratings are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve an extraschedular rating commensurate with the average earning capacity impairment due exclusively to the service- connected disability or disabilities. The governing norm in these exceptional cases is 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 as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b) (2012). To determine whether referral for extraschedular consideration is warranted, the Board must first determine whether the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology. If the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology, the assigned schedular rating is adequate, and referral for extraschedular consideration is not warranted. If the Board finds that the schedular ratings does not contemplate the Veteran's level of disability and symptomatology, then either the Board must determine whether the Veteran's exceptional disability picture includes other related factors such as marked interference with employment or frequent periods of hospitalization. If so, then the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether justice requires assignment of an extraschedular rating. Thun v. Peake, 22 Vet. App. 111 (2008), Consideration of an extra-schedular rating is only warranted where there is evidence that the disability picture presented by the Veteran would, in that average case, produce impairment of earning capacity beyond that compensated in the rating schedule or where evidence shows that the Veteran's service-connected disability affects employability in ways not contemplated by the rating schedule. VAOPGCPREC 6-96 (1996), 61 Fed. Reg. 66749 (1996). The actual wages earned by a particular Veteran are not considered relevant in the calculation of the average impairment of earning capacity for a disability, and contemplate that veterans receiving benefits may experience a greater or lesser impairment of earning capacity than average for their disability. Extraschedular consideration cannot be used to undo the approximate nature of the rating system created by Congress. Thun v. Peake, 22 Vet. App. 111 (2008), The Board is precluded by regulation from assigning an extraschedular rating under in the first instance. 38 C.F.R. § 3.321(b)(1). However, the Board is not precluded from raising the question and addressing referral where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Floyd v. Brown, 9 Vet. App. 88 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995). The procedural development required by 38 C.F.R. § 3.321(b)(1) has been completed. This case was referred to VA's Director of Compensation and Pension Service for consideration of an extraschedular rating in the first instance. The Board can now consider that issue on appeal. The Veteran's grand mal seizure disorder is currently rated 80 percent disabling as of February 15, 2011 under Diagnostic Code 8910 for epilepsy, grand mal pursuant to 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 six months, is rated 20 percent disabling. Epilepsy averaging one major seizure in the last six 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 four 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 three 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 (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). Of record for the period beginning on February 15, 2011, is a VA examination noting that the Veteran was diagnosed with grand mal seizure that was stable and controlled by one medication. The Veteran had reported that the date of his last seizure was in September 2010 and that he had experienced no seizure episodes in approximately six months due to modifications of his medication. However, 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. The examiner determined that the Veteran's service-connected disabilities did not render him unable to secure or follow a substantially gainful occupation. The Veteran's seizure disorder was currently stable and controlled with one medication and his pilonidal cyst had resolved. A February 2013 VA examination shows that the Veteran was diagnosed with grand mal seizure disorder that was stable and without medications. The Veteran reported that his grand mal seizure disorder was controlled without medications and that he had only nocturnal seizures for over twenty years. The Veteran reported that he lived by himself and no one has seen his seizures. The Veteran stated that if he got up in the middle of the night and was confused, tired, and exhausted for one to two hours, then he knew that he had a major seizure, if the confusion lasted for 10 to 15 minutes, then it was a minor seizure. The examiner stated that he was unable to quantify the type and frequency of the current seizures due to lack of objective evidence about the Veteran's current seizures. The examiner quoted the Veteran that "all seizures are nocturnal and not recently witnessed (greater than 10 years; I am living alone in my studio)." The VA examiner opined that the Veteran's seizure disorder should not preclude daytime light duty/sedentary employment responsibilities. The Veteran reported that he had stopped working due to non service-connected back issues. In the July 2013 determination, the VA Director of Compensation and Pension Service found that the Veteran had not been hospitalized for any extended periods of time due to his service-connected grand mal seizure disorder from February 15, 2011. He had not had any surgery. The evidence did not show that the grand mal seizures have caused significant limitations in employment, noting that the Veteran indicated to the February 2013 VA examiner that he had stopped working due to his non service-connected back issues. The totality of the evidence did not support the contention that the Veteran's grand mal seizures were so exceptional or unusual as to render the use of the regular rating schedular standards impractical. Therefore, entitlement to an extra-schedular rating from February 15, 2011, was denied. Because the appropriate VA authority has adjudicated entitlement to an extraschedular rating, the Board may now consider the issue. The threshold question is whether the rating criteria adequately contemplate the Veteran's disability. In this case, the Board finds that the schedular criteria provides for a higher, 100 percent disability rating. However, the Veteran's grand mal seizure disorder has not been shown to have been manifested by symptoms required to achieve the next higher rating, as of February 2011. The evidence, although sparse, shows that the Veteran's disability picture was adequately, and appropriately, contemplated by the applicable schedular rating criteria. The Veteran was found to have experienced more than 10 minor seizures weekly, thus, meeting the criteria for the currently assigned 80 percent schedular rating. The schedule provides for a higher rating for additional or more severe symptoms but no such symptoms were present in this case as of February 15, 2011. Specifically, there was no evidence that the Veteran's overall disability picture included at least one major seizure per month over the last year, the criteria required for the next higher 100 percent disability rating. The assigned schedular disability rating is therefore adequate and the criteria are adequate for rating the disability. Thun v. Peake, 22 Vet. App. 111 (2008). Because the schedular criteria adequately compensated the Veteran for the level of disability and symptomatology of his grand mal seizure disorder for the period beginning on February 15, 2011, the threshold for an extraschedular rating were not met and the second step of the inquiry need not be addressed. Nevertheless, even if the available schedular rating for his grand mal seizure disorder was inadequate, the Veteran did not exhibit other related factors such as those provided by the regulation as governing norms. The evidence of record as of February 15, 2011, does not show that the grand mal seizure disorder required frequent periods of hospitalization. Moreover, there is no evidence that the grand mal seizure disorder caused marked interference with employment. The Veteran is shown to have left his last job due to a non-service connected back disability. The Board finds that the schedular criteria adequately compensate the Veteran for the level of disability and symptomatology of his grand mal seizure disorder for the period beginning on February 15, 2011. Consequently, an extraschedular rating for his service-connected grand mal seizure disorder for the period beginning on February 15, 2011, is denied. The preponderance of the evidence is against the assignment of any extraschedular rating as of February 15, 2011, and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). TDIU It is the established policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16 (2012). A finding of total disability is appropriate when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. §§ 3.340(a)(1), 4.15 (2012). A TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2012). In exceptional circumstances, where the Veteran does not meet the percentage requirements, a total rating may be assigned upon a showing that the individual is unable to obtain or retain substantially gainful employment. 38 C.F.R. § 4.16(b) (2012). The Veteran contends that he is unable to maintain substantially gainful employment due to his service-connected disabilities. The Veteran is service-connected for grand mal seizure disorder, rated as 100 percent disabling from December 3, 2003, to February 14, 2011, and 80 percent thereafter, and for postoperative residuals of a pilonidal cyst, rated 0 percent. The Veteran's combined rating for compensation is 100 percent from December 3, 2003, to February 14, 2011, and 80 percent thereafter. Therefore, the Veteran's disabilities satisfy the criteria of 38 C.F.R. § 4.16(a) (2012). The remaining question is whether the Veteran's service-connected disabilities render him unemployable. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to his age or to any impairment caused by non service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2012); Van Hoose v. Brown, 4 Vet. App. 361 (1993). While the regulations do not define substantially gainful employment, substantially gainful employment has been found to be as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the Veteran actually works and without regard to the Veteran's earned annual income. Faust v. West, 13 Vet. App. 342 (2000), The question must be looked at in a practical manner, and mere theoretical ability to engage in substantial gainful employment is not a sufficient basis to deny benefits. The test is whether a particular job is realistically within the physical and mental capabilities of the claimant. Moore v. Derwinski, 1 Vet. App. 356 (1991); Timmerman v. Weinberger, 510 F.2d 439 (8th Cir. 1975). Marginal employment, for example, as a self-employed worker or at odd jobs or while employed at less than half of the usual remuneration, shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a) (2012); Moore v. Derwinski, 1 Vet. App. 356 (1991). A Veteran may be considered unemployable upon termination of employment that was provided on account of disability or in which special consideration or accommodation was given on account of disability. 38 C.F.R. § 4.18 (2012). Marginal employment generally shall be deemed to exist when a Veteran's earned annual income does not exceed the amount established by the United States Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment also may be held to exist on a facts found basis when earned annual income exceeds the poverty threshold. Such situations may include, but are not limited to, employment in a protected environment such as a family business or sheltered workshop. 38 C.F.R. § 4.16(a) (2012). Requiring a Veteran to prove that he is 100 percent unemployable is different than requiring a Veteran to prove that he cannot maintain substantially gainful employment. The use of the word substantially suggests an intent to impart flexibility into a determination of the Veteran's overall employability, whereas a requirement that the Veteran prove 100 percent unemployability leaves no flexibility. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). Here, the Board does not doubt that the Veteran's service-connected disabilities cause the Veteran occupational impairment. However, the Board finds that the greater weight of the probative evidence is against finding that the Veteran is unable to secure and follow a substantially gainful occupation solely by reason of his service-connected disabilities A February 2011 VA examiner concluded that the Veteran's service-connected seizure disorder did not render him unable to secure or follow a substantially gainful occupation. The examiner found that the Veteran's seizure disorder was stable and controlled with one medication and that his service-connected pilonidal cyst had resolved. In a February 2013 VA examination, the VA examiner opined that the Veteran's seizure disorder should not preclude daytime light duty/sedentary employment responsibilities. The examiner specifically noted that the Veteran was gainfully employed with his service-connected seizure disorder for over 20 years until 1995 when he self reported that he stopped working due to non service-connected back issues. The VA examiner further concluded that the Veteran service-connected pilonidal cyst had resolved with residual scar, was not considered disabling, and that there was no functional impairment due to the scar and no other residuals. The examiner opined that the Veteran's barely visible residual scar, status post pilonidal cyst removal should not preclude the Veteran from any form of employment responsibilities. The Board is sympathetic to the Veteran's and his representative's assertions regarding the impact of his service-connected disabilities on his occupational and social functioning. However, those problems are compensated by his current schedular ratings for those disabilities. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Board has fully considered the nature of the Veteran's nocturnal seizures, as reported by the Veteran. In addition, while the Board appreciates the Veteran's representative's assertions as to what could happen as a result of the Veteran's seizure disability and the potential stigma attached to those who suffer with epilepsy, the Board finds that the Veteran's reported manifestations and medical opinions provided by VA examiners are more probative on the issue of a TDIU. Moreover, while his service-connected disabilities may cause some economic inadaptability, that also is taken into account in the assigned ratings and the 100 percent rating prior to February 2011 and 80 percent thereafter, which contemplates significant impairment in earning capacity. In this case, the Board finds that the preponderance of the evidence is against a finding of total individual unemployability based solely on these disabilities. 38 C.F.R. § 4.1(2012). The preponderance of the medical evidence shows that the Veteran's service-connected disabilities do not solely, or in combination, render him unable to secure or follow a substantially gainful occupation. Based upon the foregoing, the Board concludes that the preponderance of the evidence is against a finding that the Veteran's service-connected disabilities alone, when considered in association with his educational attainment and occupational background, render him unable to secure or follow a substantially gainful occupation. The evidence shows that the Veteran stopped working due to a non service-connected back disability. Accordingly, the Board finds that entitlement to a TDIU is not warranted. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to an extraschedular rating for grand mal seizures as of February 15, 2011, is denied. Entitlement to a TDIU is denied. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs