Citation Nr: 1610163 Decision Date: 03/14/16 Archive Date: 03/22/16 DOCKET NO. 12-14 635 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to a higher initial rating for a seizure disorder, secondary to sinus node dysfunction in excess of 60 percent from June 29, 2010. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J. Schulman, Associate Counsel INTRODUCTION The Veteran served on active duty with the United States Marines June 2000 to July 2008. This matter came to the Board of Veterans' Appeals (Board) from an August 2009 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO) in St. Louis, Missouri, that assigned a noncompensable (i.e., zero percent) rating for a seizure disorder, secondary to sinus node dysfunction. A June 2014 rating decision assigned a 60 percent rating for the seizure disorder from June 29, 2010. However, as this grant did not represent a total grant of benefits sought, the claim for increase remained pending before the Board. AB v. Brown, 6 Vet. App. 35 (1993). In January 2014, the Board remanded the issue on appeal for additional development. In November 2014, it was returned to the Board, and a decision with "Conclusions of Law" that conflicted with evidence that was known to be false was issued. In light of this evidence, the Board vacated the November 2014 decision, in a January 2015 decision which also granted a 20 percent rating for the period prior to June 29, 2010. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court), but only to the extent that the Board failed to grant a rating of greater than 60 percent after June 29, 2010. In January 2016 the Court granted a Joint Motion for Remand (JMR) from the Veteran's representative and the VA Secretary, and the matter is now once again before the Board. As described in greater detail below, the Board finds that since June 29, 2010, a rating of 80 percent - and no higher - has been warranted for service-connected seizures. FINDING OF FACT Throughout the period on appeal since June 29, 2010, seizure disorder, secondary to sinus node dysfunction has been productive of up to 21 minor seizure events per week. CONCLUSION OF LAW The criteria for an initial rating of 80 percent, but no higher, for seizure disorder, secondary to sinus node dysfunction have been nearly approximated throughout the rating period since June 29, 2010. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.1-4.16, 4.121, 4.124a, Diagnostic Code 8910 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Initial Rating for a Seizure Disorder, Secondary to Sinus Node Dysfunction, Since June 29, 2010 The Veteran's appeal for a rating greater than 60 percent after June 2010 flows from an appeal of the initial assignment of a disability rating following the establishment of service connection. Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects the ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (rating schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10 (2015). During the period on appeal, the Veteran has been in recepit of a 60 percent rating for his service-connected seizure disorder. The disability is rated under 38 C.F.R. § 4.124a, Diagnostic Code (DC or Code) 8910 (2015) as grand mal epilepsy. Grand mal epilepsy, under DC 8910, and petit mal epilepsy under DC 8911, are rated under the General Rating Formula for Major and Minor Seizures. A major seizure is characterized by 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. Under the General Formula, a 60 percent rating is warranted for a seizure disorder averaging at least 1 major seizure in 4 months over the last year or 9-10 minor seizures per week, and an 80 percent evaluation is to be assigned when averaging at least 1 major seizure in 3 months over the last year, or more than 10 minor seizures weekly. A 100 percent (i.e., total) rating requires evidence of an average of at least 1 major seizure per month over the last year. 38 C.F.R. § 4.124a. In the presence of major and minor seizures, the predominating type is rated, and there is no distinction between diurnal and nocturnal major seizures. Id. Under 38 C.F.R. § 4.121, regarding the identification of epilepsy, to warrant a rating, the seizures must be witnessed or verified at some time by a physician, and regarding the frequency of epileptiform attacks, competent, consistent lay testimony emphasizing convulsive and immediate post-convulsive characteristics may be accepted. It is also provided that the frequency of seizures should be ascertained under the ordinary conditions of life while not hospitalized. After reviewing the entire claims file, the Board finds that a seizure disorder has more nearly approximated the criteria for an 80 percent rating throughout the period on appeal since June 29, 2010. Specifically, his seizure disorder has been productive of up to 21 minor seizure events per week. A June 2009 VA neurologic examination report, one year prior to the period on appeal, reflects that the Veteran was having syncopal episodes with seizures. He had had no treatment since having his pacemaker implant and was no longer having seizures; the diagnosis remained of a seizure disorder. The VA examiner noted that the Veteran had syncopal episodes from his sinus node dysfunction that caused an ischemic condition resulting in seizures, and that the Veteran's pacemaker prevented the syncopal episodes and ischemic events that caused his seizures to occur. A December 2011 treatment record from the Mid-America Cardiology of the University of Kansas indicates that the Veteran was a longstanding patient and was treated for sinoatrial dysfunction with a pacemaker after having syncopal episodes. He reported having episodes about twice a day, and reported having the very same feelings as he did prior to his pacemaker implantation though without loss of consciousness. The Veteran stated that he had the sense that the room was spinning, and becoming lightheaded for 10 to 20 seconds, 2 or 3 times a day. A January 2012 VA examination report indicated that the Veteran had resolved seizures, not otherwise specified. The Veteran was not currently prescribed continuous medication for the control of seizure activity, and he still had not experienced what he considered to have been a seizure since the implantation of a pacemaker in 2007. In January 2013, the Veteran underwent evaluation at the Comprehensive Epilepsy Center, Department of Neurology, University of Kansas Hospital, where an electroencephalography (EEG) study indicated intermittent left temporal sharp wave discharges, which were a potential source for epileptic seizures. The treatment record notes that the Veteran was prescribed Trileptal, an anti-seizure medication. Although there had not been any episodes during which he lost consciousness since the implantation of his permanent pacemaker in 2007, the Veteran was having spells of feeling dizzy, lightheaded, and tunnel vision, and for the last several months he also had episodes of being not able to talk and unresponsiveness lasting for about 20 seconds with about 5 minutes of additional postictal confusion. The Veteran's wife described spell as manifest by a sudden onset of yelling and curse words, followed by some staring, trying to focus, and making some noises as if he is trying to talk and not being able to answer the questions appropriately. The spells lasted about 10 to 20 seconds, with some postictal period lasting about 5 to 10 minutes afterwards, and these had been happening a couple of times a week on average. According to the Veteran, he did not lose his awareness with the spells - thinking that he understands what his wife has been telling to him, but being unable to answer and without any memory of cursing. He did not have convulsive seizures, loss of time, any complex partial seizures with automatism, myoclonic seizures, or generalized tonic dorm convulsions in the past. The assessment was spells of unresponsiveness, not being able to answer, starting with cursing, and followed by postictal periods that were suggestive of either simple partial seizures, or short lasting complex partial seizures. It was noted however, that symptoms could be of other etiologies as well. June 2013 treatment records from the Comprehensive Epilepsy Center, Department of Neurology, University of Kansas Hospital indicates that the Veteran returned for a follow up visit and reported that after seizure events in February, there has been no additional seizures until the week prior, when he had 3 seizures; 1 of them was just a warning feeling while the other 2 were more typical of his prior seizures. Trileptal was increased after the second spell and the next day after the increase, he had the first seizure, but he had not had any since then. The EEG showed intermittent left temporal sharp wave discharges and the CT scan of the head showed unremarkable findings. Otherwise, the Veteran denied any new systemic or neurological complaints. The assessment was cryptogenic localization-related epilepsy presenting with complex partial seizures with temporal epileptiform discharges on the EEG. In a June 2013 statement, Dr. Uysal of the Comprehensive Epilepsy Center, Department of Neurology, University of Kansas Hospital indicated that the Veteran had epilepsy and he reported having one convulsive seizure the night before, and in view of this, his medications were increased. An April 2014 VA examination report shows a diagnosis of seizures with EEG abnormalities. The Veteran had the following findings, signs, and symptoms attributable to seizure disorder (epilepsy) activity: episodes of unconsciousness, brief interruption in consciousness or conscious control, staring, sudden jerking movement of the arms, trunk or head (myoclonic type), sudden loss of postural control (akinetic type), complete or partial loss of use of one or more extremities, random motor movements, perceptual illusions, abnormalities of thinking, abnormalities of memory, speech disturbances, impairment of vision, and tremors. Minor seizures (characterized by 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)), occurred two or more times in the past 6 months and 5 to 8 times per week. Major seizures (characterized by the generalized tonic-clonic convulsion with unconsciousness) had occurred at least twice in the past year and at least once in the past 4 months. The Veteran had minor psychomotor seizures (characterized by brief transient episodes of random motor movements, hallucinations, perceptual illusions, abnormalities of thinking, memory or mood, or autonomic disturbances) at least twice or more in the past 6 months and at least 9 to 10 per week. The Veteran had major psychomotor seizures (major psychomotor seizures are characterized by automatic states and/or generalized convulsions with unconsciousness) at least twice in the past year and less than one in the past 6 months. The examiner opined that seizures impacted the Veteran's ability to work in that he had to take seizure precautions including, including restrictions from climbing ladders, working in heights, use of power tools, driving, and exposure to flashing lights. The Veteran was able to perform the following in a normal 8 hour work day: modified sedentary or light duty work, such as administrative position requiring light physical activities (i.e. typing, writing, walking, assembly parts, packaging). A May 2014 treatment record from the Comprehensive Epilepsy Center, Department of Neurology, University of Kansas Hospital indicates that the Veteran returned for a follow up visit. Since the increase in medication, the Veteran had not had any seizures for the first two or three months, however, the seizures had then started coming back. The Veteran indicated that he thought the seizures were much shorter and of reduced severity; the seizures presented as dizziness, lightheadedness, and some feeling of being foggy, and the seizures lasted about 30 to 60 seconds. The Veteran's wife reported that she had noted a difference from the past seizures, in that they were no longer noticeable by just looking at the Veteran. The evidence - including examination and treatment reports, as well as the admissible and probative observations of the Veteran and his wife - reflects that the seizure symptoms have been variable since June 29, 2010. However, considering the evidence in light most favorable to his claim, the Board finds that the disability more closely reflects the criteria for the award of an 80 percent, but not 100 percent rating. Specifically, though the frequency of seizure events has changed, since June 29, 2010 they have generally been manifest by an average of at least one major seizure within three months of the prior year; or more than 10 minor seizures weekly. Most probative, are reports of treatment in December 2011 at the Mid-America Cardiology of the University of Kansas, and from VA examination in April 2014. It was in December 2011 that the Veteran reported becoming lightheaded 2 to 3 times a day (i.e., between 14 and 21 times each week), while on VA examination in April 2014 he endorsed 9 to 10 psychomotor seizures a week with minor seizures otherwise occurring 5 to 8 times per week (i.e., a total of 14 to 18 times each week). While the distinction between psychomotor seizures and minor seizures is somewhat unclear, and symptoms may be partially overlapping, the Board nonetheless finds that the weight of the evidence supports the award of an 80 percent rating based on the frequency of distinct seizure events. While the criteria for an 80 percent rating have been met, at no time during the period on appeal has the evidence reflected that the Veteran's seizure disorder been productive of an average of at least 1 major seizure per month over the prior year, nor has the Veteran suggested as much. Accordingly, the criteria for a 100 percent rating have not been met, or closely approximated at any time during the period on appeal. 38 C.F.R. § 4.124a, DC 8910. In their January 2016 JMR, the parties argued that the Board had not adequately consider or discussed "why 2 to 3 minor seizures a day does not equate to more than 10 minor seizures a week in December 2011," or "whether Appellant's 5 to 8 minor petit mal and 9 to 10 minor psychomotor seizures equate to more than 10 minor seizures weekly" in April 2014. Having reconsidered the foregoing evidence, the Board has concluded that this frequency of symptoms does, in fact, amount to more than 10 minor seizures weekly. Accordingly, resolving reasonable doubt in the Veteran's favor, the Board concludes that the service-connected seizure disorder disability has been 80 percent disabling, but no higher, since June 29, 2010. 38 C.F.R. §§ 4.3, 4.7. All evidence has been considered and there is no doubt to be resolved. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Having evaluated his seizure disorder on a schedular basis, the Board has also considered whether referral for an extraschedular rating is warranted for the same. The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Thun v. Peake, 22 Vet. App. 111 (2008). Therefore, initially, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the Veteran's disability level and symptomatology, then the Veteran's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is adequate and no referral is required. Id. at 115. The schedular rating criteria used to rate the Veteran's service-connected disability above, reasonably describe and assess the Veteran's disability level and symptomatology. The criteria rate the disability on the basis of frequency of both major and minor seizures, and specifically incorporate additional symptoms such as generalized convulsions, unconsciousness, brief transient episodes of random motor movements, hallucinations, perceptual illusions, abnormalities of thinking, memory or mood, and autonomic disturbances. Thus, the demonstrated manifestations - namely frequent seizure events of differing magnitudes, with symptoms including perceptual illusions, dizziness, and reduced capacity to communicate effectively - are contemplated by the provisions of the rating schedule. Accordingly, the Board finds that the evidence fails to show unique or unusual symptomatology regarding the Veteran's service-connected seizure disorder that would render the schedular criteria inadequate. Additionally, the Veteran has not alleged or indicated that the collective impact or combined effect of more than one service-connected disability presents an exceptional or unusual disability picture to render inadequate the schedular rating criteria. See Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014). Nonetheless, the Board has fully considered the Veteran's additional service-connected disabilities sleep apnea, sinus node dysfunction, adjustment disorder, hypertension, thrombocytopenia, splenomegaly, and residual scars from his pacemaker implantation in concluding that referral for consideration of an extraschedular rating is not warranted. Based on the foregoing, the Board finds the schedular evaluation is adequate, and referral for consideration of extra-schedular evaluation is not required. 38 C.F.R. § 3.321; Thun, 22 Vet. App. 111. Finally, the record does not reveal that the Veteran is claiming to be rendered unemployable by virtue of seizures, and the Board finds that the record has not raised an implied claim for a total disability rating based on individual unemployability due to service-connected disabilities pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009); thus no discussion or remand of such a claim in warranted. Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2015). The Veteran's appeal arises from an appeal of the initial evaluation following the grant of service connection. Once service connection is granted the claim is substantiated, and additional notice is not required. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); 38 C.F.R. § 3.159(b)(3)(i) (no duty to provide notice upon receipt of a notice of disagreement); VAOPGCPREC 8-2003 (in which the VA General Counsel interpreted that separate notification is not required for "downstream" issues following a service connection grant, such as initial rating and effective date claims). Based on the foregoing, adequate notice was provided to the Veteran prior to the transfer and certification of this case to the Board and complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b), and no further notice is needed under applicable VA laws and regulations. VA also has a duty to assist an appellant in the development of the claim. To that end, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2015); see Golz v. Shinseki, 590 F.3d 1317, 1320-21 (2010) (stating that the "duty to assist is not boundless in its scope" and "not all medical records . . . must be sought - only those that are relevant to the veteran's claim"). The Board finds that VA has satisfied its duty to assist by acquiring service records as well as records of private and VA treatment. These pertinent records have been associated with the Veteran's claims file and reviewed in consideration of the issues before the Board. Additionally, the Veteran underwent VA examinations in 2008, 2009 and April 2014 to obtain medical evidence as to the nature and severity of seizure disorder. The Board finds that the VA examinations are adequate for adjudication purposes. The examinations were performed by medical professionals based on a review of claims file, a solicitation of history and symptomatology from the Veteran, and a thorough examination of the Veteran. The VA examiners carefully examined the Veteran. The examination reports are accurate and fully descriptive. The Board finds that for these reasons, the Veteran has been afforded adequate examinations. The Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the duties to notify and assist the Veteran have been met, so that no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim. ORDER An initial rating of 80 percent, and no higher, for a seizure disorder is granted, since June 29, 2010. ____________________________________________ M. TENNER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs