Citation Nr: 1753828 Decision Date: 11/24/17 Archive Date: 12/01/17 DOCKET NO. 08-39 549 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an increased rating for grand mal epilepsy, currently evaluated as 40 percent disabling. 2. Entitlement to service connection for a left shoulder rotator cuff tear. 3. Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected grand mal epilepsy. 4. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD R. Brunot, Associate Counsel INTRODUCTION The Veteran served in the United States Navy from November 1974 to November 1979, February 1981 to January 1985, January 1985 to January 1987, January 1987 to November 1988, and November 1988 to February 1996. This matter comes before the Board of Veterans' Appeals (Board) from a May 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The jurisdiction of this case subsequently transferred to the RO in Montgomery, Alabama. The May 2007 rating decision continued a 10 percent rating for epilepsy. In May 2015, the Veteran's disability rating for epilepsy was increased to 40 percent for the appeal period. In December 2008, the Veteran requested a hearing before the Board. The Veteran subsequently withdrew his request in September 2011. 38 C F R §20 704(e) This case was previously remanded by the Board in November 2012 for additional development. The issue of entitlement to service connection for sleep apnea is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran's epilepsy does not result in on average at least 1 major seizure in 4 months over the last year or 9 to 10 minor seizures per week. . 2. The preponderance of the evidence reflects that the Veteran's left shoulder disability was not due to his active duty service. 3. The Veteran's service-connected disabilities combined preclude substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 40 percent for the Veteran's grand mal epilepsy disability have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1-4.16, 4.121, 4.124a, Diagnostic Code 8910 (2017). 2. The criteria for service connection for the Veteran's left shoulder disability have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2017). 3. The criteria for a TDIU have been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist VA's duty to notify was satisfied by a letter sent in March 2007. 38 U.S.C. §§ 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017); Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Additionally, VA has a duty to assist claimants in substantiating their claims for VA benefits. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). The evidence of record includes the Veteran's Service Treatment Records (STRs), his Social Security Administration (SSA) records, his private medical records, his VA treatment records, and the reports of his VA examinations. The Veteran has not referred to any additional, unobtained, relevant, available evidence. Consequently, all relevant, identified, and available evidence has been obtained. The duty to assist also includes providing an examination when the record indicates a claim may have merit but there is insufficient evidence to decide the matter. 38 U.S.C. § 5103A (2012); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Furthermore, once VA undertakes the effort to provide an examination, it must provide an adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In November 2012, the Board remanded the case for the Veteran to receive a new VA examination for his seizure and left shoulder disabilities. VA has a duty to substantially comply with the Board's remand directives. Stegall v. West, 11 Vet. App. 268 (1998). In accordance with the remand directives, the Veteran received a new VA examination in May 2015. The Board finds the May 2015 examination adequate as the examiner reviewed the claims file, examined the Veteran, considered the Veteran's lay statements, and provided detailed findings. Accordingly, the Board's duty to assist has been fulfilled. II. Increased Rating for Grand Mal Seizures Disability ratings are determined by applying the criteria established in VA's Schedule for Rating Disabilities, which is based upon the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.20 (2017). When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). Consideration must be given to increased evaluations under other potentially applicable Diagnostic Codes. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate ratings may be assigned for separate periods of time based on the facts found; this practice is known as staged ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a competent source. Second, the board must determine if the evidence is credible. Third, the Board must weigh the probative value of evidence in light of the entirety of the record. The Veteran's seizure disability is evaluated under Diagnostic Code 8910, grand mal epilepsy. Under Diagnostic Code 8910, grand mal epilepsy is rated under the General Rating Formula for Major Seizures. 38 C.F.R. § 4.124a. Under the General Rating Formula for Major and Minor Epileptic Seizures, a 40 percent rating is warranted when there is at least 1 major seizure in the last 6 months or 2 in the last year; or on average at least 5 to 8 minor seizures weekly. Id. A 60 percent rating is warranted when there is on average at least 1 major seizure in 4 months over the last year; or 9-10 minor seizures per week. An 80 percent rating is warranted when there is on average at least 1 major seizure in 3 months over the last year; or more than 10 minor seizures weekly. A 100 percent rating is warranted when there is on average at least 1 major seizure per month over the last year. Id. In the presence of major and minor seizures, the predominating type is rated, and there is no distinction between diurnal and nocturnal major seizures. Additionally, 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. The Veteran's private treatment records and VA treatment records document the Veteran's treatment for his seizures. The Board acknowledges the Veteran's disability has worsened over time which is evidenced by the documented increase in the dosage of his medication. The evidence of record documents that the Veteran is continuously on medication to control his seizures. The Veteran received a VA examination in April 2007. The examiner noted the Veteran had 2 seizures in October 2005, 1 in November 2005, and 1 in November 2006. The Veteran's dosage was increased after his most recent seizure in November 2006. The examiner noted the Veteran's seizures did not impact his daily life because they were controlled with medication. Thus, his seizures had no significant effect on his employment. The Veteran's next VA examination was in February 2010. At this time, the Veteran's most recent seizure was in March 2008. The examiner noted the Veteran had 4 seizures in the past 5 years. The VA examiner noted the frequency of the Veteran's seizures had not changed in the past year. Additionally, the frequency of the Veteran's medical visits was less than once a year. He required continuous medication to control the seizures. He did not have narcolepsy. The Veteran then received a VA examination in November 2014. The examiner noted the Veteran's most recent seizure was in November 2013. Most of the Veteran's seizures occurred when the Veteran was asleep, but his most recent seizure happened while the Veteran was driving. The Veteran's medication was subsequently increased. The examiner noted the Veteran had no minor seizures only major; he had 2 major seizures in the past year but none in the past 6 months. The VA examiner also opined the Veteran's disability had no functional impact on his ability to work. The Veteran's most recent VA examination was in May 2015. The examiner noted the Veteran had generalized tonic-clonic convulsions with brief interruptions in consciousness or conscious control. His most recent seizure had been in November 2013. The Veteran had not had any major seizures in the previous 2 years. He had a major psychomotor seizure in the past but had not had one in the previous 2 years. He did not have any minor seizures. Like previous VA examiners, the May 2015 examiner concluded the Veteran's disability had no functional impact on his ability to work. He required continuous medication to control the seizures. The Board acknowledges that the Veteran's seizure disorder has increased in severity. Nevertheless, while the Veteran may require an increased dosage in medication, the frequency of the Veteran's seizures does not warrant an increased in rating. The Veteran's most recent VA examination documented that the Veteran had not had a seizure in the past two years. This frequency was similar to the frequency noted in the Veteran's November 2014 and February 2010 VA examinations. The Veteran's earlier examinations do not show the requisite frequency the Veteran would need for a higher rating: on average 1 major seizure in 4 months over the past year or 9 to 10 minor seizures per week. Furthermore, there is nothing in the evidence of record to suggest at any point during the appeal period that the Veteran's had seizures frequently enough to warrant a 60 percent rating. Thus, the Board finds the preponderance of the evidence is against the claims and an increase in excess of 40 percent is denied. III. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2017). If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity for certain diseases. 38 C.F.R. §§ 3.303(a), (b), 3.309(a) (2017); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). To establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. See 38 C.F.R. § 3.303 (2017); see also Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a competent source. Second, the board must determine if the evidence is credible. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). Third, the Board must weigh the probative value of evidence in light of the entirety of the record. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102 (2017). When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 4 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). In an April 2007 statement, the Veteran contended that he hurt his right and left shoulder using a lawn mower, but that because his right shoulder was worse, he did not seek treatment for the left. In August 2007, he contended that instead he injured his shoulder when he fell off a roof in October 1993. STRs from October 1993 and after do not document this incident. A March 1995 STR notes that in October 1993, the Veteran fractured his left heel. In a March 1995 Report of Medical History, the Veteran checked "no" to the question of whether he had a painful or "trick" shoulder. At his physical examination in March 1995, his upper extremities were found to be normal. The medical records show that he first complained of left shoulder pain in 2001. The Veteran underwent surgery on his left shoulder and was diagnosed with chronic degenerative joint disease including bursitis. The Veteran then had rotator cuff repair surgery. In November 2014, the Veteran received a VA examination. The VA examiner opined the Veteran's left shoulder disability was not related to service. The VA examiner noted there was no mention of the Veteran's condition on his retirement physical or his STRs. The examiner noted that the STRs contained multiple flight physical examinations showing no left shoulder symptoms. Significantly, the examiner noted that the Veteran's surgery was for a post-service injury related to moving items in his home. The Veteran's most recent VA examination was in May 2015. The examiner here took note of the Veteran's report of a right shoulder injury while in service and the Veteran's statement that his left shoulder was injured at that time, but to a lesser degree. However, the examiner also noted the absence of complaints about the left shoulder until 2001. Ultimately, the VA examiner opined "a significant injury would have manifested itself initially or within the first year." Therefore, the VA examiner concluded the Veteran's current left shoulder disability was not related to any in-service incident. The examiner's opinion provides probative evidence against the Veteran's claim. The most probative evidence of record shows that service connection is not warranted for the Veteran's left shoulder disability. The Veteran's STRs lack any diagnosis, treatment, or complaints for a left shoulder injury, and he specifically denied shoulder problems in his March 1995 Report of Medical History. The Veteran's complaints began in 2001, 6 years after service. While the Board considers the Veteran's lay statements that he injured his left shoulder at the same time he injured his right, the Board finds the May 2015 VA examiner's opinion more probative. The May 2015 VA examiner also considered the Veteran's lay statements, but the examiner concluded if the Veteran's left shoulder was injured at that time, the injury would have manifested sooner. The Board considered the Veteran's assertion that he fell from a roof in October 1993 and injured his left shoulder. However, the STRs do not document such a fall. There are STRs from October 1993 and no injury or shoulder symptoms are referenced. If the Veteran fell from a roof in service, no left shoulder symptoms were reported, and he later denied shoulder problems in a Report of Medical History. In assigning more probative weight to the VA examiner's opinion the Board finds the preponderance of probative evidence outweighs the Veteran's claim. Therefore, the benefit-of the-doubt doctrine is inapplicable and service connection is not warranted. See 38 C.F.R. § 3.102 (2017); Alemany v. Brown, 9 Vet. App. 518 (1996). IV. TDIU Total disability is considered to exist when there is any impairment 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) (2017). A total disability rating for compensation purposes may be assigned on the basis of individual unemployability: that is, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. If there is only one service-connected disability, it must be rated 60 percent or more; if there are two or more service-connected disabilities, at least one disability must be rated 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a) (2017). Individual unemployability must be determined without regard to any nonservice-connected disabilities or the Veteran's advancing age. 38 C.F.R. §§ 3.341(a), 4.19 (2017); Van Hoose v. Brown, 4 Vet. App. 361 (1993). When the Board conducts a TDIU analysis, it must take into account the individual's education, training, and work history. Pederson v. McDonald, 27 Vet. App. 276 (2015). The threshold criteria to consider a TDIU on a schedular basis have been met since November 2006, as his epilepsy has been rated at 40 percent since that time, with additional disabilities resulting in a combined disability rating of 70 percent or higher over the course of his appeal. 38 C.F.R. § 4.16(a). After his military service, the Veteran worked as a maintenance repair electrician from 1999 to 2008. The Veteran noted due to his disabilities he had nerve damage, loss of mobility, and was unable to walk without a walker. In June 2009, the Veteran received an employability examination. The examiner opined the Veteran's service connected left foot condition may interfere with heavy physical work but would not preclude light physical or sedentary work. The examiner concluded the Veteran's non-service-connected back condition may also interfere with physical but not sedentary work. The examiner concluded the Veteran's recurrent kidney stones, bilateral hernias, epilepsy, and sleep apnea had no effect on his daily activities. The Board concludes the preponderance of the evidence shows the Veteran's service connection disabilities rendered him unemployable. The Board notes the June 2009 examiner and the Veteran's lay statements point to the Veteran's back condition as interfering with his prior job. At the time of the June 2009 examination, the Veteran's lumbar spine disability was not service connected, but the Veteran is now service connected for this condition. As noted by the examiner and the Veteran's back, in addition to his left foot disability, preclude the Veteran from heavy physical work, but he could engage in light physical work. However, in evaluating the Veteran's employability the Board must also consider the Veteran's employment history. The Veteran is trained as a maintenance repair electrician, which required the Veteran to be on his feet. Furthermore, the evidence of record notes the Veteran's right shoulder condition limits his range of motion, specifically his ability to reach overhead. Thus, his shoulder disability would also interfere with his employment. Accordingly, the Board finds TDIU is warranted as the Veteran's service-connected disabilities render him unemployable. See 38 C.F.R. § 3.102 (2017). ORDER Entitlement to a rating in excess of 40 percent for grand mal epilepsy is denied. Entitlement to service connection for left shoulder rotator cuff tear is denied. Entitlement to a TDIU claim is granted. REMAND With regard to the Veteran's sleep apnea, the Board remanded this case in November 2012 so that an examination could be provided. The Veteran asserts that his sleep apnea is due to his service-connected epilepsy. In November 2014, the VA examiner addressed the causation prong of a secondary service connection claim by stating that epilepsy is not a risk factor for sleep apnea, and that sleep apnea is due to an obstruction of the upper airway and epilepsy is due to faulty neurotransmission in the brain. However, the examiner did not provide an opinion as to the aggravation prong of a secondary service connection claim. An addendum opinion is needed. Accordingly, the case is REMANDED for the following action: 1. Return the Veteran's claims file to the November 2014 examiner who provided the opinion regarding the Veteran's sleep apnea. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. A new examination is only required if deemed necessary by the examiner. The examiner must opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's sleep apnea was aggravated beyond its natural progression by his service-connected epilepsy. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 2. Then, readjudicate the claim. If any decision is adverse to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response. Then, return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ____________________________________________ D. Martz Ames Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs