Citation Nr: 1806292 Decision Date: 01/31/18 Archive Date: 02/07/18 DOCKET NO. 12-29 550 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection, to include on a secondary basis, for an acquired psychiatric disorder. 2. Entitlement to a disability rating in excess of 20 percent for a seizure disorder. 3. Entitlement to a total disability rating due to individual unemployability (TDIU). ATTORNEY FOR THE BOARD J. Cheng, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from October 2001 to May 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from January 2009 and September 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. In October 2010, the Veteran testified at a hearing at the RO before a Decision Review Officer (DRO). A transcript of the hearing has been associated with the claims file. This matter was previously remanded by the Board in September 2016. The Board finds there was substantial compliance with the requested development. Dyment v. West, 13 Vet. App. 141 (1999); Stegall v. West, 11 Vet. App. 268 (1998). The Board highlights from the September 2016 Board remand that although there is no submission or communication from the Veteran that may be construed as a notice of disagreement with the January 2009 rating action, VA was in receipt of new and material evidence within one year of the rating decision addressing the acquired psychiatric disorder and seizure conditions and must relate any communication subsequent back to this original claim. 38 C.F.R. § 3.156(b) (2017); see Buie v. Shinseki, 24 Vet. App. 242, 252-52 (2010); see also Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011). As such, the Veteran's service connection acquired psychiatric disorder claim is from October 2008 and the Veteran's increased rating seizure disorder claim is from February 2008. Subsequent to the September 2016 Board remand, the Veteran's attorney representative withdrew his representation in March 2017, prior to the recertification of the claim to the Board. See 38 C.F.R. § 20.608 (2017). Thus, his power of attorney has been revoked, and the Veteran now proceeds unrepresented. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. The Veteran does not have PTSD. 2. A psychiatric disorder, to include adjustment disorder, did not have its onset in active service and it is not related to such service or to the service-connected seizure disorder. 3. Symptoms of the Veteran's seizure disorder did not more nearly approximate an average of at least five to eight minor seizures weekly, at least one major seizure in the last six months, or at least two major seizures in the last year. 4. The Veteran does not meet the schedular criteria for TDIU and is not precluded from participating in substantially gainful employment due to his service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for a psychiatric disorder are not met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304(f), 3.310 (2017). 2. The criteria for a disability rating higher than 20 percent for a seizure disorder have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.3, 4.124a, Diagnostic Code 8910 (2017). 3. The criteria for an award of TDIU have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist VA provided the Veteran with 38 U.S.C. § 5103(a)-compliant notice in March 2008, November 2008, and February 2009. The record also shows that VA has fulfilled its obligation to assist the Veteran in developing the claims, including with respect to VA examination of the Veteran. The Board also notes that the Veteran has claimed he is in receipt of Social Security Administration (SSA) disability benefits for his seizure disorder in September 2012. Although records with that agency have not been obtained, nothing in the record suggests that those records would provide information not already of record, nor has the Veteran indicated such records would provide pertinent information in support of his claims. See Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2009). As such, the Board finds that there is no prejudice in proceeding with the appeal. Accordingly, the Board finds that VA's duty to assist has been met. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. In order to establish entitlement to service connection, there must be (1) 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) a causal connection between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310(a). When aggravation of a nonservice-connected disability is proximately due to or the result of a service-connected disability, the Veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(b); Allen v. Brown, 7 Vet. App. 439 (1995). Service connection for PTSD requires: (1) medical evidence establishing a diagnosis of PTSD; (2) credible supporting evidence that the claimed in-service stressor occurred; and (3) a link established by medical evidence, between current symptoms and an in-service stressor. 38 C.F.R. § 3.304(f). The PTSD diagnosis must be made in accordance with the criteria of Diagnostic and Statistical Manual of Mental Disorders (DSM). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Acquired Psychiatric Disorder Factual Background The Veteran is seeking service connection for his acquired psychiatric disorder which he indicated arose in service as a result of being told that he was going to be mobilized to a combat area. The Veteran has also indicated that his acquired psychiatric disorder may be associated with his service-connected seizure disorder. A review of the STRs does not show any complaints related to or diagnosis of a psychiatric disorder. VA treatment records in January 2006 and October 2008 noted the Veteran had a positive score on PTSD screens. A subsequent October 2008 VA treatment record noted, after a mental health evaluation, assessments of major depression with psychotic features, rule out (r/o) personality change due to seizure disorder, and seizure disorder. During the October 2008 mental health evaluation, the provider noted the Veteran did not see combat but presented with symptoms of weekly nightmares of dying and fighting, increased alert/hypervigilance, increased startle response, and no avoidance. The provider noted that according to the Veteran's wife, the Veteran had experienced several characteristic changes following seizure, specifically, the Veteran used to be passive, calm, and quiet. The spouse described the Veteran's current personality as positive for aggression, irritability, anger outbursts, decreased memory, processing problems, negative thoughts, and lack of empathy. The spouse also reported the Veteran had little confidence and was less trusting. During evaluation, the Veteran stated he wanted to retire from the military and reported he no longer felt like a soldier. He reported great pride in his military career. The Veteran was noted as interested in a career in law enforcement. The provider noted the Veteran had a history of failing police officer and fireman testing in several counties. The provider noted that prior to his military service, the Veteran worked as a truck driver for eight years and in asbestos/hazardous material clean-up for ten years. The provider noted that after discharge from active service, the Veteran was a driver of a concert tour bus and currently attended a college program to study criminal justice. The Veteran was noted to have one and a half years of the program left to complete. The provider noted that money problems and the Veteran's lack of employment created marital stress and that the Veteran had a legal history of being charged with falsifying documents in Spalding Co. As a result, his employment terminated. VA treatment records in November 2008, December 2008, January 2009 VA treatment record noted an assessment of major depressive disorder. In a December 2008 statement in support of claim for service connection for PTSD, the Veteran reported his seizure problem came on after he was admitted for deployment and that PTSD was found in 2008 during his last examination. A December 2008 Veterans Service Center Joint Services Records Research Coordinator (JSRRC) memorandum noted a formal finding of a lack of information required to corroborate stressors associated with the Veteran's claim for service connection for PTSD. Private treatment records of individual therapy session with therapist, Dr. D.S., from December 2009 to June 2010 noted the Veteran's continued strained marital relationship. The provider assigned Axis I diagnoses of dysthymic disorder, PTSD (by history), and ADHD (by history). During the October 2010 DRO hearing, the Veteran reported that he experienced emotional distress when he found out that his military life was going to be taken away due to his illness and that the medical discharge was traumatic since it placed him and his family in a financial predicament and that his family would not have enough time to get settled post-discharge. The Veteran also indicated that his PTSD was based on the fact that prior to his seizures, he was going to be mobilized into a combat area. The Veteran reported he had suicidal tendencies as a result of the emotional distress. The Veteran reported that his PTSD treatment began with Dr. P. at the VA and then he was referred to Dr. D.S. He indicated that Dr. D.S. stated he fell right on the lines with PTSD. The Veteran reported that his wife says he is a totally different man, specifically that he used to be calm, collected, and difficult to upset. He indicated that now he is very easily upset and hypervigilant. In an April 2012 VA treatment record, the Veteran reported he was recommended to be released from the Army after having a seizure during active service. He reported that he became very angry after being released from the Army and remained bitter to this day. He stated he experienced flashbacks and nightmares related to the incident. The provider noted there was no other PTSD symptoms and noted an assessment of major depressive disorder without psychotic features, r/o PTSD. An April 2013 VA treatment record noted that during a follow up with the Veteran regarding his mental health referral to McIntosh CSB, the Veteran reported he never connected to CSB and no longer needed the services at the time. A November 2013 VA examination noted the Veteran had a negative score on a PTSD screen. In a November 2016 VA examination, the examiner assigned a diagnosis of adjustment disorder with mixed anxiety and depressed mood. The examiner indicated there were no other mental disorders. The examiner noted the Veteran had occupational and social impairment due to mild or transient symptoms which decreased work efficiency and ability to perform occupation tasks only during periods of significant stress; or symptoms were controlled by medication. The examiner indicated a thorough review of the claims file. The examiner noted the Veteran was married once for 20 years and the Veteran reported that the marriage ended because his personality changed when he came out of service. Regarding social relations, the Veteran perceived that he had one to two associates and that for leisure, he enjoyed spending time with his children and grandchildren. The examiner noted the Veteran completed one and a half years of college towards a Bachelor's degree in criminal justice and the Veteran reported his grades were up and down because of stress. The examiner noted the Veteran was currently enrolled but had not attended classes in two years because he had exhausted all of his financial aid and VA money. The examiner noted the Veteran served in the Army from 2000 to 2005 with a military occupational specialty (MOS) as a motor transport operator. The Veteran reported that he had a seizure and missed deployment. The Veteran stated he believed the seizures were caused by a reaction to anthrax. He reported his direct commander in charge tried to discharge the Veteran after he had a grand mal seizure. The examiner noted the Veteran attained an honorable discharge at a rank of E4 with no infractions. The examiner noted that for the past 18 years, the Veteran had worked as a long/short distance truck driver. Other employment included working as a correctional officer for one year and as a sheriff's department jail officer for nine months. The examiner noted the sheriff's department terminated the Veteran's employment because of falsified documents. The examiner noted that for two years, the Veteran also worked as a bouncer while in-between jobs. During examination, the examiner noted the Veteran's symptoms included depressed mood, anxiety, chronic sleep impairment, and impaired abstract thinking. After examination, the examiner noted the Veteran did not endorse enough symptoms to meet the DSM-V criteria for a diagnosis of major depression. The examiner also noted the Veteran did not currently endorse symptoms of psychosis. The examiner opined that the Veteran's adjustment disorder was less likely than not related to the seizure disorder because he had not had seizures in almost 10 years and was not currently on any seizure medication. The examiner also opined that the adjustment disorder was less likely as not incurred in service or related to service because the STRs were silent for complaints of psychiatric illness. The examiner also found that a diagnosis of PTSD was not warranted due to the absence of DSM-V criterion A. The examiner noted regarding the extent of psychosocial impairment, the Veteran had steadily held employment and reiterated that he had worked as a truck driver for 18 years total. The examiner noted the Veteran was terminated from one job reportedly for falsifying documentation. The examiner noted the Veteran had sound relationships with his siblings, children, and grandchildren. The examiner also noted that the Veteran was helping to raise his 15 and 16 year old sons and that he could perform basic activities of daily living and personal care. The examiner acknowledged the Veteran's reports of being socially isolated. Analysis Initially, with respect to a current diagnosis of PTSD, the threshold consideration for any service connection claim is the existence of a current disability. 38 U.S.C. § 1110; 38 C.F.R. § 3.303; Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223 (1992). In particular, aside from credible evidence of an in-service stressor, current medical evidence diagnosing PTSD in accordance with 38 C.F.R. § 4.125(a) is required, and competent evidence of a nexus between current PTSD and a verified in-service stressor. 38 C.F.R. § 3.304(f); Cohen v. Brown, 10 Vet. App. 128 (1997). In this case, the evidence does not show that the Veteran was appropriately diagnosed with PTSD in accordance with 38 C.F.R. § 4.125(a) under the DSM. Most notably the November 2016 VA examiner specifically reported that the Veteran's symptoms did not meet the criteria for a PTSD diagnosis. VA treatment records show several positive PTSD screens, but VA treatment records ultimately do not contain a diagnosis of PTSD in conformance with the DSM criteria. The Board also acknowledges private treatment records from Dr. D.S. from December 2009 to June 2010, that noted diagnosis of PTSD. However, the private provider indicated the diagnosis was made based on subjective history and not based on a review of the Veteran's entire claims file. Furthermore, there was no indication that the provider conducted an actual mental health evaluation in conformance with the DSM to diagnose PTSD nor did the provider specifically relate the Veteran's PTSD to the Veteran's claimed in-service stressor. The Board accordingly finds such reports to be less probative than the more thorough report provided by the November 2016 VA examiner. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998) (the failure of the health care provider to provide a basis for his/her opinion goes to the weight or credibility of the evidence). Thus, the Board affords the private provider's diagnosis of PTSD no probative value. Consequently, the Board finds that the criteria for service connection for PTSD are not met. Turning to the Veteran's diagnosed adjustment disorder with mixed anxiety and depressed mood, the Board notes that the only adequate medical opinion evidence of record, the November 2016 VA examination, weighs against the claim for service connection for adjustment disorder as due to military service or as due to his service connected seizure disorder. The Board finds that the November 2016 VA examiner's opinion is probative, as it was based upon a thorough, accurate review of the record, to include specific assertions from the Veteran and is supported by a sufficient rationale. While the Veteran is competent to report things that come to him through his senses, the Veteran is not competent to provide an etiology opinion regarding a psychiatric disability as that requires specialized training. The Board also acknowledges statements from the Veteran's wife who indicated she noticed personality changes in the Veteran upon his release from military service. However, the Veteran's wife did not indicate that she had specialized training that would show she was competent to provide etiology opinions of psychiatric disabilities. In addition, the Board finds the examiner's nexus opinions regarding the Veteran's adjustment disorder on a direct and secondary basis more persuasive because of the many years of training and expertise of the examiner. Moreover, the Veteran has not submitted any contrary competent evidence linking the Veteran's psychiatric disorder to service or service connected disability, aside from his own assertions, a fact considered by the VA examiner. The Board acknowledges that the treatment records have noted the Veteran's subjective history regarding his psychiatric disabilities, to include his relating his psychiatric symptoms to active service and to his service connected seizure disorder. Although the treatment providers have assigned diagnoses to include major depressive disorder and PTSD based on the Veteran's subjective account, these providers have not specifically provided an opinion supported by adequate rationale that the Veteran's psychiatric disorders are related to the Veteran's active service or to his service-connected seizure disorder. As such, the Board reiterates that there is no competent evidence linking the Veteran's psychiatric disorder to service or service-connected seizure disorder. Accordingly, the Board concludes that the probative evidence of record does not support the claim of entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and adjustment disorder on a direct and secondary basis. The Board finds that the preponderance of the evidence is against the claim, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Increased Rating VA has adopted a Schedule for Rating Disabilities to evaluate service-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 3.321; see generally, 38 C.F.R. § Part IV. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. The percentage ratings in the Schedule for Rating Disabilities represent, as far as practicably can be determined, the average impairment in earning capacity resulting from service-connected diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Diagnostic codes in the rating schedule identify various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. All reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Separate ratings for distinct disabilities resulting from the same injury or disease can be assigned so long as the symptomatology for one condition is not "duplicative or overlapping with the symptomatology" of the other condition. See Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009); Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). However, the evaluation of the same disability or its manifestations under various diagnoses, which is known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. Because the level of disability may have varied over the course of the claim, the rating may be "staged" higher or lower for segments of time during the period under review in accordance with such variations, to the extent the evidence shows distinct time periods where the service-connected disability has exhibited signs or symptoms that would warrant different ratings under the rating criteria. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). For increased-rating claims, where a claimant seeks a higher evaluation for a previously service-connected disability, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). For such claims, VA considers the level of disability for the period beginning one year prior to the claim for a higher rating to determine whether and when an ascertainable increase has occurred. See Hart, 21 Vet. App. at 509; Hazan v. Gober, 10 Vet. App. 511, 519 (1992); 38 U.S.C. § 5110 (b)(2); 38 C.F.R. § 3.400(o)(2). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (providing, in pertinent part, that reasonable doubt will be resolved in favor of the claimant). When the evidence supports the claim or is in relative equipoise, the claim will be granted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); see also Wise v. Shinseki, 26 Vet. App. 517, 532 (2014). If the preponderance of the evidence weighs against the claim, it must be denied. See id.; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Seizure Disorder Factual Background The Veteran's seizure disorder was assigned a 20 percent rating under 38 C.F.R. § 4.124a, Diagnostic Code (DC) 8910. Under DC 8910, grand mal epilepsy is rated under the general rating formula for major seizures. Id. Under the General Rating Formula for Major and Minor Epileptic Seizures, a rating of 100 percent is assigned for an average of at least 1 major seizure per month over the last year. An 80 percent rating is assigned for an average of 1 major seizure in 3 months over the last year; or more than 10 minor seizures weekly. A 60 percent rating is assigned for 1 major seizure in 4 months over the last year; or 9 to 10 minor seizures per week. A 40 percent rating is assigned 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 20 percent rating is assigned for at least 1 major seizure in the last 2 years. A 10 percent rating is assigned for a confirmed diagnosis of epilepsy with a history of seizures. Id. When there is doubt as to the true nature of epileptiform attacks, neurological observation in a hospital adequate to make such a study is necessary. 38 C.F.R. § 4.121. To warrant a rating for epilepsy, the seizures must be witnessed or verified at some time by a physician. Id. As to frequency, competent and consistent lay testimony emphasizing convulsive and immediate post-convulsive characteristics may be accepted. Id. The preponderance of the evidence shows that the Veteran's seizure disorder did not meet or more nearly approximate the criteria for a rating higher than 20 percent during the period under review. A June 2007 treatment record from Southern Crescent Physicians Group (SCPG) Neurology Services noted that it had been over two years since the Veteran had a seizure. In a March 2008 VA examination, the examiner noted that the Veteran has major seizure disorder where his limbs become rigid, eyes roll to back of the head, and whole body convulses during an attack. The examiner indicated that this continues until medical attention is sought but by that time, Veteran has had involuntary release of urine and bowels. The Veteran stated that his memory is not completely restored for two or more days after a seizure and that the attack occurs by itself and is alleviated by medication. The examiner noted that the Veteran has not had any attacks in the last two years, with the last attack in December 2005. The Veteran reported that due to the disorder, he has had localized head pain since 2003 that occurred five times a week, last one hour at a time. The Veteran reported the characteristic of the pain as squeezing and that the pain level was a four out of ten. The Veteran indicated the pain was relieved by rest and medication and that at the time of pain, he required bed rest. The Veteran described the symptoms as his head hurting until the point that he had to lay down and that the medication made him feel worse at times. He also reported he had difficulty hearing in his right ear at times. The Veteran indicated his seizure medication made him feel light headed and drowsy, had caused irreversible bloating and weight gain. The examiner found that the Veteran's major seizure disorder required treatment with medication. An April 2008 treatment record from SCGP Neurology Services noted the Veteran was last seen in June 2007 and that he had been doing well with no seizures. The provider noted the Veteran continued to work for Icon Entertainment. A May 2008 treatment record from Clark Memorial Hospital noted that the Veteran was found in a hotel room bed unresponsive. The impression was a seizure. A February 2009 treatment record from SCGP Neurology Services noted the Veteran was last seen in April 2008 and that the Veteran had a GTC seizure while in Kentucky. The provider noted the Veteran was not currently working and was going to school for a Bachelor's degree in forensic sciences. The provider noted the Veteran expected to finish in November 2010. In a June 2009 VA examination, the examiner noted the Veteran's seizure disorder has existed since March 2003 and that the Veteran has a major seizure disorder. The examiner noted that a typical attack could be described as occurring during sleep and with a doctor relaying the type of seizure and how long it lasted. The examiner noted the attack occurred by itself and was alleviated by the medication Keppra. The examiner noted that over the last two years, the Veteran has had two attacks in total, averaging one each year. The examiner noted he kept no attack diary and that the Veteran was receiving medication treatment with Keppra for six years with good response. The examiner noted there were side effects of sleepiness and headaches. The Veteran stated he did not experience a stroke. The Veteran reported that he did not experience any overall functional impairment from this disorder. The examiner noted that the effect of the disorder on the Veteran's usual occupation and daily activity was none. In an October 2010 DRO hearing, the Veteran reported that he had been having seizures since 2003 during active service when he was preparing to deploy. The Veteran reported that he took medication to control his seizure disorder and with medication, he had one attack a year. He indicated that without medication, he had more than one attack a year. He indicated that his doctor had warned him to make sure to take his medication daily. The Veteran reported the last time he had a seizure was when he ran out of medication in Louisville, Kentucky. The Veteran indicated that every seizure had been grand mal grade. The Veteran indicated that his ambition for a long term career in the military and in law enforcement was no longer viable due to his seizure disorder. He stated that law enforcement did not want him to work the field and the military would not hire him due to his disorder. He reported that he had applied over the last three years to different government jobs and civilian jobs and had not been getting hired due to his medical history. An October 2010 VA treatment record noted the Veteran has had a total of three generalized tonic-clonic (GTC) seizures since 2003, both while off his seizure medication and the last one occurring in 2007. A June 2014 VA treatment record noted the Veteran was seen for a follow up for his seizure disorder. The provider noted the Veteran has had a total of five seizures since 2003, of which several may have occurred in a setting of non-compliance with medication. The provider noted there were no further seizures since 2006/2007. The provider noted the Veteran was last seen at the neurology clinic in March 2014 and since then, the Veteran denied any new episode of seizures, headaches, focal weakness or sensory deficits. The Veteran also denied sleep problems or behavioral issues. After evaluation, the provider noted an assessment of complex partial seizures stable on "Keppra 1500 mg PO BID." In a November 2016 VA examination, the examiner noted the Veteran's diagnosis of tonic-clonic seizures or grand mal and complex partial seizures. During examination, the Veteran reported that his last seizure activity was four years ago and his medication dosage was subsequently increased. On examination, the examiner noted continuous medication was not required for control of epilepsy or seizure activity and that the Veteran had not had any other treatment, such as surgery, for his epilepsy or seizure activity. The examiner further noted the Veteran had a confirmed diagnosis of epilepsy with a history of seizures and signs or symptoms attributable to the seizure disorder included generalized tonic-clonic convulsions and brief interruption in consciousness or conscious control. The examiner noted the approximate date of the Veteran's first seizure activity as 2003 and the most recent seizure activity as 2007/2008 per medical records. The examiner noted the Veteran had never had minor seizures. The examiner noted there have not been any major seizures in the past two years and none in the past six months. The examiner noted the Veteran has never had minor psychomotor seizures but has had major psychomotor seizures. However, the examiner noted there had been no major psychomotor seizures in the past two years and that the average frequency of major psychomotor seizures as less than one in the past six months. After examination, the November 2016 VA examiner noted that the Veteran has per report, had three to five seizures from 2003 until 2007/2008 and that the three first seizures were documented as "generalized tonic clonic" in the 2003 timeframe. The examiner noted that the Veteran's neurology note in 2014 gave him a diagnosis of complex partial seizures, which the examiner indicated as possibly the last two attacks. The examiner noted that many of his seizure activities were believed to be related to his noncompliance of medication. The examiner noted the Veteran was not currently on any seizure medication since his last seizure activities were almost ten years ago. The examiner noted the Veteran was last seen by Neurology in 2014 and he was a no show for his June 2015 Neurology appointment and he last filled his Keppra medication in June 2015. The examiner noted that the Veteran's Keppra level in July 2016 was less than 1.0. The examiner found that the Veteran's service-connected seizure disorder did not have functional impairments and therefore did not interfere with physical or sedentary work. Analysis Based on the objective medical evidence, the Veteran last experienced a seizure attack in 2008 and has not experienced additional attacks since that time. Even if the Board were to consider the Veteran's claimed last seizure activity was four years ago from the November 2016 VA examination, which the Board notes that the objective evidence has not confirmed, the overall evidence still does not show that the Veteran has experienced at least one major seizure in the last six months or two in the last year, essentially an average of two attacks per year, for the entirety of the relevant period on appeal to warrant a rating in excess of 20 percent. 38 C.F.R. § 4.121 (To warrant a rating for epilepsy, the seizures must be witnessed or verified at some time by a physician.). The Board also acknowledges the Veteran's claim during the October 2010 DRO hearing that he experienced more than one attack per year when he did not use his medication. However, the most recent November 2016 VA examination specifically indicated the Veteran was not on continuous medication and that his last seizure attack was in 2007/2008, almost 10 years since an actual seizure attack. As such, the Board finds that the probative objective medical evidence does not support the Veteran's claims. Furthermore, the Veteran also stated during the October 2010 DRO hearing that he experienced one attack per year with his medication. Nevertheless, even if the Board were to consider this, a rating in excess of 20 percent would not be applicable. The evidence also does not show that the Veteran experienced an average of at least five to eight minor seizures weekly, or any at all, that would merit a rating in excess of 20 percent. In sum, since there is no medical or credible lay evidence of at least one major seizure in the prior six months or two in the prior year, an average of two attacks per year; or averaging at least five to eight minor seizures weekly during the relevant period on appeal, a disability rating greater than 20 percent is not warranted for the Veteran's seizure disability. Accordingly, the preponderance of the evidence is against a rating greater than 20 percent for the Veteran's seizure disability under the pertinent rating criteria. 38 C.F.R. § 4.124a, Diagnostic Code 8910, General Rating Formula. TDIU Entitlement to a TDIU requires evidence of service-connected disability so severe that it is impossible for the veteran in particular, or an average person in general, to follow a substantially gainful occupation. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. VA regulations indicate that when a veteran's schedular rating is less than total (for a single or combination of disabilities), a total rating may nonetheless be assigned when: 1) if there is only one disability, this disability shall be ratable at 60 percent or more; and 2) if there are two or more disabilities, at least one disability shall be ratable at 40 percent or more, and there must be sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). In addition to the foregoing, there must be evidence that the disabled person is unable to secure or follow a substantially gainful occupation. Id. Marginal employment is not considered substantially gainful employment. Id. A total disability rating may also be assigned pursuant to the procedures set forth in 38 C.F.R. § 4.16(b) for veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in section 4.16(a). The Veteran's service-connected disability is a seizure disorder, rated as 20 percent disabling. As such, the Veteran does not meet the percentage rating standards to be considered for individual unemployability under 38 C.F.R. § 4.16(a). Nevertheless, 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. In such cases, rating boards are to submit to the Director, VA Compensation and Pension Service, for extraschedular consideration Veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards. 38 C.F.R. § 4.16(b). In this case, however, the Board finds that the evidence does not show that the Veteran is unable to secure and follow a substantially gainful occupation due to his service-connected disability. In this regard, the Board notes that the evidence of record, as indicated above, has consistently shown that during the relevant period on appeal, the Veteran is not unemployable. Instead, the Veteran has maintained employment or has continued schooling. An April 2008 treatment record from SCGP Neurology Services noted the Veteran continued to work for Icon Entertainment. A February 2009 treatment record from SCGP Neurology Services noted the Veteran was going to school for a Bachelor's degree in forensic sciences. The November 2016 VA mental health examiner specifically noted the Veteran had steadily held employment, to include employment as a long/short distance truck driver for the past 18 years, as a correctional officer, as a sheriff's department jail officer, and as a bouncer while in-between jobs. Regarding, the Veteran's claim that he should be granted TDIU based on his service-connected disability, the November 2016 VA seizure disorders examiner found that the Veteran's service-connected seizure disorder did not have functional impairments and therefore did not interfere with physical or sedentary work. The examiner noted the Veteran had not experienced a seizure attack for the last 10 years. The Board further notes that there has been no indication that the Veteran has been terminated from his employments due to his service-connected disability. Instead, the evidence of record indicates the Veteran was terminated for other reasons, such as falsification of documents. As such, TDIU based on the service connected seizure disability is not warranted. Therefore, the Board finds that referral of the claim to the Director, VA Compensation and Pension Service, is warranted, as the Board lacks the authority to assign an extraschedular rating in the first instance. Floyd v. Brown, 9 Vet. App. 88 (1996). ORDER Entitlement to service connection for an acquired psychiatric disorder is denied. Entitlement to a disability rating in excess of 20 percent for a seizure disorder is denied. Entitlement to a TDIU is denied. ____________________________________________ THOMAS H. O'SHAY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs