Citation Nr: 18150360 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 16-34 981 DATE: November 15, 2018 ORDER Entitlement to an 80 percent disability rating, but no higher, for an epileptic seizure disorder is granted. FINDING OF FACT During the appeal period, the Veteran’s epileptic seizures have more nearly approximated 1 major seizure in 3 months over the last year. CONCLUSION OF LAW The criteria for an 80 percent rating for epileptic seizures have been met throughout the appeal period. 38 U.S.C. 1155, 5107; 38 C.F.R. 3.102, 4.3, 4.124a, Diagnostic Code 8910. REASONS AND BASES FOR FINDING AND CONCLUSION A May 2016 rating decision reduced the rating for the Veteran’s service-connected epileptic seizure disorder from 60 percent disabling to 10 percent disabling effective July 1, 2016. The Veteran appealed this reduction and subsequently, the RO granted a higher 40 percent disability rating, which is less than the maximum under the applicable criteria. The Veteran has not withdrawn her appeal for a higher rating; therefore, the claim remains on appeal. See AB v. Brown, 6 Vet. App. 35 (1993). Considering this procedural background, the Board finds that the increased rating remains before the Board, and based on the grant of benefits below the issue of reduction is moot. Entitlement to a rating in excess of 40 percent for epileptic seizure disorder Disability ratings are determined by the application of VA’s Schedule for Rating Disabilities. 38 C.F.R. Part 4 (2017). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during service and the residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). The Veteran asserts that she should have a higher rating for her epileptic seizure disorder as her symptoms are worse than those contemplated by the currently assigned rating. The Veteran’s seizure disorder is currently rated 40 percent under Diagnostic Code 8910. 38 C.F.R. § 4.124a (2017). Diagnostic Code 8910, grand mal epilepsy, and Diagnostic Code 8011, petit mal epilepsy, 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 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. A June 2016 private physician statement indicates that the Veteran had 2 seizures in the past year; one in September 2015 and one in February 2015. VA treatment records show consistent treatment for epileptic seizures with prescription medication taken twice daily. A November 2016 VA treatment record shows that the seizure disorder was being managed with 1 seizure every 6 weeks. On October 16, 2016, the Veteran had 4 seizures at home followed by a nosebleed. She was brought to the hospital and had 2 more seizures there. Then two days later, she had 2 more seizures on October 18, 2016. In September 2016, the Veteran was hospitalized with an uncontrollable seizure. A December 2016 VA treatment record shows that since the September 2016 hospitalization, the Veteran had several more seizures. The physician noted that due to seizures, the Veteran’s independence was lost, and she is unable to work or drive. A May 2017 VA examination shows that the Veteran has tonic-clonic seizures or grand mal seizures. The examiner noted that the Veteran has grand mal seizures every 2-3 months, some of which are with incontinence and witnessed by her husband and children. The examiner also noted that the Veteran generalized tonic-clonic convulsions and episodes of unconsciousness. The VA examiner indicated that the Veteran had 2 major seizures in the past year, and has at least 1 in 3 months (4 per year). Based on the evidence of record, for the entire period on appeal, the Board finds that the overall disability picture presented is most consistent with an 80 percent disability rating, averaging one major seizure in three months over a year. While the treatment records document some respite in symptoms due to medication, the May 2017 examiner found the Veteran had generalized tonic- clonic seizures every three months. Notably, the Veteran was hospitalized in September 2016 with uncontrollable seizures. Then, in October 2016, she had 4 seizures at home, 2 more at the hospital, and 2 more two days later. Therefore, a rating of 80 percent disabling, and not higher, is granted throughout the appeal. The evidence does not show the Veteran to average at least 1 major seizure per month over the last year; therefore, a higher 100 percent rating is not warranted. As this appeal arises from a proposed reduction, the Board finds that the AOJ should assign the effective date of the grant of 80 percent, as this effective date and determination of the period in appellate status is an appealable issue. The Board also notes that for any period for which the 80 percent is granted prior to July 8, 2016, this will establish an earlier date of statutory housebound SMC benefits under 38 U.S.C. 1114(s). Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Hemphill, Associate Counsel