Citation Nr: 18158624 Decision Date: 12/17/18 Archive Date: 12/17/18 DOCKET NO. 16-33 429 DATE: December 17, 2018 ORDER Entitlement to a rating in excess of 10 percent for a right hip disability is denied. Entitlement to a rating in excess of 10 percent for a left hip disability is denied. Entitlement to a rating in excess of 80 percent prior to May 30, 2016, and in excess of 40 percent thereafter for a seizure disorder is denied. FINDINGS OF FACT 1. Both the Veteran’s right and left hip disabilities are manifested by extension greater than 5 degrees, flexion greater than 45 degrees, without the inability to toe-out in excess of 15 degrees, or limitation of adduction such that he cannot cross his legs. 2. For the period prior to May 31, 2016, the Veteran’s seizure disorder was manifested by no more than 1 major seizure in 3 months over the prior year. 3. For the period following May 31, 2016, the Veteran's seizure disorder was manifested by no more than 1 major seizure in 6 months over the prior year. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for a right hip disability have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5251, 5252, 5253 (2017). 2. The criteria for a rating in excess of 10 percent for a left hip disability have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5251, 5252, 5253 (2017). 3. The criteria for a rating in excess of 80 percent for the period prior to May 31, 2016, for a seizure disorder, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1-4.16, 4.121, 4.124a, Diagnostic Code 8910 (2017). 4. The criteria for a rating in excess of 40 percent for the period following May 31, 2016, for a seizure disorder, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1-4.16, 4.121, 4.124a, Diagnostic Code 8910 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from August 2004 to August 2012. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disability. 38 U.S.C. 1155 (2012). Evaluation of a service-connected disability requires a review of the Veteran's entire medical history regarding that disability. 38 C.F.R. 4.1, 4.2 (2017); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. See 38 C.F.R. 4.3. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. 4.7 (2017). Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. 4.3 (2017). When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria.”). 1. Entitlement to a rating in excess of 10 percent for a right hip disability The Veteran contends that his disability is more severe than the separate 10 percent ratings in place for both his left and right hip. The Board observes that there are no rating criteria which address limitation of motion of the hip, other than ankylosis under Diagnostic Code 5250. As a result, the appropriate diagnostic codes for evaluating limitation of motion of the hips are Diagnostic Codes 5251 to 5263, applicable to limitation of flexion, extension, abduction, and adduction of the thigh. See 38 C.F.R. § 4.20, authorizing the rating of a condition according to the requirements of an analogous condition. Here, the Board notes both of the Veteran’s hips are rated under diagnostic codes 5251, 5252, and 5253. Diagnostic Code 5251 assigns a 10 percent disability evaluation where there is limitation of extension of the thigh to 5 degrees; no higher evaluation is provided for under this Code. Under Diagnostic Code 5252, a 10 percent disability evaluation is assigned for flexion of the thigh limited to 45 degrees. For the next higher 20 percent disability evaluation, there must be limitation of flexion to 30 degrees. Pursuant to Diagnostic Code 5253, a 10 percent disability evaluation is assigned for limitation of rotation, with an inability to toe-out in excess of 15 degrees or where there is limitation of adduction such that one cannot cross their legs. A 20 percent disability evaluation is warranted for limitation of abduction, where motion is lost beyond 10 degrees. See 38 C.F.R. § 4.71a, Diagnostic Codes 5251-5253. During the December 2011 examination, range of motion for the Veteran’s hips was measured as left flexion at 110 degrees and right flexion at 100 degrees; left extension at 10 degrees and right extension at 5 degrees; left abduction at 45 degrees and right abduction at 40 degrees. No measurements for adduction were reported. The Veteran was noted to be able to cross both legs and toe-out in excess of 15 degrees. See VA Examination, submitted December 10, 2011. During the May 2016 examination, range of motion for the Veteran’s hips were measured as left and right flexion at 110 degrees; left and right extension at 10 degrees; left abduction at 20 degrees and right abduction at 30 degrees, and left adduction at 15 degrees and right adduction at 20 degrees. The Veteran was noted to be able to cross both legs and toe-out in excess of 15 degrees. While pain was noted on movement, the Veteran was not found to have flare-ups or functional loss of the hip or thigh. See VA Examination, dated May 31, 2016. At the most recent May 2017 examination, range of motion for the Veteran’s hips were measured as left flexion at 75 degrees and right flexion at 85 degrees; left extension at 25 degrees and right extension at 30 degrees; left abduction at 25 degrees and right abduction at 30 degrees, and left adduction at 15 degrees and right adduction at 20 degrees. The Veteran was noted to be able to cross both legs and toe-out in excess of 15 degrees. Pain was noted on movement and the Veteran reported flare-ups and functional loss in both hips. On repetitive use testing, the examiner indicated that there was no additional loss of function or range of motion in either hip. See VA Examination, dated May 10, 2017. Based on the evidence of record, the Board finds that an evaluation in excess of 10 percent is not warranted for Veteran’s left nor right hip disability. Objective findings from the Veteran's VA examinations are consistent with a 10 percent evaluation, but no greater. Extension, even with pain and after repetitive testing, is greater than 5 degrees, flexion is greater than 45 degrees, the Veteran has the ability to toe-out in excess of 15 degrees, and there is no limitation of adduction such that he cannot cross his legs. Deluca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.59. In reaching this conclusion, the Board has not overlooked the Veteran’s statements with regard to the severity of his disability during this period. The Veteran is competent to report on factual matters of which he had firsthand knowledge, e.g., experiencing pain; and the Board finds that the Veteran’s reports have been credible. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The Board has considered the Veteran’s reports along with findings from the Veteran’s VA examinations. The Board notes, with respect to the Rating Schedule, where the criteria set forth therein require medical expertise which the Veteran has not been shown to have, the objective medical findings and opinions provided by the Veteran’s VA examination reports in particular, have been accorded greater probative weight. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). 2. Entitlement to a rating in excess of 80 percent prior to May 30, 2016, and in excess of 40 percent thereafter for a seizure disorder The Veteran was awarded service connection for a seizure disorder in a September 2012 rating decision, rated as 20 percent disabling, effective August 29, 2012. The Veteran was then awarded an increased 40 percent rating in a June 2016 rating decision, effective May 31, 2016. Following the June 2016 rating decision, the RO then issued a subsequent June 2017 rating decision. The June 2017 rating decision awarded the Veteran an 80 percent evaluation for the period from August 28, 2012 to May 31, 2016; reasoning that evidence that wasn’t considered in the original September 2012 rating decision supported an 80 percent evaluation from the date of the original grant. The same June 2017 rating decision found that the Veteran’s seizure disorder warranted a 40 percent evaluation for the period following May 31, 2016. See Rating Decision, dated June 29, 2017.The Veteran currently contends that a rating in excess of 80 percent is warranted prior to May 2016, and in excess of 40 percent thereafter. At the onset, the Board also acknowledges the Veteran’s representative’s argument that the RO’s assignment of a 40 percent rating for the period following May 31, 2016, is equivalent to a reduction in the Veteran’s rating, being that the RO determined that the Veteran’s seizure disorder was in fact 80 percent disabling for the period prior. See Appellate Brief, submitted October 2, 2018. However, this rating action is not equivalent to a reduction in the Veteran’s rating, as the June 2017 rating decision assigned a staged rating based on additional evidence and as such the provisions of 38 C.F.R. § 3.105 are not applicable. The Veteran’s condition, complex partial seizure disorder, is rated under the diagnostic criteria found in the General Rating Formula for Major and Minor Epileptic Seizures under 38 C.F.R. § 4.124a, Diagnostic Code 8911. The General Rating Formula for Major and Minor Epileptic Seizures provides that a confirmed diagnosis of epilepsy with a history of seizures is rated 10 percent disabling. Epilepsy with at least 1 major seizure in the last 2 years; or at least 2 minor seizures in the last 6 months is rated 20 percent disabling. Epilepsy with 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, is rated 40 percent disabling. Epilepsy averaging at least 1 major seizure in 4 months over the last year; or 9-10 minor seizures per week, is rated 60 percent disabling. Epilepsy averaging at least 1 major seizure in 3 months over the last year; or more than 10 minor seizures weekly is rated 80 percent disabling. Epilepsy averaging at least 1 major seizure per month over the last year is rated 100 percent disabling. See Diagnostic Code 8911. Note (1) to the General Rating Formula for Major and Minor Epileptic Seizures provides that, when continuous medication is shown necessary for the control of epilepsy, the minimum rating will be 10 percent. This rating will not be combined with any other rating for epilepsy. Note (2) provides that, in the presence of major and minor seizures, the predominating type of epilepsy is to be rated. Note (3) provides that there will be no distinction between diurnal and nocturnal major seizures. 38 C.F.R. § 4.124a. Period Prior to May 31, 2016 For the period prior to May 31, 2016, the Veteran’s seizure disorder does not warrant an evaluation in excess of 80 percent. During the December 2011 examination, the Veteran reported suffering 3 seizures with impaired consciousness. The Veteran indicated that he had a seizure in September 2011. He further reported that the second seizure occurred 2 weeks later. At the time, the Veteran also reported suffering a seizure 4 days prior to the December 2011 examination. Additionally, the Veteran reported episodes where he was briefly unable to speak, understand speech, or written words. At the time, the Veteran had begun taking medication for his seizure disorder. See VA Examination, dated December 6, 2011. The Veteran’s service and VA treatment records confirm the occurrence of the three seizures in 2011; occurring between September and December 2011. His VA treatment records also indicate that he had one seizure in March 2012 and two seizures in May 2012. See Medical Treatment Record – Government Facility, submitted August 28, 2013. Additionally, VA treatment records indicate that the Veteran suffered two other seizures during the period in question; one in early 2013 and one in August 2014. See CAPRI – Neurology/Seizure Consult, entry dated August 14, 2014. Based on the foregoing, the Board finds that the evidence does not indicate that the Veteran suffered from at least 1 major seizure per month to warrant an increased 100 percent rating. Here, the evidence indicates, at most, that the Veteran suffered from three seizures between September and December 2011, three seizures in 2012, one seizure in 2013, and one in 2014. The medical evidence does not indicate, nor has the Veteran alleged that he suffered from any other seizures during the period prior to May 31, 2016. Accordingly, a rating in excess of 80 percent is not warranted. Period Following May 31, 2016 The Veteran contends that his seizure disorder is more severe than his current 40 percent rating for the period following May 31, 2016. The medical evidence of record for this period consists of VA treatment records and a May 2016 VA examination. At the time of the Veteran’s May 2016 examination, he reported having a major seizure earlier that month. At the time, the examiner noted that the Veteran’s last seizure prior to his May 2016 episode was in 2014. The examiner further indicated that the Veteran did not have any minor seizures, and the frequency of his major seizures was at least 1 in the past 6 months. See C&P Exam, dated May 31, 2016. In a July 2016 treatment record, the Veteran indicated that he had a seizure in June 2016. In a separate July 2016 treatment record, the Veteran indicated that his seizures were occurring once or twice a year. In a December 2016 treatment record, the Veteran reported that he had not had a seizure since the summer. In a March 2017 treatment record, the Veteran indicated that his seizures were occurring every 3-4 months, with the most recent seizure being three weeks prior. See CAPRI, submitted February 1, 2018. Based on the foregoing, the Board finds that a rating in excess of 40 percent is not warranted for the Veteran’s seizure disorder for the period following May 31, 2016. To warrant an increased 60 percent evaluation, the evidence must show that the Veteran had 1 major seizure in 4 months over the last year, or 9-10 minor seizures per week. The only evidence supporting an increased 60 percent rating is the Veteran’s March 2017 report of seizures every 3-4 months; however, this statement is inconsistent with the Veteran’s other statements, showing that his seizures do not occur at such a frequent rate. The May 2016 examiner indicated that the Veteran did not have any minor seizures, and the frequency of his major seizures was at least 1 in the past 6 months. Additionally, the VA treatment records indicate that after his June 2016 seizure, 6 months later in December 2016, the Veteran indicated that he had not had another seizure. Further, the evidence of record does not show that the Veteran had another seizure until February 2017; approximately 8 months after his last seizure in June 2016. This evidence is bolstered by the Veteran’s July 2016 statement that his seizures occurred once or twice a year. The Board has additionally considered the Court's holding that VA may not deny entitlement to a higher rating on the basis of relief provided by medication when those effects are not specifically contemplated by the rating criteria. See Jones v. Shinseki, 26 Vet. App. 56, 61 (2012). However, Note (1) General Rating Formula for Major Seizures, indicates that when continuous medication is shown necessary for the control of epilepsy, the minimum evaluation will be 10 percent, but cannot be combined with any other rating for epilepsy. As such, the holding in Jones is not applicable to this case, since the Veteran is already in receipt of 40 percent disability rating. (Continued on the next page)   For the reasons stated above, the Board finds that a rating in excess of 40 percent is not warranted for the period following May 31, 2016. K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Marsh II, Associate Counsel