Citation Nr: 18159419 Decision Date: 12/19/18 Archive Date: 12/19/18 DOCKET NO. 15-26 047 DATE: December 19, 2018 ORDER Entitlement to an initial rating in excess of 10 percent prior to January 14, 2004 for service-connected seizure symptoms of arteriovenous malformations (AVM) of the brain is denied. Entitlement to a rating in excess of 30 percent beginning January 14, 2004 to August 20, 2012, for service-connected seizure symptoms of AVM of the brain is denied. Entitlement to a rating of 70 percent beginning August 21, 2012, for service-connected seizure symptoms of AVM of the brain is granted. Entitlement to a rating in excess of 70 percent beginning May 15, 2013 for service-connected seizure symptoms of AVM of the brain is denied. Entitlement to a rating in excess of 80 percent beginning March 14, 2016 for service-connected seizure symptoms of arteriovenous malformations (AVM) of the brain is denied. FINDINGS OF FACT 1. The Veteran’s seizure disorder had a pre-aggravation baseline level of severity requiring continuous medication (10 percent disabling) (prior to aggravation by the service-connected PTSD). 2. For the period prior to January 4, 2004, the Veteran’s seizure disorder was productive of minor seizures with a frequency of two to three seizures per week, but without any major seizures or an average of at least five to eight minor seizures per week. 3. From January 14, 2004 to August 21, 2012, the Veteran’s seizure disorder was productive of minor seizures with a frequency of approximately 7 seizures per week, but without any major seizures or an average of nine to ten minor seizures per week. 4. From August 21, 2012 forward, the Veteran’s seizure disorder was productive of minor seizures with a frequency of more than 10 minor seizures per week, but without any major seizures over the past year. CONCLUSIONS OF LAW 1. Prior to January 14, 2004, the criteria for a rating in excess of 10 percent for seizure disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code 8912. 2. From January 14, 2004 to August 21, 2012, the criteria for a rating in excess of 30 percent for seizure disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.124a, DC 8912. 3. For the period from August 21, 2012 to May 15, 2013, the criteria for a 70 percent disability rating, but no higher, have been met for the Veteran’s seizure disorder. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.121, 4.122, 4.124a, Diagnostic Codes (DC) 8912. 4. From May 15, 2013 to March 14, 2016, the criteria for a rating in excess of 70 percent for seizure disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.124a, DC 8912. 5. From March 14, 2016 forward, the criteria for a rating in excess of 80 percent for seizure disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.124a, DC 8912. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from January 1967 to January 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico. Entitlement to an initial rating in excess of 10 percent prior to January 14, 2004, in excess of 30 percent beginning January 14, 2004, in excess of 70 percent beginning May 15, 2013, and in excess of 80 percent beginning March 14, 2016 for service-connected seizure symptoms of arteriovenous malformations (AVM) of the brain. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. In a claim for a greater original rating after an initial award of service connection, all of the evidence submitted in support of the Veteran’s claim is to be considered. See Fenderson v. West, 12 Vet. App. 119 (1999). The Court has held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. In its evaluation, the Board considers all information and lay and medical evidence of record. 38 U.S.C. § 5107(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board gives the benefit of the doubt to the claimant. Id. Turning to the evidence of record, the Veteran was granted service connection for seizure symptoms of arteriovenous malformations based on the aggravation of a non-service connected disability by a service-connected disability, which in this case was the Veteran’s service connected PTSD. See February 2012 Board decision, March 2012 rating decision. When evaluating a disability that has been service connected based on aggravation, it is essential for VA to determine the extent of the aggravation and deduct the baseline level of severity as well as any increase due to the natural progression of the disease. See 38 C.F.R. § 3.310(b). Where, as here, service connection is based on the aggravation of a nonservice-connected disability, if the degree of disability existing at the time of entrance into active service is ascertainable, the rating must reflect only the degree of disability over and above the preexisting degree of disability. 38 C.F.R. § 4.22. In a March 2012 rating decision granting service connection for seizure symptoms of arteriovenous malformation, the RO assigned a 20 percent rating but did not establish a baseline level of severity. In a May 2015 rating decision, the RO found that the March 2012 rating decision contained clear and unmistakable error (CUE) and established a baseline of this disability at 10 percent based on evidence establishing that the Veteran was prescribed medication for his diagnosed seizure disorder in-service. The RO then decreased the initial evaluation for seizure symptoms of arteriovenous malformation to 10 percent. Subsequent increased ratings were also decreased by the baseline 10 percent. In a December 2016 rating decision, however, the RO granted an increase to 80 percent for the disability without subtracting the 10 percent baseline. The Board does not have the authority to amend this favorable finding, but finds that it does not affect the propriety of the 10 baseline reduction for prior periods. Epilepsy, Jacksonian and focal motor or sensory, is rated under DC 8912 which directs that the disability be rated as minor seizures, except in the presence of major and minor seizures, when the disorder should be rated based on the predominating type. 38 C.F.R. § 4.124a, DC 8912. Under the General Rating Formula for Major and Minor Epileptic Seizures (General Rating Formula), a 10 percent rating is warranted for a confirmed diagnosis of epilepsy with a history of seizures. A 20 percent rating is warranted for at least one major seizure in the last two years, or at least two minor seizures in the last six months. A 40 percent rating is warranted for at least one major seizure in the last six months or two in the last year, or averaging at least five to eight minor seizures weekly. A 60 percent rating is warranted for averaging at least one major seizure in four months over the last year or an average of nine to ten minor seizures per week. An 80 percent rating is warranted for averaging at least one major seizure in three months over the last year or more than ten minor seizures weekly. A 100 percent rating is warranted for averaging at least one major seizure per month over the last year. 38 C.F.R. § 4.124a General Rating Formula. For VA purposes, a major seizure is characterized by the generalized tonic-clonic convulsion with unconsciousness. 38 C.F.R. §4.124a, DC 8911, Note (1). 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, DC 8911, Note (2). Where continuous medication is required to control the epilepsy, 10 percent is the minimum rating assignable. To warrant a higher rating, a Veteran’s seizures must be witnessed or verified at some time by a physician. As to frequency, competent, consistent lay testimony emphasizing convulsive and immediate post-convulsive characteristics may be accepted. The frequency of seizures should be ascertained under the ordinary conditions of life (while not hospitalized). 38 C.F.R. § 4.121. The Veteran was afforded a VA examination in March 2002. He described his current symptoms as constant left hand numbness and, with stress, tingling associated with left finger stiffness similar to paralysis. He reported that the tingling occurs 2-4 times per month, lasts for 30-60 seconds and resolves spontaneously. VA treatment records indicate that, in October 2002 the Veteran reported seizures described as numbness and weakness to his left hand, lasting approximately 5 minutes occurring 2-3 times per week. In July 2003, the Veteran described episodes with paroxysmal change in sensation in the left distal upper extremity with occasional proximal spread, episodes of slurred speech, and numbness. No sensory deficits were noted on examination. The impression was likely simple partial seizures affecting the left upper extremity related to the cavernous angioma in the right cerebral sensorimotor cortex. The Veteran was prescribed carbamazepine and scheduled for a follow-up in 3-6 months. In January 2004, the Veteran complained of increased tingling in his left hand, dizziness, and increased headaches. He reported that he did not take carbamazepine. The physician noted that the Veteran was likely experiencing simple partial seizures and worsening headaches and instructed the Veteran to re-start his seizure medication. The Veteran’s VA treating physician submitted a report in May 2004 based on January 2004 treatment indicating that the Veteran reported having seizures every day, or 7 times per week and 30 times per month. The Veteran was afforded a VA examination in February 2005. He reported that he had grand mal seizures in the past, with the last one around 1973. He had not had a grand mal seizure since that time but reported that he has had simple partial seizures of sensory tingling in his left hand from time to time. He stated that he tried a variety of anticonvulsants in the past but that he was currently only taking medications on an as needed basis. On review of the Veteran’s medical records, the examiner indicated that he was unable to find any sensory defects as late as 2003 by the Neurology Clinic. On sensory examination, the examiner did not find any objective sensory loss on the left arm or leg. The Veteran was able to appreciate numbers written on both hands, with his right side better than the left. Fine motor coordination of the hands was “pretty good” and there was no evidence of peripheral neuropathy with trophic changes in the feet or hands. The examiner reviewed an MRI which showed multiple lesions, consistent with arteriovenous malformations throughout the Veteran’s hemisphere, including one in his pontine area. The MRI also showed a lesion in the right hemisphere near the central sulcus, which the examiner noted would correspond to the Veteran’s left hand. In November 2007, the Veteran complained of increased focal seizures for the past 2 weeks and related that the fingers on his left hand jerk for 20-30 seconds every hour and that he had a headache for the last 2 days. Two days later, the Veteran appeared in-person at a VA clinic and again complained of hourly focal seizures to his left hand. He was instructed to start taking a different seizure medication and to return in 2-4 weeks for follow-up. At a January 2008 neurology consult, the Veteran described his recent seizure as a focal tremor and cramping in his left hand that lasted about 3 days. He also complained of chronic tingling and numbness on his left hand. The VA physician noted that the Veteran likely had a recent episode of epileptia partialis continua or other type of simple partial motor seizures compromising his left hand. The Veteran reported in August 2012 that he continued to have focal seizures without loss of consciousness approximately 10 times per week. In November 2012, the Veteran reported daily stereotypical spells consisting of numbness, focal left hand paresthesias with cramping sensation and loss of control lasting less than one minute in duration. He stated that such episodes occurred daily with average frequency of 2-3 times per day. They did not progress into generalized convulsions, nor did he experience loss of memory or awareness, loss of strength, or persistent weakness. In May 2013, the Veteran reported about 2 episodes a day where he was aware of his surroundings but was unable to interact for about 30 seconds. He also reported a left hand automatism and numbness to mid-forearm. He stated that he had not been taking his antiseizure medication. Additionally, the Veteran reported approximately 2 partial seizures a day, including one nearly every morning upon awakening and described stress as being a trigger. In September 2014, the Veteran was admitted to the hospital with complaints of persistent right-sided facial drooping and worsening expressive aphagia lasting 2 weeks. The clinical impression was arteriovenous malformation with bleeding. The admitting attending noted that the Veteran had a history of daily minimal focal seizures of 5-10 seconds. At a March 2016 VA examination, the Veteran reported daily stereotypical spells consisting of numbness, focal left hand paresthesias with cramping sensation and loss of control lasting for 30 seconds in duration. The seizure episodes occurred every morning upon awakening and 3-4 times per day. They did not, however, progress into generalized convulsions. The Veteran’s wife was noted to have witnessed the daily seizures. The examiner noted that the Veteran had not had minor seizures and that he had not had a major seizure in the past 2 years. In October 2016, the Board requested a retrospective medical opinion as to the nature and severity of the Veteran’s arteriovenous malformation and the types of symptoms the Veteran has experienced since February 28, 2001. The requested opinion was provided in October 2016. The examiner noted that the 1973 in-service episode was the Veteran’s first and only episode of major seizures. Since 2001, the examiner indicated that the Veteran suffers localization-related epilepsy, manifesting as simple partial seizure without loss of awareness secondary to familial cavernous malformation. He described the Veteran’s seizures as minor seizures, i.e. stereotypical spells consisting of numbness, focal left hand paresthesia with cramping sensation and loss of control lasting for half one minute in duration. In 2002, the seizures happened 2-3 times per week. Currently, the Veteran’s minor seizure episodes occur every morning when he wakes up and 3-4 times per day but do not progress into convulsions. The Veteran’s current medication is Keppra. In November 2017, the Veteran underwent a VA examination. The examiner noted a long history of focal seizures with occasional generalization secondary to familial cavernous malformations. The Veteran reported that after his January 2017 generalized tonic-clonic seizure, he had 3-4 focal seizures a day as before but no other generalized tonic-clonic seizure. The examiner confirmed that the Veteran was seen in the neurology clinic in January 2017 after he had a generalized seizure. The examiner again noted that the Veteran had not had minor seizures and that he had not had a major seizure in the past 2 years. After a careful review of the lay and medical evidence during this period on appeal, the Board finds that a rating in excess of 10 percent is not warranted prior to January 14, 2004. Here, the medical and lay evidence suggests that the Veteran had minor seizures during this period on appeal, with a frequency of, at most, 2-3 seizures per week; however, for the next-higher rating of 40 percent (30 percent after deducting the 10 percent baseline level of severity), there must be evidence of at least one major seizure in the last 6 months, or 2 in the last year, or averaging at least 5 to 8 minor seizures weekly. The Board further finds that a rating in excess of 30 percent is not warranted from January 14, 2004 to August 21, 2012. The evidence suggests that, prior to August 21, 2012, the Veteran had minor seizures at a frequency of, at most, 7 times per week. For the next-higher rating of 60 percent (50 percent after deducting the 10 percent baseline level of severity), there must be evidence of at least one major seizure in 4 months over the last year; or 9-10 minor seizures weekly. The Board finds that a rating of 70 percent is warranted for the rating period on appeal beginning August 21, 2012. The evidence suggests that, from August 21, 2012 to March 14, 2016, the Veteran had minor seizures at least 10 times per week. In August 2012, the Veteran reported that he had focal seizures approximately 10 times per week. See August 2012 VA treatment records. In November 2012, the Veteran reported that he had stereotypical spells at least 2 times per day, the equivalent of at least 14 times per week. See November 2012 VA treatment records. Resolving any reasonable doubt in the Veteran’s favor, the Board finds that an 80 percent rating is warranted beginning on August 21, 2012. Regarding the period since November 2, 2012, the Board finds that a rating in excess of 70 percent is not warranted. At no time during the appeal has the evidence shown one major seizure per month as is required for a 100 percent rating. Accordingly, for the period beginning November 2, 2012, the Veteran’s seizure activity does not meet the criteria for a 100 percent disability rating. In a recent brief, the Veteran’s representative contends that this disability warrants assignment of TDIU, noting that there is a separately service connection disability at a 100 percent rating (effective July 2013). From this date of July 2013, the Veteran has also been in receipt of statutory housebound SMC under 38 U.S.C. § 1116(s). The representative does not provide an argument regarding how the seizure disorder caused employability prior to July 2013 and the Board does not find another basis for finding the seizure disorder alone (without consideration of the Veteran’s service connection PTSD (service-connected from February 2001)) caused unemployability.   Considering this procedural history and the record, the Board finds that TDIU under Rice v. Shinseki, 22 Vet. App. 447 (2009) is not raised. See also Buie v. Shinseki, 24 Vet. App. 242, 250 (2010). Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Thompson, Associate Counsel