Citation Nr: 1806842 Decision Date: 02/02/18 Archive Date: 02/14/18 DOCKET NO. 14-08 701 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Whether the reduction of the rating for a seizure disorder from 80 percent to 40 percent was proper, to include what rating should be assigned for the seizure disorder from February 18, 2014. 2. Evaluation to a compensable rating for residuals of compression fractures of T11-12 & L1-2, prior to March 15, 2016, and over 20 percent thereafter. REPRESENTATION The Veteran represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his sister ATTORNEY FOR THE BOARD P. Franke, Associate Counsel INTRODUCTION The Veteran had active duty service in the United States Army from October 1991 to March 1992 and from May 1995 to October 1999. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In May 2017, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge. A transcript has been associated with the file. A decision concerning propriety of a reduction in a rating includes whether an increased, intermediate rating may be indicated. In this case, the statement of the case, leading to the current decision, was promulgated in February 2014. In a subsequent substantive appeal a hearing was requested, which as noted above, was conducted in May 2017. In between those events, and after the hearing multiple additional records have been added to the record. By January 2018 rating an 80 percent rating was assigned for the seizure disorder, effective November 20, 2017. This is not the maximum rating that can be assigned, and it is not clear that all records since the statement of the case were considered. As such, the issue has been recharacterized as set forth on the title page. This appeal was processed using the Veterans Benefits Management System (VBMS) and the Legacy Content Manager Documents (LCMD) (formerly Virtual VA) electronic claims files. The issues pertaining to ratings for idiopathic generalized tonic-clonic epilepsy and residuals of compression fractures of T11-12 and L1-2 being remanded are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The July 26, 2010 Notification Letter giving notice to the Veteran of the proposed reduction of his epilepsy disorder from 80 percent to 40 percent fully informed him of action to be taken and his rights to disagree. The reduction was based on medical evidence that showed improvement since the assignment of the 80 percent rating. The number of major and minor seizures was shown to have been reduced at the time of the reduction. CONCLUSION OF LAW The October 2010 rating decision reducing the disability rating for the Veteran's epilepsy disorder from 80 to 40 percent was proper. 38 U.S.C. §§ 1110, 1155, 5112 (2012); 38 C.F.R. § 3.105 (e) and (i)(1) (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) provides that VA will notify the Veteran of the need of necessary information and evidence and assist him or her in obtaining evidence necessary to substantiate a claim, as well as obtaining a medical examination or opinion of the Veteran's disability when necessary. 38 U.S.C. § 5103 (a); 38 C.F.R. § 3.159 (b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VA has assisted the Veteran in obtaining evidence to the extent possible, in collecting service treatment records, arranging examinations and obtaining opinions. The Veteran was afforded Compensation and Pension examinations in December, October and January of 2017, as well as earlier examinations in 1993, 2003, 2006, 2008, and 2010, which produced findings pertinent to deciding the claims pertaining to idiopathic generalized tonic-clonic epilepsy and residuals of compression fractures of T11-12 and L1. Nieves-Rodriguez v. Peake, 22 Vet. App 295 (2008); see Barr v. Nicholson, 21 Vet. App. 303 (2007). As for the VA examinations mentioned above, neither the Veteran nor his representative has raised any issues regarding the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). Lay Evidence Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Veteran's Assertions The Veteran contends in his May 2017 Board hearing testimony that the frequency of his epileptic seizures since he was last rated has been as many as 16, eight of which required hospitalization. Specifically, the Veteran asserts that he has as many as two to three major seizures per month. The Veteran further contends that his seizures are not only more frequent, but are worse in nature and have caused injury to his person. He adds that, consequently, he requires assistance from his son in his activities of daily living. The Veteran further asserts that a reduction of his 80 percent rating for his epilepsy disability is does not take the above into account and is therefore improper. Reduction in Rating for Service-Connected Epilepsy Disability Under 38 C.F.R. § 3.105 (e), where a reduction in a rating of a service-connected disability is considered warranted and the lower rating would result in a reduction or discontinuance of compensation payments currently being made, a rating decision proposing the reduction or discontinuance is to be prepared setting forth all material facts and reasons. The beneficiary must be notified of the contemplated action and furnished detailed reasons for the proposed reduction. The beneficiary must be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at their present level. In addition, a Veteran is entitled to a predetermination hearing, provided that a request for such a hearing is received by VA within 30 days from the date of the notice of the proposed rating reduction. If a predetermination hearing is timely requested, benefit payments shall be continued at the previously established level pending a final determination concerning the proposed action. 38 C.F.R. § 3.105 (i)(1). 38 C.F.R. § 3.105 (e) is applicable in this case, as the reduction of the rating for epilepsy from 80 percent to 40 percent resulted in a reduction in the Veteran's overall amount of compensation payable at the time from 80 percent to 40 percent, as well. The July 2010 rating decision proposed the reduction in the rating for the service-connected epilepsy disability from 80 percent to 40 percent and provided reasons and bases for the proposed reduction. The Veteran was notified of the proposed reduction in an accompanying Notification Letter, dated in July 2010. This letter notified the Veteran of his opportunity to timely contest the reduction, present evidence, or request a pre-termination hearing. In October 2010, more than 60 days after the issuance of the July 26, 2010 letter, the RO issued a rating decision effectuating the rating reduction. Accordingly, the Board finds that the RO complied with the procedural requirements regarding the reduction of the rating for the Veteran's service-connected epilepsy disability, as set forth in 38 C.F.R. § 3.105 (e) and (i)(1). Under the rating codes for epilepsy, grand mal epilepsy and petit mal epilepsy are rated under the general rating formula for seizures. 38 C.F.R. § 4.124a , Diagnostic Codes 8910, 8911. A major seizure is characterized by the generalized tonic-clonic convulsion with unconsciousness and a minor seizure consists of a brief interruption in consciousness or conscious control associated with starting or rhythmic blinking of the eyes or nodding of the head, or sudden jerking movements of the arms, trunk, or head, or sudden loss of postural control. 38 C.F.R. § 4.124a , Diagnostic Codes 8910, 8911, Note (1). The General Rating Formula for Major and Minor Epileptic Seizures (General Rating Formula) provides that 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 1 major seizure in the last 2 years; or at least 2 minor seizures in the last 6 months. A 40 percent rating is warranted 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 60 percent rating is warranted for averaging 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 for averaging 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 for averaging at least 1 major seizure per month over the last year. Notes after the formula state that when continuous medication is shown necessary for the control of epilepsy, the minimum evaluation will be 10 percent and that this rating will not be combined with any other rating for epilepsy. Another note states that in the presence of major and minor seizures, one should rate the predominating type. 38 C.F.R. § 4.214a. The medical evidence indicates that the Veteran's private treatment records at Shands Jacksonville for a January 2010 automobile accident noted the Veteran's history of seizures and further note. Based on the Veteran's report, his last seizure had been two years prior. January and March 2010 treatment records from Lake City VA also noted that the Veteran had no seizures for two years and no seizures since the January 2010 accident, but further noting the Veteran's report about the accident that he thought that his last medication dose before the accident had been low, because sometimes his medication runs low or runs out before a refill comes. Dr. D.B. advised him on steps to take to make sure it does not happen again. A February 2010 VA examination noted the Veteran's last seizure in January 2010, the date of the above accident. Based on the Veteran's reports, the February 2010 VA examiner noted that the Veteran had no seizures for two years and none since the January 2010 accident. He further noted that the frequency had in fact decreased in the previous 12 months. He diagnosed the Veteran with idiopathic generalized tome dome epilepsy. The February 2010 VA examiner concluded that the Veteran's disorder has an overall moderate effect on his activities of daily living. Based on this evidence and the other evidence of record prior to the October 2010 rating, improvement was demonstrated by the clinical record. Fewer seizures that noted when the 80 percent rating was assigned were shown during this period. Similarly, VA records in 2012 suggested improvement in the seizures was continued. As stated above, a disability evaluation of 40 percent requires 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. For 60 percent, there msut be an average of at least one major seizure in four months over the last year or nine to ten minor seizures per week. For 80 percent, there must be at least one major seizure in three months over the last year or more than 10 minor seizures weekly The above review of the record indicates that throughout 2010, the Veteran's only seizure was in January 2010, which caused the Veteran's automobile accident. By his own reports, he had had no seizures two years prior to that. Looking beyond this period, the Board can find the mention of the Veteran's October 2012 report of a seizure. However, this was viewed as doubtful by another examiner. The foregoing amounts to one certain major seizure in the period of 2008 to 2012. Based on the Veteran's treatment record, under the General Rating Formula the Veteran's disability rating was properly reduced to 40 percent. The Board has carefully reviewed and considered the Veteran's testimony and that of his sister at the May 2017 Board hearing, as well as the statements of the Veteran, his mother, F.S., his sister, C.S., his niece, L.G., his ex-wife, A.M., and a co-worker, C.R., all submitted between August 2010 and May 2017. These have assisted the Board in better understanding the nature and development of the Veteran's disorder. As stated earlier in this decision, lay people are competent to report on matters observed or within their personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Therefore, the Veteran and those who have submitted statements on his behalf are competent to provide statements of symptoms which are observable to their senses and there is no reason to doubt their credibility. However, the Board must emphasize that the Veteran and the others are not competent to diagnose or interpret accurately the nature of the Veteran's epilepsy disorder, as this requires highly specialized knowledge and training. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Moreover, the Board cannot render its own independent medical judgments; it does not have the expertise. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). The Board must look to the clinical evidence when there are contradictory findings or statements inconsistent with the record. In the absence of explicit indications of worsening signs and symptoms, it must rely on medical findings and opinions to establish the level of the Veteran's current disability. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). For the reasons stated, the Board finds that the reduction of the Veteran's disability rating for his epilepsy disoreder from 80 percent to 40 percent was properly implemented and warranted by the medical evidence. The Board has considered the benefit-of-the-doubt doctrine; however, the Board does not perceive an approximate balance of positive and negative evidence. The preponderance of the evidence is against the claim, the doctrine is not applicable and the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. ORDER The reduction of the rating for seizures from 80 percent to 40 percent effective in 2010, was proper. The appeal is denied to this extent. REMAND As noted above, the question or a reduction in rating includes consideration of whether a higher or intermediate rating might be in order. The statement of the case in this appeal was entered in February 2014. Since that time, additional medical records concerning both the back and seizure disorders have been received. The 20 percent for the back disorder was subsequently granted, and more recently an 80 percent rating was assigned for the seizure disorder, effective November 2017. Neither rating represents the maximum schedular rating that could be assigned. None of these records have been reported in a supplemental statement of the case, and as to the seizure disorder, it is not clear that records from February 2014 to November 20, 2017 were considered by the RO. A total rating based on individual unemployability has also been granted. The record indicates that, as recently as December 27, 2017, the Veteran underwent an in-person VA examination for seizure disorders (Epilepsy). Additionally, he presented for an in-person VA examination/Disability Benefits Questionnaire (DBQ) for thoracolumbar spine. These new examinations are pertinent to the claims on appeal, but the record contains no waiver of review of these new examinations by the RO. As noted, the increased rating issues remain under review. Moreover, at the hearing, the Veteran suggested dissatisfaction with the earlier examination of his back disorder. Nonetheless, both examinations produced new and significant findings and, as stated above, are new evidence. However, the record further reveals that comprehensive adjudication in the normal course of the claims process has yet been conducted by the RO after these examinations were associated with the claims file. Specifically, as to the seizure disorder, records between the February 2014 statement of the case and the November 2017 increase have not clearly been considered. As such, the Board concludes that adjudication by the Board at this time would be premature. Consistent with the requirements of due process, the initial review of this new evidence must be conducted by the RO, followed by an adjudication and Supplemental Statement of the Case if benefits are not granted. For these reasons, both claims are remanded for RO review of the most recent submissions to the claims file. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and/or his representative for information pertaining to any current treatment for idiopathic generalized tonic-clonic epilepsy and residuals of compression fractures of T11-12 and L1-2 at any VA facility and by any private treatment provider. Obtain any records pertaining to those treatments not yet associated with the claims file and associate them with the claims file. The Veteran's assistance should be requested in obtaining any records of recent treatment as indicated. All attempts to obtain records should be documented in the claims file. 2. After all additional records have been obtained and associated with the claims file, but whether or not records are obtained, review new evidence added to the claims file consisting of a December 27, 2017 VA examination for seizure disorders (Epilepsy), a December 27, 2017 VA examination/DBQ for thoracolumbar spine and any submissions prior or subsequent to these as yet not reviewed by the AOJ. 3. After completing the above development and any other indicated development, readjudicate the claim. If the benefits sought are not granted, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate opportunity to respond before returning the case to the Board. If the grant of the total rating and the 80 percent rating for seizures, satisfies the Veteran's appeal as to these intermediate ratings, he should so indicate in writing to the VA. The Veteran has the right to submit additional evidence and argument on the 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). ______________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs