Citation Nr: 21064968 Decision Date: 10/22/21 Archive Date: 10/22/21 DOCKET NO. 17-09 423 DATE: October 22, 2021 ORDER Entitlement to a 40 percent disability rating for seizures is granted. FINDING OF FACT The evidence of record does not preponderate against the Veteran's claim that he experiences five minor seizures per week. CONCLUSION OF LAW The criteria for a 40 percent rating for a seizure disorder are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.124a. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1966 to February 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an August 2014 rating decision by a U.S. Department of Veterans Affairs (VA) Regional Office (RO). In February 2021, the Veteran testified in a hearing before the Board. A transcript of the hearing is included in the electronic claims file and has been reviewed. In April and July 2021, the Board remanded this matter for additional medical inquiry. The case is again before the Board for appellate review. Increased rating The Veteran has been service connected for a seizure disorder since July 1998. The disorder has been rated 20 percent disabling since then. On April 30, 2014, the Veteran claimed entitlement to an increased rating. In the August 2014 rating decision on appeal, the RO denied the claim. Relevant legal authority 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. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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. "Staged" ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran's seizure disorder is rated under DC 8911 of 38 C.F.R. § 4.124a. Thereunder, ratings of 10, 20, 40, 60, 80, and 100 percent are authorized for various levels of disability. As the disorder at issue has been rated 20 percent disabling throughout the appeal period, the Board will focus on the higher ratings. 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 seizures averaging at least one major seizure in four months over the last year; or nine to ten minor seizures per week. An 80 percent rating is warranted for seizures averaging at least one major seizure in three months over the last year; or more than 10 minor seizures weekly. A 100 percent rating is warranted for seizures averaging at least one major seizure per month over the last year. Note (1) under DC 8911 states that a major seizure is characterized by the generalized tonic-clonic convulsion with unconsciousness. Note (2) under DC 8911 states that 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). 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. To warrant a rating for epilepsy, the 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. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be granted to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on the merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Symptomatology attributed to a nonservice-connected disability cannot be differentiated from symptomatology attributed to a service-connected disability unless medical evidence does so. Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam). In the absence of such medical evidence, the reasonable doubt doctrine dictates that all symptoms be attributed to the service-connected disability. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Evidence The evidence in this matter consists of lay assertions from the Veteran, VA treatment records, medical evidence from the Social Security Administration (SSA), and VA compensation examination reports dated in July 2014, August 2020, June 2001, and July 2021. This evidence supports the assignment of a 40 percent disability rating under DC 8911 because it does not preponderate against the Veteran's assertion that he experiences five minor seizures weekly. The July 2014 VA examiner noted a possible increase in seizure activity in 2014. The report indicates that seizures had been resistant to treatment including anti-epileptic medication and indicated an increase in activity following diagnosis and treatment for lymphoma-related brain tumor. But the report also states that, following treatment of the lymphoma, seizure activity had returned to "baseline." Nevertheless, the examiner noted 0 to 4 minor seizures per week without evidence of major seizures. The August 2020 VA examiner noted the Veteran's report of experiencing seizures "several times per week" for which he had amnesia. The examiner described the Veteran's problems with memory, concentration, and attention since being diagnosed with a brain tumor. The examiner noted marked cognitive decline related to psychiatric and neurological disability but did not offer an opinion regarding the frequency of seizures. The June 2021 VA examiner reviewed abnormal radiological evidence since 2014 indicating "significant" cognitive and neurological deficits causing "struggles with memory, attention, and concentration." The examiner noted the problems "since he was diagnosed with the brain tumor and since he has been experiencing seizures" and found the seizures related to the brain tumor. But the examiner did not offer an opinion regarding the frequency of the seizures. In response to the Board's June 2021 remand, and its specific inquiry regarding frequency of seizures since 2014, the July 2021 examiner stated that, "there is not enough objective information provided in the medical file to answer these question[s] without me resorting to mere speculation. The IMO itself with supporting medical information is not enough to completely answer the questions asked." VA treatment records dated since 2014 repeatedly note seizures and even address attempts to "better quantify seizure frequency." But the records do not provide specific information regarding the frequency of seizures. In October 2020, a treating physician noted it "difficult to properly assess seizure frequency given his resistance to engage a caregiver in reporting seizures." Lastly, in lay assertions during the appeal period, the Veteran claims that he has experienced increased frequency of seizures since being diagnosed with a brain tumor. During the Board hearing, he and his daughter described a frequency of seizure activity not reflected in the medical evidence dated since 2014. During the Board hearing, the daughter stated: His seizures are, I want to say they're verbal, like verbally violent, to the point where it can deter his daily function if he were to go out alone because someone who doesn't know that he has these seizures might take it the wrong way, because he starts yelling profanities and, you know, screaming let's go, let's go, and he tenses up really tight and can't really move too much. He just really yells. But then he'll snap out of it, and he doesn't know that he's having it. Most recently, in a September 2021 statement, the Veteran indicated "minor seizures at least 5 times a week. My seizures cause me to black out and sometimes I can't remember when they all happen but they happen enough[.]" Analysis The record shows that the Veteran has experienced increased seizures during the appeal period, particularly since diagnosis and treatment of a brain tumor. The brain tumor is relevant in this matter. Even though he is not service connected for the brain tumor, or the lymphoma related to it, he is service connected for a neurocognitive disorder and associated psychiatric disability in addition to the seizure disability. Indeed, a preponderance of the evidence does not differentiate disability related to the tumor from disability related to the neurocognitive and seizure disorders. As such, disability associated with all three problems, as it relates to seizures, will be evaluated here. See Mittleider, supra. The record has lacked medical evidence specifically addressing the frequency and nature of the Veteran's seizures since 2014, as indicated by the Board's two remands. The June and July 2021 VA reports, written by an examiner who declined to provide an estimate of seizure frequency, are therefore of limited probative value on the question before the Board. The same can be said about the VA treatment records, which acknowledge confusion regarding frequency, but ultimately lack specific medical findings regarding frequency. See Bloom v. West, 12 Vet. App. 185, 187 (1999) (the value of a physician's statement is dependent, in part, upon the extent to which it reflects clinical data or other rationale to support the opinion). That leaves the lay statements as the only evidence of record addressing the issue of frequency. The Veteran is not a medical professional, so he is not competent to diagnose himself with a disease or determine its etiology. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). But he is competent to report symptoms related to minor seizures, certain of which are observable, and to report what others have reported seeing during his seizures. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Indeed, lay persons are competent to report, "a brief interruption in consciousness or conscious control associated[.]" See 38 C.F.R. § 4.124a, DC 8911 Note (2). Further, "competent, consistent lay testimony ... may be accepted" as to the issue of frequency. See 38 C.F.R. § 4.121. Inasmuch as the Veteran has been consistent throughout the appeal period with regard to his claim of experiencing multiple weekly seizures, and as his statements are corroborated by his daughter, the Board will rely on the lay evidence in the claims file to find that an increased rating to 40 percent is warranted. The lay evidence clearly indicates that the Veteran experiences five minor seizures weekly. See Smith v. Derwinski, 1 Vet. App. 235 (1991) (credibility is determined by the fact finder). The next-highest rating of 60 percent is unwarranted, however. There is no medical evidence indicating that the Veteran experienced at least one major seizure in four months over the last year or nine to ten minor seizures per week. 38 C.F.R. § 4.124a. Based on the foregoing, the Board cannot find that a preponderance of the evidence is against the claim of entitlement to a higher disability rating. As such, this is an appropriate case in which to invoke VA's doctrine of reasonable doubt, grant the Veteran the benefit of the doubt, and assign an increased rating to 40 percent. A preponderance of the evidence is against the assignment of a 60 percent rating, however. See 38 U.S.C. § 5107; 38 C.F.R. § 4.3. G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Christopher McEntee The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.