Citation Nr: 21066092 Decision Date: 10/28/21 Archive Date: 10/28/21 DOCKET NO. 17-27 592 DATE: October 28, 2021 ORDER Entitlement to an initial rating in excess of 60 percent for systemic lupus erythematous is denied. Entitlement to an initial rating in excess of 40 percent for psychomotor seizures is denied. FINDINGS OF FACT 1. The Veteran has not manifested functional impairment equivalent to acute lupus with frequent exacerbations, producing severe impairment to health at any time during the rating period to the extent that a higher rating may be assigned. 2. The Veteran has not manifested functional impairment equivalent to at least 1 major seizure in 4 months over the last year; or 910 minor seizures per week at any time during the rating period to the extent that a higher rating may be assigned. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial rating in excess of 60 percent for systemic lupus erythematous are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.88b, Diagnostic Code (DC) 7806-6350. 2. The criteria for entitlement to an initial rating in excess of 40 percent for psychomotor seizures are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.124a, DC 8914. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from March 1998 to September 1998. These matters come before the Board of Veterans' Appeals (Board) on appeal of a decision issued by the Department of Veterans Affairs (VA). The Veteran testified before the undersigned Veterans Law Judge during a hearing in August 2019. A transcript of the hearing is associated with the claims file. In November 2019, the Board remanded these matters for the agency of original jurisdiction (AOJ) to consider evidence generated by VA and received after the Statement of the Case in March 2017. The record shows substantial compliance with the Board's remand directives. The Veteran's representative has asserted that her lupus and psychomotor seizures should be considered for a rating on an extraschedular basis. See 38 C.F.R. § 3.321(b). However, for the reasons explained in the relevant sections below, the Board finds that such a rating is not appropriate based on the record. As neither the Veteran nor her representative has raised any other issues, nor have any other issues been reasonably raised by the record, the Board will proceed with a decision on the merits. See Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (2017). Legal Criteria Rating Disabilities Disability ratings are determined by the application of VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. 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, 519 (2007). 1. Entitlement to an initial rating in excess of 60 percent for systemic lupus erythematous The Veteran's systemic lupus erythematous with residual skin condition (hereinafter "lupus") is currently rated at 38 C.F.R. § 4.88b, DC 7806-6350. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the rating assigned. 38 C.F.R. § 4.27. Under DC 6350, a 60 percent rating is assigned for exacerbations of lupus lasting a week or more, 2 or 3 times per year. A 100 percent rating is warranted for acute lupus with frequent exacerbations, producing severe impairment to health. Although DC 7806 was listed as part of the diagnostic code, ratings under 6350 are not to be combined with ratings under the General Rating Formula for the Skin at 38 C.F.R. § 4.118. Moreover, the maximum rating under the General Rating Formula for the Skin is 60 percent, so a rating under that code would not result in a higher evaluation. The Veteran's lupus has been rated at 60 percent for the entire rating period. See Rating Decision Codesheet, November 2020. The question for the Board is whether the condition has manifested functional impairment equivalent to acute lupus with frequent exacerbations, producing severe impairment to health to the extent that a higher rating may be assigned. The Note to DC 6350 provides that lupus should be rated "either by combining the evaluations for residuals under the appropriate system, OR by evaluating DC 6350, whichever method results in a higher evaluation." 38 C.F.R. § 4.88(b). [Emphasis added.] The Veteran has been granted a separate rating of 40 percent for a seizure disorder as a residual to lupus under 38 C.F.R. § 4.124a, DC 8914. This appears to be a rating error, and may constitute impermissible pyramiding of disability ratings. 38 C.F.R. § 4.14. However, the Board will not take action to reduce the rating based on clear and unmistakable error at this time. After careful review of the evidence, the Board finds that the Veteran's lupus has not manifested functional impairment equivalent to acute lupus with frequent exacerbations, producing severe impairment to health to the extent that a higher rating may be assigned at any point during the rating period. 38 C.F.R. § 4.88b, DC 6350. The Board has reviewed VA examinations from June 2012, March 2016, and November 2017. In June 2012, the examiner found that the lupus would result in 3 or more exacerbations per year lasting more than a week, but specifically found that the exacerbations did not produce severe impairment of health. In 2016 and 2017, the examiners found no exacerbations at all due to the lupus disorder. Such a level of functional impairment is not consistent with a higher rating. Id. The Board has reviewed the disability benefits questionnaire (DBQ) completed by the Veteran's treating VA rheumatologist in August 2019. The rheumatologist, Dr. K.A., found that the Veteran had 3 or more exacerbations or more per year, but that they lasted less than one week and did not produce severe impairment of health. Such impairment does not meet the criteria for a higher rating, which requires that the exacerbations produce severe impairment of health. See 38 C.F.R. §§ 4.2, 4.7, 4.88b, DC 6350. As Dr. K.B. is the Veteran's treating physician, the Board concludes that her opinion is entitled to significant weight. The Board has reviewed the Veteran's VA and private medical records. However, such records do not show that the Veteran's lupus ever manifested functional impairment equivalent to frequent exacerbations producing severe impairment to health during the rating period to the extent that a higher rating may be assigned. 38 C.F.R. § 4.2. For example, a VA rheumatology consultation in July 2017 found that the Veteran had established VA care in 2012, and the physician concluded that "for several years her lupus has remained quiescent (inactive) with negative [double-stranded] dna, normal complements and no organ manifestations apart from intermittent joint pains." The clinician stated that the Veteran had been on medication for years without any evidence of lupus serologically or clinically, and recommended ruling out all other causes for the Veteran's breakthrough seizures and cognitive impairment. In January 2020, the Veteran reported to her primary care provider that she was doing well and had no significant complaints. The Veteran's representative submitted a brief asserting that an extraschedular rating should be considered for lupus. He argued, among other things, that the frequency of occurrence and the past admission to the Intensive Care Unit (ICU) due to brain swelling warranted consideration for an extraschedular rating. The Board does not agree. The rating schedule provides for a 100 percent rating based on the frequency of lupus episodes, producing severe impairment of health. Thus, contrary to the representative's assertions, frequency of lupus episodes does not establish exceptional or unusual impairment not contemplated by the rating schedule to the extent an extraschedular rating may be considered. See 38 C.F.R. § 3.321(b); Thun v. Peake, 22 Vet. App. 111 (2008). The record does show that the Veteran was hospitalized for 30 days after having seizures in 2007, and transferred to the ICU for swelling in the brain attributed to meningitis or encephalitis. However, three separate VA examiners and Dr. K.A. agreed, from a medical perspective, that the lupus disorder did not result in severe impairment to health, which is necessary for a higher rating. Moreover, admission to the ICU and brain swelling would be contemplated by the rating schedule in reference to whether the Veteran's lupus resulted in severe impairment to health. An extraschedular rating is not warranted or supported. 38 C.F.R. § 4.88b. The lay evidence of record was considered. Nevertheless, disability ratings are determined by the application of the rating schedule, which does not support a higher rating in this case. 38 C.F.R. § 4.2. Indeed, as previously noted, the Veteran may be receipt of disability benefits (a 60 percent rating for lupus and a 40 percent rating for seizures) that is in potential violation of 38 C.F.R. § 4.14. In sum, the preponderance of the evidence is against the claim, and the appeal may not be granted. 2. Entitlement to an initial rating in excess of 40 percent for psychomotor seizures The Veteran's psychomotor seizures are rated under 38 C.F.R. § 4.124a, DC 8914. Under DC 8914, psychomotor seizures are rated as major seizures under the General Rating Formula for Major and Minor Epileptic Seizures when characterized by automatic states and/or generalized convulsions with unconsciousness. Psychomotor seizures are rated as minor seizures when they exhibit episodes of random motor movements, hallucinations, perceptual illusions, abnormalities of thinking, memory or mood, or autonomic disturbances. The General Rating Formula for Major and Minor Epileptic Seizures provides a 100 percent rating for averaging at least one major seizure per month over the last year; an 80 percent rating for averaging one major seizure in three months over the last year or more than 10 minor seizures weekly; a 60 percent rating for averaging one major seizure in four months over the last year or more than 9-10 minor seizures per week; a 40 percent rating for at least one major seizure in the last 6 months or 2 in the last year, or averaging at least 5-8 minor seizures weekly; a 20 percent rating for at least 1 major seizure in the last 2 years, or at least 2 minor seizures in the last 6 months; and a 10 percent rating for a confirmed diagnosis of epilepsy with a history of seizures. When continuous medication is necessary for the control of epilepsy, the minimum evaluation will be 10 percent. This rating will not be combined with any other rating for epilepsy. Id. at Note (1). The Veteran has received a 40 percent initial rating for his seizure disorder for the entirety of the rating period. The question for the Board is whether the condition has manifested functional impairment equivalent to averaging one major seizure in four months over the last year or more than 9-10 minor seizures per week to the extent that a higher rating may be assigned. The Board again notes that the Veteran has a separate 60 percent rating for lupus under DC 6350, in addition to his rating for residual seizures under DC 8914. See 38 C.F.R. § 4.88b, DC 6350, Note. However, the Board will not take action to reduce the rating for seizures based on clear and unmistakable error at this time. After careful review of the record, the Board finds that the evidence does not support that the seizure disorder resulted in functional impairment equivalent to averaging one major seizure in four months over the last year or more than 9-10 minor seizures per week to the extent that a higher rating may be assigned at any point during the rating period. 38 C.F.R. § 4.124a, DC 8914. The Board has reviewed VA examinations from March 2013, March 2016, and November 2017. In 2013, the examiner found that the Veteran had at least 2 major seizures in the past year, but averaging less than one in the past 6 months, and no minor seizures, with no major psychomotor seizures in the past 2 years and less than one in the past 6 months, and no minor psychomotor seizures. In 2016, the examiner found at least 1 major seizure in the past year, but averaging less than one in the past 6 months, and 2 or more minor seizures over the past 6 months, 0-4 minor seizures per week, and at least one major psychomotor seizure in the past 6 months, but less than one in the past 6 months, and 2 or minor psychomotor seizures over the past 6 months, 0-4 per week. In 2017, the examiner found at least one major seizure in the past 2 years, averaging one in the past 6 months, and 2 or more minor seizures over the past 6 months averaging 0-4 per week, with at least one psychomotor seizure over the past 2 years, averaging less than one in the past 6 months, and no minor psychomotor seizures. Such a level of impairment does not suggest that a higher rating is appropriate. See id.; 38 C.F.R. § 4.7. The Board has considered the DBQ submitted by the Veteran's treating physician for his seizure disorder. The physician, Dr. K.B., indicated that the seizure disorder manifested functional impairment equivalent to 2 or more minor seizures over the past 6 months, averaging 0-4 per week, at least 2 major seizures in the past year, averaging at least one in the past 6 months, and psychomotor seizures with 2 or more minor seizures in the past 6 months, 0-4 per week, and at least 2 major psychomotor seizures in the past 2 years, averaging at least one in the past 6 months. Such a level of functional impairment does not suggest that a higher rating is appropriate. 38 C.F.R. § 4.124a, DC 8914. The Board has reviewed the Veteran's private and VA medical records. However, such records do not show that her seizures ever manifested functional impairment equivalent to averaging one major seizure in four months over a year or more than 9-10 minor seizures per week during the rating period to the extent that a higher rating is warranted. 38 C.F.R. § 4.2. For example, at a VA primary care initial evaluation in January 2012, the Veteran reported that she had a seizure episode requiring hospitalization in 2007, but had not had a seizure for a prolonged period of time thereafter until January 2011. In August 2020, the Veteran reported that she had not had any convulsive seizures for over a year, but had four focal seizures with impaired awareness since her last visit in February 2020. In September 2020, a VA primary care doctor assessed that the seizures were stable and recommended that the Veteran continue the current medication regimen. The Veteran's representative submitted a brief asserting that an extraschedular rating should be considered for seizures. He argued that "the frequency of episodes experienced by the Veteran in and of themselves make a credible case for granting the veteran relief under the schedule. However, assuming arguendo, that the Board does not agree with that conclusion, we submit that the factors that take the veteran's case out from under the schedular ratings is the severity of her symptoms, irrespective of their frequency. We take the Board's attention to the compelling submissions of the Veteran's daughters who vividly describe the gravity of their mother's display of her symptomatology among other things, that they are warranted consideration for an extraschedular rating." The Board does not agree. The rating schedule directly considers the frequency and severity of seizure episodes, which includes all seizure symptoms. 38 C.F.R. § 4.124a, DC 8914. Neither the frequency of seizures nor the observations of the Veteran's family members support the initial requirement of exceptional or unusual impairment not contemplated by the rating schedule, which is required before a rating on an extraschedular basis is applicable. See Thun, 22 Vet. App. at 115. The lay evidence of record was considered. Nevertheless, disability ratings are determined by the application of the rating schedule, which does not support a higher rating in this case. 38 C.F.R. § 4.2. In sum, the preponderance of the evidence is against the claim, and the appeal may not be granted. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Reed, Associate Counsel 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.