Citation Nr: 21066989 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 17-12 816 DATE: November 3, 2021 ORDER An initial disability rating of 100 percent for service-connected brain stem seizures is granted. REMANDED The claim of entitlement to financial assistance in the purchase of one automobile or other conveyance and automobile adaptive equipment, or adaptive equipment only is remanded. The claim of entitlement to special monthly compensation (SMC) based on the need for aid and attendance of another or at the housebound rate is remanded. The claim of entitlement to specially adapted housing (SAH) is remanded. The claim of entitlement to a special home adaptation grant (SHA) is remanded. REFERRED The issue of whether new and material evidence has been received sufficient to reopen the claim of entitlement to service connection for a stroke secondary to post-traumatic brain syndrome has not been finally adjudicated. The Veteran sought to reopen the previously denied claim, which was denied by the Regional Office in a September 2013 rating decision. The Veteran provided new evidence within one year of the rating decision. As no determination was made as to whether this evidence was new and material pursuant to 38 C.F.R. § 3.156, the September 2013 rating decision did not become final. See Lang v. Wilkie, 971 F.3d 1348 (2020). Accordingly, the issue is referred to the Agency of Original Jurisdiction (AOJ) for adjudication. FINDING OF FACT Throughout the period on appeal, the Veteran's seizure disorder manifested with at least one major seizure per month. CONCLUSION OF LAW The criteria for an initial rating of 100 percent for service-connected brain stem seizures have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8910. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had honorable active-duty service with the United States Marine Corps from October 1982 to March 1985. This matter is on appeal from November 2011 and May 2017 rating decisions. In July 2021, the Veteran and his wife testified before the undersigned in a virtual hearing. A transcript of the proceedings has been associated with the record. 1. The claim of entitlement to an initial rating more than 80 percent for service-connected brain stem seizures The Veteran contends that he is entitled to an initial 100 percent rating for his service-connected brain stem seizures. Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Any reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Thus, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Epilepsy and seizures will be rated under the General Rating Formula for Major and Minor Epileptic Seizures (General Rating Formula). 38 C.F.R. § 4.124a, Diagnostic Codes 8910 through 8914. Grand mal epilepsy is rated as major seizures, and petit mal epilepsy is rated as minor seizures. Id. A "major seizure" is characterized by a generalized tonic-clonic convulsion with unconsciousness. 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). Id. at Notes (1) and (2). Under the general formula for major and minor epileptic seizures, 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 evaluation is warranted 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 a seizure disorder averaging at least 1 major seizure in 4 months over the last year or 9-10 minor seizures per week. An 80 percent evaluation is to be assigned when averaging at least 1 major seizure in 3 months over the last year, or more than 10 minor seizures weekly. A 100 percent rating requires the Veteran average at least 1 major seizure per month over the last year. 38 C.F.R. § 4.124a, Diagnostic Code 8911. In the presence of major and minor seizures, the predominating type is rated, and there is no distinction between diurnal and nocturnal major seizures. Id. Competent, consistent lay testimony emphasizing convulsive and immediate post-convulsive characteristics may be accepted to establish the frequency of seizures or epileptic attacks. The frequency of seizures should be ascertained under the ordinary conditions of life. 38 C.F.R. § 4.121. The Veteran underwent a VA examination in April 2017 to assess the severity of his seizures. His wife accompanied him and reported that she witnessed both small and large seizures, the first characterized with blinking and staring, and the second by shaking and aspiration. The Veteran was found to have experienced more than 10 minor seizures per week, and at least two major seizures in the previous year with at least one every three months. In July 2017, the Veteran disagreed with the examiner's findings, reporting that he experienced two major seizures per day that caused "tremendous shaking and stiffness." VA treatment records reflect in-patient treatment to assess his seizures with at least two noted while under observation. The evaluation also noted that seizures with loss of consciousness, shaking of all four extremities, incontinence, and tongue biting that last five to ten minutes occurred weekly. The Veteran and his wife also provided a calendar from part of the year 2017 documenting the frequency and severity of his seizures. In the hearing before the undersigned, the Veteran and his wife testified about the frequency and severity of his seizures, noting that he experienced at least two to three grand mal seizures per week. He also aspirated with seizures approximately three times per month. Resolving reasonable doubt in favor of the Veteran, the Board finds that the frequency and severity of his seizures more nearly approximates the rating criteria for a 100 percent evaluation. Both the Veteran and has wife have described ongoing minor and major seizures, and VA treatment records reflect multiple instances of seizures with unconsciousness and shaking during the May 2017 hospitalization with an assessment that such occurred weekly. While VA examination reports note that major seizures occurred at least once every three months, these reports do not directly address the findings of the May 2017 hospitalization and assessment, particularly those reporting weekly seizures with unconsciousness and shaking of all four extremities. Accordingly, the Board affords more significant probative weight to the competent lay reports of the Veteran and his wife, as well as the medical treatment records specifically assessing the severity of his seizures during in-patient evaluation. Resolving reasonable doubt in the Veteran's favor, the Board determines that his overall disability picture more closely approximates the 100 percent rating criteria for seizures, and the maximum schedular rating is warranted. REASONS FOR REMAND 1. The claims of entitlement to financial assistance in the purchase of one automobile or other conveyance and automobile adaptive equipment, or adaptive equipment only, SMC based on aid and attendance, and SHA or SAH are remanded. The Board referred the issue of whether new and material evidence has been received sufficient to reopen the claim of entitlement to service connection for a stroke as the September 2013 rating decision did not become final. The medical evidence of record demonstrates that the Veteran's 2009 stroke significantly impaired his physical condition, and he is asserting loss of use of his extremities due to this worsening. The Board finds that these remaining issues on appeal are inextricably intertwined with the resolution of the referred issue. Accordingly, this issue is remanded for readjudication following readjudication of the referred claim. The matters are REMANDED for the following action: 1. Following readjudication of the referred issue, conduct any additional development of the remanded issues herein as deemed necessary. 2. Following completion of the foregoing, the AOJ should review the record and readjudicate the claims on appeal. If any remain denied, the AOJ should issue an appropriate supplemental SOC, afford the Veteran and his representative an opportunity to respond, and return the case to the Board. Vito A. Clementi Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Fisher, Counsel The Board's action is binding only in this case. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.