Citation Nr: 21067346 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 19-00 624A DATE: November 4, 2021 REMANDED Entitlement to an initial rating in excess of 10 percent for seizure disorder prior to January 26, 2018, and in excess of 40 percent since January 26, 2018 is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from November 2005 to September 2009. This appeal arises from a March 2016 rating decision, which granted service connection for the Veteran's seizure disorder and assigned an initial 10 percent rating, effective September 9, 2015. The Veteran appealed for a higher initial rating. In an April 2018 rating decision, the AOJ increased the rating for the Veteran's seizure disorder from 10 to 40 percent, effective from January 26, 2018, the date of a VA examination. The Veteran testified at a Board virtual hearing in July 2021, before the undersigned Veterans Law Judge (VLJ). A transcript is of record. The Veteran testified that his current unemployment is due to his service connected seizure disorder. See July 2021 Board hearing transcript. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a claim for a total rating based on individual unemployability (TDIU) is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. Thus, the issue of a TDIU is on appeal before the Board. 1. Seizure Disorder 2. TDIU Notably, the Veteran has been assigned staged 10 and 40 percent ratings under 38 C.F.R. § 4.124a (neurological conditions), Diagnostic Code (DC) 8910 for epilepsy, grand mal. The Veteran and his attorney contend that the Veteran has consistently suffered at least monthly major seizures, such that he should warrant the maximum 100 percent rating for seizures under DC 8910 since he was service-connected for his seizure disorder. See July 2021 Board hearing transcript and September 2021 attorney's correspondence. The January 2018 VA examination of the severity of the Veteran's seizure disorders is inadequate because it did not reconcile the Veteran's reported history of having at least one seizure per month on average with a finding of a seizure frequency of only "at least 1 [major seizure] in past 6 months." The examiner did not provide a rationale for such finding, and also did not provide a basis for declining to find a higher frequency of major seizures (e.g., once per every 4 months, once per every 3 months, or once per month). When VA undertakes to examine a Veteran, VA is obligated to ensure that that examination is adequate. See Barr v. Nicholson, 21. Vet. App. 303 (2007). Inadequate medical examinations include examinations that contain only data and conclusions, do not provide an etiological opinion, are not based upon a review of medical records, or provide unsupported conclusions. Nieves- Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Thus, a remand is necessary for the AOJ to provide another VA examination on the severity of the seizure disorder, and to provide a retrospective medical opinion on the severity of the seizure disorder since service-connection was established in September 2015. Moreover, the Veteran has indicated a history of medical treatment for his seizures primarily with VA providers at West Haven VA Medical Center (VAMC) as well as a private provider, Yukon Medical Health Center. On remand, the AOJ should ask the Veteran to identify such records and attempt to obtain them. The issue of entitlement to a TDIU is inextricably intertwined with the increased rating claim on appeal. The matters are REMANDED for the following action: 1. Ask the Veteran to provide the names and addresses of any medical provider, VA or private, who has treated the Veteran for his seizure disorder. After securing any necessary releases, request any relevant records identified that are not duplicates of those already contained in the claims file. Obtain any outstanding VA treatment records, including from the West Haven VAMC since July 2021. If any requested records are unavailable, the claims file should be annotated and the Veteran and his representative notified of such. 2. After associating any additional medical records with the claims file, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected seizure disorder. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. The examiner should identify any occupational impairment due to his seizures disorder, alone. After reviewing the record, the examiner should also comment on whether there was any increased functional impairment due to his seizure disorders in the time period from September 2015 to January 2018. In particular, to the extent possible, the examiner should provide a retrospective opinion as to the frequency of any minor and major seizures prior to January 22, 2021 A rationale should be provided for all opinions and findings rendered on the frequency of any minor and major seizures. Also, the examiner should address and reconcile any competent lay statements on the history of his seizure disorder symptoms and manifestations. C. CRAWFORD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Chatterjee, B. 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.