Citation Nr: 21069602 Decision Date: 11/19/21 Archive Date: 11/19/21 DOCKET NO. 16-27 427 DATE: November 19, 2021 ORDER Entitlement to an increased rating greater than 20 percent for generalized epilepsy is denied. REMANDED Entitlement to service connection for mature cataract, retinal detachment by history, and glaucoma angle closure (left eye injury), claimed as secondary to service-connected generalized epilepsy, is remanded. FINDING OF FACT Symptoms of the Veteran's generalized epilepsy did not more nearly approximate at least five to eight minor seizures weekly. CONCLUSION OF LAW The criteria for a rating greater than 20 percent for generalized epilepsy are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.121, 4.124a Diagnostic Code (DC) 8911. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1974 to October 1976. This case comes before the Board of Veterans' Appeals (Board) from a July 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO), which denied an increased rating for generalized epilepsy and service connection for left eye injury. In June 2014 the Veteran filed a notice of disagreement (NOD) and in April 2016 the RO issued a statement of the case (SOC). In June 2016 the Veteran filed a substantive appeal (via VA Form 9). On September 14, 2021, Veteran was scheduled for a videoconference hearing, however, he did not appear for the hearing and has not requested that his hearing be rescheduled or indicated that there was good cause for his failure to appear. Therefore, the Board finds that the Veteran's hearing request is deemed withdrawn. 38 C.F.R. § 20.704(d). Increased Rating 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. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. Where, as here, entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). Generalized epilepsy The Veteran is rated 20 percent for generalized epilepsy under 38 C.F.R. § 4.124a, DC 8911. DC 8911 applies to petit mal epilepsy and provides that the disability is to be rated under the general rating formula for minor seizures. Note 1 defines a major seizure as one characterized by the generalized tonic-clonic convulsion with unconsciousness. Note 2 provides 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). Under the General Rating Formula for Major and Minor Epileptic Seizures provides that both the frequency and type of seizures a veteran experience are considered in determining the appropriate rating, a 20 percent disability rating is warranted when at least one major seizure occurred in the last two years; or at least two minor seizures occurred in the last six months. A 40 percent disability rating is warranted where at least one major seizure occurred in the last six months or occurred two times in the last year; or there was an average of at least five to eight minor seizures weekly. A 60 percent disability rating is warranted where there is an average of at least one major seizure in four months over the last year; or nine to ten minor seizures occurred per week. An 80 percent disability rating is assigned where there is at least one major seizure in three months over the last year; or more than ten minor seizures weekly. A 100 percent disability rating is warranted where there is an average of at least one major seizure per month over the last year. Note 1 to the general rating formula provides that when continuous medication is shown 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. Note 2 to the general rating formula provides that in the presence of major and minor seizures, the predominating type should be rated. 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 (while not hospitalized). 38 C.F.R. § 4.121. For the following reasons, a rating greater than 20 percent for generalized epilepsy is not warranted. A May 2013 VA examiner diagnosed the Veteran with tonic-clonic seizures or grand mal (generalized convulsive seizures). The VA examiner noted that the Veteran did not have any type of seizure activity, including major, minor, petit mal or psychomotor seizure activity. The VA examiner noted that the Veteran did not have any other findings, signs or symptoms attributable to seizure disorder (epilepsy) activity. The Veteran was prescribed generic Dilitan for his generalized epilepsy. A November 2013 VA physician noted that the Veteran began to have small seizures over the last 2 and a half years and began having one big seizure and 3 to 4 small seizures a week. The Veteran described the seizures as feeling lightheaded, sweating profusely, and having his vision close in on him. An April 2014 VA examiner noted that the Veteran experienced 2 or more minor seizures over the past 6 months with an average frequency of 0 to 4 per week. The VA examiner noted that the Veteran experienced no major seizures. VA's duty to assist a Veteran includes providing a thorough and contemporaneous examination when the record does not adequately reveal the current state of the Veteran's disability. Hart v. Mansfield, 21 Vet. App. 505, 508 (2007) (citing, inter alia, Green v. Derwinski, 1 Vet. App. 121, 124). The record is inadequate and the need for a contemporaneous examination occurs when the evidence indicates that the current rating may be incorrect due to the passage of time and a possible increase in disability. Hart, 21 Vet. App. at 508 (citing, inter alia, Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) ("Where the appellant complained of increased hearing loss two years after his last audiology examination, VA should have scheduled the appellant for another examination"). See also 38 C.F.R. § 3.327 (Generally, reexaminations will be required if it is likely that a disability has improved, or if evidence indicates there has been a material change in a disability or that the current rating may be incorrect"). However, the mere passage of time does not trigger VA's duty to provide additional medical examination unless there is allegation of deficiency in the evidence of record. Hart, 21 Vet. App. at 508 (citing Palczewski v. Nicholson, 21 Vet. App. 174, 182-83 (2007)). The Veteran has not argued, and the evidence does not reflect, that there has been a possible increase in disability due to the passage of time since the most recent April 2014 VA examination. A new examination is therefore not required. Moreover, as the general rating formula references medication, to the extent the medication had an ameliorative effect, this can be considered. Jones v. Shinseki, 26 Vet. App. 56, 63 (2012) ("the Board may not deny entitlement to a higher rating on the basis of relief provided by medication when those effects are not specifically contemplated by the rating criteria"). The above evidence does not reflect that the Veteran's symptoms have not more nearly approximated an average of at least five to eight minor seizures weekly. Therefore, the preponderance of evidence is against a rating greater than 20 percent for generalized epilepsy. The benefit of the doubt doctrine is therefore not for application and the claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. REASONS FOR REMAND Entitlement to service connection for left eye injury, claimed as secondary to service-connected generalized epilepsy, is remanded. Service connection may also be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310(a),(b). An April 2013 VA examiner diagnosed the Veteran with mature cataract, retinal detachment by history, and glaucoma angle closure. Thus, a current left eye disability has been demonstrated. The April 2013 VA examiner opined that the Veteran's left eye disability is less likely than not proximately due to or the result of his service-connected generalized epilepsy. The VA examiner explained that the Veteran has a mature cataract and angle closure glaucoma and it is not possible to confirm the retinal detachment in the left eye since he has a mature cataract. The VA examiner reasoned that a report from a retinal surgeon would be needed. The VA examiner concluded that it would not be possible to say that a seizure played any role in the detachment unless one can confirm that the eye was injured from a seizure. The April 2013 VA examiner's opinion indicates that a retinal surgeon would be needed to determine whether the Veteran's left eye disability is proximately due to his generalized epilepsy. Therefore, by the VA examiner's own admission, he does not have the requisite medical training, expertise, or credentials to render an adequate opinion as to medical causation. Wise v. Shinseki, 26 Vet. App. 517, 527 (2014) (where "a medical professional admits that he or she lacks the expertise necessary to provide" a requested medical opinion, the Board must address the medical professional's competence before relying on his or her opinion). Furthermore, this opinion does not explain whether the Veteran's left eye disability was aggravated by his generalized epilepsy. See generally El-Amin v. Shinseki, 26 Vet. App. 136 (2012). Therefore, the opinion is inadequate and another VA medical opinion is warranted. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide an examination or obtain a medical opinion, it must ensure that the examination or opinion is adequate). The matters are REMANDED for the following action: Request an opinion from a retinal surgeon or physician with equivalent expertise regarding the etiology of the Veteran's left eye disability or any related symptoms. If an examination is required, one should be conducted, to include via telehealth if appropriate. The clinician should opine whether the Veteran's left eye disability is either (i) caused or (ii) aggravated by his use of medications for any of his service-connected disabilities. If aggravation is found, the baseline of the left eye disability prior to aggravation should be identified, if possible. The clinician is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinion. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board James R. Miller, 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.