Citation Nr: 21069833 Decision Date: 11/19/21 Archive Date: 11/19/21 DOCKET NO. 14-36 371 DATE: November 19, 2021 ORDER An initial disability rating greater than 20 percent for complex partial seizures due to cerebrovascular accidents, previously diagnosed as trans ischemic attacks, is denied. An initial compensable disability rating for swallowing difficulty associated with cerebrovascular accidents is denied. REMANDED The issues of (1) entitlement to an initial disability rating greater than 30 percent for migraine headaches associated with complex partial seizures due to cerebrovascular accidents; and (2) entitlement to a total disability rating based on individual unemployability (TDIU) are remanded. FINDINGS OF FACT 1. The evidence of record demonstrates that the Veteran experienced complex partial seizures at most up to 10 times per month. At no point during the claim period did the Veteran experience an average of at least 5 to 8 minor seizures per week. 2. A preponderance of the evidence does not indicate that the Veteran experienced a paralysis of the soft palate and speech impairment in conjunction with his swallowing difficulty. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating greater than 20 percent for complex partial seizures are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.13, 4.120, 4.121, 4.122 4.124a, Diagnostic Code 8911. 2. The criteria for an initial compensable disability rating for swallowing difficulty are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.97, Diagnostic Code 6521. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from February 1977 to May 1977, December 1979 to July 1981, and January 1985 to March 2004, to include service in the Southwest Asia theater of operations. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) which assigned 10 percent ratings for sensory deficits of the left lower extremity and left upper extremity, status post transient ischemic attacks, effective June 2, 2011the date of receipt of claim. The RO also denied service connection for sleep apnea. The Veteran filed a timely notice of disagreement (NOD) in May 2013. In May 2018, the Veteran and his spouse testified at a Board hearing before the undersigned. A transcript of the hearing is of record. Subsequently, in August 2018, a VA RO issued another rating decision which partially increased the Veteran's left upper extremity rating from 10 percent to 20 percent, effective July 18, 2018. Then, in October 2018, VA remanded the issues of entitlement to service connection for sleep apnea as well as entitlement to increased ratings for neurological disabilities of the left lower extremity and left upper extremity. In remanding the extremity increased rating issues, the Board directed the Agency of Original Jurisdiction (AOJ) to evaluate the Veteran for all residuals of his transient ischemic attacks, not just those disabilities of the left lower and upper extremities. Following the Board's October 2018 remand, another rating decision was issued in October 2019. In this decision, a VA RO awarded service connection for the Veteran's sleep apnea. This grant of service connection constituted a full award of the benefit sought on appeal with respect to that issue. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997) (holding that where an appealed claim for service connection is granted during the pendency of the appeal, a second notice of disagreement must thereafter be timely filed to initiate appellate review of the claim concerning "downstream" issues, such as the compensation level assigned for the disability and the effective date). Accordingly, the Veteran's sleep apnea service connection issue no longer remained in appellate status. In addition, the October 2019 rating decision increased the Veteran's left lower and upper extremity disability ratings to 40 percent, effective June 2, 2011. But, as these increases did not represent a total grant of the benefits sought on appeal, the Veteran's left lower and upper extremity increased rating issues remained in appellate status. AB v. Brown, 6 Vet. App. 35 (1993). Thereafter, in July 2020, the Board denied disability ratings greater than 40 percent for neurological disabilities of the left lower and upper extremities. The Board then remanded a separate issuecharacterized as transient ischemic attack residuals other than neurological disabilities of the left lower and upper extremitiesfor additional development. Then, in March 2021, a VA RO issued another rating decision granting service connection for swallowing difficulty. In granting service connection, the RO recharacterized the Veteran's transient ischemic attacks as cerebrovascular accidents and found that the Veteran's swallowing difficulty was associated with this re-labeled disability. The RO assigned an initial noncompensable rating for the Veteran's swallowing disability, effective March 2, 2021. Lastly, in April 2021, another rating decision was issued that (1) granted service connection for complex partial seizures due to cerebrovascular accidents, and (2) granted service connection for migraine headaches as due complex partial seizures. In regard to the Veteran's complex partial seizures, the RO assigned an initial 20 percent rating, effective June 2, 2011. For the Veteran's migraine headaches, an initial 30 percent rating was assigned, also effective June 2, 2011. The case has returned to the Board for appellate review. 1. Increased Initial Rating for Complex Partial Seizures As indicated above in the Conclusions of Law section, the Board finds that an initial disability rating greater than 20 percent for complex partial seizures is not warranted in the instant case. Accordingly, the Veteran's claim is denied. In support of this determination, the Board first notes that the Veteran's complex partial seizures are evaluated pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8911. Diagnostic Code 8911 pertains to petit mal epilepsy and directs VA to evaluate such disabilities under the general rating formula for minor seizures. Under this general rating formula, a 20 percent rating is assigned for at least 2 minor seizures during any 6-month period. A 40 percent rating is assigned for an average of at least 5 to 8 minor seizures weekly. A rating of 60 percent is assigned for 9 to 10 minor seizures per week. Lastly, an 80 percent rating is assigned for more than 10 minor seizures per week. Id. Note (2) to Diagnostic Code 8911 defines "minor seizure" for evaluative purposes. Specifically, , 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. Turning to the evidence of record, the Board acknowledges that the Veteran was provided 4 VA examinations relevant to his seizure complaints during the claim period. Firstly, in July 2011, he was provided a VA brain and spinal cord disabilities examination. On this occasion, he reported episodes of loss of function of the left side of his body with weakness and numbness. He indicated that his wife reported staring spells during each episode. Lastly, the Veteran indicated that these episodes could occur at least 15 to 20 times per year. Thereafter, in July 2014, the Veteran was provided a VA central nervous system and neuromuscular diseases examination. The Veteran reported similar symptoms of episodic left-sided numbness and weakness with blurred vision. On this occasion, the Veteran reported experiencing such episodes about 3 to 4 times per month. Then, in September 2020, the Veteran was provided a VA seizure disorders examination. During this examination, the Veteran reported having episodes of left-sided numbness, tingling, and weakness about 1 to 2 times per month. Comparatively, during a VA central nervous system and neuromuscular diseases examination conducted in March 2021, the Veteran did not specify the frequency of his episodes of left-sided numbness, tingling, and weakness. Separate from these VA examinations reports of record, VA and private treatment records associated with the claims file discussed the frequency of his seizureswhich he also referred to as transient ischemic attacks or "episodes." Specifically, as recorded in May 2018 and June 2018 VA telephone encounter notes, the Veteran reported to a VA primary care registered nurse that he experienced transient ischemic attacks about 3 to 5 times per month. In comparison, in August 2011 and April 2013 VA mental health physician notes, the Veteran reported 2 seizures per month. Lastly, during the May 2018 Board hearing, the Veteran testified that could experience transient ischemic attacks up to 10 times per month. Board Hearing Tr. at 6. He elaborated that elevated levels of stress increased his probability of having an attack. Id. From this evidence of record, the Board concludes that the Veteran experienced, at most, an average of 10 minor seizures during the claim period. At no point during the claim period did the Veteran report experiencing at least 5 to 8 minor seizures per week. As such evidence is necessary for the assignment of the next higher rating of 40 percent under Diagnostic Code 8911, the Board must deny the Veteran's claim. See 38 C.F.R. § 4.124a. Accordingly, the Board concludes that entitlement to an initial disability rating greater than 20 percent for complex partial seizures is not warranted in the instant case. In reaching its conclusion, the Board acknowledges that, throughout the claim period, the Veteran was prescribed Tegretol and Topiramate for seizures. However, as Diagnostic Code 8911 explicitly contemplates the ameliorative effects of medication, the Board may not speculate upon a possible increase in the frequency of the Veteran's seizures as if he was not prescribed any medications. See Jones v. Shinseki, 26 Vet. App. 56, 61 (2012). 2. Increased Initial Rating for Swallowing Difficulty Similar to the above issue regarding complex partial seizures, the Board finds that entitlement to an initial compensable rating for swallowing difficulty is not warranted in the instant case. Accordingly, the Veteran's claim is denied. In support of this determination, the Board first notes that the Veteran's disability is currently being evaluated pursuant to 38 C.F.R. § 4.97, Diagnostic Code 6521. Diagnostic Code 6521 is assigned to injuries of the pharynx (throat). Under Diagnostic Code 6521 a 50 percent rating is assignable only when one of the following circumstances are met: (1) stricture or obstruction of the pharynx or nasopharynx; (2) absence of the soft palate secondary to trauma, chemical burn, or granulomatous disease; or (3) paralysis of the soft palate with swallowing difficulty (nasal regurgitation) and speech impairment. Turning to the evidence of record in the instant case, a March 2021 VA central nervous system and neuromuscular diseases examination report indicated that the Veteran had mild swallowing difficulties. Separate from this examination in March 2021, the Veteran did not report swallowing difficulties to any VA or private provider during the claim period. Rather, in VA treatment records received in April 2021, the Veteran denied any difficulty swallowing beginning in October 2019. Additionally, even if the Veteran experienced swallowing difficulties for the entirety of the claim period, no VA or private health professional indicated that the Veteran experienced paralysis of the soft palate with impairment of speech. As the presence of all these symptoms is necessary for the assignment of a 50 percent rating under Diagnostic Code 6521, the Board must deny the Veteran's claim at this time and not assign a compensable rating for difficulty swallowing. See 38 C.F.R. § 4.97. REASONS FOR REMAND 1. Increased Rating for Migraine Headaches Although the Board regrets the additional delay, it finds that remand of the issue of entitlement to an initial disability rating greater than 30 percent for migraine headaches is warranted in the instant case. Specifically, following the Board's July 2020 remand, the Veteran was provided a VA headaches examination in November 2020. However, the Board finds the November 2020 VA examination report to be inadequate for adjudicative purposes as it is unclear whether the examiner considered the ameliorative effects of the Veteran's medication in concluding that he did not experience very prostrating attacks of migraine pain productive of severe economic inadaptability, contrary to the Court of Appeals for Veterans Claims' holding in Jones v. Shinseki. 26 Vet. App. at 61. Thus, the Board remands the Veteran's migraine headaches increased rating issue for the provision of an additional VA medical opinion. 2. TDIU The Board finds that the issue of entitlement to a TDIU has been raised by the record as part-and-parcel of his migraine headaches increased rating claim. See, e.g., November 2020 VA Headaches Examination Report (noting that the Veteran's migraine headaches impacted his ability to work by interfering with concentration). As the Veteran's migraine headache increased rating claim is being remanded for additional development, the Board concludes that a decision on entitlement to a TDIU would be premature at this time. Where a pending claim is inextricably intertwined with a claim currently on appeal, the appropriate remedy is to remand the claim on appeal pending the adjudication of the inextricably intertwined claim. See Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: Send the Veteran's claims file to an appropriate VA clinician to issue a medical opinion regarding the nature and severity of the Veteran's migraine headaches. The entire claims file, including a copy of this Remand, must be made available to and reviewed by the clinician. If the clinician determines that a physical examination is necessary to issue the opinion, one should be provided. Thereafter, the clinician should address the following: Please state whether it is at least as likely as not (50 percent probability or more) that, without considering any ameliorative effects of medication, the Veteran would have experienced very frequent completely prostrating and prolonged attacks of migraine headaches that could have been productive of severe economic inadaptability during the claim period. Please comment upon the functional impact and limitations of the Veteran's migraine headachesboth in isolation and in conjunction with his other service-connected disabilities. In this regard, please evaluate the limitations and restrictions imposed by his service-connected disabilities on such routine work activities as interacting with coworkers; sitting, standing, walking, and driving; pushing, lifting, carrying, pushing, and pulling. The clinician should consider medical and lay evidence dated both prior to and since the filing of the claim. The clinician must provide a complete rationale for any opinion rendered. If the clinician cannot provide an opinion without resorting to speculation, he or she should explain why an opinion cannot be provided (e.g., lack of sufficient information/evidence, the limits of medical knowledge, etc.). S.C. KREMBS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N.S. Pettine, 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.