Citation Nr: 21077131 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 14-08 701 DATE: December 28, 2021 REMANDED An initial compensable rating from February 4, 2010, until March 15, 2016, and an initial increased rating in excess of 20 percent from March 15, 2016, for spinal compression fractures is remanded. An initial rating in excess of 20 percent for right lower extremity radiculopathy involving the femoral nerve is remanded. An increased rating in excess of 80 percent from February 4, 2010, until January 1, 2011, in excess of 40 percent from January 1, 2011, until November 20, 2017, and in excess of 80 percent from November 20, 2017, for epilepsy is remanded. Entitlement to a total disability rating based on individual employability (TDIU) prior to January 31, 2017, is remanded. Entitlement to aid and attendance and/or other special monthly compensation is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1991 to March 1992 and from May 1995 to October 1999. This matter originally came before the Board of Veterans' Appeals (Board) from July 2010 and October 2010 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran testified at a May 2017 Board video-conference hearing before a Veterans Law Judge (VLJ) who is no longer with the Board. A copy of the hearing transcript is associated with the claims file. In October 2021, the Veteran was informed that the VLJ who conducted the Board hearing was no longer with the Board and the Veteran was offered an opportunity to request a new Board hearing but did not respond. As such, the Board has assumed that another hearing was not wanted. This matter has been previously remanded by the Board for further development, most recently in March 2021. This matter is again before the Board. During the pendency of the appeal, a TDIU was granted from January 31, 2017. As this was not a full grant of the benefit sought for the entire appeal period and because TDIU claims are part and parcel of increased rating claims, the issue of a TDIU prior to January 31, 2017, remains on appeal. See AB v. Brown, 6 Vet. App. 35 (1993); Rice v. Shinseki, 22 Vet. App. 447 (2009). Also, during the pendency of the appeal, service connection was granted for right lower extremity radiculopathy. As such is part and parcel of the Veteran's increased rating claim for spinal compression fractures, the Board has jurisdiction over the issue. 1. An initial compensable rating from February 4, 2010 until March 15, 2016, and an initial increased rating in excess of 20 percent from March 15, 2016, for spinal compression fractures and an initial rating in excess of 20 percent for right lower extremity radiculopathy involving the femoral nerve are remanded. The Veteran believes that higher ratings for his spinal compression fractures and right lower extremity radiculopathy are warranted. See October 2021 Appellate Brief. The most recent VA spine examination took place in December 2017. See December 2017 C&P Exam. Since that examination, the Veteran has reported that his back pain has worsened. See January 2019 Medical Treatment Record. Based on the Veteran's report, it appears that the Veteran's spinal compression fractures may have increased in severity. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159; Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Additionally, none of the relevant VA spine/radiculopathy examinations appear to have considered the ameliorative effects of medication when evaluating the current nature and severity of the Veteran's spinal compression fractures and right lower extremity radiculopathy. See Jones v. Shinseki, 26 Vet. App. 56 (2012) (when a Diagnostic Code is silent as to the effects of medication, VA may not deny entitlement to a higher disability rating based on the relief provided by medication). Finally, none of the previous relevant VA spine examinations obtained/provided all the needed information concerning impairment related to repeated use over time. See Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). Specifically, among other things, the 2010 examination did not provide any information regarding impairment related to repeated use over time and the January 2017, October 2017, and December 2017 examinations could not provide range of motion loss estimates related to repeated use over time because the Veteran was not directly observed after repeated use over time. See May 2010 VA Examination; January 2017 C&P Exam; October 2017 C&P Exam; December 2017 C&P Exam. The examinations also failed to make clear that all procurable and assembled data (i.e., the information regarding frequency, duration, characteristics, severity, and/or functional loss related to repetitive use over time elicited from the veteran) was considered and that the medical community at large could not provide such an opinion without resorting to mere speculation. For these reasons, among others, a remand is needed for a new VA examination to address the entire appeal period. 2. An increased rating in excess of 80 percent from February 4, 2010, until January 1, 2011, in excess of 40 percent from January 1, 2011 until November 20, 2017, and in excess of 80 percent from November 20, 2017, for epilepsy is remanded. The Veteran believes that higher ratings for his epilepsy are warranted. See October 2021 Appellate Brief. The Veteran underwent VA epilepsy examinations in 2010 and 2017. See February 2010 VA Examination; December 2017 C&P Exam. However, neither examination was able to consider all the relevant evidence of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). For example, among other things, the 2010 examination found that the Veteran had not had a seizure for the two-year period prior to the January 2010 seizure. However, the Veteran had subsequently reported that he did have seizures during that period. See August 2010 Statement in Support of Claim. Giving another example, among other things, the 2017 examination found that the Veteran had never had psychomotor seizures. However, a previously submitted medical record stated that the Veteran had had psychomotor seizures. See May 2017 DBQ. Additionally, none of the examinations provided an opinion as to whether head injuries, headaches, mouth and tongue injuries, and sleep problems were caused by or aggravated by the Veteran's service-connected epilepsy. As such, the current medical evidence of record is insufficient to determine whether separate ratings for these conditions are warranted. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). For these reasons, among others, a remand is needed for a new VA examination to address the entire appeal period. 3. Entitlement to a TDIU prior to January 31, 2017 is remanded. The Veteran believes that a TDIU prior to January 31, 2017 is warranted. See June 2020 Statement in Support of Claim. The Board finds that the TDIU issue is inextricably intertwined with the other issues being remanded herein. See Parker v. Brown, 7 Vet. App. 116 (1994). As favorable action on the other issues could potentially result in the award of a TDIU prior to January 31, 2017, the TDIU issue is deferred until the requested development has been completed. Id. 4. Entitlement to aid and attendance and/or other special monthly compensation is remanded. A claim for increased disability compensation may include the inferred issue of entitlement to special monthly compensation, even where the veteran has not expressly placed entitlement to special monthly compensation at issue. See Akles v. Derwinski, 1 Vet. App. 118, 121 (1991). Aid and attendance special monthly compensation is available if the veteran, as the result of service-connected disabilities, is permanently bedridden or so helpless as to require regular aid and attendance. 38 U.S.C. § 1114(l); 38 C.F.R. §§ 3.350(b), 3.352(a). The record suggests that aid and attendance and/or other special monthly compensation may be warranted due to the Veteran's service-connected disabilities. Specifically, the Veteran's relatives have reported that the Veteran constantly needs to be checked on due to his seizures and that his head hits the floor during seizures. Additionally, medical records show that family members have helped the Veteran clean up after he has lost control of his bladder during seizures and that the Veteran may need help with medication management. See November 2017 Buddy / Lay Statement; May 2017 Buddy / Lay Statement; September 2017 CAPRI. The Board finds that there is currently insufficient medical evidence of record to make a proper determination on the issue. Therefore, a remand is needed for a VA examination. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matter is REMANDED for the following action: 1. Update VA and private treatment records. VA treatment records appear current up to April 2021. 2. Ensure that all VA treatment records from Gainesville/Lake City VAMC from 2010 until the end of 2016 are associated with the claims file. If any records are not associated with the claims file, attempt to obtain them in accordance with 38 C.F.R. § 3.159. 3. Provide the Veteran with a new VA Form 21-8940 with instructions that a complete employment history from February 4, 2009 until January 31, 2017 should be provided to assist with the adjudication of the TDIU issue. Complete any additional development indicated by the information on the returned form. 4. Ask the Veteran to provide IRS tax returns for the years he claims he has been unable to obtain and/or maintain substantially gainful employment due to service-connected disability (i.e., from February 4, 2010 until January 31, 2017) and a statement that the copy is an exact duplicate of the return filed with the IRS. Provide the Veteran with an IRS Form 4506-T "Request for Transcript of Tax Return" which may also be found at https://www.irs.gov/pub/irs-pdf/f4506t.pdf so that the Veteran may request tax returns and submit them to VA. Tell the Veteran that if he does not have copies of the tax returns for the requested years, he may use the IRS form cited to above. 5. Schedule one or more appropriate VA examinations to determine the nature and severity of the service-connected spinal compression fractures and right lower extremity radiculopathy throughout the entire appeal period (i.e., since February 2010 for the spinal compression fractures and since March 2016 for the right lower extremity radiculopathy). This should include, but is not limited to, any muscle injuries and any neurological impairment. This should also include the impact that the Veteran's spinal compression fractures may have on the Veteran's right hip. The claims file and a copy of this Remand should be made available to and should be reviewed by the examiner. Any studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner should report all signs and symptoms necessary for evaluating the Veteran's service-connected spinal compression fractures and right lower extremity radiculopathy throughout the entire appeal period. This should include, but is not limited to, any muscle injuries and any neurological impairments. The severity of any muscle injuries (i.e., slight, moderate, moderately severe, or severe) and the severity of any neurological impairments (i.e., mild, moderate, severe incomplete paralysis, or complete paralysis of the affected nerves) should be assessed. Identify the specific muscle groups associated with any muscle injuries and identify the specific nerves associated with any neurological impairments. This should also include the impact that the Veteran's spinal compression fractures may have on the Veteran's right hip. This should also include all symptoms and related impairment that would have been present without the relief provided by medications to treat the disabilities. For the spinal compression fractures, the examiner should provide range of motion measurements in degrees. In so doing, the examiner should test the Veteran's range of motion in active motion, passive motion, weight-bearing, and in non-weight-bearing. Such range of motion results should be recorded in the report. If there is evidence of pain on motion, the examiner should indicate the degree of range of motion at which such pain begins. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, the examiner should clearly explain why in the report. The examiner must comment on the functional limitations caused by repetitive use over time and flare-ups due to the Veteran's connected spinal compression fractures. The examiner must indicate whether, and to what extent, the Veteran's range of motion is additionally limited after repetitive use over time and during flare-ups in terms of degrees, if possible. If it is not possible, the examiner should explain why, making clear that all procurable and assembled data (i.e., the information regarding frequency, duration, characteristics, severity, and/or functional loss related to repetitive use over time and flare-ups elicited from the Veteran) was considered, and that the medical community at large could not provide such an opinion without resorting to speculation. If it is not possible due to a deficiency in the record or a lack of personal medical knowledge, the examiner should state so. Any additional impairment on use or in connection with repetitive use over time and flare-ups should be described in terms of the degree of additional range of motion loss. If the Veteran states that the limitation on range of motion is variable, provide the range of variableness in terms of degrees. The examiner should specifically describe the severity, frequency, and duration of impairment after repetitive use over time and during flare-ups; name the precipitating and alleviating factors; and estimate, per the Veteran, to what extent, if any, such repetitive use over time and flare-ups affect functional impairment. This testing should be done regardless of whether the Veteran is tested after repetitive use over time or during a flare-up or not. The examiner should also provide estimates of what the Veteran's range of motion measurements, symptoms, and related impairment would have been throughout the appeal period (i.e., since February 2010 for the spinal compression fractures and since March 2016 for the right lower extremity radiculopathy) with and without the ameliorative effects of medication used to treat the disabilities. The examiner should discuss whether, at any point during the appeal period (i.e., since February 2010), the Veteran has had the functional equivalent of ankylosis. If so, the examiner should discuss whether the ankylosis was favorable or unfavorable and provide the time periods in which it existed. After a review of the record on appeal and an examination of the Veteran, the examiner is asked to provide the following opinions: (A) Identify all disabilities related to the Veteran's service-connected spinal compression fractures, existing at any point during the pendency of the appeal (i.e., since February 2010), even if they are currently asymptomatic or have resolved during the pendency of the appeal. (B) The Veteran is also claiming that his service-connected spinal compression fractures are affecting his right hip. Identify all disabilities related to this complaint during the appeal period. (C) For each identified disability, is it at least as likely as not (i.e., a 50 percent probability or greater) that the disability is related to or aggravated by the Veteran's service-connected spinal compression fractures? For aggravation, state whether there is/was a medically ascertainable increase in disability regardless of permanence. Any increase in disability should be described in terms of diagnosis, severity, and duration. The permanence of the aggravation is not at issue. In addition to the other relevant evidence of record, the examiner is asked to consider the following information with a caution that this list is not a substitute for a review of the record: (1) Medical records from 2019 showing forward flexion of 45 degrees and excessive mobility in the spine. See May 2021 CAPRI. (2) Medical records from 2018 showing worsening back pain. The Veteran used a back brace, reported difficulty with balance, and used a cane for support. See January 2019 Medical Treatment Record. (3) Medical records from 2014 showing T4 vertebral body height with about a 50 percent loss. See July 2018 Medical Treatment Record. (4) Medical records from 2018 showing Gabapentin and Methocarbamol for the back. See June 2018 CAPRI. (5) Medical records from 2017 showing severe back pain; injections; use of a back brace; use of analgesic cream, which was helpful; and a list of medications. See January 2018 CAPRI. (6) A medical record from 2017 showing initial flexion from zero to 50 degrees, pain on forward flexion, arthritis, and thoracic vertebral facture with loss of 50 percent or more height. Further information is provided. See December 2017 C&P Exam. (7) A medical record from 2017 showing degenerative arthritis, documented in 2013, and diffuse back pain with discomfort into the buttocks and thighs. Medications used included opiates, NSAIDs, and topical creams. Further information is provided. See October 2017 C&P Exam. (8) Medical records from 2017 showing the Veteran's report that low back pain caused his erectile dysfunction. See September 2017 CAPRI. (9) The Veteran's 2017 report of back pain being worsened by stiffness and of radiating pain when turning in different positions. When he tried to walk, it hurt so much that he wanted to fall to his knees. The Veteran previously used Codeine but was now using Oxycodone. He used a cane to steady himself because the lower part of his back would give out. He had pain in the right hip, which doctors told him was related to back problems. Further information is provided. See Hearing Transcript. (10) Medical records from 2016 showing muscle strength of 3/5 on the left and right. Medical records from 2017 showed the previous use of Tylenol with Codeine and more recent use of Oxycodone three times per day, which improved the pain. See May 2017 CAPRI. (11) A medical record from 2017 showing initial forward flexion of 20 to 40 degrees, with pain. There was right L3/L4 radiculopathy, and the right radiculopathy was moderate in severity. Further information is provided. See January 2017 C&P Exam. (12) Medical records from 2016 showing back flare-ups, which lasted between three and five days per episode. See December 2016 Third Party Correspondence. (13) Medical records from 2016 showing that the Veteran used Tylenol T3 for back pain. See October 2016 CAPRI. (14) Medical records from 2014 showing mild osteopenia. Further information is provided. See March 2015 NOD. (15) Medical records from 2013 showing Ibuprofen for back pain. Medical records from 2014 showed the use of Ibuprofen, Naproxen, and Tylenol #3 for back pain. There had been back pain since 2010, which was alleviated by over-the-counter medication. Muscle strength was a 3+/5. Further information is provided. See July 2014 CAPRI. (16) Medical records from 2010 showing very minimal scoliotic curvature of the thoracolumbar spine and degenerative disc disease. See August 2010 Medical Treatment Record; February 2010 Medical Treatment Record. (17) The Veteran's 2010 report of using Motrin. The back pain caused him to be unable to move at times. He would have to wait to be able to move. See August 2010 Statement in Support of Claim. (18) A medical record from 2010 showing the use of a back brace and a history of numbness. Further information is provided. See May 2010 VA Examination. (19) All other relevant lay and medical evidence. A complete and clear rationale for all opinions offered should be provided. Address the Veteran's documented history and assertions. The Veteran and others are competent to attest to factual matters of which they have first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran and/or others, the examiner should provide a fully reasoned explanation. All necessary tests and studies should be conducted. If the examiner cannot provide an opinion without resorting to mere speculation, the examiner should provide an explanation stating why. In so doing, the examiner should explain whether the inability to provide a more definitive opinion is due to the limits of the medical community or the limits of the examiner's medical knowledge. 6. Schedule one or more appropriate VA examinations to determine the nature and severity of the service-connected epilepsy throughout the entire appeal period (i.e., since February 2010). This should include, but is not limited to, the affect that the Veteran's epilepsy disability (including but not limited to epilepsy medication), may have on the Veteran's head, headaches, mouth, tongue, teeth, and sleep. The claims file and a copy of this Remand should be made available to and should be reviewed by the examiner. Any studies, tests, and evaluations deemed necessary by the examiner should be performed. After a review of the record on appeal and an examination of the Veteran, the examiner is asked to provide the following opinions: (A) Identify all VA-recognized disabilities related to the Veteran's service-connected epilepsy disability, existing at any point during the pendency of the appeal (i.e., since February 2010), even if they are currently asymptomatic or have resolved during the pendency of the appeal. (B) The Veteran is also claiming that his service-connected epilepsy disability is affecting his head, headaches, mouth, tongue, teeth, and sleep. Identify all VA-recognized disabilities related to these complaints during the appeal period. (C) For each identified disability, is it at least as likely as not (i.e., a 50 percent probability or greater) that the disability is related to or aggravated by the Veteran's service-connected epilepsy (including but not limited to epilepsy medication)? For aggravation, state whether there is/was a medically ascertainable increase in disability regardless of permanence. Any increase in disability should be described in terms of diagnosis, severity, and duration. The permanence of the aggravation is not at issue. In addition to the other relevant evidence of record, the examiner is asked to consider the following information with a caution that this list is not a substitute for a review of the record: (1) The Veteran's report that the increase in his seizures did not just begin on the day of the 2017 examination but existed from the date of claim. See October 2021 Appellate Brief. (2) Medical records from 2019 showing that the Veteran still woke up with sore jaws and lips about two to three times per week. He reported continued episodes suggestive of seizures and reported continued seizures during sleep. Medical records from January 2019 showed the Veteran's report of a seizure. The seizures caused him to bite his lips. He continued to have blank stares at times and sometimes woke up with wet underwear. Further information is provided. See May 2021 CAPRI. (3) Medical records from October 2012 showing that the Veteran likely had a seizure. See April 2021 Medical Treatment Record. (4) Medical records from October 2016 showing a seizure. See March 2021 CAPRI. (5) The Veteran's report that apparently sometime between October and November 2016, he had a seizure at work. In December 2015, he was taken to the ER for a seizure. See June 2020 Statement in Support of Claim. (6) Medical records from September 2017 showing a seizure and that the Veteran was still having petit-mal seizures during the day. Medical records from December 2017 showed that since August 2017, the Veteran reported about five interval seizures and that the Veteran believed the seizures had increased. Medical records from January 2018 showed the Veteran's report of several unwitnessed seizures in recent weeks. Medical records from February 2018 showed that the Veteran would wake up with blood in his mouth two to three times per week and was told by his family that he had seizures in his sleep. Medical records from March 2018 showed the Veteran's report of interval seizures for about one month. Other medical records from March 2018 showed that the Veteran apparently had a generalized seizure in July 2014 and two seizures at the end of December 2014. The Veteran also reported nocturnal and petit-mal events. There were seizures in September 2016 and October 2016. There was at least one further seizure in February 2018. The Veteran continued to wake up with blood in his mouth at times. Medical records from April 2018 showed recurrent seizures, just as before. Medical records from June 2018 showed the Veteran's report of having blood in his mouth from seizures three to four times per week. Medical records from July 2018 showed the Veteran's report that he thought that he had just had a seizure. He reported a witnessed seizure in his sleep. Medical records from August 2018 showed that a precise estimate of the Veteran's seizure frequency was difficult because many happened during sleep. Given the frequency of the Veteran's self-reports of waking with certain symptoms, at least one generalized seizure per month was not an unlikely frequency. The Veteran often did not report such possible seizures to medical providers. A safe estimate would be at least one and maybe two seizures per month at times. A dramatic improvement did not seem likely. It was not felt that his non-compliance was a significant cause for the intractable nature of his seizures. Medical records from September 2018 showed a recent seizure during sleep. Medical records from December 2018 showed that the Veteran had at least one seizure since February 2018 and continued to have seizures in his sleep. See January 2019 Medical Treatment Record. (7) Medical records from October 2012 showing a grand mal seizure and the Veteran's report of breakthrough seizures every few weeks. The last seizure had occurred three weeks prior. See October 2018 Medical Treatment Record. (8) Medical records from December 2014 showing a generalized seizure. See July 2018 Medical Treatment Records. (9) Medical records from 2018 showing a seizure in September 2017. Medical records from February 2018 showed the Veteran's report of two to three seizures per week. The Veteran reported a seizure during that time. Medical records from March 2018 showed grand mal, petit mal, and juvenile seizures while sleeping. Medical records from May 2018 showed recurrent seizures, which continued as before. See June 2018 CAPRI. (10) Medical records from December 2017 showing the Veteran's report of increased seizures over the past few weeks. The Veteran kept waking up with blood in his mouth, which was usually a sign that he had had a seizure. Other medical records from 2017 showed the Veteran's report of interval seizures for about one month, a seizure in September 2017, and the Veteran's report of continuing petit-mal seizures during the day. Medical records from January 2018 showed a reported seizure the day before, another seizure in October, and a report of two to three seizures in the past week. The Veteran reported several unwitnessed seizures in recent weeks. See January 2018 CAPRI. (11) Medical records from August 2011 showing seizures about twice per year. A medical record from December 2017 showed a diagnosis of idiopathic generalized tonic clonic epilepsy. There had been eight episodes of loss of awareness during the past six months and eight to nine generalized seizures during the past year. The last seizure had been in November 2017. There had been two or more minor seizures over the past six months. The average frequency of major seizures was at least one in three months over the past year. See December 2017 C&P Exam. (12) The Veteran's sibling's report that the Veteran constantly had headaches due to constantly having seizures. See November 2017 Buddy / Lay Statement. (13) Medical records from September 2017 showing that the Veteran continued to have recurrent seizures and was in the ER. He had just had a seizure, which was reported to be a grand mal seizure. The Veteran's spouse reported two to three seizures per month. See September 2017 CAPRI. (14) Medical records from July 2017 showing that the seizures were generalized with loss of consciousness. The last three seizures were generalized and took place in March 2017, September 2016, and June 2016. Side effects of medication were dizziness, lethargy, and erectile dysfunction. See September 2017 Medical Treatment Record. (15) Medical records showing a possible seizure in September 2016. Medical records from August 2017 showed the Veteran's report of about five or six seizures since he was last seen. Medical records from September 2017 showed that the Veteran had just had a seizure. He had seizures about two to three times per month. See September 2017 CAPRI. (16) The Veteran's report of being in the ER in September 2016 for a seizure. There was another seizure in October 2016. The Veteran was bedridden at times, as suggested by his doctor. Since being rated, he had over 16 seizures, with about eight of them requiring hospitalization. The Veteran's sibling reported that the Veteran would fall out of chairs and slump over chairs. People had to put the Veteran's tongue in his mouth. Seizures had caused the Veteran to bite his tongue, chip all of his teeth out, and bang his head so much that he got headaches. The seizures were getting worse. Sleep studies showed seizures during sleep. The Veteran had grand mal seizures, petite-mal seizures at night, and would wake up with blood in his mouth. The Veteran had seizures when waking up in the morning. There had been at least six major seizures in the past year, but probably more, and seizures during sleep. See Hearing Transcript. (17) A report by a coworker that the Veteran had saliva foaming in his mouth and on the side of his mouth during a seizure at work. The Veteran's parent reported witnessed seizures on and off. The Veteran had a seizure in April 2015 where he shook uncontrollably, hit his head on the floor, and woke up after an hour. See May 2017 Buddy / Lay Statement. (18) Medical records from October 2012 showing a major seizure, breakthrough seizures every few weeks, and that the last seizure occurred three weeks prior. See May 2017 Medical Treatment Record. (19) A medical record from 2017 showing two or more minor psychomotor seizures during the past six months and at least one major psychomotor seizure in the past two years. See May 2017 DBQ. (20) Medical records from August 2016 showing that the Veteran may have had one epilepsy flare-up every week for two to three months. Episodes may have lasted for two to three days. See December 2016 Third Party Correspondence. (21) Medical records from September 2016 showing an observed seizure; the Veteran's report of breakthrough seizures; seizures in June and July 2016; the Veteran's report of three seizures since June, including one which had just occurred; and that the Veteran had just fallen on the floor and had a red swollen area on his tongue. See October 2016 CAPRI. (22) Medical records from August 2011 showing episodes about two times per year. Medical records from December 2012 showed two kinds of seizures. One kind was GTC, with the last seizure having occurred in September. The other kind was staring episodes, which occurred about three times per month. Medical records from January 2013 showed episodes of brief twitches, which caused the Veteran to drop or spill things. The Veteran described an aura consistent with a series of brief absence episodes preceding his tonic clonic seizures. Seizures occurred every two to three months. Medical records from July 2014 showed a presumed seizure and maybe two seizures on the same day. Medical records from October 2014 showed another apparent generalized seizure in July. The Veteran usually also reported nocturnal and petit-mal events. Medical records from January 2015 showed the Veteran's report of two more seizures. There was a generalized witnessed seizure in December 2014. There was a generalized tonic clonic seizure with tongue biting. Medical records from December 2015 showed a generalized tonic clonic seizure. Medical records from February 2016 showed generalized seizures in July 2014 and two seizures at the end of December 2014. The Veteran regularly reported continuing nocturnal and petit-mal events. The last seizure occurred in December 2015 with generalized tonic clonic movements. The Veteran also reported a seizure in January 2016, which was witnessed. See June 2016 CAPRI. (23) The Veteran's report of seizures during sleep. See June 2016 Statement in Support of Claim. (24) Medical records from October 2012 showing a headache and seizures. A grand mal seizure had been witnessed. The Veteran had breakthrough seizures every few weeks. The Veteran was positive for seizures and headaches. Medical records from November 2013 showed dizziness after awakening and headaches after seizures. Medical records from December 2014 showed that the Veteran had had a seizure a couple of days ago and was now having another one. The Veteran had bit his tongue. The Veteran had been admitted in March 2014 for a seizure. The Veteran reported absence seizures in the past five months. There were witnessed generalized grand mal type seizures. Aura preceded the symptoms. There was episode characteristics of abnormal movements, generalized shaking, tongue biting, unresponsiveness, and postictal symptoms of confusion. Medical records from September 2017 showed that the Veteran felt hot, that his hands had swelled, that he felt the typical aura of spinning and dizziness, and then, he had a seizure. There had been two to three seizures in the past month. The Veteran had a headache as well. It appeared to be a grand mal seizure. See June 2016 Medical Treatment Record. (25) Medical records showing that the Veteran was admitted for epilepsy in December 2014. See March 2015 NOD. (26) Medical records from October 2012 showing that primary generalized seizures, myoclonic seizures, and atypical absence seizures would be expected, and the question of syncope was raised. There was an event, likely representing a seizure. Medical records from March 2013 showed an event, which was most likely a seizure. The Veteran reported waxing/waning swelling of his hands, which he thought was from medication. There was no other explanation, except that it was an adverse effect of medication. There was a history of jerking movements during sleep and upon waking. The Veteran reported about three spells of blank stares since December 2012. The Veteran's spouse felt like it was probably more. The Veteran woke up sweaty sometimes and reported drowsiness from medication. Medical records from April 2014 showed blank stares at times; that the Veteran woke up with a bit lip about two months prior after a possible seizure; and the Veteran's report of side effects from medication, including headaches, drowsiness, and erectile dysfunction. Medical side effects were reported to be mild paresthesias of the hands and feet intermittently, and somnolence. The Veteran reported that his staring spells had continued, which could have been seizures. Medical records from July 2014 showing that the Veteran would bite the inside of his lips during sleep. See July 2014 CAPRI. (27) The Veteran's report that a sleep study showed nightly seizures while sleeping. The Veteran would wake up groggy with vertigo and was confused. The Veteran had at least two seizures per month. The seizures consisted of going into a blank stare and being confused about where he was. He felt intense heat and had to lay down. The seizures were more frequent than what was documented. See March 2014 Form 9. (28) Medical records from 2012 showing epilepsy. An examination was suggestive of primary generalized epilepsy. The Veteran was also having jerking movements during sleep and upon waking. It was felt that he most likely had juvenile myoclonic epilepsy. Medications were listed. See February 2013 Medical Treatment Record. (29) The Veteran's report that he had had seizures within the recent two-year period and had major side effects from medications. See August 2010 Statement in Support of Claim. (30) Medical records from October 2009 showing the Veteran's report of seizure symptoms and that he felt like a seizure was coming. See August 2010 Medical Treatment Record. (31) A medical record from 2010 showing that a seizure in January 2010 was a grand mal seizure. There was a diagnosis of idiopathic generalized tonic-clonic epilepsy. A side effect of medication was a problem with erections. Further information is provided. See February 2010 VA Examination. (32) Medical records from January 2010 showing a seizure. See February 2010 Medical Treatment Record. (33) Medical records from May 2009 showing a report of a questionable aborted seizure. Id. (34) The Veteran's report of seizures in January 2010. See February 2010 Statement in Support of Claim. (35) All other relevant lay and medical evidence. A complete and clear rationale for all opinions offered should be provided. Address the Veteran's documented history and assertions. The Veteran and others are competent to attest to factual matters of which they have first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran and/or others, the examiner should provide a fully reasoned explanation. All necessary tests and studies should be conducted. If the examiner cannot provide an opinion without resorting to mere speculation, the examiner should provide an explanation stating why. In so doing, the examiner should explain whether the inability to provide a more definitive opinion is due to the limits of the medical community or the limits of the examiner's medical knowledge. 7. Schedule one or more appropriate VA examinations to determine the need for aid and attendance and/or other special monthly compensation due to the Veteran's service-connected disabilities. Following a review of the claims file and a copy of this Remand, the reviewing examiner is requested to furnish an opinion with respect to the following: (A) At any point during the appeal period (i.e., since February 2010), has the Veteran been unable to dress or undress or has the Veteran been unable to keep ordinarily clean and presentable? (B) At any point during the appeal period, has the Veteran required frequent adjustment of any special prosthetic or orthopedic appliances, which by reason of service-connected disabilities, cannot be done without aid? (C) At any point during the appeal period, has the Veteran been unable to feed himself through loss of coordination of upper extremities or through extreme weakness, or has the Veteran been unable to attend to the wants of nature? (D) At any point during the appeal period, has the Veteran had incapacity, physical or mental, that required care or assistance on a regular basis to protect him from hazards or dangers incident to his daily environment? (E) At any point during the appeal period, has the Veteran had any disability or disabilities requiring him to remain in bed? If the answer is yes to any of the above, the examiner is requested to furnish an opinion with respect to the following: (F) For each service-connected disability, is it at least as likely as not (a 50 percent or greater probability) that the service-connected disability alone caused any of the above? If yes, which of the above? The examiner should also state which combinations of service-connected disabilities at least as likely as not (a 50 percent or greater probability) caused any of the above and list which of the above apply. The examiner should also describe the effective remaining function of the Veteran's lower extremities and feet (including balance, propulsion, etc.), based upon the Veteran's service-connected disabilities and explain which service-connected disabilities are responsible for what. Based on these findings, for each lower extremity and for each foot, the examiner should opine as to whether it is at least as likely as not (a 50 percent or greater probability) that no effective function remains/remained other than that which would be equally well served by an amputation stump at the site of election below the knee with use of a suitable prosthetic appliance. If applicable, provide an opinion as to the periods of time during the appeal period (i.e., since February 2010) that each was ascertainable. For each lower extremity, the examiner should state whether there are factors preventing natural knee action with prostheses in place. In addition to the other relevant evidence of record, the examiner is asked to consider the following information with a caution that this list is not a substitute for a review of the record: (1) Medical records showing that apparently due to seizures, the Veteran bit his lips during sleep and woke up with wet underwear. See May 2021 CAPRI. (2) Medical records from 2018 showing the Veteran's report of blood in his mouth from seizures. See January 2019 Medical Treatment Record. (3) A sibling's report that the Veteran needed someone to drive him and needed to be checked on constantly to make sure that he was okay due to his seizures. A niece reported that the Veteran could not walk distances due to back pain. See November 2017 Buddy / Lay Statement. (4) Medical records from 2017 showing that the Veteran's child helped him clean up after he had a seizure and lost control of his bladder. The Veteran reported that when he got seizures, he had back trauma because of it. See September 2017 CAPRI. (5) Medical records from 2017 showing that the Veteran could not always tell when a seizure was about to happen and could not always take safety precautions for his seizures. He had a history of injury during seizures. See September 2017 Medical Treatment Records. (6) A medical record from 2017 showing that the Veteran might have needed medication management because he might forget to take medication at times. The Veteran could not drive. See September 2017 VA 21-2680. (7) A sibling's report that the Veteran's seizures were getting so bad that someone had to be with him always. The Veteran reported that his son was there to help him with a lot of activities of daily living and to catch him when he had seizures and would fall. His son also would help him take medication. The seizures caused the Veteran to fall out of chairs, urinate on himself, bite his tongue, and chip his teeth. The Veteran reported about eight hospitalizations since last being rated due to seizures. The Veteran was bedridden at times, as suggested by his doctor. Further information is provided. See Hearing Transcript. (8) A parent's report that the Veteran would hit his head on the ground during seizures. A coworker reported that the Veteran had saliva foaming in his mouth and on the side of his mouth during a seizure. See May 2017 Buddy / Lay Statement. (9) Medical records from 2015 showing tongue biting and unresponsiveness during seizures, as well as lost urinary continence. See June 2016 CAPRI. (10) Medical records from 2010 showing that the Veteran had problems with medication management for epilepsy. See March 2010 Medical Treatment Record. (11) A medical record from 2010 showing that the Veteran's epilepsy moderately affected some activities of daily living. Further information is provided. See February 2010 VA Examination. (12) All other relevant lay and medical evidence. A complete rationale for all opinions offered should be provided. Address the Veteran's documented history and assertions. The Veteran and others are competent to attest to factual matters of which they have first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran and/or others, the examiner should provide a fully reasoned explanation. All necessary tests and studies should be conducted. If the examiner cannot provide an opinion without resorting to mere speculation, the examiner should provide an explanation stating why. In so doing, the examiner should explain whether the inability to provide a more definitive opinion is due to the limits of the medical community's knowledge or due to the limits of the examiner's medical knowledge. 8. Readjudicate the issues on appeal. The AOJ should consider separate ratings, if warranted by the evidence of record. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Dougan, 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.