Citation Nr: A21020386 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 200522-87683 DATE: December 22, 2021 ORDER Entitlement to an effective date prior to November 7, 2016 for the grant of an increased 40 percent rating for seizures is denied. REMANDED Entitlement to an effective date prior to November 7, 2016 for the grant of a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT The evidence of record does not support that the symptoms of the Veteran's service-connected seizure disability warranted a rating of 40 percent disabling prior to November 7, 2016. CONCLUSION OF LAW The criteria for an effective date prior to November 7, 2016 for the assignment of a 40 percent evaluation for a seizure disability have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from August 1976 to February 1981. Unfortunately, the Veteran died in May 2020. The Agency of Original Jurisdiction (AOJ) has recognized the appellant as a valid substitute claimant for the issues on appeal. A rating decision was issued under the legacy system in January 2017 and the Veteran submitted a timely notice of disagreement. In April 2020, the AOJ issued a statement of the case (SOC). The appellant opted the claims into the modernized review system, also known as the Appeals Modernization Act (AMA), by submitting a May 2020 VA Form 10182, Decision Review Request: Board Appeal, identifying the April 2020 SOC. Therefore, the April 2020 SOC is the decision on appeal. In the May 2020 VA Form 10182, Decision Review Request: Board Appeal, the appellant elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the April 2020 SOC. 38 C.F.R. § 20.301. As a preliminary matter, the Board will outline the procedural history of the Veteran's claims. In May 2011, the Veteran filed a claim for an increased evaluation for his service-connected seizure disability and in July 2011, he filed a claim for TDIU. In a June 2013 rating decision, the AOJ increased the Veteran's rating for his seizure disorder to 20 percent and denied entitlement to a TDIU. In May 2014, the Veteran, through his attorney, filed a notice of disagreement and requested de novo review by a Decision Review Officer (DRO) in conjunction with a personal hearing. In a January 2017 rating decision, the AOJ assigned a disability rating of 40 percent for the Veteran's seizure disability with an effective date of November 7, 2016. The AOJ also granted entitlement to a TDIU with an effective date of November 7, 2016. The AOJ subsequently issued a January 2017 SOC as to the claim for an increased rating for a seizure disability, as the maximum benefit under Diagnostic Code (DC) 8911 was not granted. In March 2017, the Veteran filed another notice of disagreement, requesting an earlier effective date for both TDIU and the increased disability rating for his seizure disability. In April 2020, the AOJ issued another SOC denying both claims for earlier effective dates. As noted above, in May 2020 the appellant submitted a VA Form 10182, appealing both issues to the Board. The Board notes that the April 2020 SOC on appeal was in fact a continuation of the original appeal filed in May 2011, as the SOC was a result of a continued pursuit of the same claim. Neither the Veteran nor the appellant filed a new claim for an earlier effective date over this time period and the evidence outlined above reflects that the claims date back to the original May and June 2011 claims. 1. Entitlement to an effective date prior to November 7, 2016 for the grant of an increased 40 percent rating for seizures The assignment of an effective date for an award of VA disability compensation is generally governed by 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. Unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increased compensation shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefore. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. The Veteran's seizure disorder is rated under the General Rating Formula for Major and Minor Epileptic Seizures under 38 C.F.R. § 4.124a, DC 8911. The General Rating Formula for Major and Minor Epileptic Seizures provides that epilepsy with at least one major seizure in the last six months or two in the last year; or averaging at least five to eight minor seizures weekly, is rated 40 percent disabling. Epilepsy averaging at least one major seizure in four months over the last year; or nine to ten minor seizures per week, is rated 60 percent disabling. Epilepsy averaging at least one major seizure in three months over the last year; or more than ten minor seizures weekly is rated 80 percent disabling. Epilepsy averaging at least one major seizure per month over the last year is rated 100 percent disabling. A major seizure is characterized by 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). 38 C.F.R. § 4.124a, DC 8910, Notes (1), (2). In January 2011, Dr. P.Y., a private provider, examined the Veteran. See Jun. 2011 Medical Treatment Record Non-Government Facility, p. 7. Dr. P.Y. noted that due to the Veteran's seizure disorder, he experienced random blackouts at least two to three times per week, lasting seconds to several minutes. Id. In March 2011, the Veteran underwent a neurologic consultation with another private provider, Dr. R.N. See Aug. 2021 Medical Treatment Record Non-Government Facility, p. 12. During the examination, the Veteran stated that he experienced episodes of loss of consciousness, generalized convulsion with shaking of the limbs, and biting his tongue. Id. He stated that he has never had transient visual loss, diplopia, or difficulties with speech, swallowing, smell, or taste. Id. He also stated that he has never had paralysis or persistent numbness of the extremities or difficulty with bladder control. Id. Dr. R.N. stated that the episodes that the Veteran reported were most likely partial seizures with rare secondary generalized seizures. Id. In July 2011, the Veteran underwent a VA examination for his seizure disability. The examiner noted at least two episodes of generalized non-convulsive epilepsy in the past six months. See Jul. 2011 VA Examination, p. 25. In April 2014, Dr. R.N. and a physician assistant, M.M. provided further evidence as to the Veteran's seizure disability. See Oct. 2016 Medical Treatment Record Non-Government Facility #1, p. 4. They stated that the Veteran continued to have aura-like events prior to having a seizure. Id. They further noted that the Veteran had not experienced any overt seizures. Id. The Veteran discussed a time in which he was outdoors and needed to be taken into the house to sit and regain his composure. Id. In May 2015, M.M. stated that the Veteran had seizures and often experienced a prodrome, which required him to rest in the hope that it would not lead to a seizure. Id. at 2. She further stated that the Veteran was adequately medicated. Id. In a May 2016 private treatment note, M.M. stated that the Veteran still had what he considered mild partial seizures, but that his symptoms were otherwise well-controlled. See Oct. 2016 Medical Treatment Record Non-Government Facility #2, p. 3. In November 2016, the Veteran underwent a VA seizure disorders examination. The examiner indicated that the Veteran experienced five to eight minor seizures over the past six months and no major seizures within the past two years. Unfortunately, the evidence outlined above does not support the claim for an earlier effective date for the increased rating for the Veteran's seizure disability. None of the evidence of record indicates that prior to November 7, 2016, the Veteran experienced at least one major seizure in four months over the prior year or nine to ten seizures per week. As the record lacks evidence demonstrating such frequency and severity of the Veteran's seizures prior to the November 7, 2016, the claim must be denied. REASONS FOR REMAND 1. Entitlement to an effective date prior to November 7, 2016 for the grant of a TDIU is remanded. The appellant contends that the Veteran's grant of a TDIU should be assigned an earlier effective date. Total disability ratings for compensation based on individual unemployability may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). VA's policy is to award TDIU in all cases where service-connected disability precludes gainful employment regardless of the percentages awarded. 38 C.F.R. § 4.16(b). Although the Board does not have the authority to assign an extraschedular TDIU rating in the first instance, it can review the record and determine whether an appropriate case is to be referred to the Director of the VA Compensation Service (Director) or Undersecretary for Benefits for such extraschedular consideration. Bowling v. Principi, 15 Vet. App. 1, 8-10 (2001); see Wages v. McDonald, 27 Vet. App. 233, 236 (2015) ("On its face, the regulatory scheme created by § 4.16(b) merely withholds from rating boards the authority to grant extraschedular TDIU in the first instance."). The Board notes that prior to November 7, 2016, the Veteran did not meet the schedular criteria for a TDIU under 38 C.F.R. § 4.16(a). However, the AOJ has not yet referred the matter to the Director for extraschedular consideration under 38 C.F.R. § 4.16(b). The claims file contains significant evidence indicating that the Veteran's service-connected disability may have prevented him from securing or following substantially gainful employment prior to November 7, 2016. In January 2011, Dr. P.Y. stated that the Veteran was seriously ill with his service-connected seizure disorder and that he was unemployable and totally and permanently disabled on the basis of that disability alone. See Jun. 2011 Medical Treatment Record Non-Government Facility, p. 7. In a July 2011 VA examination, the examiner stated that the Veteran would experience significant effects on his usual occupation due to his seizure disability. See Jul. 2011 VA Examination, p. 27. The examiner further found that physical and sedentary employment would be limited due to limitations on driving and operating heavy equipment and that the likelihood of improvement was poor or unlikely. Id. In April 2014, M.M. and Dr. R.N. stated that the Veteran could not obtain meaningful employment with the risk of seizure breakthrough and that he was disabled from any form of appointment at the time. See Oct. 2016 Medical Treatment Record Non-Government Facility, p. 4. In May 2014, M.M. provided a statement regarding the Veteran's employability. She stated that the Veteran had seizures and often experienced a prodrome, which required him to rest in the hope that it would not lead to a seizure. Id. at 2. She further stated that while he was adequately medicated, he would be unable to have meaningful employment due to his condition and that he was disabled. Id. The Board notes that the probative evidence discussed above predates the April 2020 SOC on appeal. Therefore, the failure to refer the matter to the Director of the Compensation Service for extraschedular consideration constitutes pre-decisional error and the matter must be remanded. The matters are REMANDED for the following action: (Continued on the next page) 1. Refer the case to the Director of Compensation Service for consideration of an extraschedular TDIU for the period prior to November 7, 2016. Nykeia F. Miller Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Watkins, 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.