Citation Nr: 21005472 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 16-36 441 DATE: February 1, 2021 ORDER A disability rating of 100 percent for seizure disorder from March 28, 2019, but not earlier, is granted. REMANDED Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. Entitlement to service connection for hypertension is remanded. FINDING OF FACT As of March 28, 2019, but not earlier, the frequency of the Veteran’s seizures more closely approximates an average of at least one major seizure per month over the last year. CONCLUSION OF LAW As of March 28, 2019, but not earlier, the criteria for a maximum 100 percent disability rating for seizure disorder have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8910. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1992 to October 1993. He has had a 100 percent schedular VA disability rating for seizure disability from December 7, 2019; and he has been awarded special monthly compensation under 38 U.S.C. § 1114(s). These matters come before the Board of Veterans’ Appeals (Board) on appeal from a rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In November 2018, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A hearing transcript is associated with the record. A May 2019 Board decision dismissed the claim of entitlement to service connection for diabetes mellitus, and remanded the claims of entitlement to service connection for sleep apnea and hypertension, and an increased rating for seizure disorder. The Board finds that, regarding the claim of entitlement to an increased rating for seizure disorder, the RO has substantially complied with the Board’s prior remand order as VA treatment records were obtained and an adequate VA examination was provided in December 2019. Dyment v. West, 13 Vet. App. 141 (1999). In an October 2020 rating decision, the RO granted a 100 percent rating for seizure disorder, effective December 7, 2019. As a higher evaluation is available under the rating schedule for the period on appeal prior to December 7, 2019, this claim remains on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993) (holding that Veterans are presumed to seek the maximum available benefit for a disability). Entitlement to a rating in excess of 40 percent for a seizure disorder, prior to December 7, 2019. The Veteran contends that a higher rating is warranted because his seizures worsened prior to the December 7, 2019 VA examination, and because he has two types of seizures. See Hearing Transcript (November 2018). The Veteran describes seizures that cause blurred vision, speech difficulty, nausea, vomiting, and that he is dazed but conscious; the Veteran also describes seizures that cause unconsciousness, shaking, and uncontrollable urination. See Id. The issue in this appeal is whether the Veteran’s associated symptoms caused the level of impairment required for a disability rating of 60 percent or higher, prior to December 7, 2019. The Board concludes that the Veteran’s symptoms caused the level of impairment required for a maximum 100 percent rating from March 28, 2019, but not earlier. The Veteran’s symptoms more closely approximated the symptoms associated with a 100 percent rating, and resulted in a level of impairment that most closely approximated the level of impairment associated with a 100 percent rating from March 28, 2019, but not earlier. Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Any reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Thus, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Epilepsy and seizures will be rated under the General Rating Formula for Major and Minor Epileptic Seizures (General Rating Formula). 38 C.F.R. § 4.124a, Diagnostic Codes 8910 through 8914. Grand mal epilepsy is rated as major seizures, and petit mal epilepsy is rated as minor seizures. Id. A “major seizure” is characterized by a 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). Id. at Notes (1) and (2). Under the general formula for major and minor epileptic seizures, a 10 percent rating is warranted for a confirmed diagnosis of epilepsy with a history of seizures. A 20 percent rating is warranted for at least one major seizure in the last two years or at least two minor seizures in the last six months. A 40 percent evaluation is warranted at least 1 major seizure in the last 6 months or 2 in the last year, or averaging at least 5 to 8 minor seizures weekly. A 60 percent rating is warranted for a seizure disorder averaging at least 1 major seizure in 4 months over the last year or 9-10 minor seizures per week. An 80 percent evaluation is to be assigned when averaging at least 1 major seizure in 3 months over the last year, or more than 10 minor seizures weekly. A 100 percent rating requires the Veteran average at least 1 major seizure per month over the last year. 38 C.F.R. § 4.124a, Diagnostic Code 8911. In the presence of major and minor seizures, the predominating type is rated, and there is no distinction between diurnal and nocturnal major seizures. Id. 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. In April 2014, the Veteran reported that his seizures cause stuttering, nausea, impaired vision, and memory impairment. See VA 21-4138 Statement In Support of Claim (April 2014). The Veteran’s seizures were reported, by witnesses, to cause unresponsiveness, nausea, stuttering, inability to speak, confusion, forgetfulness, and loss of consciousness. See Buddy/Lay Statements (April 2014). In September 2014, the Veteran’s seizures were noted by a VA clinician to cause brief spells of expressive aphasia (language difficulty), palpitations, and dizziness. See CAPRI (November 2018). An October 2014 report of VA examination shows that the clinician noted that the Veteran has or had symptoms of generalized tonic-clonic convulsions, episodes of unconsciousness, brief interruption in consciousness or conscious control, episodes of staring, episodes of sudden jerking movement of the arms, trunk or head (myoclonic type), episodes of sudden loss of postural control (akinetic type), and residuals of injury during seizure. The clinician also noted that the Veteran’s disorder was manifest by major seizures prior to 2012, and minor seizures since then. The clinician further noted that the Veteran had two or more minor seizures over the past six months, but has not had a clonic tonic seizure (major) in the past two years. See C&P Exam (October 2014). In December 2014, the Veteran reported that his seizures cause moments in which he is unable to understand or express speech, nausea, and dizziness. See CAPRI (November 2018). In July 2018, the Veteran reported that his seizures caused blurred vision and staring spells, in which he is unable to communicate but is partially aware. See CAPRI (November 2018). During his November 2018 Board hearing, the Veteran reported having two types of seizures: seizures that cause him to be dazed and have blurred vision, nausea, vomiting, and speech problems; and seizures that cause shaking, loss of consciousness, and uncontrollable urination. See Hearing Transcript (November 2018). In March 2019, the Veteran reported that he has (1) seizures that cause stuttering but not loss of consciousness, approximately five to eight times per week, and (2) seizures that result in an aura, nausea, shaking, uncontrolled urination, and loss of consciousness, approximately seven times per month. See CAPRI (November 2019). A December 2019 report of VA examination shows that the Veteran reported that his seizure frequency has worsened, and that he has an aura, difficulty speaking, blurry vision, and at times, he falls out and shakes on the floor. The clinician noted symptoms of the Veteran’s seizures include brief interruption in consciousness or conscious control, episodes of sudden jerking movement of the arms, trunk or head (myoclonic type), episodes of sudden loss of postural control (akinetic type), episodes of speech disturbances, and episodes of impairment of vision. The clinician also noted that the Veteran had more than ten minor seizures per week, and at least one major seizure per month over the past year. See C&P Exam (February 2020). The Board finds that the evidence overall does not demonstrate the frequency of major seizures required for a maximum 100 percent disability rating, prior to March 28, 2019. Although there is evidence of minor and major seizures during the appeal period, the evidence fails to show, on average, at least one major seizure in four months over the last year; or nine to ten minor seizures per week prior to March 28, 2019. The Veteran’s April 2014 lay statements discuss loss of consciousness during seizures, but not the frequency of seizures which cause loss of consciousness. Although the Veteran reported, during his Board hearing, that he has both minor and major seizures, there is no indication of the frequency of his major seizures at that time. Thus, it is not factually ascertainable that the Veteran’s seizure disorder was manifest by the criteria required for a maximum 100 percent rating, by averaging at least one major seizure per month over the last year, until his March 2019 statement to a VA clinician. Notably, the December 2019 VA examination confirmed this frequency of the Veteran’s seizures. Whether a disability meets the schedular criteria for the assignment of a higher evaluation is a factual determination by the Board based on the complaints coupled with the medical evidence. Here, although the Veteran may believe that he meets the criteria for a higher disability rating prior to March 28, 2019, his complaints and the medical findings do not meet the schedular requirements for the higher rating prior to March 28, 2019, as explained and discussed above. Both the lay and the medical evidence are probative here. However, it does not more nearly reflect the criteria for a higher rating under the assigned diagnostic code or any other potentially relevant code, prior to March 28, 2019. Accordingly, a maximum 100 percent rating from March 28, 2019, but not earlier, is granted. In denying a higher rating prior to March 28, 2019, there is no doubt to resolve. See 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). REASONS FOR REMAND Although VA treatment records and examinations were provided during remand status, the Board finds that the RO has not substantially complied with the Board’s prior remand order regarding the claims of entitlement to service connection for sleep apnea and hypertension. See Stegall v. West, 11 Vet. App. 268 (1998).  Where VA provides an examination or obtains an opinion, it must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). Here, for the reasons below, the medical evidence of record is inadequate to decide the claims of entitlement to service connection for sleep apnea and hypertension. Thus, those matters are remanded again. 1. Entitlement to service connection for OSA. 2. Entitlement to service connection for hypertension. Issues 1-2: The Veteran contends that the claimed disabilities are secondary to his service-connected seizure disorder. See VA 21-4138 Statement In Support of Claim (December 2014). Additionally, the Veteran reported that his hypertension began during service and that he was treated continuously for hypertension since service. See Hearing Transcript at 9 (November 2018). Here, February 2020 VA medical opinion (VAMO) was obtained addressing direct and secondary service connection. The Board finds that the opinions are inadequate for the following reasons. First, the February 2020 VAMO concluded that the Veteran’s OSA and hypertension were less likely than not incurred in or caused by in-service injury or disease based on the absence of an in-service diagnosis for either sleep apnea or hypertension during his service. The opinion is inadequate because an in-service diagnosis is not required to establish service connection. Cosman v. Principi, 3 Vet. App. 503 (1992); see also 38 C.F.R. § 3.303(d) (service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service). Second, the negative medical opinion is inadequate because it does not reflect any meaningful consideration of the lay evidence. See McKinney v. McDonald, 28 Vet. App. 15, 30-31 (2016) (“the VA examiner's failure to consider [a veteran's] testimony when formulating her opinion renders that opinion inadequate”). The Veteran testified that his hypertension began during service and that he was treated continuously for hypertension since service. See Hearing Transcript at 9 (November 2018). Third, as to the question of secondary service connection, the negative medical opinion is inadequate because it relied on the absence of medical literature supporting a link between the nonservice-connected conditions and service-connected seizure disorder without discussing the specific facts of the case as they pertain to this Veteran. See Bailey v. O'Rourke, 30 Vet. App. 54, 60 (2018). Also, as to the aggravation prong of secondary service connection, there was a negative conclusion with essentially no rationale provided other than that there was “no evidence of aggravation” due to service-connected seizure disorder. It is noted that a medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record. See Stefl v. Nicholson, 21 Vet. App. 102, 124-25. Further, “[A] medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two.” Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). In this case, the negative medical opinions are not supported with any discussion of the Veteran’s relevant documented history/findings along with lay evidence. The opinion does not detail the Veteran’s reported symptoms in service and thereafter, including the nature, onset, progression and severity of his reported symptoms. A VA clinician providing a medical opinion is not required to accept the Veteran’s history of symptoms in service and thereafter; however, he or she must explain why any history is rejected or otherwise explain how his reports about his symptoms do not align with how the currently diagnosed disability is known to develop or are generally inconsistent with medical knowledge or implausible. Therefore, to ensure that VA has met its duty to assist, remand is required. 38 C.F.R. § 3.159(c)(4); Barr, supra. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from January 2020 to the Present. 2. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s OSA is at least as likely as not related to service or a service-connected disability. The clinician should be provided a copy of this remand to avoid the inadequacies noted herein. The clinician must opine on: (a.) Whether it is at least as likely as not related to an in-service injury, event, or disease, including the in-service head injury. (b.) Whether it is at least as likely as not (i) proximately due to service-connected seizure disorder, or (ii) aggravated beyond its natural progression by service-connected seizure disorder. 3. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s hypertension is at least as likely as not related to service or a service-connected disability. The clinician should be provided a copy of this remand to avoid the inadequacies noted herein. The clinician must opine on: (a.) Whether it is at least as likely as not related to an in-service injury, event, or disease, including the in-service head injury. (b.) Whether it is at least as likely as not (i) proximately due to service-connected seizure disorder, or (ii) aggravated beyond its natural progression by service-connected seizure disorder. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected seizure disorder. The clinician should be provided a copy of this remand to avoid the inadequacies noted herein. The clinician must confirm the proper diagnosis of the Veteran’s seizure condition, and provide an adequate medical explanation to support the diagnosis. The clinician must also 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 clinician must further consider and discuss the lay and medical evidence, discussed herein, which the Board finds to indicate that the Veteran’s seizure disorder is manifested by episodic alterations in conscious control with automatic states, as contemplated by psychomotor epilepsy under 38 C.F.R. § 4.122(a). 5. Ensure that the VA medical opinions obtained include a complete rationale for the conclusions reached. The medical opinions must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). (Continued on next page) 6. Readjudicate. C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Thaddaeus J. Cox, 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.