Citation Nr: 21009411 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 16-56 888 DATE: February 22, 2021 ORDER Entitlement to a disability rating in excess of 10 percent for status post ligation left cerebral aneurysm with residual seizures (seizure disorder) is denied. Entitlement to a compensable evaluation for left tempoparietal defect is denied. FINDINGS OF FACT 1. The Veteran’s seizure disorder is manifest by a confirmed diagnosis of epilepsy with a history of seizures. 2. The Veteran’s left tempoparietal defect is manifest by a small divot along the left temporoparietal lobe that is cosmetic and causes no functional impairment. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 10 percent for seizure disorder have not been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.124a, Diagnostic Code 8009-8911. 2. The criteria for a compensable rating for left tempoparietal defect have not been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.71a, Diagnostic Code 5296. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from November 1983 to November 1986. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a May 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In December 2019, the Veteran testified at a hearing with the undersigned. In February 2020, the Board remanded the matters to the Agency of Original Jurisdiction (AOJ) for additional development and they have since returned for further appellate review. Increased Rating Disability ratings are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Different ratings may be assigned for different periods of time for the same disorder if the facts show distinct time periods with different levels of disability. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. See 38 C.F.R. § 4.3. 1. Seizure Disorder The Veteran has been assigned an evaluation of 10 percent disabling pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8009-8911, for a seizure disorder, since May 1, 1987. The Veteran filed an increased rating claim in February 2012, seeking a higher rating for his service-connected seizure disorder. Where the particular service-connected disability is not listed, it may be rated by analogy to a closely related disease in which not only the functions affected, but also the anatomical location and symptomatology are closely analogous. 38 C.F.R. §§ 4.20, 4.27; cf. Copeland v. McDonald, 27 Vet. App. 333, 337 (2015) (holding that “when a condition is specifically listed in [VA’s schedule for rating disabilities], it may not be rated by analogy”). Diagnostic Code 8009 pertains to hemorrhage from vessels of the brain and assigns a 100 percent rating for the vascular condition for 6 months followed by a rating based on residuals with a minimum rating of 10 percent. 38 C.F.R. § 4.124a. Diagnostic Code 8911 pertains to petit mal epilepsy. The General Rating Formula for Major and Minor Epileptic Seizures provides that both the frequency and type of seizures a veteran experience are considered in determining the appropriate rating. See 38 C.F.R. § 4.124a, Diagnostic Code 8911. A major seizure is characterized by generalized tonic-clonic convulsion with unconsciousness. See id. at Note 1. 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). See id. at Note 2. Under the General Rating Formula, a 10 percent rating is assigned for a confirmed diagnosis of epilepsy with a history of seizures. A 20 percent rating is assigned when at least 1 major seizure occurred in the last 2 years, or at least 2 minor seizures occurred during the last 6 months. A 40 percent rating is assigned when at least 1 major seizure occurred in the last 6 months or 2 major seizures occurred in the last year, or at least 5 to 8 minor seizures occur weekly. A 60 percent rating is assigned where there is an average of at least 1 major seizure in the last 4 months over the last year, or 9 to 10 minor seizures occur weekly. An 80 percent rating is assigned where there is at least 1 major seizure in 3 months over the last year; or more than 10 minor seizures occur weekly. A 100 percent rating is assigned where there is an average of at least 1 major seizure per month over the last year. Note 1 to Diagnostic Code 8911 provides that a 10 percent rating is warranted when continuous medication is shown to be necessary for the control of epilepsy, and that 10 percent rating is not to be combined with any other rating for epilepsy. See 38 C.F.R. § 4.124a, Diagnostic Code 8911. The Veteran was provided a VA examination in November 2012, during which it was noted that the Veteran was taking continuous medication to control his seizure. Signs and symptoms attributable to seizure disorder included episodes of perceptual illusions and the Veteran’s reports of aura of detachment and vision which is blurry at the edges. The Veteran reported most recently experiencing a seizure activity in November 2011. The examiner indicated that the Veteran had 0 to 1 minor seizures over the past 6 months, with no indication of a major seizure. There were no major or minor psychomotor seizures. The Veteran underwent another VA examination in December 2015. The examiner confirmed a diagnosis of seizure disorder and diagnosis of epilepsy with a history of seizures. He had a witnessed seizure by a medical doctor. The Veteran reported taking continuous medication for control of seizure. Signs and symptoms attributable to seizure disorder activity include brief interruption in consciousness or conscious control, and episodes of abnormalities of thinking. Date of the Veteran’s most recent seizure activity was in 2013. The Veteran reported that he had 0 to 1 minor seizures over the past 6 months; no major seizures; no minor psychomotor seizures; no major psychomotor seizures; no epilepsy associated with a nonpsychotic organic brain syndrome; and no epilepsy associated with a psychotic disorder, psychoneurotic disorder or personality disorder. Most recently, the Veteran was afforded a VA examination in September 2020. Symptoms reported included daily headaches. It was noted that the Veteran required continuous medication for control of seizure activity. His last witnessed seizure occurred in 2011. Signs and symptoms attributable to seizure disorder activity included generalized tonic-clonic convulsion, and loss of consciousness with convulsion. The Veteran reported that he had 0 to 1 minor seizures over the past 6 months; no major seizures in the past 2 years; less than 1 major seizure in the past 6 months; no minor psychomotor seizures; no major psychomotor seizures in the past 2 years; less than 1 major psychomotor seizures in the past 6 months; no epilepsy associated with a nonpsychotic organic brain syndrome; and no epilepsy associated with a psychotic disorder, psychoneurotic disorder or personality disorder. During his December 2019 hearing, the Veteran testified to having speech problems (aphasia), auras, occasional vertigo, and frequent headaches. He reported that his last significant seizure was in 2011. After the Board’s remand, the Veteran was awarded a separate rating for his headaches. In a September 2020 opinion, the examiner found that the Veteran’s reports of auras were associated with his headaches and not his seizure disorder. As there was no evidence of vertigo in 1986 when the Veteran had a hematoma and craniotomy, the examiner found the current vertigo was less likely than not a result of the ligation of the left cerebral aneurysm. There was no objective evidence of aphasia. Upon review of the evidence of record, the Board finds that a disability rating in excess of 10 percent for seizure disorder is not warranted for the duration of the appeal period. As noted in the evidence, the Veteran reported, at most, 0 to 1 minor seizures during a 6 month period. Notably, examination findings provided no indications of at least 1 major seizure in the last 2 years or at least 2 minor seizures in the last 6 months, evidence needed to meet the 20 percent rating criteria. The Board acknowledges the Veteran’s contention that he has had at least two minor seizures during the appeal period. See August 2016 Notice of Disagreement. However, absent 2 minor seizures during a 6 month period, a higher rating is not warranted. VA examiners considered the Veteran’s report as part of their examination of the Veteran, and found that the Veteran did not have 2 minor seizures during a 6 month period. The Board finds the examination findings to be the most probative evidence of record as they were made by medical professionals after a review of the relevant history, including interview of the Veteran, and are based on objective testing considered by the medical community to be relevant in measuring the Veteran’s disability. Accordingly, the Board concludes that a disability rating in excess of 10 percent for seizure disorder is not warranted, and the claim for increased rating is denied. 2. Left Tempoparietal Defect The Veteran has been assigned a noncompensable rating under 38 C.F.R. § 4.71a, Diagnostic Code 5296, for left tempoparietal defect, since November 1986. The Veteran filed an increased rating claim in February 2012, seeking a higher rating for his service-connected left tempoparietal defect. Diagnostic Code 5296 relates to loss of part of the skull. Under the rating criteria, without brain hernia, a 10 percent rating is assigned for loss of area of the skull smaller than the size of a 25-cent piece or 0.716 square inches (4.619 square centimeters). A 30 percent rating is assigned for loss of skull of intermediate area. A 50 percent rating is assigned for loss of area of the skull larger than the size of a 50-cent piece or 1.140 square inches (7.355 square centimeters). An 80 percent rating is assigned where there is a loss of skull with brain hernia. See 38 C.F.R. § 5.71a, Diagnostic Code 5296. Turning to the evidence, during a November 2012 VA examination, it was noted that the Veteran had a scar diagnosis secondary to a 1987 craniotomy. He was diagnosed in 1986. On observation, the examiner noted that the Veteran had a scar on his left tempoparietal scalp measured at a length of 18.5 centimeters and a width of 0.2 centimeters. The scar is separately rated and the rating assigned for the scar is not the subject of this decision. In a September 2020 VA scars examination, the Veteran was diagnosed with a scar on his left parietal lobe, a residual of a cerebral artery aneurysm ligation. On observation, the examiner noted that the Veteran had a scar on his left parietal lobe with a measurement of 18 centimeters in length, and 0.1 centimeters in width. See also September 2020 Bones VA Examination Report. In a separate September 2020 VA medical opinion, the examiner opined that there is no evidence of 6 burr holes on examination. The examiner noted that there is a small divot along the left temporoparietal lobe that is cosmetic and causes no functional impairment. The examiner further noted that there is only one divot on location. Upon review of the record, the Board finds that the evidence does not support a compensable rating for the Veteran’s service-connected left tempoparietal defect. The Veteran contends that higher and separate evaluations due to a divot and each of the six burr holes on his head should be awarded. See December 2019 Hearing Tr. at 4, 15. The September 2020 VA examiner reviewed the Veteran’s record, examined the Veteran, and opined that there is no evidence of any current burr holes. The examiner noted that there is a small divot along the Veteran’s left tempoparietal lobe. As the evidence does not support the continued existence of burr holes, separate ratings are not warranted for such. Regarding the divot, this is not shown to cause any functional impairment and does not warrant a compensable rating. There is no brain hernia and no loss of part of the inner and outer tables of the skull. It is again noted that the Veteran is receiving compensation for the scar associated with his craniotomy. Accordingly, during the period on appeal, a compensable rating for the Veteran’s service-connected left tempoparietal defect is not warranted, and the increased rating claim must be denied. Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Mathew 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.