Citation Nr: 21009466 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 18-55 385 DATE: February 22, 2021 ORDER A 70 percent rating – 60 percent for fatigue and 20 percent for seizures – from April 7, 2014 to August 5, 2014, but not any additional increased ratings for hypoglycemia with minor seizures and fatigue, is granted. FINDING OF FACT 1. The evidence shows the presence of hypoglycemic seizures satisfying the criteria for a 20 percent rating through August 5, 2014. 2. The evidence shows debilitating fatigue reducing daily activity level to less than 50 percent of pre-illness but not symptoms that are nearly constant and so severe as to restrict routine daily activities almost completely and which may occasionally preclude self-care. CONCLUSION OF LAW 1. The criteria for a 20 percent rating for hypoglycemic seizures have been met until August 5, 2014, but not after. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Code (DC) 6399-8911. 2. The criteria for a rating in excess of 60 percent for fatigue as a symptom of hypoglycemia have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.88, DC 6399-6354. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Air Force from July 1986 to July 1990. The Board notes the issue of entitlement to compensation for total disability based on individual unemployability (TDIU) prior to July 3, 2019, was listed as an issue on appeal in the October 2020 remand. In a November 2020 rating decision, the Agency of Original Jurisdiction (AOJ) granted TDIU compensation beginning October 2, 2017. The Board finds this is a full grant of the benefit sought on appeal and needs no further discussion. See November 2018 application for TDIU, November 2018 addendum argument (both asserting the Veteran became too disabled to work October 2017). 1. A rating in excess of 60 percent for hypoglycemia with minor seizures and fatigue The Veteran contends that her hypoglycemia with seizures and fatigue should be rated higher. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, the Board must also consider staged ratings, which are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the appeal. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other. Esteban v. Brown, 6 Vet. App. 259, 262 (1994); 38 C.F.R. § 4.14. The Veteran is competent to give evidence of symptoms observable by her senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The evidence shows the Veteran’s hypoglycemia manifests primarily with seizures and fatigue. Specifically, the November 2020 examiner found fatigue was due to the Veteran’s hypoglycemia. Therefore, the Board has considered the diagnostic codes for chronic fatigue and seizure disorders. Chronic fatigue syndrome is rated under Diagnostic Code 6354 for debilitating fatigue, cognitive impairments (such as inability to concentrate, forgetfulness, confusion), or a combination of other signs and symptoms. A 10 percent rating is assigned for signs and symptoms that wax and wane but result in periods of incapacitation of at least one but less than two weeks total duration per year or the symptoms are controlled by continuous medication. A 20 percent rating is assigned for signs and symptoms that are nearly constant and restrict routine daily activities by less than 25 percent of the pre-illness level, or signs and symptoms that wax and wane, resulting in periods of incapacitation of at least two but less than four weeks total duration per year. A 40 percent rating is assigned for signs and symptoms that are nearly constant and restrict routine daily activities to 50 to 75 percent of the pre-illness level, or the signs and symptoms wax and wane, resulting in periods of incapacitation of at least four but less than six weeks total duration per year. A 60 percent rating is assigned for signs and symptoms of CFS that are nearly constant and restrict routine daily activities to less than 50 percent of the pre-illness level, or signs and symptoms that wax and wane, resulting in periods of incapacitation of at least six weeks total duration per year. A 100 percent rating is assigned for signs and symptoms that are nearly constant and so severe as to restrict routine daily activities almost completely and which may occasionally preclude self-care. A note to Diagnostic Code 6354 provides that, for the purpose of rating chronic fatigue syndrome, the condition will be considered incapacitating only while it requires bed rest and treatment by a physician. 38 C.F.R. § 4.88b, DC 6354. Seizures are rated under the General Rating Formula for Major and Minor Epileptic Seizures. A 10 percent rating is awarded 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 rating is warranted for at least one major seizure in the last six months or two in the last year, or averaging five to eight minor seizures weekly. Higher ratings are assigned for more frequent major or minor seizures. 38 C.F.R. § 4.124a, DC 8911. A major seizure is characterized by the generalized tonic-clonic convulsion with unconsciousness. 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). Id. at Note 2. The Veteran received a 20 percent rating for seizures under Diagnostic Code 8911 until April 7, 2014, when she was awarded a 60 percent rating under Diagnostic Code 6354. Therefore, the question before the Board is twofold: whether the Veteran should receive separate ratings based on her symptoms of seizures and fatigue and whether the rating should be in excess of the ratings assigned. After reviewing the record, the Board finds the evidence supports a separate 20 percent rating for seizures until August 5, 2014. November 2012 and January 2013 treatment records, show the Veteran’s report of having a seizure in November 2012. In September 2013, the Veteran reported her last generalized seizure in June of 2013 and having about two “auras” per month. She sought treatment for a seizure on February 5, 2014. During the April 2015 examination, the Veteran reported having eight seizures in the last two years with the last being in February 2014. The examiner indicated the Veteran had at least one major seizure in the prior two years with convulsions and unconsciousness. The evidence is unclear whether the Veteran has major seizures or only minor seizures. Treatment records from 2012 discuss partial and secondary generalized epilepsy, as well as multiple normal EEGs. A provider in September 2012 noted that the “auras” were likely partial seizures that sometimes generalized. A provider in January 2013 noted the lack of evidence of epileptiform activity on EEGs and opined that the Veteran may have been having pseudoseizures. As discussed more below, VA examiners also have noted there is no objective, diagnostic evidence to support a finding of generalized seizures. Resolving doubt in the Veteran’s favor, the evidence shows either one major seizure in a two-year period or at least two minor seizures in a six-month period to satisfy the criteria for a 20 percent rating, with the last episode occurring February 5, 2014. Accordingly, the 20 percent rating should extend to the end of the period six months after the last episode, or August 5, 2014. However, the Veteran’s reports of seizures are not at the frequency of one every six months, and her reports of episodes of “auras” are not at the frequency of five to eight per week. Therefore, a rating in excess of 20 percent is not appropriate. Moreover, the weight of the evidence is against finding she had seizures after February 2014. Treatment records in March 2014 show her medications were changed and she stopped having seizures. In April and May 2014, she continued to report no seizures. In September 2015, the Veteran reported not having had a seizure in two years and requesting a form be completed to that effect. Treatment records from 2016 and 2017 continue to show reports of no seizures and no treatment for seizures. The evidence shows the Veteran was not able to have a driver’s license for multiple years due to her seizure condition. However, in August 2017, the Veteran reported being able to get her driver’s license back and working part time. Treatment records from 2018 continue to show no seizures at that time or in the prior years. In November 2018 and April 2020, the Veteran again reported not having had a seizure for many years, working part time, and being able to drive. The April 2015 examiner recorded the Veteran’s reports of the severity of her attacks, and the Board has resolved doubt in her favor when possible. However, the examiner also noted that although there was a neurology note of partial with secondary and generalized seizures, there was no history of positive EEG to confirm the diagnosis of generalized (or major) seizures. In the June 2019 examination, the Veteran reported having a major seizure in January 2017 and symptoms of convulsions, unconsciousness, impaired/rapid eyeball movement, inability to speak, memory loss, tremors through the whole body, and falls. The examiner noted the diagnosis of tonic-clonic seizures or grand mal epilepsy in 2011. During the July 2020 examination, the Veteran reported having two major episodes of seizures in November 2019 and January 2020. The examiner noted these reports were inconsistent with the private and VA medical records, which found no seizures in the last six years. The Board, too, observes that the Veteran’s reports of seizures made during the examinations are inconsistent with her reports made to treating providers throughout those years of having no seizures and requesting her driver’s license be restored. Because of the consistency of the reports in treatment records and the inherent credibility of statements made for treatment purposes, the Board finds the evidence from the VA and private treatment records outweighs the statements made during examinations. Thus, the weight of the evidence is against finding the Veteran had seizures after February 2014 to warrant a compensable rating for that symptom of her hypoglycemia beyond August 5, 2014. The Board additionally notes that while a compensable rating is not available for seizures under the diagnostic criteria due to lack of seizure episodes, the implications of the seizure diagnosis and precautions necessary for the risk of seizure were considered in the award of TDIU. Moving to the symptom of fatigue, the evidence shows debilitating fatigue reducing daily activity level to less than 50 percent of pre-illness but not symptoms that are nearly constant and so severe as to restrict routine daily activities almost completely and which may occasionally preclude self-care. Records from April and May 2014 show complaints of feeling “real fatigued” and “very fatigued.” During the April 2015 mental health examination, the Veteran reported fatigue taking a toll on her social life. Treatment records from 2017 and 2018 also show complaints of fatigue. The June 2019 examiner found that seizures and fatigue interfered with the Veteran’s functional ability. The November 2020 examiner found the fatigue was a symptom due to hypoglycemia, rather than an independently diagnosed condition. The examiner recorded debilitating fatigue that reduced the daily activity level to less than 50 percent of pre-illness level for six months or longer with sleeping 12 to 14 hours per day. The only evidence specifically addressing the diagnostic criteria is the November 2020 examination. While treatment records show complaints of fatigue, it is unclear when the fatigue became so debilitating as to reduce daily activity to less than 50 percent. The AOJ resolved this question favorably for the Veteran with the award of 60 percent beginning April 7, 2014. However, aside from sporadic notations of fatigue, there is no evidence of how the fatigue symptom affected the Veteran prior to April 7, 2014. There is no evidence of continuous medication for fatigue or required bed rest or treatment. The Board finds there is simply insufficient evidence to rise to the level of equipoise and find any compensable level of disability from fatigue prior to April 7, 2014. Moreover, the evidence after April 7, 2014, does not show signs and symptoms of fatigue so severe as to restrict routine daily activities almost completely. To the contrary, the Veteran reported working part time at various points during that period. While she reported fatigue took a toll on her social life, she did not indicate that she was unable to participate in social activities entirely. There is also no evidence to suggest the Veteran was precluded from self-care. Accordingly, the Board finds the criteria for a 100 percent rating for fatigue have not been met. Finally, the Board notes that both seizures and fatigue are symptoms of the underlying service-connected disability of hypoglycemia. Therefore, ending the 20 percent rating under Diagnostic Code 8911 on August 5, 2014, does not constitute a reduction in the rating or compensation for hypoglycemia, because the overall hypoglycemia disability rating is greater than 20 percent after August 2014. As such, this change is not a reduction in compensation and therefore not subject to the safeguards for reductions in disability ratings. See 38 C.F.R. § 3.105(e). A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A.P. Armstrong 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.