Citation Nr: 21009860 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 13-11 944 DATE: February 23, 2021 ORDER A total disability rating based on individual unemployability (TDIU) is granted. A rating in excess of 20 percent for a syncopal disorder is denied. REMANDED A rating in excess of 30 percent for acquired psychiatric disorders prior to April 24, 2012 and in excess of 70 percent thereafter is remanded. FINDINGS OF FACT 1. The preponderance of the evidence weighs for finding that the Veteran has been unable to secure and follow substantially gainful employment due to his service-connected disabilities. 2. The Veteran’s seizure disorder did not more nearly approximate an average of at least five to eight minor seizures weekly, at least one major seizure in the last six months, or at least two major seizures in the last year. CONCLUSIONS OF LAW 1. The criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.341, 3.400, 4.16. 2. The criteria for a rating in excess of 20 percent for a seizure disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321 (b)(1), 4.1, 4.3, 4.7, 4.121, 4.122, 4.124a, Diagnostic Code (DC) 8914, General Rating Formula for Major and Minor Epileptic Seizures. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1989 to October 1990. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from June 2011 and October 2012 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). These matters were previously remanded by the Board for further development in April 2018 and most recently in April 2020. The Board finds that there has been substantial compliance with those remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions, and imposes upon VA a concomitant duty to insure compliance with the terms of the remand); see also D’Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial rather than strict compliance with the Board’s remand directives is required under Stegall). 1. Entitlement to a TDIU Legal Criteria A TDIU may be assigned where the schedular rating is less than 100 percent if it is found that the Veteran is unable to secure or follow a substantially gainful occupation as a result of 1) a single service-connected disability ratable at 60 percent or more, or 2) as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there are sufficient additional service-connected disabilities to bring the combined rating to 70 percent or more. Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16 (a). The central question is “whether the Veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability,” not whether the Veteran could find employment. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In determining whether a Veteran is unemployable for VA purposes, consideration may be given to the Veteran’s level of education, special training, and previous work experience, but not to age or any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2016); Hersey v. Derwinski, 2 Vet. App. 91 (1992); Faust v. West, 13 Vet. App. 342 (2000). A Veteran need not show 100 percent unemployability in order to be entitled to a TDIU. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). Factual Background & Analysis The Veteran has been assigned a 70 percent rating for her service-connected psychiatric disability throughout the appeal period relevant to her TDIU claim. Accordingly, she meets the minimum regulatory requirements for consideration for a TDIU based on a single service-connected disability ratable at 60 percent or more. 38 C.F.R. § 4.16 (a). The record reflects that the Veteran last worked as a graphic designer in 2003. She has obtained associate degrees in accounting and graphic design. Her contention is that a combination of her service-connected seizure disorder and psychiatric disability have caused her to be unable to work. In a November 2012 correspondence, her representative stated the Veteran is unable to find and maintain work due to her repeated sick days and personal time requested off due to psychiatric symptoms such as: depression; lack of motivation; lack of desire to get out bed; inability to concentrate or focus; social anxiety around coworkers; anxiety/dread felt on commute to place of employment; headaches from the bottled up stress and anxiety; easily irritated and frustrated with tasks, deadlines and management. A March 2013 correspondence from a VA medical center clinical social worker who had been treating the Veteran states, “Furthermore, I am of the opinion that she is unable to secure and maintain gainful employment due to her psychiatric conditions. Her ability to interact with others in social or vocational environments is severely impaired at this time. During her last therapy session, she displayed a depressed mood, flattened affect, and cried almost the entire therapy session.” An April 2018 correspondence from the Veteran’s VA medical center primary mental health provider from 2012 to 2013, and from 2017 through the present states that, “Over the course of treatment, her mental condition has fluctuated with some periods of improvement. However, she has never reached the point of full and complete recovery and her residual symptoms leave greatly affected her everyday functioning. Over the years, she has received extensive medication care, psychotherapy and emotional support pet therapy which proved to be only partially successful. In my opinion, Mrs. [REDACTED] current mental state makes her uncapable of going back to the workforce and to support self through employment.” After considering the above, the Board finds that the preponderance of the evidence weighs for finding that the Veteran is unable to secure and follow substantially gainful employment due to her service-connected disabilities. The March 2013 and April 2018 opinions from qualified mental health professionals are probative of a marked degree of occupational impairment stemming from the Veteran’s service-connected disabilities which more likely than not preclude her from securing or following a substantially gainful occupation. Accordingly, resolving all reasonable doubt in the Veteran’s favor, the Board finds that entitlement to a TDIU is warranted. 2. A rating in excess of 20 percent for syncopal episodes of unknown etiology Legal Criteria Epilepsy and seizures are rated under the General Rating Formula for Major and Minor Epileptic Seizures (General Rating Formula). 38 C.F.R. § 4.124a, DCs 8910 and 8911. 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 DC 8914, psychomotor seizures will be rated under the General Rating Formula as “major seizures” when characterized by automatic states and/or generalized convulsions with unconsciousness. Psychomotor seizures will be rated as “minor seizures” when characterized by brief transient episodes of random motor movements, hallucinations, perceptual illusions, abnormalities of thinking, memory or mood, or autonomic disturbances. 38 C.F.R. § 4.124a, Diagnostic Code 8914. Under the general formula for major and minor epileptic 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 for 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. 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. Note 1 to the general formula provides that when continuous medication is shown necessary for the control of epilepsy, the minimum evaluation will be 10 percent. In this regard, “the Board may not deny entitlement to a higher rating on the basis of relief provided by medication when those effects are not specifically contemplated by the rating criteria.” Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). Here, the effects of medication are contemplated by the rating criteria and the Board will therefore consider them. A major seizure is characterized by the generalized tonic-clonic convulsion with unconsciousness. A minor seizure consists of 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). 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. Factual Background & Analysis During a September 2012 VA examination the Veteran was not noted to be on any medication for seizures. The Veteran reported that her husband had witnessed a seizure 4 weeks prior where she was tensed and shaking and could not unclench her hands. The examiner described the Veteran’s symptoms as episodes of sudden jerking movement of the arms, trunk or head (myoclonic type); episodes of abnormalities of thinking; episodes of abnormalities of memory; episodes of sudden jerking of arms and legs, whether awake or not; prior to seizure has a strange sweet odor; after seizures had trouble thinking and remembering things; after seizure will sleep for several hours. Seizure activity was noted to be minor seizures last occurring 4 weeks ago and 2 or more over the past 6 months, with a frequency between 0 to 4 per week. She was not noted to have any major seizures or psychomotor seizures. The examiner remarked that the Veteran psychiatric disabilities are the cause of her seizures and that they were controlled at that time. In an April 2013 substantive appeal (VA Form 9), the Veteran described a major seizure event in April 2013 where she suffered 5 to 7 seizures in a two-day period requiring hospitalization and medically induced coma. This event was noted to result in memory loss for the Veteran of up to 10 years ago. A description of this event by the treating physician at the North Mississippi Medical Center noted that this event was “atypical” and could possibly be pseudoseizures. The episode was described as a “nervous breakdown” amnesia after a pseudoseizure. The physical manifestations were described as bilateral upper hand twitching which accelerates and then “jerking” all over her body lasting longer than 10 minutes or more with eye closure. The physician noted that the Veteran agreed to start taking Depakote (an anticonvulsant) at a low dose. During a March 2014 VA examination the examiner indicated that the Veteran did not have, and has never had, any type of seizure activity, despite noting that the Veteran was hospitalized for seizures in April 2013 and that the Veteran had witnessed seizures. The examiner also indicated that the Veteran’s condition required continuous medication, but then noted that the Veteran was not on medication for her condition. A request for clarification was sent to the examiner following this examination, as the examiner’s finding that there was no seizure activity was directly contradicted by the Veteran’s records. The addendum request asked the examiner to list the frequency of the Veteran’s seizures and whether they are major or minor, in compliance with the rating schedule. An addendum was obtained in October 2014 from the March 2014 examiner. The examiner clarified that the Veteran’s treatment records showed that she is not on anticonvulsant medication and had not been seen by neurology in many years. The examiner again noted that the Veteran had been hospitalized for pseudoseizures in April 2013 but opined that such is not a neurological disorder and that the Veteran therefore has not had any major or minor seizures. On December 2020 VA examination the Veteran was not noted to be diagnosed with a seizure disorder, her last pseudoseizure was noted to have occurred in April 2013. The Veteran was not noted to be on continuous medication for epilepsy or seizure activity or to be receiving treatment for such. No findings, signs or symptoms were noted to be attributable to a seizure disorder. The examiner remarked that the Veteran’s past diagnosis of syncopal episodes of unknown etiology, possibly related to hypotension, pseudoseizures, has resolved because her last seizure was in 2013 and she has not had an incident in the past 7 years based on her medical records. The examiner further stated that the Veteran had past pseudoseizures were a result of psychological causes such as severe mental stress. After a review of the evidence, the Board finds that the criteria for a higher 40 percent rating have not been met. To restate, a 40 percent disability evaluation is warranted under the general rating formula for major and minor seizures for 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. In that regard, the Veteran’s documented seizure episodes in April 2013 were never described as major seizures (causing generalized tonic-clonic convulsion with unconsciousness). The Veteran was noted to have had 3 short seizures over minutes with a sudden onset. See North Mississippi Medical Physician’s Report (April 12, 2013). These episodes were described by treating medical personnel as sudden jerking movements of the arms (myoclonic type) and a loss of consciousness which more closely approximate minor seizures. Moreover, the medical evidence does not demonstrate nor has the Veteran stated that she experiences at least 5 to 8 minor seizures weekly which would warrant a higher 40 percent rating. Rather, prior to the April 2013 episode, she was noted to have been seizure free for a period of 8 years. Additionally, the medical evidence does not document any seizures since that time. Accordingly, the preponderance of the evidence is against a rating in excess of 20 percent for a seizure disorder. The benefit of the doubt doctrine is therefore not for application and the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. REASONS FOR REMAND 3. A rating in excess of 30 percent for the service-connected dysthymic disorder with an adjustment disorder and a major depressive disorder prior to April 24, 2012, and in excess of 70 percent on and thereafter The Veteran was afforded a VA psychological examination in December 2020. The examiner determined that the Veteran’s PTSD due to military sexual trauma (MST) was subsumed by her service-connected dysthymic disorder with an adjustment disorder and a major depressive disorder. In January 2020, the Veteran contacted VA and stated that she felt the December 2020 examination was not performed correctly. She stated that her husband was not permitted in the room to help explain certain things for her and that the examiner would not listen to the information she was sharing. See VA 21-0820 Report of General Information. Given the Veteran’s concerns regarding her last VA examination, the Board finds that a new VA examination is warranted to assess the nature and current severity of her psychiatric disabilities. The matters are REMANDED for the following action: 1. Obtain any outstanding VA or private treatment records. 2. Schedule the Veteran for an appropriate VA examination to determine the severity of her service-connected psychiatric disabilities. The examiner should have access to and an opportunity to review the Veteran’s claims file in conjunction with the examination. All necessary testing should be completed. (Continued on the next page)   The examiner is advised that the Veteran is competent to report her symptoms and history and that such reports must be acknowledged and considered in the examination report. Jennifer White Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Kyle McKone 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.