Citation Nr: 21013966 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 10-14 905 DATE: March 11, 2021 ORDER Entitlement to a disability rating greater than 10 percent, before May 22, 2009, for a history of seizure disorder, is denied. Entitlement to a 20 percent rating or focal sensory seizure (previously rated as a history seizure disorder), beginning May 22, 2009, is grated. Entitlement to a disability rating greater than 30 percent for cavernous sinus thrombosis with expressive aphasia is denied. FINDINGS OF FACT 1. Before May 22, 2009, the Veteran had a confirmed diagnosis of epilepsy with a history of seizures. 2. Beginning May 22, 2009, the Veteran’s seizure disorder was productive of minor seizures with a frequency of least one major seizure in the last two years; or two minor seizures in the last six months. 3. Throughout the appeal period, the Veteran’s cavernous sinus thrombosis with expressive aphasia did not manifest in complete paralysis of the vagus nerves. CONCLUSIONS OF LAW 1. Before May 22, 2009, the criteria for a rating greater than 10 percent for a seizure disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.16, 4.121, 4.124a, Diagnostic Code 8910. 2. Beginning May 22, 2009, the criteria for a 20 percent rating for a minor seizure disorder have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.16, 4.121, 4.124a, Diagnostic Code 8912. 3. The criteria for a rating greater than 30 percent for cavernous sinus thrombosis with expressive aphasia have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.16, 4.121, 4.124a, Diagnostic Code 8008-8210. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Marine Corps from May 1978 to February 1992. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a November 2008 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In December 2011, the Veteran testified at a Board hearing before a Veterans Law Judge (VLJ). A copy of the transcript is of record. As the VLJ who presided over the December 2011 hearing is no longer at the Board, the Veteran was afforded in February 2019 an opportunity for another hearing before a different VLJ. In August 2019, the Board received notice that he cared not to have the additional hearing. The issue was thrice before the Board: in May 2012 and March 2014, and September 4, 2019, and remanded for further development. The most recent remand of September 2019 mandated that a VA examination addressing the physical residuals associated with the Veteran’s stroke, including left sided weakness, stumbling, and difficulty with penmanship, as well as the current severity of these disabilities. The examiner was also instructed to address transient neurological events that he experienced from roughly May 2009 until May 2012, as seizures. The Board finds that there has been substantial compliance. Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Lastly, a claim for entitlement to a total disability rating based on individual unemployability (TDIU) will be considered to have been raised by the record as part and parcel of the underlying claim. Rice v. Shinseki, 22 Vet. App. 447 (2009). However, the Veteran was awarded TDIU from March 1, 2009, the day after he last worked, until he met the 100 percent schedular requirement under Diagnostic Code 9413 on December 6, 2012. As the entire potential appellate period covered by any inferred Rice TDIU claim, the issue of TDIU is moot. Disability Ratings Disability ratings are determined by applying the criteria established in VA’s Schedule for Rating Disabilities, which is based upon the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.20. Where there is a question as to which of two evaluations shall be applied under a particular Diagnostic Code, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the claimant. 38 C.F.R. § 4.3. Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007) (citing Fenderson v. West, 12 Vet. App. 119, 126 (1999)). The Veteran filed his initial claim requesting service connection for multiple sclerosis on December 19, 2006. In a November 2008 VA rating decision, the RO assigned a 10 percent rating for service-connected cavernous sinus thrombosis with expressive aphasia and continued the 10 percent for a history of seizures, effective August 01, 2008. A rating decision of July 2010 increased the rating for service-connected cavernous sinus thrombosis with expressive aphasia to 30 percent effective August 01, 2008. In September 2020, the RO increased the rating for a focal sensory seizure (previously rated as a history seizure disorder) from 10 percent to 20 percent, effective December 12, 2019. 38 C.F.R. § 4.124a. The Veteran contends that symptoms residual to his service-connected strokes have worsened, including physical symptoms such as weakness on his left side, stumbling, and difficulty with penmanship. 1. Entitlement to a disability rating greater than 10 percent, before May 22, 2009, for a history of seizure disorder, is denied. 2. Entitlement to a 20 percent rating for focal sensory seizure (previously rated as a history seizure disorder), beginning May 22, 2009, is grated. 3. Entitlement to a disability rating greater than 30 percent for cavernous sinus thrombosis with expressive aphasia is denied. The Veteran’s seizure disorder is evaluated under Diagnostic Code 8008-8910 and Diagnostic Code 8912. Under the General Rating Formula for Major Seizures and Minor Epileptic Seizures, Diagnostic Code 8008 governs thrombosis of vessels of the brain, while Diagnostic Code 8910 governs grand mal epilepsy, and Diagnostic Code 8912 governs Jacksonian and focal motor or sensory, which directs that the disability be rated as minor seizures. 38 C.F.R. § 4.124a. Per 38 C.F.R. § 4.124a, neurological conditions and convulsive disorders and their residuals may be rated from 10 percent to 100 percent in proportion to the impairment of motor, sensory, or mental function. Consider especially psychotic manifestations, complete or partial loss of use of one or more extremities, speech disturbances, impairment of vision, disturbances of gait, tremors, visceral manifestations, etc., referring to the appropriate bodily system of the schedule. With partial loss of use of one or more extremities from neurological lesions, rate by comparison with the mild, moderate, severe, or complete paralysis of peripheral nerves. Id. Under Diagnostic Code 8008, a 100 percent rating is assigned for 6 months, followed, thereafter, by a minimum 10 percent rating. 38 C.F.R. § 4.124a. Under Diagnostic Code 8910 and 8912, a 10 percent is warranted with a confirmed diagnosis of epilepsy with a history of seizures. A 20 percent is warranted when there is at least one major seizure in the last two years; or two minor seizures in the last six months. A 40 percent is warranted for 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. 38 C.F.R. § 4.124a. For VA purposes, a major seizure is characterized by generalized tonic-clonic convulsion with unconsciousness. 38 C.F.R. § 4.124a, Diagnostic Code 8911, 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). 38 C.F.R. § 4.124a, Diagnostic Code 8911, Note (2). Where continuous medication is required to control epilepsy, 10 percent is the minimum rating assignable. To warrant a higher rating, a Veteran’s seizures must be witnessed or verified at some time by a physician. As to frequency, competent, consistent lay testimony emphasizing convulsive and immediate post-convulsive characteristics may be accepted. The frequency of seizures should be ascertained under the ordinary conditions of life (while not hospitalized). 38 C.F.R. § 4.121. Under Diagnostic Code 8210, a 10 percent is warranted for incomplete but moderate paralysis of the tenth cranial nerve. A 30 percent is warranted for incomplete but severe paralysis of the tenth cranial nerve. A maximum of 50 percent is warranted for complete paralysis of the tenth cranial nerve. A corresponding note indicates that evaluation depends on the extent of sensory and motor loss to organs of voice, respiration, pharynx, stomach, and heart. 38 C.F.R. § 4.124a, Diagnostic Code 8210. The vagus nerve controls speech and swallowing, among other things. The evidence of record shows that during a May 2008 VA Brain and Spinal Cord examination, the Veteran reported difficulty with word finding and expressing himself and decreased speech. The examiner noted that the Veteran was presenting with new onset CVA in the left MCA territory on the left side with presenting symptom of expressive aphasia and old left cerebellar infarct, as well as a history of superior sagittal sinus thrombosis, which was complicated with seizure disorder X one, as well as a left frontal abscess in the remote past. Upon examination, speech expressive aphasia was noted, as was his ability to comprehend and follow the command with one step command. “However, it took him three tries to comprehend.” His motor reflexes were 5/5, and his deep tendon reflexes were present and symmetrical. Treatment notes dated in April 2009 VA neuropsychological evaluation for treatment purposes Neuropsychological evaluation compare with the results of the neuropsychological evaluation that he underwent in March 2008. The test results revealed low average processing speed, phonemic fluency, and encoding of unstructured verbal in formation borderline impaired confrontation naming and impairment on one task of visuals canning. Average but lower than expected performance was noted in the domains of simple attention and working memory. His preserved functioning was noted in the domains of abstract reasoning, semantic fluency, visual-spatial abilities reading, and retention of learned information. The examiner noted that compared to the results of his 2008 evaluation, there were “significant improvements in attention processing speed working memory executive functioning and most notably in language abilities (reading confrontation naming and verbal fluency).” Mild declines were noted on tasks of verbal learning and visual scanning. A neurology consultation of May 22, 2009 notes the Veteran’s report of visual changes occurring four days earlier. He denied a loss of consciousness, weakness, difficulty speaking associated with the event. A review of symptoms (ROS) found no numbness/tingling, weakness, no difficulty walking, dysarthria/aphasia, and difficulty swallowing. The examiner noted that the Veteran had very occasional word finding difficulties but that his speech was otherwise fluent and appropriate. The clinician assesses that the described pattern was typical for a migrainous phenomenon. He noted that the Veteran developed nausea as the visual symptoms resolved, which was suggestive of a possible atypical migraine. However, the possibility of posterior circulation transient ischaemic attacks (TIA) could not be ruled out especially given his prior history of stroke and the setting of temporary ASA cessation. This was less likely as his symptoms were positive and bilateral, both of which would be atypical for TIA. Also, less likely but a possible etiology is a posterior occipital complex partial seizure, which would explain the positive visual phenomena. During a July 2009 VA Neurological Disorders examination, the Veteran reported that he had experienced his second stroke that year in June 2009 while in North Carolina. He was admitted to the ER, where MRI/MRA, electrocardiogram and echocardiogram were performed. The MRI/MRA revealed no acute changes and echocardiogram revealed an ejection fraction of 67%, which was not significant for intracardiac thrombus. The Veteran reported that his symptoms included difficulty with word finding, some difficulty with repetition, and at least moderate difficulty with comprehension. He needed to read and re-read things to understand them. He had difficulty with comprehension of spoken language, and while he was able to understand and keep on track in a simple one-on-one conversation, he had difficulty with following multiple conversations. He also had an “airy” feeling in his head almost all the time now as a sequela of the strokes. Upon examination, the examiner noted that while the Veteran’s speech was somewhat halting, he was able to communicate effectively most of the time. He also exhibited a few errors in comprehension but was quickly able to correct himself. The cranial nerves examination revealed good coordination, bilaterally, but slightly decreased on the left side to rapid alternating movements and finger-to-nose finger testing. The reflexes were 2+ throughout, bilaterally with a normal gait. The examiner also noted a questionable decrease in his ability to perform tandem gait, although he was fairly good. The examiner noted that regarding the coordination exam that the patient had evidence of an old infarct in the left cerebellum, which was picked up on an MRI in January of 2008 after the initial stroke. In the May 2010 Neurological Disorders VA examination, the Veteran reported having had had two episodes of strokes, which appeared to have occurred in mid-2009, during which time he experienced the feeling of closing in, a loss of peripheral vision, a feeling of lightheadedness, and nausea. The events lasted for between one and three hours and forced him to lay down. He also reported that an EEG of 2009 was “abnormal due to intermittent left temporal greater than central parietal theta and 3 to 4 Hz delta with occasional sharp transients.” It was noted that the Veteran was ok from a neurological perspective from 1992 to 2008, after which, he had strokes in January of 2008, May 2009, and June of 2009. Upon examination, he was found to have moderate to severe expressive aphasia and mild to moderate receptive aphasia. Because his naming and reception were mildly impaired, the examiner diagnosed global aphasia. His cranial nerves II-XII were intact bilaterally. The examiner summarized that the Veteran’s two or three recent episodes of cognitive changes and slurring speech were either transient ischemic attacks associated with vascular disease or seizure events. “Give the lack of definitive diagnostic data despite having a workup including an EEG and MRI, it is likely that these are seizures.” During a June 2012 Brain and Spinal Cord examination, the Veteran reported difficulty with language, attention/concentration, complex calculations, memory, discussions with family, and penmanship. He also reported taking Keppra, for little seizures, without side effects. A December 2012 Mental Disorders BDQ noted the Veteran’s report of great difficulty expressing himself throughout the interview. He reported that he could only do ok with mild chit-chat but cannot sustain a conversation with more than one other person, for he could not track the conversation. During the Cranial Nerves Conditions DBQ of the same month, the examiner diagnosed moderate incomplete paralysis of the tenth cranial nerve (vagus), bilaterally, and CVA. The October 2017 Cranial Nerves DBQ noted CVA diagnoses and paralysis of the 10th cranial nerves. He reported his most prominent residual was related to speech, though he also had difficulty with memory, attention, reading, and writing. He reported multiple, estimating 8-10, transient neurological events described as tunnel vision, “squiggly” lines in his vision, severe head pressure, nausea, and feeling unbalanced, lasting up to 20 minutes, forcing him to stop the activity and sit until symptoms resolve. He reported weakness on his left side, occasional stumbling, decreased efficiency, and slowed activity. The examiner noted that the Veteran had moderate incomplete paralysis of the cranial nerves, bilaterally and moderate difficulty speaking. The examiner noted that the 10th cranial nerve interfered with employment that required speech and communication. A December 2019 Cranial Nerve Conditions DBQ noted that the Veteran had been diagnosed with a stroke and central nerve paralysis. The examiner noted that the cranial nerve X (vagus) was affected and that the Veteran had moderate difficulty speaking. Muscle strength testing of cranial nerve IX, X (Motor controls swallow, cough, palate elevation; “say ah,” gag reflex) was noted to be mild in severity, bilaterally. The cranial nerve X summary evaluation noted bilateral moderate incomplete paralysis. A December 2019 Central Nervous System and Neuromuscular Diseases DBQ noted that the Veteran had been diagnosed with a nervous system condition, including vascular disease, thrombosis, TIA or cerebral infarction, and stroke and aphasia. The condition requires continuous medication required for control. The Veteran was right hand dominant. The Veteran was found to have muscle weakness in the upper and/or lower extremities and pharynx and/or larynx and/or swallowing conditions including hoarseness, and mild difficulties swallowing. The neurologic examination was noted as abnormal because of the hoarseness and aphasia. The examiner also noted a very mild bilateral upper extremity weakness, with slowing of FFM on the right. Regarding other pertinent physical findings, complications, conditions, signs, or symptoms, the examiner noted paraphasic errors, including some clumsiness in the right hand and FFM, slower in the dominant hand, with poor overall handwriting. The examiner also noted that the Veteran had cognitive impairment attributable to a CNS disease and/or its treatment, including cognitive slowing, memory problems, aphasia, paraphasic errors, resulting in gross impairment in thought processes or communication. The examiner also noted that cognitive impairment, aphasia weakness was due to stroke. A December 2019 Seizure Disorders DBQ noted the Veteran’s reports of residuals from the stroke, including speech, focusing, concentration, memory, including short- and long-term recall, incorrect use of words, and word finding difficulties. He also reported a history of seizures, sudden onset of tunnel vision, narrow visual field, starry and wavy visual field, and a feeling of being out of person, lasting a few minutes or so. The starry and wavy visual field lasted a minute or so and occurred approximately 10 times, or so in a year. He further reported that continuous medication, Keppra and Dilantin, was required for control of epilepsy or seizure. The examiner noted a confirmed diagnosis of seizure disorder (epilepsy), including focal sensory and epilepsy with a history of seizures. He determined that the Veteran’s episodes of impairment of vision are attributable to seizure disorder (epilepsy) activity. It was also noted that the Veteran had seizure activity, including major, minor, petit mal, or psychomotor seizure activity approximate date of the first seizure activity was 2009, with the most recent seizure activity in 2019. The examiner noted that the Veteran had two or more minor psychomotor seizures (characterized by brief transient episodes of random motor movements, hallucinations, perceptual illusions, abnormalities of thinking, memory or mood, or autonomic disturbances, occurring 0-4 times per week. The examiner determined that the Veteran’s seizures were likely secondary to strokes, associated with a nonpsychotic organic brain syndrome. A December 2019 Sinusitis, Rhinitis and Other Conditions of the Nose, Throat, Larynx and Pharynx DBQ noted the reported a history of seizures, sudden onset of tunnel vision, narrow, starry, and wavy visual fields, and feeling of being out of person, lasting a few minutes or so. His last full episode was several years ago, but he still gets visual starry fields, approximately 10 or so episodes in a year, lasting a minute or so. The examiner noted that he had residuals from his stroke, including speech, focusing, concentration, memory, including new, short and long-term recall, wrong word usage, and difficulty finding words. The examiner noted that the Veteran was not, nor was he ever diagnosed with a sinus, nose, throat, larynx, or pharynx condition. Based on the evidence presented, the Board finds that a greater than 10 percent, before May 22, 2009, is not warranted for the Veteran’s history of seizure disorder. The record fails to show two minor seizures in the last six months. Therefore, a rating of 20 percent must be denied. On May 22, 2009, the Veteran reported visual changes occurring four days earlier. During the May 2010 Neurological Disorders VA examination, the Veteran reported having had had two seizure episodes, which appeared to have occurred in mid-2009, during which time he experienced the feeling of being closing in, a loss of peripheral vision, a feeling of lightheadedness, and nausea. Similarly, during a December 2019 VA examination, the Veteran reported a history of seizures, sudden onset of tunnel vision, narrow visual field, starry and wavy visual field, and a feeling of being out of person, lasting a few minutes or so, and getting visual starry fields, approximately 10 or so episodes in a year. Therefore, affording the Veteran the benefit of the doubt, a 20 percent is warranted beginning May 22, 2009, for his transient neurological events, which are deemed as minor seizures. A higher rating is not warranted, for there is no medical or lay evidence of record of the Veteran having 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. Regarding cavernous sinus thrombosis with expressive aphasia, the Board finds that a rating greater than 30 percent must be denied. During the entire period on appeal, the lay and medical evidence have shown moderate to severe incomplete paralysis of the vagus nerve. As there is no evidence showing complete paralysis of the tenth cranial nerve, the rating higher than 30 percent must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. DUSTIN L. WARE Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Stevens, 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.