Citation Nr: 21014182 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 13-29 126 DATE: March 11, 2021 ORDER Prior to June 28, 2019, an increased disability rating of 40 percent, but no higher, for psychomotor seizure disorder is granted. From June 28, 2019, a disability rating in excess of 40 percent for psychomotor seizure is denied. FINDING OF FACT Throughout the period on appeal, the Veteran’s psychomotor seizure disorder manifested as an average of at least five to eight minor seizures weekly. CONCLUSIONS OF LAW 1. Prior to June 28, 2019, the criteria for an increased disability rating of 40 percent, but no higher, for psychomotor seizure disorder are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.120, 4.121, 4.122, 4.124a, Diagnostic Code 8914. 2. From June 28, 2019, the criteria for a disability rating in excess of 40 percent for psychomotor seizure disorder are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.120, 4.121, 4.122, 4.124a, Diagnostic Code 8914. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty from August 1967 to August 1971 with additional reserve service. A Board hearing was held in July 2019. A transcript is of record. In October 2019, the Board remanded the issue of entitlement to an increased disability rating in excess of 20 percent for psychomotor seizure disorder for further development, and the case has been returned for appellate consideration. On remand, in a December 2020 rating decision, the evaluation of the Veteran’s psychomotor seizure disorder was increased to 40 percent disabling, effective June 28, 2019. As this disability rating is less than the maximum benefit available and the Veteran has not indicated satisfaction with the rating assigned, the appeal for a higher disability rating remains before the Board. AB v. Brown, 6 Vet. App. 35, 38 (1993). The Board also remanded the issues of entitlement to service connection for conditions of the right arm and neck. In a November 2020 rating decision, service connection was granted for: degenerative arthritis of the cervical spine, status post cervical discectomy and fusion, evaluated as 10 percent disabling, effective December 12, 2013, with an evaluation of 100 percent disability due to treatment necessitating convalescence followed by an evaluation of 30 percent disabling effective August 1, 2018; radiculopathy, right upper extremity, evaluated as 20 percent disabling effective December 12, 2013; and scars, status post posterior cervical laminectomy and fusion evaluated as 10 percent disabling effective December 12, 2013. As this represents a full grant of the benefits sought, those issues are no longer before the Board. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (noting that a grant of service connection extinguishes appeals before the Board). Furthermore, the Veteran has not expressed disagreement with either the disability evaluations or effective dates assigned. See 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 19.52 (formerly 20.302), 20.1103. Increased Rating Disability ratings are assigned under a schedule for rating disabilities and based on a comparison of the veteran’s symptoms to the criteria in the rating schedule. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Disability evaluations are determined by assessing the extent to which a veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the ratings schedule. Individual disabilities are assigned separate Diagnostic Codes, and ratings are based on the average impairment of earning capacity. See 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2. If there is a question as to which evaluation should be applied to the veteran’s disability, 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. The primary focus in a claim for increased rating is the present level of disability. Although the overall history of the veteran’s disability shall be considered, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Additionally, a staged rating is warranted if the evidence demonstrates distinct periods of time in which a service-connected disability exhibited diverse symptoms meeting the criteria for different ratings throughout the course of the appeal. Fenderson v. West, 12 Vet. App, 119, 125-126 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Here, the Veteran’s psychomotor seizure disorder is rated under 38 C.F.R. § 4.124a, Diagnostic Code 8914, evaluated as 20 percent disabling prior to June 28, 2019, and 40 percent disabling thereafter. His claim for an increased disability rating was received July 11, 2014. Disability in the field of neurological conditions and convulsive disorders is ordinarily to be rated in proportion to the impairment of motor, sensory or mental function. 38 C.F.R. § 4.120. Consideration is to be given especially to “psychotic manifestations, complete or partial loss of use of one or more extremities, speech disturbances, impairment of vision, disturbance of gait, tremors, visceral manifestations, injury to the skull, etc.” Id. As to frequency of seizures, “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. Additional guidance on the nature of psychomotor epilepsy is provided in 38 C.F.R. § 4.122. Under Diagnostic Code 8914, psychomotor epilepsy is evaluated based upon either major or minor seizures. As the preponderance of the evidence is against finding that the Veteran suffers from major seizures, and he does not contend otherwise, only the criteria for evaluating minor seizures will be addressed. Psychomotor seizures will be rated as minor seizures under the General Rating Formula for Major and Minor Epileptic Seizures (Formula) 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 Formula, a disability rating of 10 percent is warranted for a confirmed diagnosis of epilepsy with a history of seizures. A rating of 20 percent is warranted for at least 2 minor seizures in the last 6 months. A rating of 40 percent is warranted for averaging at least 5 to 8 minor seizures weekly. A rating of 60 percent is warranted for 9 to 10 minor seizures per week. A rating of 80 percent is warranted for more than 10 minor seizures weekly. 38 C.F.R. § 4.124a, General Rating Formula for Major and Minor Epileptic Seizures. When continuous medication is shown necessary for the control of epilepsy, the minimum evaluation will be 10 percent. This rating will not be combined with any other rating for epilepsy. Id. at Note (1). The Veteran contends that his service-connected psychomotor seizure disorder is more disabling than the currently assigned evaluations because, essentially, his symptoms of minor seizures occur daily. Based upon the following, the Board concludes that prior to June 28, 2019, an increased disability rating of 40 percent, but no higher, is warranted and from June 28, 2019, a disability rating in excess of 40 percent is not warranted for the Veteran’s psychomotor seizure disorder because, throughout the period on appeal, the disability manifested as an average of five to eight minor seizures weekly. At the time of his application in July 2014 for an increased disability rating, the Veteran stated that with the start of taking medication he had not had an episode of unconsciousness for about a year. On the medication, however, he now had on a daily basis periods of how he felt previously after having had a seizure, which sometimes lasted minutes, hours, or sometimes days. He stated that on the medication, unlike his previous seizures, there was no warning. He stated that on medication his episodes were like fainting without loss of consciousness. He stated that some were small but some big, with almost fainting, stomach feeling hot, wanting to vomit. He stated that on the occasion of wanting to vomit, objects appeared larger for a few seconds with feeling some anxiety, having a faster heart rate, perspiration, and dizziness. He stated that he had drowsiness and was in a dream-like state afterward. See July 2014 Statement in Support of Claim. The Veteran has stated that he has not experienced major seizures. See November 2014 Notice of Disagreement; February 2015 VA Form 9. He explained that medication kept him from having major seizures that had occurred three to five times per year with periods of unconsciousness. He has stated that on medication he experienced five to six minor seizures per week, which he described as “grey outs” with stomach feeling warm, sometimes nausea or sweating. He stated that on two occasions things appeared larger than usual for only a few seconds. See November 2014 Notice of Disagreement; February 2015 VA Form 9; July 2015 Statement of Accredited Representative in Appealed Case (Correspondence). He has stated that with medication he no longer got the warning aura that he used to get prior to major seizures and loss of consciousness. During his July 2019 hearing, he stated that the “grey outs” occurred daily. In a November 2020 response to a supplemental statement of the case, the Veteran stated that, while he did not experience “pronounced” auras as when unmedicated, he nevertheless felt his seizures coming one with episodes of lightheadedness and feeling high in differing degrees. He stated that some pass quickly while others last up to 30 seconds. He stated that in the past year some produced headache and objects appeared larger during the episodes. He explained that those episodes occurred around 2014 when his medication was changed, which resulted in disorientation and it affected his ability to walk. He explained that it was this change in severity with the perceptual illusions with the medication change that prompted him to apply for an increased disability rating. He stated that on his current medication he did not have such side effects other than anger issues. See VCAA Notice Acknowledgment. A March 2014 neurology note shows that the Veteran had been started on medication for focal epilepsy of temporal lobe origin in September 2013 and had not had any further full seizures. On medication he reported what were identified as “simple partial seizures” manifested as “feeling ‘high’ that evolve to complex partial seizures” with loss of awareness of surroundings during which he remained unresponsive for a short time. The Veteran reported having nausea and feeling dizzy. See CAPRI, 6/6/2014. During a September 2014 VA examination, it was noted that the Veteran was prescribed levetiracetam 250 mg twice per day. It was noted that during a July 2014 neurology follow up the Veteran reported that his aura was of feeling dizziness, such as passing out, followed by impaired balance and need to concentrate more when walking. He reported that during the past four months he had been having daily events of impaired balance with two events of the epigastric sensation. The examiner indicated that the Veteran’s central nervous system disorder did not impact his ability to work. VA medical records show that within days of his September 2014 VA examination the Veteran was seen by neurology, during which it was documented that his seizures were “focal with an aura of hot sensation and feeling high followed by a dissociative state, followed by post-ictal confusion, events last 30-40 seconds.” The Veteran reported that the medication reduced the duration of the episodes. His medication was increased as to reach the goal of titration. See CAPRI, 10/20/2020. VA medical records show that in February 2015 it was noted that the Veteran’s medication had been changed, and his seizures were described identically as in September 2014. It was noted that the Veteran reported the sensation of “‘grey outs’” where he felt dizzy and things were “‘a little dark’” with abdominal warmth and an episode of vomiting, “which occur daily whereas they were very sporadic previously.” The Veteran reported that on two occasions he had had perception of objects appearing larger, which were brief with post-ictal confusion. His medication was increased. See CAPRI, 1/3/2020. In January 2016, it was recorded that the Veteran was tolerating the higher dose of medication well, reporting one episode of dizziness with the feeling of going to pass out, lasting a few seconds about two to three months previously. He reported occasional flickers of light that were associated with mild headache that improved on their own. See CAPRI, 1/3/2020. In July 2016, the Veteran reported episodes approximately five times per week. In March 2017, he reported “a dimming like sensation occurring 2/ month.” In May 2018, it was recorded that “he continues to have episodes described as darkening of his vision with associated lightheadedness on a nearly daily basis.” In December 2018, he reported continuing “to have episodes of feeling dizzy and seeing gray that occur almost daily but no loss of consciousness.” During an April 2020 telephone consultation with neurology, the Veteran reported that his seizure symptoms remained the same. Although his prescription for levetiracetam was for 1000 mg twice per day, he may have been directed to take a tablet three times per day. See CAPRI, 10/20/2020. In October 2020, the Veteran reported that on 3000 mg per day he experienced a “significant amount of drowsiness and tiredness.” He denied aura or episodes of lightheadedness or of feeling high. He was directed to decrease his medication to 1000mg/1500mg daily. In a November 2020 VA medical opinion, it was stated that the Veteran had been found to have focal sensory seizures for which he took medication daily. It was stated that he experienced brief interruptions in consciousness or conscious control; episodes of perceptual illusions, abnormalities of mood, impairment of vision, and of feeling dizzy/lightheaded. It was opined that the Veteran had not had a history of major or petit mal psychomotor activity, and his signs and symptoms were related to minor seizure activity that occurred five to eight times per week, lasting for seconds to less than a minute. It was further opined that the Veteran had never had epilepsy associated with a nonpsychotic organic brain syndrome or associated with a psychotic disorder, psychoneurotic disorder, or personality disorder. The Board acknowledges that the Veteran is competent to report the observable symptoms of his seizure disorder. See 38 C.F.R. §§ 3.159(a)(2), 4.121; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Furthermore, the Board finds him credible. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (explaining that lay evidence is credible when it is internally consistent and consistent with other evidence of record); Harvey v. Brown, 6 Vet. App. 390, 393–94 (1994) (drawing a credibility distinction between statements made for the purpose of receiving treatment and those made for the purpose of seeking compensation); see also White v. Illinois, 502 U.S. 346, 355-56 (1992) (referencing hearsay rule that permits statements made in the course of receiving medical care since the context provides substantial guarantees of trustworthiness). Throughout the period on appeal, treatment providers have consistently noted that the symptoms of seizure activity reported by the Veteran constituted minor seizures. Likewise, it was consistently recorded that he experienced these minor seizures on average of daily. Although not dispositive, the Board notes that the medical evidence shows that, while the character and frequency of the Veteran’s minor seizures have remained consistent throughout the period on appeal, it has required increasing levels of medication to accomplish this. Consequently, the Board finds that, throughout the period on appeal, the Veteran’s psychomotor seizure disorder manifested as an average of at least five to eight minor seizures weekly thereby satisfying the criteria for a disability rating of 40 percent, but no higher. In reaching this conclusion, the Board has discussed the Veteran’s history of medication and has contemplated its effects in evaluating his disability. The Veteran’s reports of the severity of his seizures prior to starting medication raises the issue of whether his disability should be evaluated based upon severity of symptoms when not taking medication. Under Jones v. Shinseki, 26 Vet. App. 56, 63 (2012), the Board must discount the ameliorative effects of medication where the relevant diagnostic code does not specifically contemplate medication, such as irritable bowel syndrome under 38 C.F.R. § 4.114, Diagnostic Code 7319. But when the effects of medication are contemplated by the rating criteria, such as hypertension under 38 C.F.R. § 4.104, Diagnostic Code 7101, Jones does not apply. McCarroll v. McDonald, 28 Vet. App. 267, 271 (2016). Note (1) of the General Rating Formula for Major and Minor Epileptic Seizures indicates to the Board that the rating criteria for epilepsies does contemplate the ameliorative effects of medication and, therefore, McCarroll controls. The Board finds the U.S. Court of Appeals for Veterans Claims (Court) nonprecedential memorandum decision in Reyno v. Shulkin, No. 16-1231, 2017 U.S. App. Vet. Claims LEXIS 1136 (C.A.V.C. Aug. 2, 2017), instructive while acknowledging that Reyna was not a precedential decision. There, the Board was evaluating the veteran’s symptoms of major depressive disorder under the rating criteria set out in the General Rating Formula for Mental Disorders and denied a disability rating in excess of 50 percent. Under the criteria, a noncompensable disability rating is warranted when symptoms of a mental condition “require continuous medication” as well as a rating of 10 percent is warranted when there are “symptoms controlled by continuous medication.” Thereafter, medication is not mentioned in the formula. 38 C.F.R. § 4.130, General Rating Formula for Mental Disorders. The Board, while noting that factually the veteran’s symptoms were worse when he episodically did not take his medication, assigned a disability rating based upon the severity of symptoms when the veteran was properly medicated. The Court affirmed this approach, stating that the rating criteria for mental disorders permitted VA to consider “the remedial effects of medication” and that the Board, therefore, did not err in discussing those effects when determining the Veteran’s entitlement to a higher evaluation. Id. at *11-12. The Court explained that the rating criteria for mental disorders are “‘symptom driven’” such that the factfinder’s primary focus should be the symptoms. Id. at *7 (quoting Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). Here, the Board finds that the criteria set out in the General Rating Formula for Major and Minor Epileptic Seizures are likewise “symptom driven,” and it is contemplated that the assignment of a disability rating will be based upon symptomatology manifested when taking medication. Indeed, Note 1 of Diagnostic Code 8911 contains language not dissimilar to the criteria for a minimum 10 percent rating under Diagnostic Code 9411, at least where continuous medication is required. See Reyna, supra. To reiterate, the probative evidence, lay and medical, establishes that the Veteran’s seizures have manifested as minor seizures occurring approximately daily. According, a disability rating of 40 percent, but no higher, is warranted as the Veteran’s psychomotor seizure disorder manifested as an average of at least five to eight minor seizures weekly. Additionally, the Board has considered whether entitlement to a separate rating based upon nonpsychotic organic brain syndrome or non-psychotic organic psychiatric disturbance (psychotic, psychoneurotic, or personality disorder) is warranted, however, the medical evidence establishes that the Veteran does not manifest these disorders. The Veteran does not contend otherwise. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Leanne M. Innet, 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.