Citation Nr: 21016079 Decision Date: 03/19/21 Archive Date: 03/19/21 DOCKET NO. 13-26 311 DATE: March 19, 2021 REMANDED Entitlement to a rating in excess of 20 percent for a seizure disorder prior to August 20, 2013 is remanded. Entitlement to a rating in excess of 40 percent for a seizure disorder from August 20, 2013 to November 19, 2019 is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to November 20, 2019 is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1996 to August 1998. This matter is on appeal from a March 2011 decision of a Department of Veterans Affairs (VA) Regional Office (RO). In October 2019, a videoconference hearing was held before the undersigned. A transcript of the hearing is in the record. The case was previously before the Board in May 2020 when it was remanded for further development.   1. Entitlement to a rating in excess of 20 percent for a seizure disorder prior to August 20, 2013 is remanded. 2. Entitlement to a rating in excess of 40 percent from August 20, 2013 to November 19, 2019 is remanded. The Veteran contends that he is entitled to an increased rating for his service-connected seizure disorder. The Veteran’s seizure disorder has been assigned a 20 percent evaluation prior to August 20, 2013 and a 40 percent evaluation from August 20, 2013. Subsequent to the Board’s May 2020 remand, the agency of original jurisdiction (AOJ) awarded a 100 percent rating from November 20, 2019. Thus, the matter presently before the Board is whether a rating in excess of 20 percent is warranted prior to August 20, 2013 and whether a rating in excess of 40 percent is warranted from August 20, 2013 to November 19, 2019. Epilepsy or seizure disorders 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). In the presence of major and minor seizures, the predominating type is rated. Id. at Notes (1) and (2). In November 2019, the Veteran was provided with a VA examination in which the clinician made “life threatening finding[s] in this examination” of “uncontrolled seizure activity with positive loss of consciousness.” As such, the examiner made a finding that the Veteran has experienced at last two major seizures in the past year. Consequently, after this matter was remanded by the Board, the RO awarded a 100 percent rating from November 20, 2019, the date the VA examination was conducted. In both initial and increased rating claims, the Board must consider staged ratings for the entire period on appeal. A staged rating is appropriate when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings under the applicable diagnostic code(s). Hart v. Mansfield, 21 Vet. App. 505, 509 (2007). The potential for staged ratings “accounts for the possible dynamic nature of a disability while the claim works its way through the adjudication process.” Id. (internal quotation omitted). As such, the matter presently before the Board is whether these recent findings and observations reflect an increase in the severity of the disability, in which case a staged rating would be appropriate, or whether the Veteran has experienced a consistent level of severity during the entire appeal period (i.e., whether the Veteran’s seizures prior to November 20, 2019 were predominantly grand mal, as well). Prior to the November 2019 VA examination, there was a question as to whether the Veteran’s seizures predominantly manifested as major or minor. For example, the Veteran was provided with a VA examination in February 2016 in which the examiner stated that there was “no evidence of grand mal seizure in the records or from history that are clinically consistent with semiology of grand mal epilepsy.” The Veteran was also provided with a VA examination in May 2019, and the examiner noted the seizures as “pseudoseizures” and did not mark a diagnosis of tonic-clonic or grand mal seizures. However, during the October 2019 hearing, the Veteran report that the episodes impact his entire body and manifest as grand mal epileptic seizures. He discussed an incident in which he “blacked out” and “had a seizure” while driving and “totaled the car” and that the episodes have “been increasingly worse and just more and more out of control” since. Although the Veteran is not competent as a lay person to self-diagnose whether his seizures are major or minor, he is competent to report on the otherwise observable symptoms, such as losing consciousness. Washington v. Nicholson, 21 Vet. App. 191, 195 (2007). The duty to assist requires VA to determine whether an appropriate rating can be granted based on the evidence of record. Chotta v. Peake, 22 Vet. App. 80, 86 (U.S. 2008). If not, but there is evidence that a higher rating may be warranted, then VA should obtain an appropriate medical opinion, such as a retrospective opinion, as to the Veteran’s level of disability during the earlier period. Id. In light of recent findings and direct observations during the November 2019 VA examination, the Board finds that an additional opinion is necessary to determine whether the Veteran’s seizures predominantly manifested as major (grand mal) or minor (petit mal) at any point prior to November 20, 2019. 3. Entitlement to TDIU prior to November 20, 2019 is remanded. At the time of the May 2020 remand, the issue of entitlement to TDIU was also remanded. In the August 2020 supplemental statement of the case, the AOJ determined the claim for TDIU was moot from November 20, 2019, when the Veteran was awarded a 100 percent rating for his seizure disorder. In Bradley v. Peake, 22 Vet. App. 280 (2008), the United States Court of Appeals for Veterans Claims (Court) held that the issue of entitlement to TDIU may not be moot based on the assignment of a total schedular rating under certain circumstances, in particular where special monthly compensation (SMC) could be awarded based on the consideration of a TDIU rating under 38 U.S.C. § 1114(s). See also Buie v. Shinseki, 24 Vet. App. 242, 250-51 (2011). The Court’s decision in Bradley recognized that a separate award of a TDIU predicated on a single disability may form the basis for an award of SMC. Here, the August 2020 rating decision awarded the Veteran SMC under 38 U.S.C. § 1114(s) based on a 100 percent schedular rating for his service-connected seizure disorder and additional disabilities that were independently rated at 60 percent or more from November 20, 2019. Because a TDIU evaluation is a lesser benefit than the 100 percent schedular evaluation assigned and because the Veteran has already been awarded SMC at the rate under 38 U.S.C. § 1114(s) (the only remaining benefit for which the assignment of a TDIU evaluation would be beneficial), the TDIU claim from November 20, 2019 is moot and will not be discussed further. Buie v. Shinseki, 24 Vet. App. 242 (2011); Bradley v. Peake, 22 Vet. App. 280 (2008). However, TDIU for the period prior to November 20, 2019, is still on appeal before the Board. See Harper v. Wilkie, 30 Vet. App. 356, 359 (2018). A decision on the remanded issue seeking an increased rating for a seizure disorder could impact a decision on the issue of TDIU. As such, the claim seeking TDIU is inextricably intertwined with the issue being remanded. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). The AOJ is therefore asked to complete the development discussed above prior to adjudicating the Veteran’s claim for TDIU. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from August 2020 to the present. 2. After completing the development requested in item 1, return the claims file to the December 2019 VA examiner, or another appropriate clinician if that examiner is not available, for review and an addendum medical opinion. The reviewing clinician should be requested to provide an opinion (based on a review of the record) as to whether it is at least as likely as not that the Veteran’s seizures predominantly manifested as major (grand mal) or minor (petit mal) prior to November 20, 2019. The examiner is asked to consider the Veteran’s competent lay statements regarding observable symptoms during seizures in providing the requested opinion. A complete rationale for all opinions must be provided. If the clinician cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why an opinion would require speculation. The clinician must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the clinician must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 3. Readjudicate the Veteran’s claims for an increased rating for a seizure disorder and TDIU prior to November 20, 2019 based on the record as a whole. If any benefit sought on appeal is not granted, furnish the Veteran and his attorney with an SSOC and afford them an opportunity to respond before the file is returned to the Board for appellate consideration. M. SORISIO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. H. White, 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.