Citation Nr: 21024420 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 16-28 215 DATE: April 22, 2021 ORDER The reduction in the rating for the Veteran's nocturnal epilepsy with grand and petit mal seizures was not proper, and the 40 percent rating is restored effective June 1, 2015. REMANDED Entitlement to an evaluation in excess of 40 percent for nocturnal epilepsy with grand and petit mal seizures is remanded. FINDING OF FACT At the time the reduction in the disability evaluation was effectuated, the Veteran’s nocturnal epilepsy with grand and petit mal seizures had not been clearly shown to have undergone sustained improvement. CONCLUSION OF LAW The reduction of the disability evaluation for the Veteran’s service-connected nocturnal epilepsy with grand and petit mal seizures from 40 percent to 20 percent was not proper, and the 40 percent disability evaluation is restored. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.10, 4.13, 4.97, Diagnostic Code 8910. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Navy from June 2011 to January 2013. In the June 2016 Form 9, the Veteran requested a live video conference hearing before the Board. The hearing was scheduled for August 2019, and the Veteran was deemed a no-show for the hearing. The Veteran has not provided evidence of good cause for the failure to show. As such, the Veteran’s hearing request is considered withdrawn. 38 C.F.R. § 20.704 (d). Entitlement to the restoration of the reduction of the rating for the Veteran's nocturnal epilepsy with grand and petit mal seizures The Veteran asserts that the reduction in his seizure disability’s evaluation was not proper or warranted based on the evidence of record. In December 2014, the Regional Office (RO) proposed to reduce the Veteran’s separate 40 percent evaluations for his service-connected nocturnal epilepsy with grand and petit mal seizures to 20 percent. This reduction was accomplished in a March 2015 rating decision, effective June 1, 2015. Initially, the Board observes the RO complied with the procedural safeguards regarding the manner in which the appellant was given notice of the proposed rating reduction and the implementation of that reduction. See 38 C.F.R. § 3.105. The Board will now consider the propriety of the rating reduction. A rating reduction is not proper unless the Veteran’s disability shows actual improvement in his or her ability to function under the ordinary conditions of life and work. See Faust v. West, 13 Vet. App. 342, 349 (2000). In considering the propriety of a reduction, the Board must focus on the evidence available to the RO at the time the reduction was effectuated (although post-reduction medical evidence may be considered in the context of considering whether actual improvement was demonstrated). Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-82 (1992). The Veteran need not demonstrate that retention of the higher evaluation is warranted; rather, it must be shown by a preponderance of the evidence that the reduction was warranted. See Brown v. Brown, 5 Vet. App. 413, 418 (1993). The previously assigned 40 percent evaluation was awarded by an April 2013 rating decision, which was based on a July 2012 VA examination. The examiner confirmed nocturnal epilepsy with grand and petit mal seizures based on subjective evidence from the Veteran and diagnostic testing that was consistent with the rendered diagnosis. Further, at the time of the examination the Veteran reported that the date of his last seizure was May 2012. Additionally, the Veteran reported that he has had 3 episodes over the past 2 years and that they occurred about once a month. However, he also noted that during the past 12 months the frequency of the episodes had decreased. In October 2013, the Veteran was afforded another VA examination. A diagnosis of nocturnal epilepsy grand mal and petit mal was once again confirmed. The Veteran’s symptoms were described as generalized tonic-clonic convulsions, episodes of unconsciousness, and episodes of sudden jerking movement of the arms, trunk, or head. The examiner determined that the Veteran has not had minor seizures. However, the examiner found that the Veteran has had at least one major seizure in the past year with an average frequency of major seizures as less than one in the past six months. The date of the most recent seizure activity was noted as 2012. Further, the examiner determined that the Veteran has not ever had minor or major psychomotor seizures. Another VA examination was conducted in November 2014. A diagnosis of absence seizures or petit mal or atonic seizures was found. The Veteran’s symptoms were described as generalized tonic-clonic convulsions, and episodes of sudden jerking movement of the arms, trunk, or head. It was reported that the Veteran’s last seizure was in 2014. The examiner determined that the Veteran had not had minor seizures. However, the examiner found that the Veteran had at least one major seizure in the past year with an average frequency of major seizures as less than one in the past six months. Further, the examiner determined that the Veteran has not ever had minor or major psychomotor seizures. Private treatment records from December 2014 reveal that the Veteran reported having had four seizures since his last encounter in November 2013. Additional private treatment records from June 2015 show that the Veteran reported that the he most of his seizures occur nocturnally or very early in the morning before awakening. Further private treatment records from March 2016 indicate that the Veteran reported having had two episodes in August of 2014 and that the Veteran reported that he had been seizure free since his last hospitalization. In his June 2016 VA Form 9, the Veteran stated that he had four seizures in one day in March 2015. Further, he was hospitalized for four days following those seizures. Since then, the Veteran stated that he had several minor and major seizures. In support of his claim, the Veteran submitted a September 2016 statement from a private examiner. The private examiner indicated that since March 2015, he had been treating the Veteran for generalized tonic clonic seizures (Grand Mal), and probable absence seizures (Petit Mal). Further, the private examiner explained that the Veteran’s diagnostic testing was abnormal and was consistent with the Veteran’s current diagnosis. In particular, the private examiner explained that the Veteran currently averaged one breakthrough grand mal seizure per one to two-month interval. As a result, the examiner noted the Veteran is prohibited in the State of Texas from operating a vehicle. The Veteran is rated for his nocturnal epilepsy with grand and petit mal seizures under DC 8910, which evaluates epilepsy, grand mal and states to rate under the general rating formula for major seizures. Note (1) states that a major seizure is characterized by the generalized tonic-clonic convulsion with unconsciousness. Note (2) states that 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). Under the General Rating Formula for Major and Minor Epileptic Seizures, a 10 evaluation is warranted for a confirmed diagnosis of epilepsy with a history of seizures. A 20 percent evaluation 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 one major seizure in the last six months or two in the last year; or averaging at least five to eight minor seizures weekly. Even higher ratings are warranted for greater degrees of symptomatology. In the instant case, the Board finds that the weight of the evidence does not establish sustained improvement in the Veteran’s service-connected nocturnal epilepsy with grand and petit mal seizures, including under the ordinary conditions of life and work. While the Veteran’s symptoms at the October 2013 and November 2014 VA examinations are more consistent with a 20 percent rating under DC 8910, the Veteran’s symptoms did not improve from the 2013 to the 2014 examination. Instead, private treatment records from December 2014 show that the Veteran reported having had at least four seizures since November 2013. Likewise, later private treatment records from September 2016 show that the Veteran continues to have at least one breakthrough seizure for every two-month period. There is insufficient medical evidence to determine whether the Veteran’s symptoms would continue to increase in severity, improve, or remain stable. Under 38 C.F.R. § 3.344 (a), for rating reduction to be proper, the record must clearly reflect a finding of material improvement; and it must be reasonably certain that the material improvement found will be maintained under the ordinary conditions of life. In this case, the Board notes that a finding of material improvement is not clear, and it is not reasonably certain whether any improvement will be maintained under the ordinary conditions of life, as the increase in the severity of the Veteran’s seizure-disability symptoms may continue. The Veteran does not bear the burden of demonstrating entitlement to retention of the higher evaluation. Brown, 5 Vet. App. at 418. Instead, the burden of proof is on VA to establish that a reduction is warranted by the weight of the evidence. Kitchens v. Brown, 7 Vet. App. 320 (1995). The evidence of record does not demonstrate a sustained improvement in the Veteran’s nocturnal epilepsy with grand and petit mal seizures at the time of the March 2015 reduction. As such, the reduction of the 40 percent evaluation to 20 percent for nocturnal epilepsy with grand and petit mal seizures, effective from June 1, 2105, was not proper. Therefore, the requirements for restoration have been met. See generally 38 C.F.R. § 3.344. Accordingly, the Board finds that the weight of the evidence does not establish sustained improvement in the Veteran’s seizure disability. Resolving all doubt in favor of the Veteran, the 40 percent rating for generalized convulsive seizures is restored effective June 1, 2015. REASONS FOR REMAND In light of the evidence as discussed above, the Board finds that a remand is warranted to determine the current severity of the Veteran’s service-connected nocturnal epilepsy with grand and petit mal seizures. The Board notes that the Veteran was last afforded a VA examination in November 2014. While the mere passage of time since the last VA examination does not, in and of itself, warrant additional development, the Board finds that the November 2014 examination is too remote to be considered a contemporaneous medical examination sufficient to ascertain the current level of disability. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991); Caffrey v. Brown, 6 Vet. App. 377 (1994); Palczewski v. Nicholson, 21 Vet. App. 174 (2007). Accordingly, the Veteran should be afforded a contemporaneous VA examination which assesses the current level of his service-connected nocturnal epilepsy with grand and petit mal seizures and ensures the evaluation of this disability will be a fully informed one. While on remand, the RO should also obtain any outstanding medical evidence that may be relevant to the claim on appeal, including any private treatment records identified by the Veteran and relevant VA treatment records. The matters are REMANDED for the following action: 1. Obtain all outstanding, relevant treatment records and associate them with the claims file. To the extent needed, the Veteran should be asked to identify the places and approximate dates of treatment. All VA records should be obtained. If there are private records appropriate releases should be requested. All attempts to obtain records should be documented in the claims folder. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected nocturnal epilepsy with grand and petit mal seizures. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner should specifically consider the September 2016 private treatment record indicating that the Veteran has one breakthrough seizure for every one to two-month period. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Scanlan, 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.