Citation Nr: 21027280
Decision Date: 05/05/21	Archive Date: 05/05/21

DOCKET NO. 14-42 693
DATE: May 5, 2021

REMANDED

Entitlement to a rating higher than 40 percent for service-connected grand mal epilepsy is remanded.

Entitlement to a total disability rating due to unemployability (TDIU), to include on an extraschedular basis, is remanded.

REASONS FOR REMAND

The Veteran served on active duty with the U.S. Army from July 1967 to September 1969.

In an October 2019 decision, the Board granted service connection for PTSD, denied a higher rating for grand mal epilepsy, and remanded service connection for a gastric ulcer. 

While on remand, the AOJ assigned a rating and effective date for PTSD and granted service connection for gastric ulcer in an April 2020 rating decision.  As such, they will not be addressed in this decision. 

The Veteran appealed the October 2019 Board decision to the Court of Appeals for Veterans Claims (Court.)  By a December 2020 Order, pursuant to a joint motion for partial remand (JMPR), the Court vacated the part of Board's October 2019 decision denying a higher rating for grand mal epilepsy and indicated that a remand was appropriate for TDIU on an extraschedular basis and remanded the case for action consistent with the JMPR.

1. Entitlement to a rating higher than 40 percent for service-connected grand mal epilepsy is remanded.

As noted in the JMPR, the November 2017 VA examiner failed to consider records showing the Veteran suffered from minor seizures and merely focused on a few years of treatment, rather than the Veteran's entire medical history.  As such, a remand is appropriate to obtain a new VA opinion to address all the relevant evidence of record. 

2. Entitlement to a total disability rating due to unemployability (TDIU), to include on an extraschedular basis, is remanded.

While on appeal with the Court, both parties agreed that the Board should consider whether referral for extraschedular consideration for a TDIU is warranted. 

Entitlement to a TDIU was denied in July 2013 and January 2015 rating decisions.  The Veteran's combined rating is 100 percent from July 31, 2010.  She is in receipt of special monthly compensation (SMC) at the "s" rate (housebound rate) since June 29, 2012.  As of June 29, 2012, the Veteran had one disability rated at 100 percent disabling (PTSD), and her combined rating of her other disabilities as 60 percent or more (epilepsy and associated gastric ulcer and right hip/thigh disability).  Prior to June 29, 2012, the Veteran did not have additional service-connected disabilities (other than PTSD) independently ratable at 60 percent or more.   

The November 2017 examiner noted that the Veteran's epilepsy impacted her ability to work due to her inability to climb ladders, swim alone or operate machinery in the event of a seizure.  She also reported that she had not driven in seven years.  In May 2014, a VA memo indicated that a vocational goal was not feasible at the time.  Instead, she completed an evaluation for independent living services, which did not reveal any needed services. 

Entitlement to a TDIU, to include on an extraschedular basis, is intertwined with the remanded increased rating claim for the Veteran's epilepsy. 

The matters are REMANDED for the following action:

1. Schedule the Veteran for a VA examination to determine the current nature and severity of her epileptic condition.  The examiner is asked to review all relevant medical history, to include reports of daily minor seizures. 

2. Determine whether TDIU, on an extraschedular basis, should be referred to the Director, Compensation Service for any period during which a TDIU is not moot. 

 

H.M. WALKER

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	A. Price, 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.