Citation Nr: 21028828 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 16-46 247 DATE: May 12, 2021 ORDER Entitlement to an initial compensable rating for service-connected unknown febrile illness (also claimed as malaria and cerebral malaria) is denied. Prior to September 9, 2019, entitlement to an evaluation in excess of 40 percent disabling for service-connected epilepsy with mesial temporal sclerosis is denied. Entitlement to an evaluation of 60 percent disabling, but no higher, for service-connected epilepsy with mesial temporal sclerosis is granted effective September 9, 2019. FINDINGS OF FACT 1. The Veteran's service-connected unknown febrile illness (also claimed as malaria and cerebral malaria) was not active during the appeal period and there are no residuals other than the symptoms consisting of or rated as part of his service-connected epilepsy, obstructive sleep apnea, adjustment disorder with mixed anxiety and depression, tinnitus, hearing loss, and cluster headaches. 2. Prior to September 9, 2019, the Veteran's service-connected epilepsy with mesial temporal sclerosis was characterized by 5-8 minor seizures per week and an average of one major seizure every six months or less. 3. Beginning September 9, 2019, the greater weight of the evidence establishes that the Veteran's service-connected epilepsy with mesial temporal sclerosis was characterized by 9-10 minor seizures per week plus one major seizure approximately every four months. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial compensable rating for service-connected unknown febrile illness (also claimed as malaria and cerebral malaria) have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.88b, Diagnostic Code 6304 (2020); 38 U.S.C. § 4.88b (2018). 2. Prior to September 9, 2019, the criteria for entitlement to an evaluation in excess of 40 percent disabling for service-connected epilepsy with mesial temporal sclerosis were not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Codes 8910-8914. 3. Beginning September 9, 2019, the criteria for entitlement to an evaluation of 60 percent disabling, but no higher, for service-connected epilepsy with mesial temporal sclerosis were met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Codes 8910-8914. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from January 1975 to May 1979. The Veteran testified before the undersigned in a September 2019 Board Hearing held via videoconference. The claims file contains a transcript of the hearing. In a June 2020 Board Decision and Remand, the above-referenced claims were remanded to the RO for further evidentiary development and readjudication. The Regional Office (RO) has substantially complied with the Board's remand instructions with respect to the above-listed claims, so the Board may proceed to their merits. See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (noting that Stegall requires substantial compliance with remand orders, rather than absolute compliance). During the development requested in the June 2020 Board Decision and Remand, the RO issued a January 2021 rating decision that granted service connection for (1) adjustment disorder with mixed anxiety and depressed mood, (2) granted service connection for cluster headaches, (3) denied an increased rating for unknown febrile illness, (4) denied an increased rating for hearing loss, and (5) deferred decision on the claim of entitlement to service connection for obstructive sleep apnea. In a second January 2021 rating decision, the RO granted service connection for obstructive sleep apnea. The Veteran filed a March 2021 VA Form 20-0996, Request for Higher Level Review, with respect to the adjustment disorder, cluster headache, unknown febrile illness, and hearing loss claims decided in the first January 2021 rating decision (to include increased ratings and earlier effective dates for each). Importantly, the VA Form 20-0996 specifically referenced the January 2021 rating decision, not the February 2021 SSOC, and the box to opt-in to the AMA from the SSOC was not checked, so this form does not indicate any intent to opt the claim of entitlement to an increased rating for the unknown febrile illness into the Appeals Modernization Act (AMA) docket. Moreover, even if there had been an intent, the procedure for converting from a legacy appeal to an AMA appeal requires the timely filing of VA Form 10182. See 38 C.F.R. §§ 3.2400. In short, the Veteran did not demonstrate an intent to opt out of the legacy system and did not follow the prescribed procedures to opt out. Therefore, the claim of entitlement to an increased rating for unknown febrile illness remains in the legacy system and will be decided on the merits in this decision. The developments pertaining to and including the January 2021 rating decision are pertinent to this appeal, however, because, at his September 2019 Board Hearing, the Veteran identified the residuals of his undiagnosed febrile illness as including depression, cognitive deficits, headaches, hearing loss, tinnitus ("constant ringing in my ears"), and interference with sense of smell (described as smelling things that are not real). While these issues were all raised in the context of the claims of entitlement to increased ratings for service-connected epilepsy with mesial temporal sclerosis and service-connected unknown febrile illness, some of the issues were already separately service-connected and rated (e.g., hearing loss) and the others are now service-connected or encompassed by the service-connected adjustment disorder and cluster headaches (e.g., cognitive impairments are considered in rating both the adjustment disorder and the headaches). The Board recognizes that it may be permitted to exercise jurisdiction over the proper rating of the adjustment disorder, cluster headaches, and/or hearing loss. See Chavis v. McDonough, No. 18-2928 (Apr. 16, 2021) (holding that, because the veteran's "radiculopathy was part of his claim seeking higher compensation for his lumbar spine disability, the Board did not err, in this particular case, by choosing to address the appropriate evaluation for the radiculopathy component of [his] lumbar spine condition"); see also Morgan v. Wilkie, 31 Vet. App. 162, 167 (2018) (encouraging the use of "schedular rating tools" for symptoms and effects not contemplated by the primary diagnostic code before "resorting to § 3.321(b)'s extraschedular provision"); Bailey v. Wilkie, 33 Vet. App. 188 (2021) (holding that, when entitlement to secondary service connection is raised in the context of an increased rating claim, VA must consider those "complications" in connection with the claim on appeal). However, even assuming the Board has the discretion to exercise jurisdiction over the disabilities service-connected as residuals of the unknown febrile illness, doing so is improvident here for several reasons. First, the functional limitations associated with radiculopathy and lumbar spine disabilities are often, if not always, overlapping and both typically involve damage to nerves which travel through the spine to the extremities. In contrast, the claimed residuals here involve distinct parts of the anatomy and the functional limitations are more conceptually distinct (e.g., hearing loss versus headaches versus depressed mood). Second, the Veteran will have greater procedural rights, to include further development at the RO level, by pursuing his already-initiated appeal of the rating and effective dates for the disabilities found to be due to the undiagnosed febrile illness. The fact that the Veteran filed a formal claim for those conditions and has specifically appealed the effective dates and ratings assigned for those conditions indicates that he expects and prefers for each of those disabilities to be evaluated separately, rather than all together in this decision. See also September 2019 Board Hearing Tr. at 16 (documenting, after the Veteran described his claimed residuals of undiagnosed febrile illness including olfactory hallucinations, the representative's acknowledgement that "[a] lot of that was incorporated into the mental health evaluation as well"). In short, the Veteran is not prejudiced in any way by the Board declining jurisdiction at this time over claims of higher ratings for adjustment disorder, cluster headaches, and hearing loss, but he may well benefit from additional procedural protections and the consideration of the effective dates together with the increased ratings for these separately service-connected disabilities that are related to the undiagnosed febrile illness. The Board has considered whether to exercise jurisdiction over the adjustment disorder (to include associated cognitive deficits and olfactory hallucinations), cluster headaches (to include associated cognitive deficits), and hearing loss claims as part of the increased rating for undiagnosed febrile illness, but declines for the reasons set forth above. The Board notes that the most recent evidence indicates that the Veteran was employed through most of the appeal period and that he retired in 2019 from a position that he took so he "could get [his] retirement back from the state." December 2020 VA Examination (Mental Disorders). At the September 2019 Board hearing, the Veteran's representative specifically denied any intent to seek a total disability rating based on individual unemployability (TDIU). He did not file any request for TDIU thereafter and, as discussed below, specifically requested a decision on the merits without suggesting consideration of a TDIU. Under these circumstances, a claim for TDIU has not been raised by the record. See Rice v. Shinseki, 22 Vet. App. 447, 453-55 (2009). Increased Rating Disability evaluations are assigned to reflect levels of current disability. The appropriate rating is determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the Veteran working or seeking work. 38 C.F.R. § 4.2. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. When there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In evaluating claims for increased ratings, VA must evaluate the veteran's condition with a critical eye toward the lack of usefulness of the body or system in question. 38 C.F.R. § 4.10. VA has considered the level of the veteran's impairment throughout the entire period on appeal, including the propriety of staged ratings. O'Connell v. Nicholson, 21 Vet. App. 89 (2007). In assigning disability ratings, the evaluation of the same disability under various diagnoses is to be avoided. See 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); see also VA Gen. Coun. Prec. 92004 (Sep. 17, 2004) ("[T]he key consideration in determining whether rating under more than one diagnostic code is in order is whether the ratings under different diagnostic codes would be based on the same manifestation of disability or whether none of the symptomatology upon which the separate ratings would be based is duplicative or overlapping."). 1. Entitlement to an initial compensable rating for service-connected unknown febrile illness (also claimed as malaria and cerebral malaria) The Veteran claims entitlement to an initial compensable rating for his service-connected unknown febrile illness. However, he did not specify the current symptoms, functional impairments, or other residuals in his initial filings, other than epilepsy and mesial temporal sclerosis. See, e.g., November 2010 Correspondence from Veteran ("The febrile illness that I contracted while servicing as a U.S. Marine . . . has left me with two distinctive and separate medical problems: mesial temporal sclerosis and epilepsy."); December 2011 Correspondence from Veteran (arguing that he contracted malaria which caused mesial temporal sclerosis which in turn caused epileptic seizures and providing information from medical journals and his medical records "show[ing] a progression of the mesial temporal sclerosis, the types of seizures it spawns and the severity of the type" of seizures he has); July 2012 Correspondence from Veteran (describing the "residual impairments I am now suffering from" as "epilepsy w/ status epilepticus and temporal sclerosis"); August 2012 Correspondence from Veteran (arguing in favor of granting service connection for the mesial temporal sclerosis and epilepsy related to the in-service unknown febrile illness claimed as malaria); July 2013 Correspondence from Veteran (arguing for a separate rating for mesial temporal sclerosis in addition to the rating for epilepsy); February 2015 Correspondence to Senator (explaining claim for mesial temporal sclerosis which "is causing the epilepsy"); August 2015 Notice of Disagreement (checking a box for a higher rating for unknown febrile illness, but not indicating any factual basis for the claim); September 2016 VA Form 9 (appealing "all issues" but otherwise containing no argument or indication of reason for disagreement); October 2018 Correspondence of Veteran (identifying mesial temporal sclerosis as a residual, but no other residuals, and arguing that, "if the rating of the brain damage [(i.e., mesial temporal sclerosis)] is a higher rating than the epilepsy, then we need to go after it"). More recently, as discussed in the Introduction above, the Veteran testified at his Board hearing that his residuals of undiagnosed febrile illness included, in addition to epilepsy and mesial temporal sclerosis: depression, cognitive deficits, headaches, hearing loss, tinnitus ("constant ringing in my ears"), and interference with sense of smell (described as smelling things that are not real). As discussed, the depression, headaches, hearing loss, and tinnitus are all separately service-connected and rated. The Board will not take jurisdiction over those issues and determine the appropriate rating for them at this time. With respect to the interference with sense of smell, the Veteran indicated at his Board hearing that he would smell things that were not present. He compared the phenomenon to visual hallucinations and his representative explicitly argued that the issue with smell and other residuals discussed at the hearing were "incorporated into the mental health evaluation as well." September 2019 Board Hearing Tr. at 16. As discussed in the Introduction, to the extent the Veteran has identified those olfactory hallucinations as residuals of the unknown febrile illness, they are encompassed in the rating for the acquired psychiatric disorder. To the extent the Veteran is claiming he has residuals affecting his actual sense of smell, the rating schedule only provides a compensable rating for a complete loss of the sense of smell. 38 C.F.R. § 4.87a, DC 6275. Because the evidence is against finding that the Veteran has a complete loss of sense of smell or functional limitations more closely approximating a complete loss of sense of smell, see September 2019 Board Hearing Tr. at 15 (describing the symptoms associated with his sense of smell), the Veteran is not entitled to a separate rating under DC 6275. For all of these reasons, the Veteran is not entitled to a separate or additional rating for the residuals described as affecting his sense of smell (or perception of his sense of smell). This leaves the cognitive deficits. Notably, the Veteran submitted a September 2019 Independent Medical Evaluation (IME) performed by a private neurologist which identifies all of the neurological and psychological residuals of the in-service unknown febrile illness. The neurologist explained: From the medical documentation and information provided, it is established that [the Veteran] suffers from frequent and uncontrolled seizures, despite multiple antiepileptic medications. The seizures have been diagnosed as secondary to mesial temporal sclerosis and presumed secondary to a febrile illness, which is connected to his time served in the Marine Corps. He currently suffers from 9-10 seizures per week, although this is likely an underrepresentation of his true seizure frequency. He also suffers from long-term ill effects of the seizures, including deficits in cognition and memory, as well as depression and anxiety. All of these have been reported to be directly due to his seizures. She concluded by offering her opinion that the Veteran should be rated 60 percent disabling for the seizures and 100 percent for depression and anxiety. The neurologist is a highly qualified medical expert and the Board finds her medical opinions are entitled to significant probative value, particularly her identification of the symptomatic residuals as consisting of epilepsy and depression and anxiety as well as the deficits in cognition and memory related to those conditions. The Board gives no weight to her legal opinions regarding the appropriate ratings to be assigned, but provides some context to her opinion regarding the severity of the condition and has been considered in that regard. In addition, her opinion regarding the ratings that should be assigned further indicates and clarifies her belief that the residuals resulting in functional impairment consist primarily of epilepsy and the acquired psychiatric disorder (depression and anxiety) with the cognition and memory complaints being typical of and intertwined with those primary conditions. The Board finds that the deficits in cognition and memory are not distinct symptoms or functional impairments constituting residuals of the undiagnosed febrile illness, but are aspects of the separately service-connected and rated epilepsy and adjustment disorder with depression and anxiety. Therefore, the Board will not assign any separate rating for the deficits in cognition and memory as independent residuals of the unknown febrile illness. Rather, those deficits will be considered in this decision in assigning the appropriate rating for epilepsy and were considered in the assignment of a rating for adjustment disorder (and will be considered by the Board in a later decision if the Veteran continues the appeal of that rating that he recently initiated). The available medical evidence, including not only the September 2019 IME, but also the VA examinations and available treatment records, support the conclusion that the Veteran's service-connected unknown febrile illness has manifested in the above-discussed residuals which were identified in the Veteran's filings and hearing testimony. These are separately rated, and there are no other ratable residuals. See, e.g., October 2012 VA Examination (documenting the Veteran's report of tremors of the bilateral hands since beginning medication for epilepsy which was described as mild and a known complication of the medication, but physical examination revealed no other abnormalities or "pertinent physical findings, complications, conditions, signs and/or symptoms" indicating functional limitations or other impairments as residuals of the unknown febrile illness). As will be discussed more fully below, the mesial temporal sclerosis manifests as epilepsy (as pointed out by the neurologist who provided the September 2019 IME). Therefore, the appropriate rating for the service-connected epilepsy with mesial temporal sclerosis will be addressed in the next section and will provide full compensation for that condition. Malaria is rated pursuant to 38 C.F.R. § 4.88b, Diagnostic Code 6304. Until August 11, 2019, DC 6304 provided that malaria as an active disease is to be rated as 100 percent disabling. Thereafter, VA should rate residuals such as liver or spleen damage under the appropriate system. 38 C.F.R. § 4.88b was amended effective August 11, 2019, to include a General Rating Formula for Infectious Diseases, providing for a 100 percent rating for active disease and further instructing that, after active disease has resolved, rate at 0 percent for infection and rate any residual disability of infection within the appropriate body system. Note 2 after the amended DC 6304 provides that VA should rate under the appropriate body system any residual disability of infection, which includes, but is not limited to, liver or splenic damage, and central nervous system conditions. An introductory note to section 4.88b further provides: As applicable, consider the long-term health effects potentially associated with infectious disease listed in § 3.317(d) of this chapter (which specifically includes malaria). The Veteran's unknown febrile illness, whether malaria or another infectious disease, was not active during the period on appeal, so a 0 percent rating is warranted under both the old and new versions of DC 6304. Moreover, VA has rated all of the residuals under the appropriate diagnostic codes pertaining to the affected body systems. The Board has considered the long-term effects of the malaria, but these specifically include the separately rated conditions (particularly and most prominently including epilepsy and adjustment disorder with mixed anxiety and depression, but also the other conditions already discussed). Therefore, under both versions of DC 6304, there remain no symptoms, functional limitations, or residuals to rate as the undiagnosed febrile illness (whether under DC 6304 or another diagnostic code). In short, the Veteran does not currently have any symptoms or functional limitations directly caused by an active, unknown febrile illness. Moreover, the symptoms and functional limitations of the residuals of his unknown febrile illness (to include the long-term health effects associated with the illness) are either noncompensable (e.g., interference with sense of smell) or are encompassed by the multiple separately service-connected and rated conditions, including epilepsy with mesial temporal sclerosis, obstructive sleep apnea, adjustment disorder with mixed anxiety and depressed mood, tinnitus, hearing loss, and cluster headaches. For the reasons stated above, the Board will not assign any ratings for these conditions as part of the claim for an increased rating for unknown febrile illness. There are no other symptoms or functional limitations to rate during the appeal period. Entitlement to a compensable evaluation for service-connected unknown febrile illness is denied. 2. Entitlement to an evaluation in excess of 40 percent disabling for service-connected epilepsy with mesial temporal sclerosis The Veteran contends he is entitled to an evaluation in excess of 40 percent disabling for his service-connected epilepsy with mesial temporal sclerosis. Most recently, he has submitted argument and medical evidence indicating that he believes his epilepsy warrants a 60 percent evaluation "based on the severity and frequency of his symptoms." See December 2020 Summary of Argument; see also September 2019 IME (arguing that the evidence "warrants a rating of 60% for his seizures"); but see September 2019 Board Hearing Tr. at 3 (contending that the rating for epilepsy "should be as high as 80 percent, certainly 60 but we definitely believe it should also be as high as 80 percent"). As an initial matter, it is important to establish the period on appeal. Whereas the appeal seeking entitlement to an increased evaluation for the service-connected unknown febrile illness arose from an August 2014 rating decision granting service connection for that claim, the Veteran did not appeal from the February 2009 rating decision which implemented the December 2008 Board Decision granting service connection for epilepsy and assigned staged ratings of 40 percent effective July 6, 1998, 20 percent effective June 18, 2001, and 10 percent November 1, 2005. Because the Veteran did not appeal or submit new and material evidence within one year, the rating decision assigning initial disability ratings became final. 38 C.F.R. § 20.1103. The current claim of entitlement to an increased rating for epilepsy arises from a July 2010 claim. See July 2010 Report of General Information (documenting the Veteran's phone call requesting an increase in his rating for service-connected epilepsy); see also November 2010 Correspondence from Veteran (claiming entitlement to an "increased disability percentage for epilepsy" and a claim for "100 percent for two years: 06-23-98 through 09-05-00"). The July 2010 claim for an increased rating was the first claim by the Veteran subsequent to the February 2009 rating decision. Therefore, the period on appeal is from the date of the claim (July 28, 2010) to the present. The Board recognizes an increase could be assigned up to one year prior to July 28, 2010, if an increase in disability first became ascertainable during that period. See 38 C.F.R. § 3.400(o). Epilepsy and conditions causing epileptic seizures are rated pursuant to 38 C.F.R. § 4.124a, General Rating Formula for Major and Minor Epileptic Seizures (hereinafter "General Rating Formula"). Under the General Rating Formula, a 10 percent rating is warranted for a confirmed diagnosis of epilepsy with a history of seizures. A 20 percent rating is warranted with at least one (1) major seizure in the last two (2) years; or at least two (2) minor seizures in the last six (6) months. A 40 percent rating is warranted with at least one (1) major seizure in the last six (6) months or two (2) in the last year; or averaging at least five to eight minor seizures weekly. A 60 percent rating is warranted with at least one (1) major seizure in four (4) months over the last year; or averaging nine to ten minor seizures per week. An 80 percent rating is warranted with averaging at least one (1) major seizure in three (3) months over the last year; or more than ten (10) minor seizures weekly. A 100 percent rating is warranted with averaging at least one (1) major seizure per month over the last year. Note 1 provides that 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. Because the General Rating Formula explicitly provides a rating for the use of continuous medication, the Board may consider the ameliorative effects of medication and need not attempt to determine the frequency or severity of the seizures absent medication. See Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). Note 2 provides that, in the presence of major and minor seizures, VA should rate the predominating type. Note 3 provides that there will be no distinction between diurnal and nocturnal major seizures. To warrant a rating for epilepsy, the seizures must be witnessed or verified at some time by a physician. 38 C.F.R. § 4.121. 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). Id. DC 8914 provides special instructions for rating psychomotor seizures (the Veteran's seizures have been diagnosed as psychomotor). Psychomotor seizures will be rated as major seizures under the general rating formula when characterized by automatic states and/or generalized convulsions with unconsciousness. Psychomotor seizures will be rated as minor seizures under the general rating formula when characterized by brief transient episodes of random motor movements, hallucinations, perceptual illusions, abnormalities of thinking, memory or mood, or autonomic disturbances. Moreover, a nonpsychotic organic brain syndrome will be rated separately under the appropriate diagnostic code (e.g., 9304 or 9326). In the absence of a diagnosis of non-psychotic organic psychiatric disturbance (psychotic, psychoneurotic or personality disorder) if diagnosed and shown to be secondary to or directly associated with epilepsy will be rated separately. The psychotic or psychoneurotic disorder will be rated under the appropriate diagnostic code. The personality disorder will be rated as dementia (e.g., diagnostic code 9304 or 9326). 38 C.F.R. § 4.124a, General Rating Formula. With respect to epilepsy and unemployability, the General Rating Formula provides that ratings specialists must bear in mind that the epileptic, although his or her seizures are controlled, may find employment and rehabilitation difficult of attainment due to employer reluctance to the hiring of the epileptic. Where a case is encountered with a definite history of unemployment, full and complete development should be undertaken to ascertain whether the epilepsy is the determining factor in his or her inability to obtain employment. The assent of the claimant should first be obtained for permission to conduct this economic and social survey. The purpose of this survey is to secure all the relevant facts and data necessary to permit of a true judgment as to the reason for his or her unemployment and should include information as to: (a) education, (b) occupations prior and subsequent to service, (c) places of employment and reasons for termination, (d) wages received, (e) number of seizures. Upon completion of this survey and current examination, the case should have rating board consideration. Where in the judgment of the rating board the veteran's unemployability is due to epilepsy and jurisdiction is not vested in that body by reason of schedular evaluations, the case should be submitted to the Director, Compensation Service or the Director, Pension and Fiduciary Service. 38 C.F.R. § 4.124a, General Rating Formula. With respect to Note 1, the June 2020 Board Decision and Remand considered and denied a 10 percent rating for epilepsy based on the continuous use of medication because the Veteran has had at least a 10 percent rating for epilepsy throughout the appeal period. That decision has not been appealed, so is final. Evidence and Analysis The most pertinent evidence includes the VA examinations and the September 2019 IME performed for the purpose of evaluating the Veteran's epilepsy for rating purposes. The record also contains medical treatment records and the Veteran's own reports of his symptoms and functional limitations. The August 2010 VA examination indicated episodes occurring two to three times per week witnessed by his wife. The Veteran reported having recently fallen out of bed during an episode. He has memory loss and has to be told that he had an episode. He has headaches when his antiepileptics are wearing off. The examiner indicated that the Veteran had five to eight episodes of generalized non-convulsive epilepsy per week during the past twelve months. The Veteran had not had any episodes of simple, partial epilepsy during the past twelve months. The psychomotor seizures are characterized by abnormalities of thinking, memory, or mood. The Veteran also had no episodes of complex partial epilepsy characterized by automatic states and/or generalized convulsions with unconsciousness during the past twelve months. The Veteran had episodes of complex partial epilepsy characterized by brief episodes of random motor movements, hallucinations, perceptual illusions, abnormalities of thinking, memory, or mood, or autonomic disturbances five to eight times per week during the past twelve months. The frequency was determined by crediting the Veteran's reports. The Veteran was reported fulltime for five to ten years with no time lost from work. The examiner opined that the Veteran's epilepsy had significant effects on the Veteran's usual occupation, to include memory loss, decreased concentration, and lack of stamina. The examiner noted the condition also affects usual daily activities by preventing usual activity during acute events and for a few minutes afterwards. The October 2012 VA Examination resulted in a diagnosis of psychomotor epilepsy with complex partial seizures, temporal lobe seizures. The examiner discussed the Veteran's reported history, including tremors of the hands and occasional facial tics in the corner of his mouth. The examiner indicated that continuous medication was required for control of epilepsy or seizure activity including Lamictal and Levitiracetan. The Veteran had not had any other treatment for epilepsy or seizures. The seizure disorder has been witnessed by civilians and medical personnel. The examiner identified the symptoms as generalized tonic-clonic convulsions, episodes of unconsciousness, brief interruption of consciousness or conscious control, episodes of staring, episodes of sudden jerking movement of the arms, trunk or head (myoclonic type), episodes of complete or partial loss of use of one or more extremities, episodes of random motor movements, episodes of tremors, and residuals of injury during seizure. The examiner explained that the Veteran states that he injured his back during one seizure. The Veteran also reported staring spells, lip smacking, partial onset seizure with secondary generalization, shaking and tremors of the hands/arms, and loss of consciousness with post-ictal confusion. The examiner indicated the most recent seizure was in October 2012 and that the Veteran has 5-8 minor seizures per week and at least one major seizure in the past six months. The Veteran had one major psychomotor seizure in the past two years and averaged at least one in the past six months. He had never had epilepsy associated with a nonpsychotic organic brain syndrome or associated with a psychotic disorder, psychoneurotic disorder, or personality disorder. The examiner noted that Miami VAMC neurology department characterized Veteran's epilepsy as intractable. His epilepsy interferes with his ability to operate heavy machinery, including motor vehicles, for employment purposes. It also results in increased absenteeism, decreased concentration (side effect of medication), and lower productivity and work performance. The examiner opined that the hand tremors had no effect on the Veteran's occupational functioning, but that his seizure and epilepsy did cause memory loss, decreased concentration, and affected his employment with increased absenteeism and assignment to different duties. A February 2014 VA examination resulted in a diagnosis of tonic-clonic seizures or grand mal (generalized convulsive seizures). The examiner discussed the Veteran's reported history and indicated that continuous medication was required for control of epilepsy or seizure activity including Divalproex ER, Lamotrigine, and Levitiracetan. The Veteran had not had any other treatment for epilepsy or seizures. The seizure disorder has been witnessed. The examiner identified the symptoms as generalized tonic-clonic convulsions, brief interruption of consciousness or conscious control, episodes of staring, episodes of sudden jerking movement of the arms, trunk or head (myoclonic type), and episodes of tremors. The examiner indicated the most recent seizure was in February 2014 and that the Veteran has 5-8 minor seizures per week with two or more over the past six months and at least one major seizure in the past two years with an average frequency of no major seizures in the past six months. The Veteran had minor psychomotor seizures 5-8 times per week with two or more in the past six months. The Veteran had one major psychomotor seizure in the past two years and averaged less than one in the past six months. He had never had epilepsy associated with a nonpsychotic organic brain syndrome or associated with a psychotic disorder, psychoneurotic disorder, or personality disorder. The examiner indicated that the Veteran's epilepsy or seizure disorder did not impact his ability to work and that the Veteran denied any functional impairments due to his service-connected epilepsy with mesial temporal lobe sclerosis. A September 2019 IME by a private neurologist reviewed the Veteran's history and noted that the Veteran "has continued to have generalized, convulsive seizures with loss of consciousness, occurring at a frequency of once per year or less." The private neurologist also concluded that the Veteran suffered from daily, and sometimes multiple times per day, seizures consisting of either staring spells, déjà vu sensation, loss or alteration of awareness, left facial twitching, or a combination of these signs and symptoms. The neurologist also noted the nocturnal seizures consisting of twitching of the body and flailing of the arms. The Veteran and his wife reported seizures occurring 9-10 times per week for "nearly the past year." The neurologist suggested that "this is likely an underrepresentation of his true seizure frequency," because he has seizures during his sleep or that are not witnessed and of which he may not be aware. The neurologist opined that the seizures "have significantly and adversely affected his quality of life" including because the neurologist understood that he had "sustained multiple injuries to his head, back, and wrist/hand." The neurologist also understood that the Veteran had been terminated from a previous employment as a police officer due to his seizures. The neurologist referred to the report of Z.G. (a licensed mental health counselor or LMHC) who provided opinions on the Veteran's depression, anxiety, and related symptoms of difficulty with memory, concentration, and recall. As noted above, the neurologist also provided an opinion regarding the appropriate rating for the Veteran's epilepsy ("warrants a rating of 60% for his seizures"), but the record does not reflect that the neurologist has any specialized training, knowledge, or experience in the field of veterans benefits law or applying the rating criteria and, in any event, the determination of the appropriate rating is committed to the judgment of the rater or, in this case, the Board. Therefore, while her opinion on the appropriate rating gives some context to her medical opinions, it has no independent weight in favor of her suggested rating. Most recently, the Veteran underwent a January 2021 VA examination which diagnosed epilepsy with mesial temporal lobe sclerosis. The examiner noted the Veteran's first seizure in 1996 and his subsequent history with worsening since the prior, 2014 VA examination. The examiner indicated that the he has brief periods of lost consciousness which his wife states can be while driving and that "occasionally he would make funny sounds and stares or kicks her while sleeping." The Veteran reported that the last grand seizure where he twitched and fell was over 10 years ago. The Veteran's epilepsy requires continuous medication for control of the epilepsy or seizure activity. He has not had any other treatment for epilepsy or seizure activity. The Veteran has a confirmed diagnosis of epilepsy with a history of seizures and the seizures have been witnessed by others. The examiner identified the symptoms as generalized tonic-clonic convulsions, brief interruption in consciousness or conscious control, episodes of staring, episodes of sudden jerking movement of the arms, trunk, or head (myoclonic type), episodes of random motor movements, episodes of abnormalities of memory, episodes of abnormalities of mood, and episodes of tremors. The most recent seizure was in December 2020. The examiner opined that the Veteran had two or more minor seizures in the past six months with an average of 5-8 per week. The Veteran had not had any major seizures in the past two years with an average of less than one in the past six months. The examiner also indicated that the Veteran had two or more minor psychomotor seizures in the past six months with an average of 5-8 per week. The examiner indicated that the Veteran had at least two major psychomotor seizures in the past year with an average frequency of one major psychomotor seizure in four months over the past year. The August 2010, October 2012, and February 2014 VA examinations all support the award of a 40 percent rating under the General Rating Formula, with each of them indicating that the Veteran had 5-8 minor seizures per week during this period and, in addition, the October 2012 VA examiner indicated that the Veteran had averaged one major seizure every six (6) months. The examiners' findings and conclusions from August 2010, October 2012, and February 2014 do not indicate symptoms or functional impairments that are different or more severe than expected for seizures of the frequency that meet the 40 percent criteria. While the examiners did reference related impairments, as discussed above, the Veteran is separately service-connected and rated for the headaches, acquired psychiatric disability (adjustment disorder with depression and anxiety), sleep apnea, hearing loss, and tinnitus associated with his service-connected unknown febrile illness and/or epilepsy. Therefore, the evidence of those additional symptoms with related functional limitations does not support awarding a higher rating for epilepsy. See 38 C.F.R. § 4.14. In addition, the treatment records from this time period do not indicate more frequent seizures (whether major or minor) than that indicated by the VA examinations. See, e.g., February 2011 VA Neurology Note ("complex partial seizures with secondary generalization... doing better with higher dose of tegretol but possibly still having partial seizures"; documenting "second generalization" most recently in September 2010 with none since "but possible rare aura of Déjà vu versus alteration of time" and documenting Veteran's report of a recent seizure with fall); February 2011 VA Neurology Note (documenting history of seizures with last seizure in September 2010 described as "partial [with] 2nd generalization", lasting 31-59 seconds, aura type was "Déjà vu", aura duration was less than 30 seconds, lost awareness and consciousness, there were generalized convulsive movements, but no sensory symptoms, autonomic symptoms, or other symptoms; post-ictal state was confusional with a duration of 5-30 minutes, diurnal); March 2011 Private Chiropractor Note (documenting an October 2010 office visit shortly after he reportedly fell due to an epileptic seizure in September 2010); March 2011 VA Neurology Note (patient reported that, during a sleep study, he had a nocturnal seizure that lasted 12 seconds); July 2011 VA Neurology Note (indicating the Veteran does not know the frequency of the seizures but his last generalized seizure was in September 2010, but he has been having seizures at night "every now and then"); September 2011 VA Neurology Note (documenting the Veteran's report of nocturnal seizure in September 2011 followed by "sporadic events during the day"); August 2011 VA Neurology Note (documenting an EEG which revealed "no epileptiform discharges or seizure sequences" but was an abnormal EEG due to the presence of intermittent right temporal slowing suggestive of focal abnormality"). Moreover, the treatment records indicate that this frequency of seizures remained consistent through this period and until at least August 2019. See June 2016 VA Neurology Note ("He is not aware of having seizures during the day, but has noted that he repeats writing the same sentence at work or sometimes document information and is not aware why he did that. . . No significant change in his number of seizures. He continues to have complex partial seizures which at times secondary generalized several times per week. . . He believes he had a seizure at night, his wife witnessed the event, his arm was flailing and hit the cup at the night table. He does not remember the event."); July 2016 VA Neurology Note ("He reports his last seizure/CPS was two days ago. He is unable to report when was his last GTC since they typically happen at night and he has been sleeping alone for the last few months."); July 2016 VA Progress Note ("His seizures consist of day time staring spells that impair his ability to work in the form of him writing the same sentences repeatedly, the last even occurred three days ago. Additionally, he has nocturnal events 1-2 x/week which consist of him "thrashing extremities" to the point that he no longer shares a bed with his wife."); August 2018 VA Progress Note ("He had his last seizure 3 days ago. He was sitting on his bed and had wife nearby that noted him shaking. Prior to that, 3 months ago he was driving and had another seizure. Wife got him out of the driving seat. He did not seek further medical evaluation."); May 2019 VA Progress Note (noting the Veteran does not take all three prescribed seizure medications because they make him sleepy and it is hard to work; he reported he is still having seizures, mainly while he is sleeping); June 2019 VA Progress Note ("Patient reports that despite compliance with seizure medications he continues to have seizures regularly, usually at night"); August 2019 VA Primary Care Note ("Mentions had a seizure yesterday while driving"). The treatment notes do not provide an estimate of the number of minor seizures, but they are consistent with treatment notes from 2010 to 2014 in describing the frequency of seizures. Moreover, the treatment records do not document an average of more than one major seizure every six months. While the treatment records do not always explicitly differentiate between major and minor seizures, the descriptions of the seizures are, again, similar during the period from 2014 to 2019 to the descriptions during the period 2010 to 2014. The greater weight of the evidence supports that the Veteran had 5-8 minor seizures per week from July 2010 through August 2019 and that he had an average of one or fewer major seizures every six months during that same period. The records do not document one or more major seizures every four months during this period, the criteria for the next higher, 60 percent rating. The September 2019 IME contains the first evidence of minor seizures occurring, on average, 9-10 times per week, which meets the criteria for a 60 percent rating. The Board finds this evidence compelling, particularly as it is consistent with the Veteran's report of "ten or more" seizures per week at his September 2019 Board Hearing and the January 2021 VA examination which, although it indicated 5-8 minor seizures per week, estimated that the Veteran had two major psychomotor seizures in the past year with an average of one major psychomotor seizure in four months. These reports and opinions are consistent with the Veteran's report at the 2021 VA examination that his seizures had worsened since 2014. A report in contrast to the June 2016 VA Neurology Note that indicated "no significant change in his number of seizures." The greater weight of the evidence suggests that by the September 2019 IME, the Veteran's seizures had increased in frequency sufficient to meet the criteria for a 60 percent rating. The September 2019 IME and the January 2021 VA examination both support a 60 percent, but no higher, rating. Again, the symptoms and functional limitations described in the September 2019 and January 2021 VA examination are consistent with the symptoms and functional limitations that would be expected of seizures occurring with the frequency that meets the 60 percent rating criteria. As noted before, the Veteran is service-connected and separately rated for headaches, sleep apnea, an acquired psychiatric disability, hearing loss, and tinnitus, so it would not be appropriate to award a rating higher than 60 percent based on the effects of those conditions, although some are associated with or intertwined with the epilepsy. See 38 C.F.R. § 4.14 (prohibiting pyramiding, e.g., awarding ratings under multiple diagnostic codes for the same or overlapping symptoms). Again, the treatment records from this time period (September 9, 2019, to the present) are consistent with the September 2019 IME and the January 2021 VA examination with respect to the frequency and severity of the Veteran's seizures and, if anything, have documented fewer rather than more seizures. See, e.g., August 2020 VA Neurology Note (documenting the Veteran's report of episodes of déjà vu and confusion, forgetting things and "difficulty seeing things that are right in front of him" as well as mild headaches that occur once or twice a week; neurologist stated "it is unclear whether the patient's episodes of confusion and not seeing things in front of him are associated with seizures [or] are due to other memory abnormalities"); October 2020 VA Neurology Note (EEG performed to evaluate seizures and episodes of altered awareness did not show seizure activities but was inconclusive). The Board assigns greater weight to the September 2019 IME and the January 2021 VA examination with respect to the frequency and type/severity of the seizures as they were performed for the purpose of evaluating the condition in the context of assigning a rating, whereas the treatment records were focused on improving and refining the treatment for the condition. At his September 2019 Board Hearing, the Veteran testified that he experienced "ten or more" seizures per week. He explained that he does not realize he is having seizures most of the time, but his wife will tell him if he has "a serious one while [he's] sleeping" and the people at his work will "ask [him] all the time you okay?", so extrapolated to the conclusion that he "must be having them in work also." September 2019 Board Hearing Tr. at 4. The Veteran also testified to being terminated from his employment as a police officer in 1998 due to his seizures. Notably, he has consistently reported, including at his Board hearing, that he has been employed throughout the current appeal period. This testimony potentially implicates an award of 80 percent, given that the Veteran reported "ten or more" seizures per week. However, the Veteran's own subjective opinion and estimate is entitled to less probative value than the evaluation and estimate of medical professionals like the neurologist who completed the September 2019 IME. This is especially so where the Veteran couched his estimate in language that indicated significant uncertainty and, importantly, used 10 seizures per week as the lower bound which would warrant a 60 percent rating as well. The Board also notes that, after the Veteran first gave his estimate, the Veteran's representative asked leading questions inviting the Veteran to revise his estimate upwards. See September 2019 Board Hearing Tr. at 4 ("Q. Ten or more a week so would ten a week be a low week for you? A. Pretty much, yes."). While this is zealous advocacy, the Veteran's testimony remained consistent with an average of 10 seizures a week. In addition, as the summary of his testimony above indicates, the "ten or more" was based on his guess as to how many seizures he was having while at work rather than a more definite counting of them. In short, the probative weight of the Veteran's testimony at his Board hearing that he may be having more than ten seizures per week does not outweigh his own prior statements and the considered judgment of medical professionals that he was having, at most, an average of 9-10 minor seizures per week and up to one major seizure every four months. The judgments of the Veteran's own expert and the VA examiner are consistent with each other and are also consistent with the lower bound of the Veteran's own testimony. The greater weight of the evidence supports finding that, from September 9, 2019, to the present, the Veteran's epilepsy met the criteria for a 60 percent, but no higher, rating under the General Rating Formula. Conclusion The Veteran's service-connected epilepsy did not warrant a rating higher than 40 percent prior to September 9, 2019, the date of the September 2019 IME from which it can first be ascertained that his seizures had increased in frequency and severity sufficient for a higher rating. Prior to September 9, 2019, entitlement to a rating in excess of 40 percent for service-connected epilepsy is denied. As of September 9, 2019, the service-connected epilepsy warranted a rating of 60 percent disabling, but no higher, based on 9-10 minor seizures per week and up to one major seizure every four months. Entitlement to an evaluation of 60 percent disabling, but no higher, is granted effective September 9, 2019. Duties to Notify and Assist The September 2019 Board hearing revealed the need to accomplish additional development prior to adjudicating the above claims on the merits. As noted in the Introduction, that development was completed. The Veteran has not raised any additional alleged deficiencies in VA's fulfillment of its duties to notify and assist since that time. In fact, the Veteran's representative specifically argued that "there is already sufficient medical evidence to decide the claim" and that "VA would be acting in an adversarial fashion if it obtained additional medical opinion to contradict the favorable private opinion." See February 2021 Correspondence from Representative. Therefore, the Board does not need to discuss VA's compliance with the duties to notify and assist, as the Veteran has not raised any specific issues. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). MICHELLE L. KANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Kerry Hubers 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.