Citation Nr: 21042800 Decision Date: 07/14/21 Archive Date: 07/13/21 DOCKET NO. 17-09 762 DATE: July 14, 2021 ORDER Entitlement to a disability rating in excess of 10 percent for tonic clonic seizure disorder prior to October 15, 2020 is denied. Entitlement to a disability rating in excess of 40 percent for tonic clonic seizure disorder from October 15, 2020 is denied. REMANDED Entitlement to a compensable disability rating for hemorrhoids is remanded. FINDINGS OF FACT 1. Prior to October 15, 2020, the Veteran's tonic clonic seizure disorder was manifested with one reported seizure in 2014 and continuous medication necessary for the control of epilepsy. 2. From October 15, 2020, the most probative evidence indicates the Veteran's tonic clonic seizure disorder has manifested with one major seizure in the last six months. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability rating in excess of 10 percent for tonic clonic seizure disorder prior to October 15, 2020 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8910. 2. The criteria for entitlement to a disability rating in excess of 40 percent for tonic clonic seizure disorder from October 15, 2020 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8910. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the Navy from April 1996 to January 1999. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In February 2020, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a Travel Board hearing. A transcript of his testimony is of record. These claims were last before the Board in June 2020 where they were remanded for additional development. Increased Rating 1. Entitlement to a disability rating in excess of 10 percent for tonic clonic seizure disorder prior to October 15, 2020 and 40 percent thereafter Disability ratings are assigned in accordance with the VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Separate diagnostic codes identify the various disabilities. See 38 C.F.R. Part 4. Where 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. See 38 C.F.R. § 4.7. "Staged" ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). Entitlement to service connection for tonic clonic seizure disorder was granted in an April 2016 rating decision and a 10 percent disability rating was assigned, effective June 4, 2015 pursuant to 38 C.F.R. § 4.124a, Diagnostic Codes 8910. A January 2021 rating decision assigned a 40 percent disability rating, effective October 15, 2020. Epilepsy and seizures are rated under the General Rating Formula for Major and Minor Epileptic Seizures (General Rating Formula). 38 C.F.R. § 4.124a, Diagnostic Codes 8910 through 8914. 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). Id. at Notes (1) and (2). Under the general formula for major and minor epileptic seizures, a 10 percent rating is warranted for a confirmed diagnosis of epilepsy with a history of seizures. A 20 percent rating 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 1 major seizure in the last 6 months or 2 in the last year, or averaging at least 5 to 8 minor seizures weekly. A 60 percent rating is warranted for a seizure disorder averaging at least 1 major seizure in 4 months over the last year or 9-10 minor seizures per week. An 80 percent evaluation is to be assigned when averaging at least 1 major seizure in 3 months over the last year, or more than 10 minor seizures weekly. A 100 percent rating requires the veteran average at least 1 major seizure per month over the last year. 38 C.F.R. § 4.124a, Diagnostic Code 8911. Under Note (1), when continuous medication is shown to be necessary for the control of epilepsy, the minimum evaluation will be 10 percent, which will not be combined with any other rating for epilepsy. Id. In the presence of major and minor seizures, the predominating type is rated, and there is no distinction between diurnal and nocturnal major seizures. Id. at Note (2). The Veteran generally contends that he is entitled to a higher disability rating for his tonic clonic seizure disorder. At a March 2016 VA examination, the Veteran reported that his last seizure was 2 years ago (2014) when he forgot to take his medication. The VA examiner noted that the Veteran experienced less than one major seizure in the last six months and that continuous medication was required for the control of epilepsy or seizure activity. Additionally, during a July 2016 VA examination, the Veteran reported no major seizures in the past 2 years. Based on the record, the Board finds that the criteria for an initial disability rating in excess of 10 percent for the Veteran's tonic clonic seizure disorder prior to October 15, 2020 have not been met under Diagnostic Code 8910. The record does not show that he had at least 1 major seizure in the last 2 years; or at least 2 minor seizures in the last 6 months. He required continuous medication that was shown necessary for the control of epilepsy. Such findings most nearly approximate the 10 percent criteria. Regarding the period beginning October 15, 2020, the Board finds that the criteria for a disability rating in excess of 40 percent for the Veteran's tonic clonic seizure disorder have not been met. The evidence does not show that he had an average of at least one major seizure in four months over the last year or 9-10 minor seizures per week. Diagnostic Code 8910. The Veteran testified having nocturnal major seizures every three months and reported that the most recent one occurred on January 20th or 21st. See February 2020 Hearing Transcript. However, this testimony is inconsistent with his report to the VA examiner during the October 2020 VA examination. In this regard, the October 2020 VA examiner noted that Veteran reporting that he experienced no minor seizures, and at least one major seizure in the past two years, with the average frequency of at least one in the past six months. He reported that his last seizure occurred in 2020. The VA examiner further noted the Veteran reported that his seizures have decreased due to medication change, but he still has at least one seizure per year. The Board finds the Veteran's reports of seizure frequency to the VA examiner to be more credible and probative than reports made during his hearing. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (VA cannot ignore a veteran's testimony simply because the veteran is an interested party; personal interest may, however, affect the credibility of the evidence). The type and frequency of seizures noted on VA examination more nearly approximate the 40 percent criteria under Code 8910. The Board notes the Veteran testified that he sought treatment for his seizures with his private physician in January 2020. In July 2020 correspondence, the Veteran was asked to complete an authorization form so that treatment records from his physician could be obtained. However, he did not respond to the request. "The duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Board has considered the doctrine of reasonable doubt but finds the preponderance of the evidence shows that the Veteran's tonic clonic seizure disorder has more nearly approximated no more than a 10 percent disability rating prior to October 15, 2020 and no more than 40 percent thereafter. 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8910. REASONS FOR REMAND 2. Entitlement to a compensable disability rating for hemorrhoids is remanded. The Veteran is seeking entitlement to a compensable disability rating for hemorrhoids. The Board finds that an updated VA examination is needed prior to adjudication of this claim. The Veteran's last VA examination in connection with this claim was conducted in February 2017. However, the Veteran testified in his February 2020 Board hearing that he has residual scarring and blood in his stools from an operation that removed his hemorrhoids. As such, a new VA examination is needed to determine the current severity of the Veteran's disability. The matters are REMANDED for the following action: 1. Obtain updated VA treatment records and associate them with the claims file. 2. Schedule the Veteran for a VA examination to assess the current severity of his service-connected hemorrhoids. The claims file must be reviewed by the examiner in conjunction with the examination. Any tests deemed necessary should be conducted, and all clinical findings should be reported in detail. All symptomatology associated with the Veteran's hemorrhoids should be reported. K. A. BANFIELD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. N. Wilson, 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.