93 Decision Citation: BVA 93-08976 Y93 BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 DOCKET NO. 91-56 736 ) DATE ) ) ) THE ISSUE Propriety of the reductions in the schedular evaluation for temporal lobe epileptiform seizures from 40 percent to 20 percent, effective from January 1, 1989, and from 20 percent to 10 percent, effective from April 1, 1992. ATTORNEY FOR THE BOARD Brian J. Milmoe, Counse INTRODUCTION This matter was most recently before the Board of Veterans' Appeals (BVA) in July 1991, at which time it was remanded to the Phoenix, Arizona, regional office (RO) for additional procedural and evidentiary development. The veteran served on active duty from December 1965 to May 1974. Following a period of observation and evaluation in a facility of the Department of Veterans Affairs (VA) in September 1991, additional rating action was undertaken in October 1991, when it was determined that the termination of the veteran's benefits in January 1989 had been in error, inasmuch as only a suspension of benefits should have occurred because of his failure to report for a VA medical examination. It was determined that, regardless of whether benefits were suspended or terminated, the effective date for discontinuance of benefits would have remained January 1, 1989, as per VA Veterans Benefits Administration Manual M21-1, paragraph 24.08. The provisions of 38 C.F.R. § 3.105(e) were found to be not for application in the reduction, effective January 1, 1989, as there was no running compensation award in effect at that time. It was also concluded that the reduction in the schedular evaluation for the veteran's seizure disorder to 20 percent, effective from January 1989, was proper and a proposal to reduce the evaluation for the veteran's seizure disorder to 10 percent was also entered. That reduction was made effective from April 1, 1992, by rating action undertaken by the RO in January 1992. Supplemental statements of the case were provided to the veteran in October 1991 and January 1992. It is noted that the veteran has elected to represent himself for purposes of this appeal. The case was returned to BVA in April 1992, and it is once again ready for appellate review. CONTENTIONS OF APPELLANT ON APPEAL It is contended by the veteran, in substance, that actions of the RO to reduce the schedular evaluation assigned for his service- connected seizure disorder are in error. No improvement in his seizures is felt to have occurred at any time in the recent past. DECISION OF THE BOARD In accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), and upon review and consideration of all evidence and material of record in the veteran's claims folder, and for the following reasons and bases, it is the decision of BVA that reductions in the schedular evaluation assigned for the veteran's service-connected seizure disorder from 40 percent to 20 percent, effective from January 1, 1989, and from 20 percent to 10 percent, effective from April 1, 1992, were proper. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. By a decision of December 1987, BVA denied entitlement of the veteran to a rating in excess of 40 percent for service-connected temporal lobe epileptiform seizures, and appropriate notice of that decision was provided to the veteran. 3. The veteran's VA compensation benefits were terminated, effective from January 1, 1989, due to his failure to report for a VA medical examination, and he had no notice of either the VA medical examination in September 1988 or proposed actions of the RO to terminate or suspend his benefits. 4. Evidence developed between 1987 and 1989 included the veteran's allegations that he was suffering periods of amnesia at least once weekly, with there being no objective data indicating that there had been at least one major seizure in the previous six months or two in the previous year, or an average of at least 5 to 8 minor seizures weekly. 5. Evidence developed, beginning in September 1991 and for some time thereafter, revealed that the veteran's seizure disorder no longer involved at least one major seizure in the previous two years or at least two minor seizures in the previous six months. 6. In reducing the veteran's schedular evaluation for his service-connected seizure disorder on two occasions since 1989, the RO has complied with all pertinent legal authority and those reductions were effectuated in accordance with the provisions of the VA's Veterans Benefits Administration Manual M21-1, Part IV. CONCLUSION OF LAW Reductions in the schedular evaluation for temporal lobe epileptiform seizures from 40 percent to 20 percent, effective from January 1, 1989, and from 20 percent to 10 percent, effective from April 1, 1992, were in accord with statutory and regulatory authority and otherwise warranted by evidence then of record. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 3.105(e), 3.321(b), 3.344, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.121, 4.122, and Part 4, Code 8914 (1992). REASONS AND BASES FOR FINDINGS AND CONCLUSION At the outset, we find that the veteran's claim is "well-grounded" within the meaning of 38 U.S.C.A. § 5107(a). That is, we hold that he has presented a claim which is plausible. As well, we are satisfied, following a review of the record, that all relevant facts have been properly developed and that no useful purpose would be served by again remanding the case to the RO for additional action. We note, in this regard, that significant data was added to the record as a result of the period of observation and evaluation of the veteran undertaken at a VA facility in September 1991. Accordingly, VA has no further obligation to assist the veteran in the development of facts pertinent to this claim. 38 U.S.C.A. § 5107(a). By rating decision in February 1984, the RO granted service connection for temporal lobe epileptiform seizures, for which a 10 percent schedular evaluation was assigned, effective from November 1982, under Diagnostic Code 8914 of the VA's Schedule for Rating Disabilities. The schedular evaluation was increased to 20 percent, effective from February 1985 and to 40 percent, effective from August 1985. The veteran appealed the rating decision in August 1986 in which the schedular evaluation for the disorder in question was increased from 20 to 40 percent, and by decision of BVA in December 1987, it was determined that no more than a 40 percent schedular evaluation was warranted for the veteran's service-connected seizure disorder. The BVA decision of December 1987 remains final. 38 U.S.C.A. § 7104 (West 1991). During the latter half of 1988, RO personnel attempted to advise the veteran in writing of arrangements for a VA medical examination. That correspondence, dated in August 1988, was returned to VA as "undeliverable." The examination was later scheduled to occur on September 21, 1988, but the veteran failed to report. The case was thereafter referred to a rating board at the RO and it was determined that there were no static disabilities or protected evaluations present. In a letter, dated in October 1988, VA personnel attempted to advise the veteran at his last known address that, because he failed to report for his VA examination, his compensation benefits would be stopped as of January 1, 1989. That correspondence was returned to VA by postal authorities. In January 1989, VA attempted to inform the veteran that his VA compensation benefits had been discontinued as of January 1, 1989, and that, if he so desired, he should indicate a willingness to report for another VA examination. That letter was also returned by postal authorities as "undeliverable." VA was advised in February 1989 of the veteran's willingness to report for a medical examination, and such evaluation was performed in mid-1989. At that time, the veteran described "blackouts" which reportedly occurred once or twice weekly and included an absence phenomenon and automatic movements, but no specific loss of consciousness, falling to the ground, or tonic- clonic movement. He instructed another examiner in May 1989 that "a few" episodes were occurring weekly. An electroencephalogram conducted during awake, sleep, and drowsy stages was found to be normal. When examined by a VA neurologist in July 1989, the veteran reported that his weekly attacks were manifested by periods of amnesia, but were not otherwise accompanied by abnormal behavior of any sort. The attacks reportedly lasted minutes to hours and apparently were not followed by general confusion. Neurological evaluation was essentially within normal limits. A tomogram of the head showed an apparent, small and superficial right frontal calcific plaque at Level II, but no definite abnormality was found. In the opinion of the examiner, the veteran's history was difficult to interpret without collaboration from observers or a period of observation at an epilepsy center. It was suggested that the latter be obtained so that it could be determined whether there was present simple or complex partial seizures, if any. The report of the examination did indicate that the veteran was gainfully employed as a mechanic for an airline and that he had been employed in that capacity since August 1986. By rating decision in October 1989, the RO reduced the schedular evaluation for the veteran's service-connected temporal lobe epileptiform seizures from 40 percent to 20 percent, effective from January 1, 1989, the date benefits were previously terminated due to his failure to report for examination. It is noteworthy that the only evidence utilized by the RO were those records compiled in connection with VA medical examinations performed in May and July 1989. Notice of the reduction action was provided to the veteran in a letter, dated in November 1989, wherein it was also set forth that he would soon receive benefits from January 1, 1989 based in part on the 20 percent evaluation. Inasmuch as the 40 percent schedular evaluation for the veteran's service-connected seizure disorder had remained in effect for less than 3 1/2 years prior to the reduction, the provisions of 38 C.F.R. § 3.344 are not for specific application in this instance. Moreover, it is apparent that the reduction undertaken in October 1989 was effectuated in accordance with then existing law and regulations which provided the 40 percent rating terminated effective January 1, 1989. In this case, VA compensation was terminated because of a failure to report for examination, and the provisions of 38 C.F.R. § 3.105(e) were not for application. Findings from examination and testing conducted in May and July 1989 by VA did not reveal that major seizures had occurred in the previous six months or that multiple seizures had occurred in the previous year. Also, it was not shown, nor was it contended by the veteran, that he was experiencing 5 to 8 minor seizures each week. The veteran's account of one weekly episode involving only a period of amnesia, without other abnormal behavior, does not warrant the continuation of a 40 percent schedular evaluation, in the absence of definitive abnormality on neurological examination, electroencephalogram, or tomographic scan of the head. Also, we find it telling that the veteran was not on any medications for management of his seizure disorder during the VA medical examinations in May and July 1989. For the reasons noted, we find that action taken by the RO in October 1989 to reduce the schedular evaluation for the seizure disorder of the veteran was in accord with existing legal criteria and evidence then of record. 38 U.S.C.A. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.121, 4.122, and Part 4, Code 8914. Moreover, an exceptional or unusual disability picture involving such factors as a marked interference with employment or frequent periods of hospitalization is not shown to have been present, such as would have warranted a continuation of the previously assigned 40 percent rating, based on extraschedular criteria. 38 C.F.R. § 3.321(b). As to the reduction in the schedular evaluation for the veteran's service-connected seizure disorder from 20 percent to 10 percent, effective from April 1992, which was effected by the RO in rating action in January 1992, we observe that a proposal to reduce was previously entered in October 1991, followed by written notice, dated in October 1991, to the veteran with respect to the proposed reduction. As noted above, that was followed by the January 1992 action to effectuate the reduction. All of the RO's actions in that regard appear to have been totally in conformity with the provisions of 38 C.F.R. § 3.105(e). Also, since the 20 percent schedular evaluation remained in effect only from January 1989 to April 1992, approximately 3 1/2 years, the provisions of 38 C.F.R. § 3.344(a) are not for application. 38 C.F.R. § 3.344(c). Evidence pertinent to this issue includes progress notes compiled in 1989 and 1990 by private physicians. When seen on an outpatient basis in November 1989, the veteran complained of having intermittent episodes of disorientation lasting for minutes to a few hours. He recently had been involved in an ncident in which the work he had performed as an airline mechanic had caused a plane to become grounded. He had been suspended from working as a mechanic and was presently doing clerical work. Neurological examination at that time revealed no focal neurological deficits, but he was started on Tegretol. In January 1990, the veteran was referred to a neurologist for evaluation, and the descriptions provided by the veteran's spouse were felt to indicate fairly typical temporal lobe seizures with some facial automatisms. The episodes in which the veteran exhibited a blank look on his face, with some slight lip-smacking movements and mild fatigue afterwards, reportedly occurred a number of times daily. Use of Tegretol dramatically decreased the frequency of the episodes, but because of the discontinuance of the Tegretol, the episodes returned. Findings from clinical examination were negative, but an impression of complex partial seizures was set forth. When seen in followup in August 1990, it was noted that the veteran was taking his medication on a somewhat erratic basis. When he did not take the medication for a period of time, he was noted to begin to have blackouts with facial automatisms. The veteran underwent a period of observation and evaluation at a VA facility in September 1991, when it was noted that the veteran's claimed seizures historically had been composed of brief or extended periods of amnesia occurring over hours to days and during which time he performed complex acts, such a driving his car and working as an aircraft mechanic. The veteran again reported that there had been a major error approximately one year prior thereto involving his work as an aircraft mechanic, but the cause of that error was noted to be questionable. The occurrence of his claimed periods of amnesia were attributed by the veteran to increasing stress. There was no history of absence attacks or complex or simple seizures. Clinical examination disclosed no tremor or focal neurological abnormalities. Two electroencephalograms performed during the period of hospitalization in both the waking and sleep modes likewise showed no abnormalities. In the opinion of the examiner, the veteran demonstrated no evidence compatible with epilepsy during the period of hospitalization, nor were there any indicia of any apparent flashbacks or other signs that his post-traumatic stress disorder, for which service connection had previously been granted, had worsened. The diagnoses at discharge were of observation for suspected neurologic disease, none found, and post-traumatic stress disorder. To warrant a rating for epilepsy, the seizures experienced by a veteran must be witnessed or verified at some time by a physician. 38 C.F.R. § 4.121. As to frequency, competent and consistent lay testimony emphasizing convulsive and immediate post convulsive characteristics may be accepted. The requency of seizures are to ascertained under the ordinary conditions of life. In this instance, evidence developed in the recent past through a period of observation and evaluation at a VA facility disclosed no evidence compatible with epilepsy. The increase in the veteran's seizures may be linked to his sporadic utilization of the prescribed medication, Tegretol. In or about November 1989, an error in workmanship made in connection with his employment as an airline mechanic resulted in an aircraft being grounded, but the reason for the difficulty experienced by the veteran was never definitively established. We note, in this regard, that the veteran is also service connected for post-traumatic stress disorder and that such disability has in the past been characterized by violent outbursts, flashbacks of Vietnam experiences, and nightmares. In sum, we cannot say that there has been at least one major seizure in the past two years or at least two minor seizures in the previous six months, such as would warrant continuation of the previously assigned 20 percent rating. 38 C.F.R. Part 4, Code 8914. Moreover, there has been no showing of a marked interference with employment or frequent periods of hospitalization with respect to the service-connected seizure disorder, thereby warranting an increased disability evaluation based on extraschedular criteria. 38 C.F.R. § 3.321(b). In our view, the 10 percent schedular rating assigned adequately compensates the veteran for the level of impairment demonstrated and thus, we find that the action reducing the schedular evaluation for the veteran's seizure disorder from 20 percent to 10 percent was in accord with the evidence presented and all pertinent legal authority. 38 U.S.C.A. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.121, 4.122, and Part 4, Code 8914. ORDER Actions reducing the schedular evaluation for temporal lobe epileptiform seizures from 40 percent to 20 percent, effective from January 1, 1989, and 20 percent to 10 percent, effective from April 1, 1992, were proper, and restoration of the previously assigned ratings is denied. BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 * *38 U.S.C.A. § 7102(a)(2)(A) (West 1991) permits a Board of Veterans' Appeals Section, upon direction of the Chairman of the Board, to proceed with the transaction of business without awaiting assignment of an additional member to the Section when the Section is composed of fewer than three Members due to absence of a Member, vacancy on the Board or inability of the Member assigned to the Section to serve on the panel. The Chairman has directed that the Section proceed with the transaction of business, including the issuance of decisions, without awaiting the assignment of a third Member. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.