BVA9505813 DOCKET NO. 92-02 379 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to secondary service connection for a psychiatric disorder. 2. Entitlement to an increased evaluation for a seizure disorder, rated 40 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Richard V. Chamberlain, Counsel INTRODUCTION The veteran served on active duty from August 1951 to November 1953. The Board of Veterans' Appeals (Board) in March 1988 denied service connection for a psychiatric disability, including secondary service connection. Since then, the veteran has applied to reopen the claim for secondary service connection for a psychiatric disability, and new and material evidence has been received with this application. Hence, the claim for secondary service connection for a psychiatric disability is considered reopened and will be considered on a de novo basis. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a) (1994); Manio v. Derwinski, 1 Vet.App. 140 (1991); Colvin v. Derwinski, 1 Vet.App. 171 (1991). This appeal is from rating decisions in the 1990's by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, that denied secondary service connection for a psychiatric disability and a rating in excess of 40 percent for a seizure disorder. The Board remanded the case to the RO in November 1992 and March 1994 for additional development, and the case was received at the Board in January 1995. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he has a psychiatric disability that is causally related to his service-connected seizure disorder and he requests secondary service connection for his current psychiatric disability. He also maintains that his seizure disorder is more severe than currently rated, and he requests a higher rating for this disorder. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims files. Based on its review of the relevant evidence, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against the claims for secondary service connection for a psychiatric disability and an increased evaluation for a seizure disorder. FINDINGS OF FACT 1. A chronic psychiatric disorder is not causally related to the service-connected seizure disorder. 2. The veteran's seizure disorder is manifested by occasional major and minor seizures; more than one major seizure every six months, two major seizures per year or 5 to 8 minor seizures weekly are not shown. CONCLUSIONS OF LAW 1. A chronic psychiatric disorder is not proximately due to or the result of the service-connected disability. 38 U.S.C.A. § 3.310 (1994). 2. The criteria for a rating in excess of 40 percent for a seizure disorder are not met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 3.321, 4.7, 4.124a, Codes 8910, 8911 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Factual Background The veteran served on active duty from August 1951 to November 1953. The service medical records show that the veteran was hospitalized for treatment of epilepsy. An August 1955, RO rating decision granted service connection for epilepsy and assigned it a 10 percent rating from December 1953. This disorder was rated 30 percent from April 1967 , 60 percent from January 1973, 40 percent from January 1987, assigned a temporary total rating from May to July 1988, and rated 40 percent from July 1988. Service connection has not been granted for any other disorder. A March 1988 Board decision denied service connection for a psychiatric disability. It was found that an acquired psychiatric disorder was not present during service or for a number of years thereafter, and that the evidence did not provide a basis for associating a psychiatric disorder to the service- connected seizure disorder. The evidence then of record showed that the veteran had been treated for various psychiatric problems since the mid-1950's and showed various psychiatric diagnoses, including schizoid personality, personality disorder, drug dependence, alcohol dependence, and psychosis. A February 1990 Board decision denied a rating in excess of 40 percent for a seizure disorder. VA medical records show that the veteran was treated for various disabilities in the early 1990's, including a seizure disorder and psychiatric problems. These records also show that the veteran underwent examinations. A report of VA outpatient treatment in March 1990 notes that the veteran complained of seizures. He said that he had had two seizures since his last visit in January 1990. The impression was poor compliance with medication. A summary of the veteran's VA hospitalization in July 1990 shows that he was treated for dystonic reaction to phenothiazines (Mellaril) used to treat a psychiatric disability. A summary of the veteran's VA hospitalization in August 1990 shows that he underwent psychiatric treatment. The medical history he gave was disjointed and illogical. His complaints included poor sleep and that he could not rest. He said that he felt like kicking things and hiding behind a cabinet. He was treated for tardive dyskinesia during this hospitalization that was believed to be psychiatric in nature. The Axis I diagnosis was schizophrenia. Clinical records concerning this hospitalization do not indicate that the veteran had any seizures while hospitalized. A VA report of the veteran's outpatient treatment in September 1990 notes that the veteran had problems with petit mal and grand mal seizures. He reported that his last petit mal seizure had been two weeks earlier and that his last grand mal seizure had been two months earlier. A VA report of his treatment in February 1991 notes that he reported having six seizure episodes (petit mal) in the last six months. It was also noted that the veteran had poor compliance with medication for the seizure disorder. Another VA record shows that the veteran was seen in the emergency room in November 1991 for complaints of having generalized shaking two days earlier. He had had four episodes of generalized shaking that lasted 1 to 2 minutes, similar to previous symptoms he had one month earlier. On observation, he showed dystonic movements. Blood testing showed his anti-seizure medication level was too low. A VA record shows that the veteran was seen in February 1992 for seizures. He gave a history of two kinds of seizures, petit mal and grand mal. He said that his last seizure, a petit mal seizure, was two months ago. The impressions included well- controlled seizures on medications. A report of his VA treatment in July 1992 notes that he had had a seizure in the prior month when he ran out of medicine. A VA CT (computer tomography) of the head in February 1993 showed no abnormalities. On neurological evaluation at a VA medical facility in February 1993, he said that he had not had any seizures in about the last six months since a change in his medication. The veteran underwent VA neurological examination in April 1993. It was noted that he had a long history of chronic, severe alcoholism with secondary pancreatitis, and that he had been recently treated for alcohol and drug abuse. He gave a history of a head injury while in service that resulted in a concussion followed by a "coma." He said that he recovered with grand mal seizures, and that he had had them occurring randomly since then. He said that many of his seizures occurred in sleep. He said that he still had 3 or 4 seizures per month. It was noted that he was currently medicated with Dilantin, 300 milligrams per day, and phenobarbital, 60 milligrams at bedtime. He could not give an account of regularly systematized compliance with the medication. On examination, tardive dyskinesias were noted with involuntary mouth, lip and tongue movements, and choreiform movements of the limbs, particularly the upper extremities. He was extremely circumstantial with slurred speech. Comprehension and judgment were poor. He gave contradictory history in relation to drugs and alcohol. He was in limited contact, dull and apathetic, and impoverished of emotional tone. He verbalized unreliably and only on direct questioning with 2- to 3-word responses. He showed no major disabling cognitive deficits except for abstracting ability and general fund of knowledge. He reported grand mal and petit mal seizures occurring four times per month that were usually nocturnal. He described awakening disoriented. He remembered no aura. He said that he bit his tongue or his lip, and lost urine. Tardive dyskinesia, apathetic mood and impoverished emotional tone were noted. The diagnosis was major motor seizures, post-traumatic. The examiner opined that drug abuse and alcohol abuse continued and were independent of and not secondary to the seizure phenomena. It was noted that the drug and alcohol abuse represented a separate and distinct neuropsychiatric syndrome. A VA medical record shows that the veteran underwent psychiatric evaluation in November 1993. It was recommended that he be adjudicated incompetent for VA purposes. It was noted that he was not able to calculate and did not know what his income was. A VA report of the veteran's outpatient treatment in March 1994 notes that the veteran asked a VA physician to write a letter for him concerning his seizures. The physician noted that the veteran had been treated in the neurology clinic for seizures, and that he took medication for this disorder. The veteran reported that his last seizure had been eight months ago. The veteran underwent VA psychiatric examination in May 1994 pursuant to remand of the case to the RO for such an examination to determine whether there was a causal relationship between his service-connected seizure disorder with any psychiatric disorder found. The examiner reviewed the veteran's medical history. It was noted that he was currently medicated with Valium and Thorazine which he was receiving from a VA medical facility. It was also noted that he was receiving VA outpatient treatment for his psychiatric problems. The veteran said that he had seizures, the last one about 4 months ago. On examination, dystonic and involuntary movements of the head and hand were noted. He was markedly tangential and hallucinatory. Cognitive testing revealed only orientation for person and place, but not purpose. He would not respond to other cognitive tests. Personal hygiene appeared adequate. His affect was flat. His mood was apathetic. His verbalizations were monosyllabic and only on direct questioning. He was clearly hallucinatory with very limited reality testing. Insight was absent. The diagnosis was psychosis, atypical, chronic. The psychiatrist noted that the veteran's psychosis was a separate and distinct entity from his seizure disorder, and that his principal problem continued to be alcohol and drug abuse. He was not considered competent to manage funds. II. Legal Analysis The veteran's claims are well grounded, meaning they are plausible. The allegations of increased seizure frequency are sufficient to render the claim for an increased rating well- grounded. The claim for secondary service connection for a psychiatric disability is well grounded by virtue of 38 C.F.R. § 4.122(b) (1994), which states, in part, that A chronic mental disorder is not uncommon as an interseizure manifestation of psychomotor epilepsy and may include psychiatric disturbances extending from minimal anxiety to severe personality disorder (as distinguished from developmental) or almost complete personality disintegration (psychosis). Since the Board remands of the case to the RO in 1992 and 1994, I find that no further assistance to the veteran is required to comply with VA's duty to assist him. 38 U.S.C.A. § 5107(a) (West 1991). A. Secondary Service Connection for a Psychiatric Disorder Secondary service connection may be granted for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). The evidence indicates that the veteran receives treatment for various psychiatric problems, but none of the medical evidence relates a chronic psychiatric disorder to his service-connected seizure disorder. In April 1993, he underwent VA neurological examination and the examiner specifically stated that the veteran's abuse of drugs and alcohol was not secondary to the seizure disorder, and that the drug and alcohol abuse represented a separate and distinct neuropsychiatric syndrome. Later, in May 1994, the veteran underwent a VA psychiatric examination pursuant to a remand of the case by the Board to the RO in order to determine whether he had a psychiatric disorder that was causally related to his service-connected seizure disorder. The examiner at the May 1994 psychiatric examination found that the veteran had an atypical psychosis that was a separate and distinct entity from his seizure disorder, and that his principal problem continued to be alcohol and drug abuse. The veteran has submitted no medical evidence to refute the medical opinions of record or to otherwise indicate that his psychiatric problems are related to his service-connected seizure disorder. VA examinations have resulted in opinions that the veteran's psychosis and drug and alcohol abuse are separate and distinct from his seizure disorder. Under these circumstances, the Board must conclude that the evidence does not causally relate a chronic psychiatric disorder to the service-connected seizure disorder. Colvin v. Derwinski, 1 Vet.App. 171 (1991). While the veteran believes that he has a psychiatric disorder that is related to his service-connected seizure disorder, his statements are not reliable evidence because he is a layman who does not have the competence to make conclusions as to medical causation. Espiritu v. Derwinski, 2 Vet.App. 492 (1992). Since there is no competent evidence linking the veteran's psychiatric problems to his service-connected seizure disorder, the evidence does not warrant granting secondary service connection for a chronic psychiatric disorder. The evidence is not in relative equipoise concerning this claim and, therefore, the veteran is not entitled to favorable resolution of the claim based on reasonable doubt. 38 U.S.C.A. § 5107(b) (West 1991); Gilbert v. Derwinski, 1 Vet.App. 49 (1990). The preponderance of the evidence is against the claim, and it must be denied. B. Increased Rating for a Seizure Disorder In order to establish entitlement to a higher rating for a service-connected disorder, the evidence must show symptoms of the disorder which meet or more nearly approximate the criteria for higher ratings under the applicable diagnostic codes in the Schedule for Rating Disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.7. Grand mal epilepsy is evaluated under the general rating formula for major seizures. 38 C.F.R. Part 4, Code 8910. Petit mal epilepsy is evaluated under the general rating formula for minor seizures. 38 C.F.R. Part 4, Code 8911. Various forms of epilepsy are evaluated in accordance with a general rating formula. A 40 percent evaluation requires at least one major seizure in the last six months or two major seizures in the last year; or an average of at least 5 to 8 minor seizures weekly. A 60 percent evaluation requires an average of at least one major seizure in four months over the last year; or 9 to 10 minor seizures per week. A major epileptic seizure is characterized by a generalized tonic-clonic convulsion with unconsciousness. For rating purposes, there is no distinction between diurnal and nocturnal major seizures. A minor seizure consists of a brief interruption in consciousness or in 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). When both major and minor seizures are present, the epilepsy is evaluated on the basis of the predominating type of seizure. 38 C.F.R. § 4.124a, Diagnostic Codes 8910, 8911. The evidence indicates inconsistent information from the veteran concerning the number of his seizures. At a March 1994 VA treatment visit he reported he had had his last seizure eight months earlier and at the VA psychiatric examination in May 1994 he said that he had had his last seizure about four months earlier. Nevertheless, the evidence contains sufficient consistent statements from the veteran that are considered adequate to determine the frequency of his seizures in order to evaluate the severity of his seizure disorder. The evidence also indicates that the veteran has tardive dyskinesia associated with his nonservice-connected psychiatric disorder. This problem may not be considered in determining the severity of his service- connected seizure disorder. 38 C.F.R. § 4.14 (1994). The report of the veteran's VA examination in April 1993 indicates that he has nocturnal grand mal and petit mal seizures occurring four times per month. This evidence is consistent with the overall evidence that indicates that the veteran has both grand mal and petit mal seizures, but is inconsistent as to the frequency. Two months earlier he had denied having any seizures for the previous six months. The report of his VA treatment in March 1994 indicates that he had not had a seizure in eight months. Overall, the consistent evidence tends to indicate grand mal seizures in or around July 1990, November 1991, June 1992, and July 1993. A review of all the evidence indicates that the veteran has occasional grand mal and petit mal seizures and that the grand mal seizures occur around one or two times per year, and that the petit mal seizures are more frequent. The evidence, however, does not indicate that the grand mal seizures occur more than once every six months or more than twice a year. Nor does the evidence indicate that the petit mal seizures occur more than eight times per week. Hence, a rating in excess of 40 percent is not warranted for the seizure disorder under the above-noted diagnostic codes. The Board has also considered entitlement to a higher rating on an extraschedular basis, but the assigned schedular rating for the seizure disorder represents as far as can practicably be determined, the average impairment in earning capacity caused by this disability. The evidence does not indicate that the seizure disorder requires treatment with frequent hospitalization or that it causes marked interference with employment to warrant a higher rating for this disorder on an extraschedular basis. 38 C.F.R. § 3.321. His recent hospitalizations have resulted primarily from his psychiatric disorders. The Board finds that the current 40 percent rating for the seizure disorder best represents the veteran's disability picture and that the preponderance of the evidence is against the claim for a higher rating for this disorder. Thus, the veteran is not entitled to favorable resolution of this claim based on the benefit of the doubt doctrine, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet.App. 49 (1990). ORDER Secondary service connection for a psychiatric disability is denied. An increased evaluation for a seizure disorder is denied. J. E. DAY Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. 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.