BVA9505912 DOCKET NO. 91-22 677 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to service connection for a chronic liver disorder secondary to treatment rendered for the veteran's service-connected seizure disorder and/or psoriasis. 2. Entitlement to a disability evaluation greater than 60 percent for a seizure disorder. 3. Entitlement to a disability evaluation greater than 50 percent for psoriasis. 4. Entitlement to a total disability evaluation based upon individual unemployability due to service-connected disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD R. J. Rolfsen, Jr., Counsel INTRODUCTION The veteran served on active duty from March 1965 to March 1968. This appeal stems from a November 1989 decision of the Boston, Massachusetts, Department of Veterans Affairs (VA) Regional Office (RO) that increased the disability evaluation of the veteran's seizure disorder from 40 percent to 60 percent. The Board of Veterans' Appeals (Board) remanded the case in November 1991 for additional development. The requested development has been completed and the case is now ready for further appellate review. In October 1990, a VA hospital report indicated organic personality disorder secondary to psoriasis or treatment for psoriasis. Service connection for a psychiatric condition secondary to the veteran's service-connected seizure disorder was granted by an October 1990 hearing officer's decision; however, the RO has yet to assign a disability evaluation for this disorder and subsequently considered the veteran's personality disorder as a developmental defect. Accordingly, this issue is referred to the RO for appropriate rating action to implement the grant of service connection. Additionally, action on the veteran's claim for entitlement to a total service-connected disability rating based upon individual unemployability is not necessary due to the decision reached below. Thus, this issue will not be addressed in this appellate decision. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that his service-connected seizure disorder and psoriasis are more disabling than recognized by the evaluation currently in effect. He also maintains that he has developed a liver disorder as a result of medication taken for his service-connected psoriasis and that service connection is therefore warranted on a secondary basis. 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 file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the veteran has not met the initial burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that his claim for service connection for a chronic liver disorder secondary to treatment rendered for his service-connected seizure disorder and/or psoriasis is well grounded. It is also the decision of the Board that the evidence supports granting increased disability evaluations of 100 percent for the veteran's seizure disorder and 60 percent for the veteran's generalized psoriasis. FINDINGS OF FACT 1. There is not presented a reasonable probability of a valid claim concerning whether the veteran has a chronic liver disorder as a result of treatment rendered for a service-connected disability. 2. All relevant evidence necessary for the disposition of the veteran's appeal with respect to the issues of entitlement to increased disability evaluations for a seizure disorder and psoriasis has been obtained. 3. The veteran's seizure disorder is manifested by at least one major seizure and one to four minor seizures per month. 4. The veteran's diffuse and generalized psoriasis is manifested by extensive exfoliation or crusting and an exceptionally repugnant skin condition with a resulting marked interference with employment. CONCLUSIONS OF LAW 1. A well-grounded claim concerning whether the veteran has a chronic liver disorder as the result of treatment rendered for a service-connected disability has not been submitted. 38 U.S.C.A. §§ 5107 (West 1991); 38 C.F.R. § 3.310(a) (1994). 2. The schedular criteria for an 100 percent disability evaluation for a seizure disorder are met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § Part 4, Codes 8910, 8914 (1994). 3. The criteria for an extraschedular evaluation of 60 percent for psoriasis are met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 3.321, Part 4, Codes 7806, 7816 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Secondary Service Connection Service connection is warranted for disabilities which are proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310. Also, 38 U.S.C.A. § 5107 provides that a person who submits a claim for benefits under a law administered by the Secretary shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. Some of the basic facts are not in dispute. Service connection has been established and is in effect for temporal lobe epilepsy with a disability evaluation of 60 percent and psoriasis with a disability evaluation of 50 percent. VA medical center records from a period of hospitalization in July 1989 reflect that the veteran developed liver enzyme abnormalities following Methotrexate therapy. This therapy was discontinued and hemogram and chemistry with liver profile were within normal limits. Although the veteran continued to complain of abdominal pain, liver profile remained normal and there was no impairment with his daily activities or eating habits; the veteran was noted to have asked for double portioned food. The attending physician felt that the veteran was malingering and exhibiting symptoms of abdominal pain when the physician was near, but behaving normally when the doctor was not near. Bruce Goldstein, M.D., reported in a July 1989 statement that Methotrexate therapy had resulted in significant liver damage. He further reported that this therapy had been stopped in June 1989 and that the liver was slowly returning to normal. The veteran contends that treatment rendered for his service-connected seizure disorder and/or psoriasis has led to the development of a liver disorder. With regard to these contentions, the United States Court of Veterans Appeals (Court) has stated that: Where the issue is factual in nature, e.g., whether an incident or injury occurred in service, competent lay testimony, including a veteran's solitary testimony, may constitute sufficient evidence to establish a well-grounded claim under section 5107(a). See Cartright v. Derwinski, 2 Vet.App. 24 (1992). However, where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence to the effect that the claim is "plausible" or "possible" is required. See Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). A claimant would not meet this burden imposed by section 5107(a) merely by presenting lay testimony because lay persons are not competent to offer medical opinions. Espiritu v. Derwinski, 2 Vet.App. 492 (1992). Consequently, lay assertions of medical causation cannot constitute evidence to render a claim well grounded under section 5107(a); if no cognizable evidence is submitted to support a claim, the claim cannot be well grounded. Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992). Grottveit v. Brown, 5 Vet.App. 91, 93 (1993). Thus, since there is no evidence that the veteran has any level of medical expertise, his contentions are beyond his level of medical competence and do need to be accepted as true for the purposes of determining whether his claim is well grounded. Furthermore, due to the fact that liver profiles have been normal since the termination of Methotrexate therapy, no current liver disorder is shown by the evidence and his claim is inherently incredible. See King v. Brown, 5 Vet.App. 19 (1993). Accordingly, since he has submitted no medical evidence that would support his contentions that he has a chronic liver disorder -- all medical evidence indicates that his liver returned to normal following the cessation of Methotrexate therapy -- the Board finds that the veteran has not met the initial burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that his claim is well grounded. Thus, since the Board does not have jurisdiction to adjudicate this claim, this portion of his appeal is dismissed. See Boeck v. Brown, 6 Vet.App. 14 (1993). The Board notes that this decision is to the veteran's benefit since, if he should decide to file another claim in the future, he will not be burdened with having to submit new and material evidence; he need only present a well-grounded claim. McGinnis v. Brown, 4 Vet.App. 239, 244 (1993). II. Increased Disability Evaluations Initially, the Board finds that the veteran's claims for increased disability evaluations are "well grounded" within the meaning of 38 U.S.C.A. § 5107. The Board is also satisfied that all relevant evidence has been properly developed with respect to these claims and that there is no further duty to assist the veteran in order to comply with the duty to assist him as mandated by 38 U.S.C.A. § 5107. A review of the service medical records reveals that the veteran experienced a grand mal seizure in October 1965. He was seen on several subsequent occasions for generalized convulsions during active service. Also, soon after his first seizure and treatment for it he developed a rash over his entire body. The impression was a reaction to medication. By rating decision in May 1971 service connection was established for epilepsy with allergic skin reaction to medication. By rating decision in July 1971, separate disability evaluations of 30 percent were assigned for the veteran's epilepsy and exfoliative dermatitis. By rating decision in February 1975, the dermatitis was reclassified as psoriasis and the disability evaluation was increased to 50 percent. The disability evaluation for the veteran's seizure disorder was subsequently increased to 60 percent. Disability evaluations are based upon the average impairment of earning capacity resulting from a disability. 38 U.S.C.A. § 1155. A. Seizure Disorder The veteran's seizure disorder is currently evaluated as 60 percent disabling under the provisions of 38 C.F.R. § Part 4, Code 8914. This evaluation contemplates at least one major seizure in four months over the last year or nine to ten minor seizures a week. In order to be entitled to an 80 percent disability evaluation, the veteran must demonstrate at least one major seizure in three months over the last year or more than ten minor seizures weekly; a 100 percent disability evaluation will be warranted if the veteran averages at least one major seizure per month over the last year. A major seizure is characterized by the 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). Applying these laws and regulations to the particular facts of this case, it is apparent that an increased disability evaluation of 100 percent is warranted. VA medical center notes concerning a period of hospitalization in July 1990 reflect that the veteran reported having seizures every two to three months. He was examined by the VA in April 1991 and the diagnosis was temporal lobe seizure disorder, poorly controlled with one to two major seizures and three to four minor seizures per month. When next examined by the VA, in April 1992, he reported having approximately one grand mal seizure a month and one to two small seizures every two to three weeks. VA medical center notes concerning a period of hospitalization in August 1992 reflect that the veteran had two violent seizures on the first day of his admission. Nurses reported that he had been found postictal and appeared to have had a generalized tonic clonic seizure with stool incontinence. He was found confused and when approached, he started swinging his arms and legs and exhibited assaultive behavior towards the nursing staff. He was found later on that day in the early morning verbally unresponsive and not following commands and again exhibiting assaultive, aggressive behavior towards the nursing staff. At the September 1993 VA examination, the veteran reported experiencing two to three tonic clonic seizures per month and partial seizures manifested by dizziness, lightheadedness and confusion at least one to two times a month. The examiner commented that he saw no benefit to admitting the veteran for a period of observation and that the veteran seemed to be severely disabled. Accordingly, after reviewing the evidence of record, it is apparent that the veteran's intractable seizure disorder is poorly controlled and that for several years he has experienced at least one major seizure per month. Therefore, a 100 percent disability evaluation is warranted. B. Psoriasis The veteran's psoriasis is currently evaluated as 50 percent disabling under the provisions of 38 C.F.R. § Part 4, Code 7816. This evaluation contemplates ulceration or extensive exfoliation or crusting or an exceptionally repugnant skin condition. This is the highest disability evaluation available under the Schedule. However, 38 C.F.R. § 3.321 provides that an extraschedular evaluation may be granted where the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment as to render impractical the application of the regular schedular standards. Applying these laws and regulations to the particular facts of this case, it is apparent that an increased extraschedular disability evaluation of 60 percent is warranted. In 1989, the veteran's psoriasis was reported as generalized and severe. The veteran gave testimony in support of his claim at a July 1990 hearing held at the RO. At this hearing the hearing officer commented that the veteran's forearms and hands were markedly discolored by red coloring and that there was a tremendous amount of scaling and disfiguration around the fingernails, hands and forearms. There was also some scaling on the palmar surfaces of the hands. The hearing officer further commented that the veteran's legs had red discoloration on both legs and scattered patches of red blotches all over the anterior chest. The veteran testified that he has lost jobs due to his psoriasis since employers did not want to hire him looking the way he does. He further testified that his psoriasis has begun to come up on the end of his nose, under his eyelid and all over his ears. During a January 1989 VA hospitalization, the veteran was reported as unemployable due to severe psoriasis of his hands. In July 1989, he reportedly was then totally disabled due to psoriasis and liver damage secondary to Methotrexate. Color photographs submitted in August 1989 confirm that the veteran's psoriasis is generalized and severe. His psoriasis was generalized in October 1990 and diffuse in September 1993. Furthermore, based upon its review of these photographs and both the veteran's testimony at the July 1990 hearing and the hearing officer's statements, the Board finds that the case presents an exceptional or unusual disability picture with a marked interference with employment so as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321. Under these circumstances, the Board finds that an extraschedular disability evaluation of 60 percent is warranted. With respect to this determination, where the evidence was so evenly balanced so as to raise doubt as to any material issue, such doubt was resolved in the veteran's favor. 38 U.S.C.A. § 5107. ORDER A well-grounded claim for entitlement to service connection for a chronic liver disorder secondary to treatment rendered for the veteran's service-connected seizure disorder and/or psoriasis has not been submitted; the case is dismissed. Entitlement to a 100 percent disability evaluation for a seizure disorder is granted subject to the regulations applicable to the payment of monetary benefits. Entitlement to a 60 percent disability evaluation for psoriasis is granted subject to the regulations applicable to the payment of monetary benefits. SAMUEL W. WARNER 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.