Citation Nr: 0001288 Decision Date: 01/14/00 Archive Date: 01/27/00 DOCKET NO. 98-11 407 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE 1. Entitlement to an evaluation in excess of 20 percent from March 23, 1989 to May 31, 1994 for seizure disorder. 2. Entitlement to an evaluation in excess of 40 percent from June 1, 1994 to October 22, 1997 for seizure disorder. 3. Entitlement to an evaluation in excess of 60 percent for seizure disorder, post operative right temporal lobectomy. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Maureen A. Young, Associate Counsel INTRODUCTION The veteran had active military service from July 1979 to March 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 1997 rating decision by the Department of Veterans' Affairs (VA) Regional Office (RO) in Oakland, California. The RO granted entitlement to an increased evaluation for seizure disorder from 10 percent to 20 percent effective from March 23, 1989 to May 31, 1994; and to 40 percent from June 1, 1994. In June 1998 the RO granted a temporary total convalescence rating for seizure disorder effective October 23, 1997 through December 31, 1997, with reinstatement of the prior 40 percent evaluation effective January 1, 1998. In October 1998 the RO granted entitlement to a 60 percent evaluation for seizure disorder, postoperative right temporal lobectomy effective January 1, 1998. FINDINGS OF FACT 1. The probative evidence shows that between March 23, 1989 and May 31, 1994 the manifestations of the appellant's seizure disorder were reflective of at least one major seizure in the last two years or at least two minor seizures in the last six months. 2. The probative evidence shows that between June 1, 1994 and October 22, 1997, 1997 the manifestations of the appellant's seizure disorder were reflective of at least one major seizure in the last six months or two in the last year or averaging at least five to eight minor seizures weekly. 3. The probative evidence from January 1, 1998 shows that the manifestations of the appellant's seizure disorder are reflective of nine-to-ten minor seizures per week. 4. The veteran's service-connected seizure disorder has not resulted in an average of at least one major seizure in three months over the last year or more than ten minor seizures weekly. CONCLUSIONS OF LAW 1. The criteria for entitlement to rating in excess of 20 percent for a seizure disorder for the period from March 23, 1989 to May 31, 1994 have not been met. 38 U.S.C.A. §§ 1155, 5107(a) (West 1991); 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code 8910 (1999). 2. The criteria for entitlement to an evaluation in excess of 40 percent for a seizure disorder for the period from June 1, 1994 to October 22, 1997 have not been met. 38 U.S.C.A. §§ 1155, 5107(a); 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code 8910. 3. The criteria for entitlement to an evaluation in excess of 60 percent for a seizure disorder, postoperative right temporal lobectomy have not been met. 38 U.S.C.A. §§ 1155, 5107(a); 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code 8910. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Factual Background The pertinent evidence of record shows that the veteran had his first seizure in August 1983 with a brief loss of consciousness and tonic-clonic movement. He was hospitalized in December 1983 after having a seizure. He was put on Dilantin. In March 1984 and October 1984, he had a seizure, both times due to stopping his medication. The evidence further shows that the veteran's seizure disorder was controlled by medication until March 1989 when he had a major seizure while driving and lost control of his vehicle. Medical treatment records, from April 1989 to approximately June 1994, reveal that the veteran had seizures that were intermittently controlled with medication. It was noted in a June 1994 progress note that there were only brief lapses in the veteran's memory, one-to-two per month and there was an increase in the frequency of the veteran's seizures a few months earlier. In September 1994 the veteran was seen by a physician for an evaluation of seizures which had recently occurred. The physician noted that over the past three to four years, the veteran had had some episodes of apparent loss of awareness but without overt generalized motor activity. The physician further noted that the veteran reported that his [the veteran's] wife has described episodes in which he stared and was unresponsive. The diagnosis was apparent complex partial seizures with some generalized motor seizures. In January 1996 he was seen in the hospital emergency room after suffering a seizure at work. In a February 1996 progress note it was reported that the veteran had nine seizures in two days. Upon neurologic follow-up in October 1996 it was reported that he continued to have approximately one seizure per month. It was noted that his wife had seen nocturnal episodes with the veteran's eyes rolling back in his head and grunting. She had also seen him fall over and have limited jerking of arms. In March 1997 the veteran filed a claim with the RO for a rating in excess of the 10 percent he was then receiving. He contended that his condition had substantially worsened. In April 1997 the RO granted an increase to 20 percent effective March 23, 1989 and 40 percent effective May 31, 1994. A VA examination for epilepsy in April 1997 recounted the veteran's history of seizure activity and, in pertinent part, diagnosed complex partial seizures, partly controlled. The veteran was examined by the Associate Professor of Neurology and Neurological Sciences, Director, Stanford Comprehensive Epilepsy Center and a physician fellow in May 1997. The resulting opinion described the veteran as having two types of seizures. The physician noted that the types of seizures were small seizures which occurred approximately one to two times per week; and grand mal seizure which appeared to occur every few months. The last grand mal seizure was noted as occurring in March 1997. A clinical neurological follow-up in March 1997 revealed the veteran suffered numerous seizures from February 18, 1997 to March 24, 1997. The diagnostic impression was that his seizures were poorly controlled on medications. The veteran was hospitalized in June 1997 for four days for video electroencephalogram (EEG) monitoring. It was reported that he had at least four seizures. One seizure was accompanied by rhythmic delta-wave activity in the right temporal region. The second showed a similar pattern. The last two also demonstrated a slowing in a right temporal pattern. The veteran was hospitalized from October 23, 1997 to November 14, 1997. He underwent implantation of intracranial grid and electrodes. He had a typical seizure on November 2, 1997, and on November 3, 1997 he underwent electrocorticography. He had no further seizures during his hospitalization. It was noted in a December 1997 VA clinical neurology report that the veteran was doing well, and had no seizures or headaches. A June 1998 letter to VA from the veteran's physician, reads as follows: "Mr. W. asked me to get in touch with you regarding his last two Neurology Clinic appointments. The veteran was seen on March 6, 1998, and reported having had a complex partial seizure in December and a flurry of seizures on 1/28/98. He was seen again on 6/5/98 and reported having had several complex partial seizures over the last few months, and a flurry of about 10 in one night. He is currently undergoing a medication change (switching from Phenobarbital to Depakote)." In a June 1998 clinical progress note it was noted that the veteran had intractable seizures which surgery had helped alot. It was reported that he had had three seizures since the last neurology visit. His wife stated that he had the humming at night, mostly when he was asleep and they lasted only a few minutes. His diagnosis was seizure disorder. It was the examiner's impression in a November 1998 clinical follow-up examination report that the veteran's seizure disorder was still not well controlled on medication. In July 1998 the veteran underwent a VA epilepsy examination. The examiner noted that the veteran's seizures were in the form of staring, groaning, or moaning and unresponsiveness. The seizures lasted for two to five minutes and were not associated with tongue biting, urinary or fecal incontinence or tonic or clonic movements. He also noted that the seizures were intractable. He further noted that the veteran continued to have seizures after undergoing the temporal lobe mapping but they were far less than before. The diagnosis was temporal lobe epilepsy, status post removal of offending cerebral site, with persisting seizures. Criteria Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.1 (1999). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. See 38 C.F.R. § 4.2 (1999); Francisco v. Brown, 7 Vet. App. 55 (1994). The veteran's service-connected seizure disorder is evaluated under the provisions of Diagnostic Code 8910, pertaining to epilepsy, grand mal, which is rated under the general rating formula for major seizures. The regulations provide that a major seizure is characterized by the generalized tonic- clonic convulsion with unconsciousness. Diagnostic Code 8911, pertaining to epilepsy, petit mal, is rated under the general rating formula for minor seizures. 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). The General Rating Formula for Major and Minor Epileptic Seizures provides that a 100 percent rating is warranted where the disorder is manifested by an average of at least 1 major seizure per month over the last year. Where there is an average of at least 1 major seizure in 3 months over the last year; or more than 10 minor seizures weekly, an 80 percent rating is for assignment. Where the evidence shows an average of at least 1 major seizure in 4 months over the last year; or 9-10 minor seizures per week, a 60 percent evaluation is assigned. Epilepsy manifested by 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, is evaluated as 40 percent disabling. Evidence of at least 1 major seizure in the last 2 years; or at least 2 minor seizures in the last 6 months, is required for a 20 percent evaluation. A confirmed diagnosis of epilepsy with a history of seizures, is evaluated as 10 percent disabling. 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. Note (2): In the presence of major and minor seizures, rating is based on the predominating type. Note (3): No distinction is made 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. 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). 38 C.F.R. § 4.121 (1999). The Board notes that this disorder could also have been rated by analogy under 38 C.F.R. § 4.124a, Diagnostic Codes 8912, Jacksonian and focal motor or sensory epilepsy; 8913, diencephalic epilepsy which is rated as minor seizures, except in the presence of major and minor seizures, rate the predominating type; and 8914, which contemplates the same manifestations for evaluating psychomotor epilepsy as used in Diagnostic Code 8911. Under this code, psychomotor seizures will be rated as major seizures under the general rating formula when characterized by automatic states and/or generalized convulsions with unconsciousness, and will be rated as minor seizures under this formula when characterized by brief transient episodes of random motor movements, hallucinations, perceptual illusions, abnormalities of thinking, memory or mood, or autonomic disturbances. See 38 C.F.R. § 4.124a, Diagnostic Codes 8912, 8913, 8914 (1999). With regard to epilepsy and unemployability, a note at Diagnostic Code 8914 indicates, in pertinent part, as follows: Rating specialists must bear in mind that the epileptic, although his or her seizures are controlled, may find employment and rehabilitation difficult 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. When an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. Conjectural analogies will be avoided, as will the use of analogous ratings for conditions of doubtful diagnosis, or for those not fully supported by clinical and laboratory findings. Nor will ratings assigned to organic diseases and injuries be assigned by analogy to conditions of functional origin. 38 C.F.R. § 4.20 (1999). Ratings shall be based as far as practicable, upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience. To accord justice to the exceptional case where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The governing norm in these exceptional cases is: a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3 (1999). In Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990) the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the evidence must preponderate against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Analysis As a preliminary matter, the Board notes that the veteran's claim is found to be well grounded under 38 U.S.C.A. § 5107(a) (West 1991). That is, he has presented a claim which is plausible. Murphy v. Derwinski, 1 Vet. App. 78 (1990). In general, an allegation of increased disability is sufficient to establish a well-grounded claim seeking an increased rating. Proscelle v. Derwinski, 2 Vet. App. 629 (1992). The Board is also satisfied that all relevant facts have been properly developed, and that no further assistance is required in order to satisfy the duty to assist mandated by 38 U.S.C.A. § 5107(a) (West 1991). In accordance with 38 C.F.R. §§ 4.1 and 4.2 and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed the medical records and all other evidence of record pertaining to the history of the veteran's seizure disorder. The veteran has been provided VA examinations in connection with his claim for compensation benefits for his seizure disorder, and other evidence has been obtained which is probative thereof. The Board has found nothing in the historical record that would lead to a conclusion that the evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations that would warrant an exposition of the remote clinical histories. The Board finds that an increase in the appellant's disability evaluation for seizure disorder for not more than from 20 percent, to 40 percent, to 60 percent was warranted during the above reported periods. The evidence shows that the veteran's seizure disorder was controlled by medication until March 1989 when he had a major seizure while driving. The evidence further showed an increase in the frequency of minor seizure activity around June 1994 averaging at least five to eight. Moreover, the evidence shows that from January 1998 the frequency of the veteran's minor seizures progressed to nine to ten per week. The Board further finds that a rating in excess of 60 percent is not warranted upon application of the rating criteria under 38 C.F.R. § 4.124a, Diagnostic Code 8910. The disabling manifestations of the veteran's seizure disorder do not show the type of symptomatology necessary to warrant the higher evaluation of 80 percent. The probative evidence shows that the veteran has not had an average of at least one major seizure in three months over the last year. A major seizure is characterized by the generalized tonic-clonic convulsion with unconsciousness. See 38 C.F.R. § 4.124a Diagnostic Code 8910, Note (1). It was noted in the VA epilepsy examination of July 1998 that the veteran's seizures are not associated with tonic or clonic movements. The evidence proffered by the veteran that he has had one major seizure in three months is given little probative value because the description of his seizures by his wife and the VA examiner are classified as minor seizures under the regulations. Furthermore, the evidence does not show that the veteran has had weekly minor seizures numbering more than ten. In October 1996 he reported having one seizure per month. In May 1997 it was reported that he had small seizures one to two times per week. He had numerous seizures in February and March 1997 but they did not total more than ten per week. He had a typical seizure in November 1997 while hospitalized at which time he was rated temporarily totally disabled on the basis of convalescence. He reported having a flurry of seizures in January 1998 and June 1998. However, it is not apparent that these totaled more than ten per week. Also in June 1998, it was reported that he had three seizures. In the July 1998 VA medical examination report, it was noted that the veteran's seizures were far less than before. Even though it was noted in a November 1998 VA clinic record that the veteran's seizures were not well controlled, current medical findings do not support a frequency of seizures sufficient to warrant an evaluation of 80 percent. In his appeal to the Board, the veteran contended that there was a day when he had ten seizures. This contention is not sufficient to support a higher evaluation of 80 percent as regulations require that the veteran experience more than ten seizures weekly to warrant a disability rating of 80 percent. The evidence shows that the veteran experiences fewer than an average of at least one major seizure per month and not more than ten minor seizures weekly which is consistent with the current 60 percent evaluation under 38 C.F.R. § 4.124a, Diagnostic Code 8910. Thus, the veteran's seizure disorder does not warrant an evaluation in excess of 60 percent. The evidence of record does not adequately support a rating in excess of 60 percent under Diagnostic Codes 8912, 8913 or 8914. On consideration of the application of the note at Diagnostic Code 8914, to the evidence in this case, the Board holds that there is no evidence to support a finding that the veteran's seizure disorder is an influencing factor in any unemployment. Moreover, the Board observes that in light of Floyd v. Brown, 9 Vet. App. 88 (1996), the Board does not have jurisdiction to assign an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance. The Board, however, is still obligated to seek all issues that are reasonably raised from a liberal reading of documents or testimony of record and to identify all potential theories of entitlement to a benefit under the law or regulations. In Bagwell v. Brown, 9 Vet. App. 337 (1996), the United States Court of Appeals for Veterans Claims (Court) clarified that it did not read the regulation as precluding the Board from affirming an RO conclusion that a claim does not meet the criteria for submission pursuant to 38 C.F.R. § 3.321(b)(1), or from reaching such conclusion on its own. In the veteran's case at hand, the RO determined that the veteran's disability picture was not unusual or exceptional in nature such as to warrant assignment of an extraschedular evaluation. The Board agrees with the RO's determination. The regular schedular standards as applied to the veteran's case during the periods of time in question adequately compensate him for the demonstrated level of impairment produced by his seizure disorder. No evidentiary basis has been presented upon which to predicate referral of the veteran's case to the Under Secretary for Benefits or the Director of the VA Compensation and Pension Service for consideration of extraschedular evaluation. As shown above, the Board has considered all potentially applicable provisions of 38 C.F.R. Parts 3 and 4, whether they have been raised by the veteran or his representative, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In this case, the Board finds no other provision upon which to assign an increased rating. Based upon a full review of the record, the Board finds that the evidence is not so evenly balanced as to require application of the benefit of the doubt in favor of the veteran's claim for an evaluation in excess of 20, percent, 40 percent or 60 percent for seizure disorder during the periods of time in question. Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Although the veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim for an evaluation for seizure in excess of 20 percent from March 23, 1989 to May 31, 1994; in excess of 40 percent from June 1, 1994 to October 22, 1997; and in excess of 60 percent. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). ORDER Entitlement to an evaluation in excess of 20 percent for seizure disorder from March 23, 1989 to May 31, 1994 is denied. Entitlement to an evaluation in excess of 40 percent for seizure disorder from June 1, 1994 to October 22, 1997 is denied. Entitlement to an evaluation in excess of 60 percent for seizure disorder, postoperative right temporal lobectomy is denied. RONALD R. BOSCH Member, Board of Veterans' Appeals