BVA9507981 DOCKET NO. 92-12 432 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUES 1. Increased rating for a generalized convulsive disorder, currently diagnosed as post-concussion syndrome with seizures, rated as 20 percent disabling. 2. Temporary total rating for hospitalization or convalescence for the period September 15, 1991, to January 1, 1992. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant, [redacted] and [redacted] ATTORNEY FOR THE BOARD William L. Pine, Counsel INTRODUCTION The appellant served on active duty from November 1985 to May 1989, with over three years unverified, prior active duty. The instant appeal is from an October 1991 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). CONTENTIONS OF APPELLANT ON APPEAL The appellant contends that he has had at least four major seizures in the past year. He also contends that he was instructed by VA personnel to discontinue school and work for several months so he could undertake medical evaluation of his seizure disorder. He alleges he was assured by the Patient Representative that he would receive temporary total disability. He argues that he should be granted the temporary total disability compensation notwithstanding that he was not hospitalized for 21 days, because he suffered loss of VA education benefits and other economic losses in reliance on the instructions of VA personnel. 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(s). 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 evidence supports an increased rating for a generalized convulsive disorder and that the appeal from the denial of a temporary total rating must be dismissed. FINDINGS OF FACT 1. The appellant has had two generalized convulsions with unconsciousness in the past year. 2. The appellant has not alleged that he satisfies any criterion for a temporary total disability rating or that the RO misapplied the law governing temporary total disability ratings. CONCLUSIONS OF LAW 1. The schedular criteria for a 40 percent rating for a generalized convulsive disorder analogous to psychomotor seizures are met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.20. 4.121, 4.122, 4.124a, Diagnostic Code 8914 (1994). 2. The appellant has failed to allege a specific error of fact or law in the denial of a temporary total disability rating for hospitalization or for convalescence. 38 U.S.C.A. § 7105(d)(5) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION The evidence submitted is sufficient to justify a belief that the appellant's claim for increased rating is well grounded. 38 U.S.C.A. § 5107(a) (West 1991). This finding is based on the appellant's contentions and testimony and the medical evidence received in support of the claim. Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). Further, the record has been adequately developed for appellate purposes and disposition of the appeal on the merits may proceed. The RO requested additional service medical records from the National Personnel Records Center (NPRC), the repository for such records, whose response included records from the period requested. Absent any indication that other pertinent records exist, the Board deems the duty to assist the appellant in developing evidence in support of his claim to be discharged. In review of claims for increased ratings, the Board considers all of the evidence of record, lay and medical, including the relevant medical history. Peyton v. Derwinski, 1 Vet.App. 282, 285 (1991); Schafrath v. Derwinski, 1 Vet.App. 589, 595 (1991). The medical findings are compared to the criteria in the VA Schedule for Rating Disabilities, 38 C.F.R. Part 4 (1994), to determine the extent to which a service-connected disability adversely affects the ability of the body to function under the ordinary conditions of daily life, including employment. 38§ C.F.R. §§ 4.2, 4.10 (1994). In so doing, we must weigh the evidence before us. Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Review of the claim for a temporary total disability rating does not reach the question whether the claim is well grounded. As discussed below, the claim does not present a reviewable issue. I. BACKGROUND Service medical records from Wurzburg, Germany, obtained by the RO in May 1994 reveal that the appellant was in a motor vehicle accident (MVA) on June 13, 1987, in which his vehicle hit a building. He had a blood alcohol level of 1.3 four hours after the accident. He was wearing seat and shoulder belts, sustained a fractured left clavicle and chest contusions from the shoulder belt, but no loss of consciousness. There was noted a possibility of myocardial contusion from the shoulder belt. A general surgery consultation found no thoracic-abdominal damage, and he was held in the intensive care unit for 24 hours; a 24 hour electrocardiogram (ECG) was negative. Examination of the head, eyes, ears, nose and throat revealed no abnormalities. He was discharged from the hospital to duty after four days with a diagnosis of left clavicle fracture and chest contusions. On December 21, 1988, the appellant developed a severe headache while on duty at an Army Induction Center. He subsequently lost consciousness and awoke in an ambulance enroute to Mercy Hospital. The hospital records noted that he had at least two and probably three grand mal seizures witnessed by the physician at the Army Induction Center and by the ambulance crew. On admission he was questioned for any family history of seizures and gave none. It was noted he had no history of convulsive disorder, previous episodes of seizures, serious head injuries or intracranial disease that might cause a tendency towards seizures. He admitted occasional alcohol use but denied history of significant alcohol use. His past medical history included chronic left shoulder problems, complaints of some high pitched squealing in his ears and a history of hyperventilation. Physical examination on admission was essentially normal. The admitting impression was grand mal convulsive disorder of unknown etiology. Electrolyte measurement revealed bicarbonate level of eight. The reason for such metabolic acidosis was unclear, but it was thought it may well be a significant factor in the seizures. The Mercy Hospital discharge summary contains different history from the admission records: The appellant at some point gave a history of significant head injury with loss of consciousness in an MVA of a year or more before. This was thought to be a possible factor in the current seizures. During hospitalization, the appellant underwent computerized tomography (CT) scan and magnetic resonance imaging (MRI) of the brain, electroencephalogram (EEG) and lumbar puncture, all of which were normal. The appellant recovered completely during hospitalization and had no further seizures. He was discharged on Dilantin prophylactically. The discharge diagnosis was grand mal convulsive disorder. A service health record of February 1989 noted as problems post- concussive seizure disorder, December 1988, and headaches, with a significant history of closed head trauma from concussion in MVA in 1987. Recorded on the separation medical history was a report of MVA in June 1987 in Wurzburg, Germany, with myocardial contusion and head injury, with five days in the Wurzburg Army Hospital intensive care unit and 12 days hospitalization. On VA examination in August 1989, the appellant reported he had bumped his head in an MVA in 1987; a lump on his forehead having disappeared after a time. He reported no seizures since his first in December 1988, and that he had discontinued anti- convulsive medication in June 1989 without any seizures since. The impression was status post MVA with head trauma; seizure episode in December 1988; seizure free at present, off anti- convulsants. On VA examination in March 1990, the appellant reported he was on Tegretol for seizure control. The examiner described the seizures as complex partial type, with 20 generalizations in the past. It was noted the appellant had had no seizures since his last clinic visit five months previously. Neurological examination was normal, and the assessment was post-traumatic seizures under good control. In June 1991 the appellant was admitted to a VAMC after an episode of passing out the day of admission. He had low blood sugar, which was considered a possible cause of a syncopal episode. The diagnosis was syncope, possibly secondary to hypoglycemia. He had another such episode again that month and was taken by ambulance to a VAMC where he became fully conscious and alert. From September 3 to 13, 1991, the appellant was admitted to a VAMC for further evaluation and diagnostic testing of "spells possibly related to hypoglycemia." He complained of several episodes of witnessed syncope preceded by a sudden onset of extreme fatigue and temporal headaches, with fatigue relieved by hard candy. He stated the spells were different than his seizures, which were rarely grand mal, and normally preceded by irritability, hyperacuity of hearing and shaking of the right hand, with which he did not usually pass out, but he had post- ictal symptoms of fatigue and some disorientation, laughing at various times. While hospitalized, during a 72-hour fast for endocrine work-up, he had approximately three episodes. He complained he felt extremely fatigued and became somewhat trance- like, at one point sitting on the floor. After a short time he was fully alert and felt not to be post-ictal. The blood sugar of 52 and insulin of four was felt to be normal and that the spells could not be attributed to hypoglycemia. Echocardiogram, Holter monitor, EEG and head CT were all normal. The neurologist did not feel the spells were seizure related, although the appellant and his mother disagreed. A statement from R.L. Seward, VAMC Des Moines, reported that the appellant had been hospitalized from September 3 to 13, 1991, would be unable to attend school that term until his medical problems had been resolved, would probably be able to attend school in January 1992, and was disabled from the episodes of altered consciousness. A December 1991 statement from the VAMC director repeated the history that the appellant had a major motor seizure activity as a result of an MVA in 1987 and was given a diagnosis of post- concussive syndrome with seizures. The director noted the appellant's two recent hospitalizations to evaluate the cause of what the appellant described as an altered level of consciousness to determine if hypoglycemia was a possible etiologic factor, but hypoglycemia had never been documented by standard medical or laboratory assessments. A more recent VAMC evaluation for the possibility of a neurological basis for his symptoms employed MRI and 24-hour EEG monitoring, which elicited no new findings. The appellant testified at a VA hearing in March 1992. He stated that while hospitalized at a VAMC in September 1991 a VA physician, Dr. Seward, felt it was necessary that he take a term off from school so he was available for any extensive evaluation at University of Idaho that was indicated. He stated that his mother and a friend, both witnesses at the hearing, heard him tell the appellant not to attend school until about January 1992. He testified that he has suffered economic loss because of the VA physician's instruction, having to renegotiate his mortgage. The appellant's mother and another witness, Mrs. [redacted], testified about the contradictory information disseminated by the VA physician and the RO regarding the appellant's entitlement to temporary total disability compensation. The appellant underwent EEG telemetry monitoring at University of Iowa Medical Center on referral from VAMC from March 25 to 28, 1992. On the second day, he told the nurse he had a spell, and the nurse pushed the event marker. No ictally organized episode or abnormal EEG pattern was noted. At no time was epileptiform activity found. In April 1992, a VA neurologist opined that the "spells claimed by the appellant" are not related to seizure disorder. The neurologist based his opinion on review of his own October 1991 examination of the appellant and his review of the appellant's previous head CT and MRI findings and subsequent 24-hour ambulatory EEG monitoring and MRI of November 1991, and March 1992 3-day EEG telemetry monitoring, which did not pick up seizure activity even at a time when the appellant claimed to have a spell. VA outpatient neurology clinic records from July 1991 to December 1993 contain reports of a "grand mal" seizure in March 1991, after not taking his Tegretol for five days, and further complaints of "spells" of light headedness, lip and tongue numbness and finger tingling. In September 1991, his mother reported three such episodes since June 1991. In June 1992, the appellant reported eight episodes of convulsions in the past year, the most recent in May, with right arm shaking and generalized tonic-clonic convulsions by his testimony. Neurological examination in June 1992 was nonfocal. In October 1992 he reported he had ceased all medication due to adverse reactions, and was using stress reduction exercises, with reduced headaches. The impression was post-concussion generalized seizure, disorder in remission, off medication. In February 1993, he reported no spells for the previous eight to 10 months; he had been of Tegretol for six of seven months; he still had headaches twice a month. In August 1993, he reported two seizures in the past month witnessed by a neighbor; he was prescribed Depakote. In December 1993, he reported five seizures in the last year, one grand mall and four petit mal, and headaches two or three times a week. He stated Depakote made him violently ill; he was currently on no anti-seizure medication and stated seizure frequency was the same with and without medication. There was a normal neurological examination, and the impression was post-traumatic syndrome, non-epileptic seizures; musculoskeletal headaches. Of record are March 1992 and August 1993 reports from University of Iowa Hospitals and Clinics. The former noted that the appellant pressed the event marker three times during a March 1992 72-hour EEG monitoring, with the EEG remaining normal. The latter report was from the Allergy-Immunology Clinic, showing diagnoses of chemical sensitivity syndrome; history of chronic headaches; and partial seizures. He complained of and was tested for hypersensitivity to a wide range of chemicals and paints; he complained even long-dried paint caused nausea and vomiting. No allergy or immune system cause could be found, and it was suggested that etiologies other than physical be explored. Of record are incident reports of seizures from the school Registered Nurse at Des Moines Area Community College (DMACC). On October 7, 1991, [redacted] brought the appellant to the nurse's office where the appellant collapsed on the couch and lost consciousness. His face became very red, his body rigid, his teeth clenched, and he moaned loudly for about 10 minutes. When he awoke, he became aware of his surroundings within five minutes. A January 1992 DMACC incident report by the same nurse described a similar event as in October 1991, noting screaming rather than moaning during the episode. In a February 1992 DMACC incident report, the same nurse noted she was called to the music room where the appellant was having one of his seizures; he was unconscious and quiet and awoke after about five minutes complaining of severe headache and aching of his arms and legs. A more detailed report of February 1994 from Lynne George, R.N., College Health Services, described an incident of January 26, 1994. She was summoned to a school building while the appellant was being escorted to a conference room by a professor and a student. He was ambulatory but unsteady on his feet. The nurse felt he did not recognize her or understand any verbal communication; he was emotionally labile, tearfully commenting that he hated when this happens. His fists were tightly clenched and muscles rigid. Momentarily, he fell to the floor in a grand mal seizure lasting about 60 to 90 seconds, during which his entire body was rigid, his back and head were arched backward and he screamed. She stated that because other seizures on campus had been more petit mal or myoclonic in type, she called 911, which responded promptly, but the appellant was oriented when help arrived and declined to be transported to any medical facility. In the next hour, the nurse moved him first to sitting and then standing. He was very stiff and sore following the seizure. The seizure was noted to be the first grand mal seizure in four semesters at Grand View. The nurse commented on the appellant's frustration with his seizure disorder because he was struggling to finish his education within certain time constraints and was the sole support of his mother. She noted he was a Dean's list student. Of record are numerous lay statement from witnesses to the appellant's seizures. On September 1991, his mother reported witnessing grand mal and petit mal seizures and three other episodes of "passing out." The appellant was described as complaining of severe headache and dizziness followed by whole body spasms, falling to the floor and having to be held down, being unconscious for five to 10 minutes, usually followed by two or three more seizures within 20 minutes; upon regaining consciousness he is confused as to time and place, becoming more aware within two hours. The most recent episodes were described as different in character, without jerking of limbs, but with complaints of headache, dizziness, and fatigue, followed by passing out; upon awakening in an hour and a half, he denied remembering what preceded the event. In a statement of November 1991, [redacted] described a recent event at Mr. [redacted]'s apartment, in which the appellant cried Mr. [redacted]'s name, shook vigorously and fell to the floor, whereupon Mr. [redacted] restrained him and then called an ambulance; the appellant had regained consciousness by the time the ambulance arrived and declined to go to the hospital. In a statement of November 1991, [redacted] stated he saw the appellant at a college choir meeting begin to shake the right hand; the appellant ran to the nurse's office where Mr. [redacted] saw him sit down, become flushed and begin to shake violently, his body stiffened and his teeth clenched while he screamed for about five minutes; in another five minutes the appellant was aware of his surroundings and able to communicate. A statement of February 1992 by the DMACC choir director described the appellant shaking, unable to remain seated, falling to the floor, having violent convulsions then becoming unconscious. A statement of June 1994 on a VA Form 119, apparently by a VA employee, described an incident in which the appellant came into the person's office and said he was having a seizure, requesting that she talk to him very slowly and ask him questions, but not about the seizures. He was trembling and after a time he calmed down. Two statements of November 1994, one by a Drake University professor and another by her assistant, a classmate of the appellant, described an episode that month in which, as taken from the professor's statement, the appellant began to tremble and left the classroom. In another room the shaking increased and became uncontrollable, violent convulsions accompanied by sounds "difficult to describe," but which seemed to come "from deep within him." The episode lasted three to five minutes. The professor asked her assistant to prevent the appellant's head from hitting the floor. After the convulsions passed, the appellant wept for some time. The professor, her assistant and two other students stayed with the appellant for about an hour. The statement from the assistant, [redacted], was to much the same effect. In a statement of December 1994, the appellant reported that he had four grand mal seizures in 1994, two of them a month apart. He reiterated his reliance on the instructions of a VA physician and a VA Patient Representative in taking the period September 15, 1991, to January 1, 1992, off from school and the assurance of the patient representative that he would have no trouble collecting temporary disability compensation. II. ANALYSIS 1. Increased Rating The appellant is service connected for post-concussion syndrome with seizures, rated as grand mal or major seizures, using the general rating schedule for major an minor epileptic seizures. 38 C.F.R. § 4.124a, Diagnostic Code 8910 (1994). That schedule bases disability ratings on the frequency of major seizures. Before obtaining 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 (1994). The evidence of record presents several salient features. First, the appellant did not sustain a head trauma in service. The history of head trauma entered the record in December 1988 from the appellant; the medical record contemporaneous with his MVA does not confirm a head injury and explicitly contradicts any assertion that the appellant lost consciousness during or after the MVA. Second, absent any basis in evidence to discount the credibility of the history of present illness in the December 1988 Mercy Hospital reports, a physician witnessed the appellant's first seizures. See 38 C.F.R. § 4.121 (1994). Third, the objective medical evidence fails to confirm that the appellant's seizures are epilepsy or epileptiform in nature. Fourth, there is a great weight of evidence of witnessed seizures, both from two different registered nurses and from numerous lay observers. The report in the Mercy Hospital records of observation of at least two seizures by an Army doctor and the ambulance crew is sufficient to permit a rating for epilepsy. The seizures, if not epilepsy by electrodiagnosis, are service connected and must be deemed analogous to epilepsy. 38 C.F.R. § 4.20 (1994). The statements of the registered nurses and the lay statements are specific in the empirical descriptions of each witnesses observations. As regards the lay statements, as distinguished from the nurses' statements, they are credible and competent as to their observations. See Espiritu v. Derwinski, 2 Vet.App. 492 (1992). They are incompetent evidence only to the extent that they contain diagnostic language, e.g., the appellant had a "grand mal" seizure. For rating purposes, those statements are extraneous and do not diminish the credibility or the probative value of the lay statements to prove the appellant had seizures and to determine the frequency of seizures for rating purposes. As regards any discrepancy between the failure to confirm epilepsy in the hospital and the fact of seizures in the appellant's daily life, the regulation is clear that it is the latter that matters in rating the disability once a physician has witnessed or verified the fact of seizures. 38 C.F.R. § 4.121 (1994). Given that the appellant did not have a head trauma in service, but that he clearly had the onset of seizures in service, whatever the etiology, it appears that appellant is correctly rated by analogy to the epilepsies under the general rating formula. It also appears that psychomotor epilepsy is a better choice of diagnostic code when the description of psychomotor epilepsy is compared to the lay descriptions of the appellant's seizures, which repeatedly and consistently describe generalized convulsions with unconsciousness. See 38 C.F.R. § 4.122, Diagnostic code 8914. The appellant has stated that he has had four major seizures in the past year. The lay and nurses statements corroborate two generalized convulsive episode in 1994, in school in January and November 1994, and one minor episode, at a VA office in June 1994. There is no clear evidence of seizure activity in 1993, and the appellant reported in December 1993 in the outpatient treatment setting that he had had one major and four minor seizures in the past year. The evidence for 1992 indicates the appellant had generalized convulsive episodes in January and February 1992. The evidence from 1991 indicates three major episodes in addition to the March and June 1991 episodes after which he was treated by VA. The closest approximation of average number of major seizures in the past year is two. Under the general schedule for rating major seizures, the appellant warrants a 40 percent rating. 38 C.F.R. § 4.124a, Diagnostic Code 8914 (1994). Although the rating schedule does not specifically provide for averaging longer periods of time, the rating schedule provides for awarding the next higher evaluation if the appellant more nearly approximates the criteria for the next higher rating. 38 C.F.R. § 4.7 (1994). Even averaging the number of major seizures over the past four years does not produce a frequency of major seizures exceeding two per year. The clear preponderance of the evidence is against a rating in excess of 40 percent. 2. Temporary Total Rating The appellant underwent two periods of VA hospitalization for observation and evaluation, on from September 3 to September 13, 1991, and one from March 23 to 28, 1992. Temporary total ratings are available to a veteran who is hospitalized at a VAMC or other approved hospital for 21 days for treatment or observation of a service-connected disability, 38 C.F.R. § 4.29 (1994), or who had a period of convalescence following treatment for the reasons enumerated in the regulation. 38 C.F.R. § 4.30 (1994). The appellant does not contend that he satisfied any of the criteria for a temporary total rating. He argues, essentially, that he was told by a VA physician and patient representative to take time off and he would receive a temporary total rating, therefore he should be given the compensation. There is evidence in the record that a VA physician advised him to take a term off from school and that he could not work during that time. The appellant's argument is based on equity, not law, and the relief he seeks is beyond the authority of the Board to grant. Equitable relief is authorized by law on the sole discretion of the Secretary of Veterans Affairs. 38 U.S.C.A. § 503(a) (West 1991). The appellant has failed to allege any specific error of fact or law in the determination being appealed, and under such circumstances the claim may be dismissed. 38 U.S.C.A. § 7105(d) (West 1991); accord Sabonis v. Brown, 6 Vet.App. 426 (1994) (an appeal to the BVA that fails to state a claim for which relief can be granted should be terminated). Dismissal is the correct action as regards this issue on appeal. ORDER An increased rating of 40 percent for a generalized convulsive disorder is granted, subject to the regulations governing payment of monetary benefits. The appeal from the denial of a temporary total disability rating under paragraph 29 or paragraph 30 is dismissed. KENNETH R. ANDREWS, JR. 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.