Citation Nr: 0000504 Decision Date: 01/07/00 Archive Date: 01/11/00 DOCKET NO. 97-05 614 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina THE ISSUES 1. Entitlement to an increased rating for residuals of fractures of the left tibia and fibula, currently rated 30 percent disabling. 2. Entitlement to an increased rating for residuals of fractures of the right tibia and fibula, currently rated 10 percent disabling. 3. Entitlement to an increased rating for grand mal epilepsy, currently rated 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD R. T. Jones, Counsel INTRODUCTION The veteran served on active duty from March 1955 to July 1959. This matter comes to the Board of Veterans' Appeals (Board) from an October 1996 decision by the VA RO that denied increased ratings for grand mal epilepsy (rated 10 percent), residuals of fractures of the left tibia and fibula (rated 10 percent), and residuals of fractures of the right tibia and fibula (rated 0 percent). In December 1998, the RO granted an increased rating to 30 percent for residuals of fractures of left tibia and fibula, and an increased rating to 10 percent for residuals of fractures of right tibia and fibula; the claims for increased ratings for these conditions continue. AB v. Brown, 6 Vet.App. 35 (1993). The veteran failed to report for a Travel Board hearing which was scheduled to take place at the RO in August 1999. The present Board decision addresses the issue of an increased rating for epilepsy; the issues of increased ratings for the left and right leg disabilities are the subject of the remand at the end of the decision. The Board notes other matters which are not properly before the Board at this time. An October 1996 RO decision denied a total disability compensation rating based on individual unemployability (TDIU) rating. A February 1997 statement by the veteran's representative lists the TDIU issue as an issue on appeal but requests that the RO reconsider a TDIU rating after it addressed issues mentioned in another memorandum by the representative (i.e, secondary service connection for left hip and low back disorders). An October 1998 certification of appeal (VA Form 8) is typed except for a handwritten entry listing an issue of entitlement to a TDIU rating; but it is questionable whether a notice of disagreement has been filed, and there has never been a statement of the case, followed by a substantive appeal, as to the TDIU issue. See 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. § 20.200 (1999). In December 1998, the RO granted secondary service connection for left hip and low back disorders; but it did not thereafter reconsider entitlement to a TDIU rating, as had been earlier requested by the veteran's representative. The Board refers the issue of entitlement to a TDIU rating to the RO for further review and, if indicated, procedural development for appellate review. In other matters not properly on appeal, the Board notes that a November 1996 statement by the veteran suggests he is claiming service connection for cataracts, and a January 1999 statement by the veteran suggests he is claiming an increased (compensable) rating for duodenal ulcer disease. These issues are not properly before the Board and are referred to the RO for clarification and any other indicated action. FINDING OF FACT The veteran has a diagnosis of grand mal epilepsy and a remote history of seizures, for which he currently takes medication; however, he has had no seizures for many years. CONCLUSION OF LAW The criteria for an evaluation in excess of 10 percent for grand mal epilepsy have not been met. 38 U.S.C.A. § 1155 (West 1991) ; 38 C.F.R. § 4.124a, Diagnostic Code 8910 (1999). REASONS AND BASES FOR FINDING AND CONCLUSION I. Background The veteran served on active duty from March 1955 to July 1959. Service medical records note he sustained multiple injuries, including a head injury, when he was stuck by a motor vehicle in December 1957. In May 1959, it was noted that a neurological consultation showed that he no neurological deficit from the head trauma and had a normal EEG. On an October 1966 VA neuropsychiatric examination, the veteran reported that he had not had a definite seizure until 1963 when he had a seizure while sleeping; he reported that a medical doctor was called and diagnosed a grand mal convulsive seizure. He reported that he had had a spell one month later and that all of his spells had been at night except for 1 or 2 occasions when he had become extremely nervous, but he had not had convulsions. The diagnosis was chronic brain syndrome, associated with trauma, with residuals of neurological nature as noted, with history of convulsive seizures, nocturnal, grand mal type. In December 1966, the RO granted service connection for chronic brain syndrome with history of convulsive seizures, nocturnal, grand mal type; and a 10 percent rating was assigned. A January 1967 VA social survey report noted that Dr. D. H. Crow had observed the veteran when he was recovering from a seizure, but Dr. Crow could not be contacted and his office records contained no information on the veteran. The veteran was admitted to a VA hospital in February 1967 for observation and evaluation for a seizure disorder. Skull X-ray was normal. An EEG was abnormal, which the doctor said could be associated with seizure activity. During the hospital admission, he had no seizures, but claimed he had some biting of his jaw on 1 occasion at night. The final diagnoses were epilepsy, grand mal, associated with remote trauma; and emotionally unstable personality. In March 1967, the veteran's sister and brother-in-law reported that they witnessed the veteran having a seizure in 1961 or 1962. In April 1967, the RO granted a temporary total hospitalization rating for grand mal epilepsy, based on the recent admission, and this was followed by a 10 percent rating for the condition. The 10 percent rating has continued to the present time. In May 1970, the veteran was admitted to a VA hospital with complaints that he was feeling weak and run-down. Physical examination noted no acute findings. He reported that his last seizure was in 1968. There was no recurrence of seizures during the admission. The diagnoses were epilepsy, grand mal, associated with old trauma, and an emotionally unstable personality. In June 1996, the veteran filed for increased compensation for epilepsy. On an October 1996 VA neurological examination, the veteran reported that he had been taking Dilantin since 1962. He did not remember his last seizure, but thought that it was in 1981 or 1982. There were no signs of organic mental dysfunction. Cranial nerve examination revealed bilateral exotropia in eye movements. Motor and reflex examinations were normal. The diagnosis was generalized seizure disorder, under excellent control with Dilantin, with the last seizure being in 1981 or 1982. In subsequent statements, the veteran contended, in effect, that compensation for his seizure disorder should be increased because of the side effects (feeling uptight and edgy) of Dilantin. II. Analysis The veteran's claim for an increase in a 10 percent rating for grand mal epilepsy is well grounded, meaning not inherently implausible. All relevant facts have been properly developed and, therefore, the VA's duty to assist the veteran has been satisfied. 38 U.S.C.A. § 5107(a). When rating the veteran's service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). However, the present level of disability is of primary concern in a claim for an increased rating; the more recent evidence is generally the most relevant in such a claim, as it provides the most accurate picture of the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Grand mal epilepsy is rated under the general rating formula for major seizures. Under that formula, a 10 percent rating is assigned when there is a confirmed diagnosis of epilepsy with a history of seizures. When continuous medication is shown necessary for the control of epilepsy, the minimum evaluation will be 10 percent. A 20 percent rating is assigned when there has been at least 1 major seizure in the last 2 years, or at least 2 minor seizures in the last 6 months. 38 C.F.R. § 4.124a, Diagnostic Code 8910. 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. The veteran does not describe any current seizures, althought he has previously been diagnosed as having grand mal epilepsy, had seizures many years ago, and continues to take medication for the disorder. By his own account, his last seizure was in 1981 or 1982. While he alleges he has some side effects of medication (Dilantin), he does not have the medical expertise to diagnosis any alleged side effects of his medication. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The medical evidence shows no objective indication of any symptoms associated with his seizure disorder or medication taken to control the disorder. As the veteran has not had at least 1 major seizure in the last 2 years, or at least 2 minor seizures in the past 6 months, he does not meet the criteria for a higher rating of 20 percent. His past diagnosis of epilepsy, seizures many years ago, and use of medication only support the current 10 percent rating. The preponderance of the evidence is against the claim for an increase in a 10 percent rating for grand mal epilepsy. As such, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER An increased rating for grand mal epilepsy is denied. REMAND The veteran also claims an increase in a 30 percent rating for residuals of fractures of the left tibia and fibula, and an increase in a 10 percent rating for residuals of fractures of the right tibia and fibula. A December 1998 VA examination contains detailed information on these conditions, and the examination was considered by the RO in assigning the current ratings. However, the examination was not discussed in a supplemental statement of the case, and thus due process requires that these issues be remanded to the RO for this purpose. 38 C.F.R. § 19.37(a). As these increased rating claims are well grounded, any recent pertinent medical records should also be obtained by the RO. Murincsak v. Derwinski, 2 Vet.App. 363 (1992). Accordingly, these issues are remanded for the following action: 1. The RO should have the veteran identify all sources of VA or non-VA medical examination or treatment, since 1998, concerning his left and right leg disabilities. The RO should then obtain copies of the related medical records. 38 C.F.R. § 3.159. 2. Thereafter, the RO should review the claims for increased ratings for the left and right leg disabilities. If the claims are denied, the veteran and his representative should be issued a supplemental statement of the case (which should address all evidence received since the previous supplemental statement of the case), and they should be given an opportunity to respond before the case is returned to the Board. L. W. TOBIN Member, Board of Veterans' Appeals