EPILEPSY GRAND MAL

Summary

The veteran, who served on active duty from January 1985 to March 1988, appeals a February 2015 rating decision concerning his left ankle disability and claims for hip and seizure disorders. The veteran sought an increased rating for his left ankle, claiming entitlement to higher percentages for specific periods between December 2014 and May 2017. The Board granted an increased rating, not in excess of 20 percent, for the period between December 1, 2014, and February 17, 2016, but denied higher ratings for subsequent periods. The veteran also claimed service connection for right and left hip disabilities, asserting they were secondary to his left ankle condition. However, the Board denied these claims, finding no current diagnosis of hip disability and insufficient evidence of functional impairment due to pain. The veteran claimed service connection for a seizure disorder, alleging it was caused or aggravated by his left ankle disability due to frequent falls. The VA examiner opined the seizure disorder was less likely than not related to the ankle disability, citing lack of head trauma history. Conversely, a private physician stated falls due to ankle pain caused head trauma contributing to seizures. The Board found the evidence in equipoise and resolved doubt in the veteran's favor, granting service connection for the seizure disorder as secondary to the left ankle disability. The issue of a back disability, secondary to the left ankle, was remanded for further examination and opinion regarding aggravation.

Rationale

Evidence in equipoise between VA and private opinions; Benefit of the doubt resolved in veteran's favor; Seizure disorder proximately due to/aggravated by left ankle disability

Full Decision Text

Citation Nr: 19184831
Decision Date: 11/08/19	Archive Date: 11/08/19

DOCKET NO. 16-07 801
DATE: November 8, 2019

ORDER

Entitlement to service connection for a seizure disorder, due to falls, is granted.

Entitlement to service connection for a right hip disability, secondary to a left ankle disability, is denied.

Entitlement to service connection for a left hip disability, secondary to a left ankle disability, is denied.

Entitlement to an increased rating, in excess of 30 percent, for a left ankle disability from May 8, 2017 is denied.

Entitlement to an increased rating, in excess of 20 percent, for a left ankle disability from February 17, 2016 to May 8, 2017 is denied.

Entitlement to an increased rating, not in excess of 20 percent, for a left ankle disability between December 1, 2014 to February 17, 2016 is granted.

REMANDED

Entitlement to service connection for a back disability, secondary to a left ankle disability, is remanded.

FINDINGS OF FACT

1. The Veteran’s seizure disorder is proximately due to/aggravated beyond its natural progression by his service-connected left ankle disability.

2. The preponderance of the evidence of record is against finding that the Veteran has had right hip disability at any time during or approximate to the pendency of the claim. 

3. The preponderance of the evidence of record is against finding that the Veteran has had left hip disability at any time during or approximate to the pendency of the claim. 

4. Since May 8, 2017, the Veteran’s left ankle disability did not have a plantar flexion at more than 40 degrees, or dorsiflexion at more than 10 degrees, or ankle ankylosis with abduction, adduction, or inversion or eversion deformity. 

5. Between February 17, 2016 to May 8, 2017, the Veteran’s left ankle did not have ankylosis.  

6. Between December 1, 2014 to February 17, 2016, the Veteran’s left ankle reflects a marked limitation of motion of the ankle.  

CONCLUSIONS OF LAW

1. The criteria for service connection for seizure disorder as secondary to a left ankle disability are met.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310.

2. The criteria for service connection for a right hip disability are not met.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

3. The criteria for service connection for a left hip disability are not met.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

4. The criteria for an increased rating, in excess of 30 percent, for a left ankle disability from May 8, 2017 have not been met.  38 U.S.C. § 1155, 5107, 5110; 38 C.F.R. §§ 3.400, 4.1, 4.3, 4.7, 4.14, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code 5270.

5. The criteria for an increased rating, in excess of 20 percent, for a left ankle disability from February 17, 2016 to May 8, 2017 have not been met.  38 U.S.C. § 1155, 5107, 5110; 38 C.F.R. §§ 3.400, 4.1, 4.3, 4.7, 4.14, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Codes 5270, 5271.

6. The criteria for an increased rating, not in excess of 20 percent, for a left ankle disability between December 1, 2014 to February 17, 2016 have been met.  38 U.S.C. § 1155, 5107, 5110; 38 C.F.R. §§ 3.400, 4.1, 4.3, 4.7, 4.14, 4.40, 
4.3, 4.7, 4.14, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Codes 5270, 5271.

6. The criteria for an increased rating, not in excess of 20 percent, for a left ankle disability between December 1, 2014 to February 17, 2016 have been met.  38 U.S.C. § 1155, 5107, 5110; 38 C.F.R. §§ 3.400, 4.1, 4.3, 4.7, 4.14, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Codes 5270, 5271.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from January 1985 to March 1988.  The Veteran appeals a February 2015 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico.  

Regarding the left ankle disability, the February 2015 rating decision granted a temporary 100 percent rating for convalescence with 10 percent assigned from December 1, 2014.  The Veteran appealed the 10 percent rating effective from December 1, 2014.   

Subsequently, the RO in a September 2017 rating decision granted a 20 percent rating for his left ankle disability effective February 17, 2016.  Also, the RO granted the Veteran a 30 percent rating for the left ankle disability effective May 8, 2017.  The RO then issued a supplemental statement of the case in October 2017.    

The Veteran had a board hearing on May 2019, and a transcript is included in the claims folder. 

The Veteran has a combined rating of 100 percent effective May 8, 2017.  He also has a rating for total disability for individual unemployability (TDIU) effective December 22, 2015.  

As discussed in the remand section, the issue of a back disability, secondary to a left ankle disability, must be remanded.  That said, it is essential for the Veteran to understand that he is already at a 100 percent disability rating and that further increased ratings based on an analysis of this record, will not result in increased compensation beyond the 100 percent rating (by definition, the maximum rating).  The Veteran, in consultation with his representative, may wish to withdraw (in writing) the claim being remanded.  Unless this done, the Board must proceed on this issue.

Service Connection

The Veteran asserts that his bilateral hip and seizure disabilities were caused and/or aggravated by his left ankle disability.  See May 2019 Board Hearing. 

Secondary service connection requires: (1) a service-connected disability; (2) a nonservice connected disability; and (3) evidence that the nonservice connected disability is either (a) proximately due to or the result of the service-connected disability or (b) aggravated (increased in severity) by the service-connected disability.  See 38 C.F.R. § 3.310.

Right and Left Hips

Although the VA medical records reflect complaints of hip pain the Veteran does not have a current diagnosis for a hip disability.  To be considered for service connection, a claimant must first have a disability.  See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  Consequently, without a current disability, service connection for a left or right hip disability is not warranted.  

Because the Veteran reported hip pain, the Board considered whether pain alone constitutes a current disability as outlined in Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018).  In Saunders, the United States Court of Appeals for the Federal Circuit (Federal Circuit) found that the term “disability” as used in 38 U.S.C. § 1110 “refers to the functional impairment of earning capacity, not the underlying cause of said disability,” and held that “pain alone can serve as a functional impairment and therefore qualify as a disability.”  886 F.3d 1362-8. 

The Federal Circuit also limited its holding, stating, “We do not hold that a veteran could demonstrate service connection simply by asserting subjective pain... [t]o establish the presence of a disability, the veteran will need to show that [his or her] pain reaches the level of functional impairment of earning capacity.”  Id.  In other words, subjective pain in and of itself will not establish a current disability.  Consideration should be
 38 U.S.C. § 1110 “refers to the functional impairment of earning capacity, not the underlying cause of said disability,” and held that “pain alone can serve as a functional impairment and therefore qualify as a disability.”  886 F.3d 1362-8. 

The Federal Circuit also limited its holding, stating, “We do not hold that a veteran could demonstrate service connection simply by asserting subjective pain... [t]o establish the presence of a disability, the veteran will need to show that [his or her] pain reaches the level of functional impairment of earning capacity.”  Id.  In other words, subjective pain in and of itself will not establish a current disability.  Consideration should be given to the impact, or lack thereof, from pain, focusing on evidence of functional limitation caused by pain.  

However, the objective evidence of record does not show that the Veteran’s hip pain is such a severity that it would be considered a “disability” as used in 38 U.S.C. § 1110.  

While functional loss caused by pain is akin to functional loss caused by physical disability, in this case, the Veteran has not demonstrated evidence of a right or left hip disability.  Cf. Mitchell v. Shinseki, 25 Vet. App. 32 (2011).  Therefore, entitlement to service connection for a left and right hip disability is denied.

Seizure Disorder

The Veteran contends that his seizure disorder is caused by or aggravated by his left ankle disability because the ankle disability causes him to frequently fall.  See May 2019 Board Hearing. 

The Veteran underwent a VA examination in January 2015.  The Veteran attributes his seizure disorder to falling multiple times because of his left ankle.  The Veteran did not recall head trauma and denied a history of concussions.  The VA examiner opined that the Veteran’s seizure disorder is less likely than not proximately do to or the result of the Veteran’s left ankle disability.  The VA examiner reasoned that the Veteran did not report incidents of head trauma and any history of concussions or traumatic loss of consciousness.  Further, the Veteran is not service connected is not known to have service connection for an in-service concussion or head injury.  

In December 2015, the Veteran submitted a private examining physician’s statement for disability.  The private physician wrote that the Veteran had a “h[istory] of seizures due [to] trauma.”  The physician described that “falls due to ankle pain cause head trauma” contributed to the Veteran’s seizures.    

In sum, the Board acknowledges the differing opinions proffered by two equally qualified medical professionals and concludes that one opinion does not outweigh the other.  The Board thus finds that the record evidence is at least in relative equipoise as to whether the Veteran’s seizure disorder was proximately caused or aggravated by his left ankle disability.  The Board notes that when the evidence is in relative equipoise, by law; the Board must resolve all reasonable doubt in favor of the claimant.  See U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinksi, 1 Vet. App. 49, 53-56 (1990).  Therefore, the Board finds that service connection for seizure disorder, secondary to a left ankle disability, is granted.  

Increased Rating

The Veteran contends that he is entitled to a higher initial rating for his left ankle disability.  Specifically, the Veteran contends that his left ankle condition warrants a rating higher than 10 percent between December 14, 2014 to February 17, 2016, 20 percent prior between February 17, 2016 to May 8, 2017, and 30 percent from May 8, 2017.   

Disability evaluations are determined by comparing the Veteran’s present symptomatology with the criteria set forth in the VA’s Schedule for Ratings Disabilities.  38 U.S.C. § 1155; 38 C.F.R. § Part 4.  Higher ratings are assigned if the disability more nearly approximates the criteria for that rating; otherwise, the lower rating is assigned.  38 C.F.R. § 4.7.  When there is an approximate balance of positive and negative evidence the benefit of the doubt is to be resolved in the Veteran's favor.  38 U.S.C. § 5107(b).

Left Ankle Disability Ratings 

The Veteran’s left ankle disability has ratings under Diagnostic Codes 5270 and 5271.  See 38 C.F.R. § 4.71a.  Diagnostic Code 5270 governs ankylosis of the ankle and provides a 20 percent rating for ankylosis in plantar flexion, less than 30 degrees; a 30 percent
 the criteria for that rating; otherwise, the lower rating is assigned.  38 C.F.R. § 4.7.  When there is an approximate balance of positive and negative evidence the benefit of the doubt is to be resolved in the Veteran's favor.  38 U.S.C. § 5107(b).

Left Ankle Disability Ratings 

The Veteran’s left ankle disability has ratings under Diagnostic Codes 5270 and 5271.  See 38 C.F.R. § 4.71a.  Diagnostic Code 5270 governs ankylosis of the ankle and provides a 20 percent rating for ankylosis in plantar flexion, less than 30 degrees; a 30 percent rating for ankylosis in plantar flexion, between 30 degrees and 40 degrees, or in dorsiflexion, between 0 degrees and 10 degrees; and a 40 percent rating for ankylosis in plantar flexion at more than 40 degrees, or in dorsiflexion at more than 10 degrees, or with abduction, adduction, inversion or eversion deformity.  See id.  

Under Diagnostic Code 5271, limited motion of the ankle is warranted a 20 percent rating for marked limited motion, and a 10 percent rating for a moderated limited motion.  Id. 

When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing.  38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement.  See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011).  Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled.  See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.40, 4.45, 4.59.  In that regard, painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint.  38 C.F.R. § 4.59; see Burton v. Shinseki, 25 Vet. App. 1 (2011).

Here, the Veteran underwent an VA disability benefits questionnaire (DBQ) in June 2014.  The Veteran did not report flare ups but did state that his pain became worse and was told that his muscles were not strengthening.  The Veteran stated his left ankle hurts all the time, awakens at night due to the pain, and sometimes he falls when walking on uneven ground, even with his cane.  The Veteran had the following initial range of motion (ROM) measurements in degrees: 20 for plantar flexion, and 5 for dorsiflexion.  There were no ROM changes after repetitive use testing.  The VA examiner noted that the Veteran’s left ankle presented the following functional limitations: less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, disturbance of locomotion, and interference with sitting, standing, and weight-bearing.  The Veteran’s muscle strength was rated four out of five (active movement against some resistance).  The Veteran did not have ankylosis.  The Veteran uses a cane and brace to assist with locomotion.  The Veteran added that he cannot use stairs and has a reduced ability to walk around to other offices due to pain. 

In August 2014 Lay Correspondence, the Veteran’s wife stated that the Veteran no longer takes walks with the family, and uneven ground makes it difficult to partake in activities and complete tasks.  The Veteran’s wife added that he has lost sleep because of the pain.   

A September 2014 VA medical record noted left ankle chronic instability.  Further, the Veteran’s left ankle showed laxity and mild cartilage degeneration. 

In an October 2015 VA medical record, the Veteran stated that his foot always falls asleep and that his pain begins at 5 out of 10 and goes to 8 out of 10 by the end of the day.  The Veteran remarked that his balance has worsened, and that he still is falling.  The Veteran uses a brace and cane to help with balance. 

In November 2015, a VA medical record reported a “very
ake in activities and complete tasks.  The Veteran’s wife added that he has lost sleep because of the pain.   

A September 2014 VA medical record noted left ankle chronic instability.  Further, the Veteran’s left ankle showed laxity and mild cartilage degeneration. 

In an October 2015 VA medical record, the Veteran stated that his foot always falls asleep and that his pain begins at 5 out of 10 and goes to 8 out of 10 by the end of the day.  The Veteran remarked that his balance has worsened, and that he still is falling.  The Veteran uses a brace and cane to help with balance. 

In November 2015, a VA medical record reported a “very unsteady” gait, and the Veteran must use cane and hold onto wall.  

The Veteran underwent another ankle DBQ in February 2016.  The Veteran reported flare ups during weather changes, particularly when it gets colder.  The Veteran’s flare ups last a couple of weeks and pain is 9 out of 10.  The Veteran stated that he can no longer walk distances or stand over 10 minutes without having to sit on his walker, and easily falls due to stiff left ankle.  The Veteran had the following initial ROM measurements in degrees: 20 for plantar flexion, and 5 for dorsiflexion.  After repetitive use testing, the Veteran had a ROM of 0 for dorsiflexion and plantar flexion at 15.  The Veteran’s muscle strength was rated four out of five (active movement against some resistance).  The Veteran did not have ankylosis.  The Veteran uses a brace and walker to assist with locomotion.  The Veteran’s left ankle presented a functional limitation of pain. 

In May 2017, the Veteran underwent an ankle DBQ.  The Veteran reported having flare ups that last 3 days to a week, pain reaches a 9 out of 10, and the ankle turns “blackish/blue.”  The VA examiner noted that the Veteran was unable to run, and that he avoids walking, especially on uneven ground.  The Veteran had the following initial ROM measurements zero degrees for plantar flexion, and dorsiflexion, respectively.  There were no changes with repetitive use testing.  The Veteran’s left ankle had a muscle strength was 1 out of 5 (palpable or visible muscle contraction, but no joint movement).  The VA examiner noted the presence of ankylosis in good weight-bearing position.  The Veteran uses a brace and walker as an assistive device.  

Based on the above, the Board finds that a higher rating is warranted prior to February 17, 2016.  However, higher ratings are not warranted prior to and since May 8, 2017.  

Prior to February 17, 2016, the June 2014 VA DBQ the Veteran stated his left ankle hurts all the time, awakens at night due to the pain, and sometimes he falls when walking on uneven ground, even with his cane.  The Veteran’s initial ROM measurements are at minimum 50 percent below normal.  The VA examiner noted that the Veteran’s left ankle presented the following functional limitations: less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, disturbance of locomotion, and interference with sitting, standing, and weight-bearing.  The Veteran uses a cane and brace to assist with locomotion.  The Veteran added that he cannot use stairs and has a reduced ability to walk around to other offices due to pain.  

Additionally, a September 2014 VA medical record noted left ankle chronic instability.  In an October 2015 VA medical record, the Veteran stated that his foot always falls asleep and that his pain begins at 5 out of 10 and goes to 8 out of 10 by the end of the day.  In November 2015, a VA medical record reported a “very unsteady” gait, and the Veteran must use cane and hold onto wall.  Thus, the Board finds that the Veteran’s left ankle, between December 14, 2014 to February 17, 2016, reflected a marked limitation of ankle.  

Regarding the period between February 16, 2016 to May 8, 2017, a rating higher than 20 percent is not warranted because the February 2016 VA examiner did not find ankylosis of the left ankle.  Thus, a rating under Diagnostic Code 5270 is not warranted prior to May 8, 2017.  

A rating higher than 30 percent after May 8, 2017 is not warranted.  The Veteran’s plantar flexion and dorsiflexion were at zero.  Additionally, the Veteran did not have an
 Veteran’s left ankle, between December 14, 2014 to February 17, 2016, reflected a marked limitation of ankle.  

Regarding the period between February 16, 2016 to May 8, 2017, a rating higher than 20 percent is not warranted because the February 2016 VA examiner did not find ankylosis of the left ankle.  Thus, a rating under Diagnostic Code 5270 is not warranted prior to May 8, 2017.  

A rating higher than 30 percent after May 8, 2017 is not warranted.  The Veteran’s plantar flexion and dorsiflexion were at zero.  Additionally, the Veteran did not have ankylosis of the ankle with abduction, adduction, or eversion deformity.  

In sum, an increased rating, not in excess of 20 percent, between December 1, 2014 to February 17, 2016, is granted.  The December 2014 date is used because it is after the Veteran’s three-month convalescence period.  Next, an increased rating, in excess of 20 percent, between February 17, 2016 to May 8, 2017 is denied. Finally, an increased rating, in excess of 30 percent, from May 8, 2017 is denied.   

REASONS FOR REMAND

Entitlement to service connection for a back disability, secondary to a left ankle disability

The Veteran underwent a VA examination in December 2014 for his back disability.  The VA examiner opined that the Veteran’s back disability was not proximately due to the left ankle disability.  However, the VA examiner did not examine and opine whether the Veteran’s back disability was aggravated by the left ankle disability.  Therefore, a new examination is necessary, and remand is warranted. 

The matters are REMANDED for the following action:

1. Obtain and associate with the record all VA and private treatment records for the Veteran. All actions to obtain the requested records should be fully documented in the record. If they cannot be located or no such records exist, the Veteran and his representative should be so notified in writing. 

If possible, the Veteran and his representative are asked to submit these records themselves.

2. Then schedule an examination with the appropriate clinician for the Veteran’s back disability. Following a review of the claims file, the examiner is asked to furnish an opinion with respect to the following questions, whether the Veteran’s back disability is at least as likely as not: 

a)	proximately due to the result of the Veteran’s service-connected left ankle disability; or

b)	aggravated (increased in severity) beyond its natural progress by the Veteran's service-connected left ankle disability.

3. Then, readjudicate the issues on appeal. If any benefit sought on appeal remains denied, provide the Veteran and his representative with a supplemental statement of the case and afford them the requisite opportunity to respond before the case is returned to the Board for further appellate action.

 

 

John J. Crowley

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	Timothy A. Campbell

The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.