EPILEPSY

Summary

The veteran, who served from July 2009 to October 2017, appeals the reduction of his disability rating for epilepsy from 60 percent to 10 percent, effective August 1, 2021. The veteran contended that his condition had not improved and that the reduction was improper. The Board reviewed evidence including VA examinations from January 2017 and March 2021, post-service VA medical records, and testimony from the veteran and his representative. The January 2017 VA exam noted three seizures in the prior year, with the epilepsy beginning in March 2016. Post-service records showed continuing seizures and precautionary warnings. The March 2021 VA exam, however, omitted a reported May 2019 seizure and concluded the veteran had only minor seizures, last occurring in November 2018, with no functional impact. The veteran's treating physician's April 2021 letter stated the seizures remained consistent in type and number. The veteran testified at a hearing that his seizures continued, though his memory of exact dates was imperfect. The Board found the veteran's testimony credible regarding the continuing and consistent nature of his seizures, supported by post-service records and the treating physician's letter. The March 2021 VA exam was deemed less probative due to its omissions and contradictions with prior findings. The Board concluded that the evidence did not persuasively show actual improvement in the veteran's disability or his ability to function under ordinary conditions. Applying the benefit of the doubt, the Board found it at least as likely as not that the epilepsy had not improved, restoring the 60 percent rating.

Rationale

No persuasive evidence of actual improvement in disability or functional impact.; Seizure rate and type remained consistent post-reduction.; Treating physician's letter and VA medical records support continuing seizures.

Full Decision Text

Citation Nr: A26029799
Decision Date: 04/01/26	Archive Date: 04/01/26

DOCKET NO. 210609-164990
DATE: April 1, 2026

ORDER

The 60 percent rating for epilepsy is restored.

FINDING OF FACT

At the time of the reduction, the evidence did not reflect an improvement in the Veteran's epilepsy under the ordinary conditions of life.

CONCLUSION OF LAW

The rating reduction for the Veteran's service-connected epilepsy effective August 1, 2021, was not proper and the 60 percent is restored. 38 U.S.C. §§ 1155, 5112; 38 C.F.R. §§ 3.105, 3.344.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from July 2009 to October 2017. 

By way of background, the Veteran was granted service connection for epilepsy, rated at 60 percent disabling, effective October 29, 2017, in a November 2017 rating decision. In March 2021, the agency of original jurisdiction (AOJ) sent the Veteran notice of a proposed reduction in that rating to 10 percent, and made that reduction in a May 2021 rating decision. This matter comes to the Board on appeal of the May 2021 rating decision finalizing the reduction, effective August 1, 2021. The Veteran appealed that reduction, seeking a restoration of the 60 percent rating, via a July 2021 notice of disagreement (NOD) in which he selected the Hearing docket. A hearing was held with the undersigned in November 2024. 

Therefore, the Board may only consider the evidence of record at the time of the May 2021 AOJ decision on appeal, as well as any evidence submitted by the Veteran or representative at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the Board hearing, or (2) more than 90 days following the hearing, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.302(a), 20.801. 

If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. 

1. The 60 percent evaluation of epilepsy is restored.

The Veteran and his representative contended that the rating reduction was improper because the Veteran's disability had not actually improved nor had its functional impact improved under the ordinary conditions of work and life prior to the reduction. 

Factual Background

The Veteran was given an examination of the nature and etiology of his epilepsy in January 2017 for VA compensation purposes, it was noted by a VA examiner that the Veteran had had three seizures over the previous year - in March, August, and October 2016 - and noted that at least two of these had been major psychomotor seizures and one was a minor psychomotor seizure. The Veteran's epilepsy disability had only begun in March 2016. 

In January and March 2017, a service medical board determined that the Veteran's epilepsy rendered him unfit for further service. In making this determination, it was noted that the Veteran would be unable to work safely in his military occupational specialty as an aircraft mechanic because his disability could cause unpredictable periods of incapacitation, so he would be unable to perform some duties or to safely monitor others performing dangerous tasks. 

Post-service medical treatment records reflect that the Veteran continued to experience epileptic episodes after his separation from service. Continuing notes in the VA medical center records show that he experienced a seizure in March 2017, and two events in February 2018. In May 2019, the Veteran reported a recent seizure to VA medical center staff. These medical records also reflect that the Veteran was repeatedly provided with precautionary instructions on living with a seizure disorder. These precautions included not undertaking any unsupervised, potentially dangerous activities, and to limit driving after a seizure event, though because the Veteran's seizures were mainly nocturnal, it was often noted that this driving restriction may not apply. 

In November 2020, the Veteran reported to VA medical center staff that he had not had any recent seizure activity. Throughout 2020 and 2021
 service. Continuing notes in the VA medical center records show that he experienced a seizure in March 2017, and two events in February 2018. In May 2019, the Veteran reported a recent seizure to VA medical center staff. These medical records also reflect that the Veteran was repeatedly provided with precautionary instructions on living with a seizure disorder. These precautions included not undertaking any unsupervised, potentially dangerous activities, and to limit driving after a seizure event, though because the Veteran's seizures were mainly nocturnal, it was often noted that this driving restriction may not apply. 

In November 2020, the Veteran reported to VA medical center staff that he had not had any recent seizure activity. Throughout 2020 and 2021, VA medical records omit the May 2019 seizure from the Veteran's epileptic history and start to note that the Veteran reported that his last seizure had been around March 2018. On a VA examination for a headache service-connection claim, the Veteran again reported his last seizure as having occurred in March 2018. 

In March 2021, the Veteran was given a new VA examination to assess the nature of his epilepsy disability. This examiner included large block quotes from the Veteran's VA medical center record, but only those which reflected the Veteran's most recent reporting that his most recent seizure had been in early 2018. The examiner did not include any information relevant to the Veteran's reported May 2019 seizure. This examiner also indicated that the Veteran had never had a minor nor major psychomotor seizure, had never had a major seizure, and that the Veteran had had only minor seizures, the last of these occurring in November 2018. Finally, this examiner determined that the Veteran's epilepsy disability had no functional impact on him. 

Later in March 2021, the Veteran submitted a statement that he disagreed with the proposed rating reduction. He wrote at that time that he had experienced another seizure shortly after his VA examination earlier that month. He also detailed the continuing impact that his disability had on him - namely that he drove minimally and so needed to use alternative transportation, and that he lived alone and so had recently gotten a dog to train as a service dog to alert him to oncoming seizures. 

A VA medical center record from early April 2021 also reflects that the Veteran had a seizure in March 2021, and he was again provided with precautionary warnings that he should avoid performing certain unsupervised activities. 

The record also contains a letter from the Veteran's VA epilepsy provider dated in April 2021. In that letter, the physician wrote that the Veteran continued to have seizures, even while properly taking his medication, and that the Veteran's seizures had remained consistent to that date in both type and number from the Veteran's onset of epilepsy.

At his November 2024 hearing, the Veteran confirmed that he had had a seizure in March 2021, following the VA examination. He also testified that at the time of the exam, the last seizure he could remember had been in March 2018. He also testified that he did not recall any seizures in 2019 nor 2020. However, the Veteran also stated that he continued to have seizures following the rating reduction. He stated that following the March 2021 seizure he had one possible seizure, and definitely had a seizure on Thanksgiving in either 2021 or 2022. He said that the character of his seizures had remained basically the same. The Veteran and his representative also stated that the reduction decision did not address any potential improvements in the Veteran's functioning, and claimed that there had been none. The Veteran still suffered from seizure-related headaches, had sadness connected to his disability, and was limited in the type of employment he could pursue. 

Analysis

The criteria governing certain rating reductions for certain service-connected disabilities is found in 38 C.F.R. § 3.344. The provisions of 3.344 (a) and (b) apply to ratings that have been continued for five years or more. The 60 percent rating for epilepsy was in effect for less than 5 years - October 29, 2017, to July 31, 2021 - at  the time reduction took place. Therefore, the provisions of 38 C.F.R. § 3.344 (a) and (b) do not apply. Reexamination disclosing improvement will warrant a rating reduction. 38 C.F.R. § 3.344(c). Nevertheless, in Brown v. Brown, 5 Vet. App. 413 (1993), the Court stated that there are general VA regulations that apply to all rating reductions regardless of whether the rating has been in effect for five years or more. Id. at 420-421, citing 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.
 31, 2021 - at  the time reduction took place. Therefore, the provisions of 38 C.F.R. § 3.344 (a) and (b) do not apply. Reexamination disclosing improvement will warrant a rating reduction. 38 C.F.R. § 3.344(c). Nevertheless, in Brown v. Brown, 5 Vet. App. 413 (1993), the Court stated that there are general VA regulations that apply to all rating reductions regardless of whether the rating has been in effect for five years or more. Id. at 420-421, citing 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.13.

Specifically, 38 C.F.R. § 4.1 requires that each disability be viewed in relation to its history. 38 C.F.R. § 4.2 establishes that it is the responsibility of the rating specialist to interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present. Furthermore, 38 C.F.R. § 4.13 provides that the rating agency should assure itself that there has been an actual change in the condition, for better or worse, and not merely a difference in the thoroughness of the examination or in use of descriptive terms. Additionally, in any rating reduction case, not only must it be determined that an improvement in a disability has actually occurred, but that such improvement reflects improvement in ability to function under ordinary conditions of life and work. Brown, 5 Vet. App. at 420-21. A claim as to whether a rating reduction was proper must be resolved in the veteran's favor unless the Board concludes that the evidence persuasively is against the claim. Id. at 421. A veteran need not demonstrate that retention of the higher rating is warranted; rather it must be shown that the reduction was not warranted. See id. at 418. To state plainly for the Veteran, the issue is not the propriety of the initial rating, but whether the record shows actual improvement in the Veteran's disability in the period from the initial rating to the date of the reduction. 

In addition, in determining whether a reduction was proper, the Board must focus upon evidence available to the Regional Office (RO) at the time the reduction was effectuated, although post-reduction medical evidence may be considered in the context of evaluating whether the condition had actually improved. Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-282 (1992). It should be emphasized, however, that such after-the-fact evidence may not be used to justify an improper reduction.

The Veteran's epilepsy is service-connected under Diagnostic Code 8914, which is rated under the General Rating Formula for Major and Minor Epileptic Seizures. The General Rating Formula for Major and Minor Epileptic Seizures provides for a 10 percent rating for a confirmed diagnosis of epilepsy with a history of seizures. A 20 percent rating is warranted when there is at least one major seizure in the last two years, or at least two minor seizures in the last six months. A 40 percent rating is warranted for at least one major seizure in the last six months or two in the last year, or for an average of five to eight minor seizures per week. A 60 percent rating is warranted for averaging at least one major seizure in four months over the last year, or nine to ten minor seizures per week. An 80 percent evaluation is warranted for averaging at least one major seizure in three months over the last year, or more than ten minor seizures weekly. A 100 percent rating is warranted for averaging at least one major seizure per month over the last year.

Here, the Board finds that there was no improvement in the Veteran's disability when considering the ordinary conditions of life and work. 

First, the record does not persuasively show that the Veteran's disability had actually improved prior to the reduction. The Veteran's seizure rate has remained roughly steady during the rating period. The most persuasive evidence of this is the April 2021 letter written by a VA physician treating the Veteran's epilepsy disability. That letter stated plainly that the Veteran's epilepsy began during service and that both the number and type of seizures that the Veteran has experienced since that time has remained the same. The VA physician is both credible and competent to report on the state of the Veteran's epilepsy over time, so this letter carries great probative weight and speaks directly to heart of the issue on appeal. 

Although the Veteran admitted at the hearing that his memory was imperfect as to the occurrence of his seizures - for example he could not remember whether he had a seizure on Thanksgiving of 2021 or 2022, and he omitted the
 the rating period. The most persuasive evidence of this is the April 2021 letter written by a VA physician treating the Veteran's epilepsy disability. That letter stated plainly that the Veteran's epilepsy began during service and that both the number and type of seizures that the Veteran has experienced since that time has remained the same. The VA physician is both credible and competent to report on the state of the Veteran's epilepsy over time, so this letter carries great probative weight and speaks directly to heart of the issue on appeal. 

Although the Veteran admitted at the hearing that his memory was imperfect as to the occurrence of his seizures - for example he could not remember whether he had a seizure on Thanksgiving of 2021 or 2022, and he omitted the recorded May 2019 seizure at his hearing - the Board finds that his general accounting of his seizures as continuing, with a consistent character, beyond March 2018 and past his reduction to be credible. The continuing, and consistent nature of his seizures is reflected in his post-service VA medical center records, as well as the highly probative letter from his epilepsy healthcare provider. Thus, the Board finds that the Veteran, giving him the benefit-of-the-doubt, is credibly in his reporting on the general nature of his seizures. That is, he is credible to testify that his seizures have continued and have not been of a different character than those previous to his rating reduction. 

Given the Veteran's credible testimony, the VA medial center records reflective of continuing seizures, the similar warnings given to the Veteran from before his reduction to after, and the provider's April 2021 letter, the Board finds that it is at least as likely as not that the Veteran's seizures have continued at a roughly similar rate and severity after the time of reduction as before.

The only evidence truly weighing against this finding is the March 2021 VA examination, but this is of little probative value. First, because of where it occurred in time, the exam simply could not capture the seizures that occurred afterward, and so missed important considerations as to continuation which the Board is able to weigh. Further, the examiner relied on the VA medical center records, but the review was apparently incomplete as it missed the May 2019 seizure. Additionally, that exam is at odds with the Veteran's initial exam on its face as it concluded that the Veteran has never had any time of psychomotor seizure, but the first exam did reflect that type of episode. For these reasons, the second exam is of little probative value and is insufficient to vitiate the Board's finding that it is at least as likely as not that the seizures have remained consistent. 

Further, the record does not persuasively reflect that the Veteran's disability has improved under the ordinary conditions of work and life. The VA medical center warnings and precautions provided to the Veteran have remained the same, and the Veteran reports that he is still limited in his ability to drive, and lives alone so supervision is difficult such that he felt a service dog who could be trained to warn of oncoming episodes was necessary. Although the setting has changed, the limitations placed on the Veteran's independent functioning have remained roughly consistent. 

Thus, the record does not persuasively show that the Veteran's disability has actually improved, nor that his disability has improved under the ordinary conditions of life and work. Instead, the Board finds that it is at least as likely as not, granting the Veteran the benefit-of-the-doubt, that his condition had remained roughly the same from the time of service connection to the time of the reduction. The reduction was improper. Again, the important consideration is not whether the initial 60 percent rating was warranted or whether the Veteran still satisfies the criteria for such a rating, but instead whether the record persuasively shows actual improvement. The Board finds that VA has not met its burden to persuasively show such actual improvement. 

Thus, giving the Veteran the benefit-of-the-doubt, the Board finds that it is at least as likely as not that the Veteran's epilepsy has not improved under the ordinary conditions of work and life. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Thus, VA has not met its burden to persuasively show improvement and a reduction is not warranted. The Veteran's 60 percent rating is restored.

 

 

Thomas H. O'Shay

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	J. Kronick

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.