Citation Nr: 0427120 Decision Date: 09/29/04 Archive Date: 10/06/04 DOCKET NO. 99-00 153A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an increased evaluation for narcolepsy, currently evaluated as 40 percent disabling. 2. Entitlement to a compensable evaluation for pelvic inflammatory disease. 3. Entitlement to a compensable evaluation for peptic ulcer disease. 4. Entitlement to a total rating for compensation purposes based on individual unemployability. REPRESENTATION Appellant represented by: John F. Cameron, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Jonathan Taylor, Counsel INTRODUCTION The appellant served on active duty from January 1975 to July 1986. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a September 1997 rating decision of the Montgomery, Alabama, Department of Veterans Affairs (VA) Regional Office (RO), which denied the appellant's claims of entitlement to increased disability ratings for her service- connection narcolepsy, pelvic inflammatory disease, and peptic ulcer disease. This case also comes before the Board on appeal from a January 2003 rating decision, which denied the appellant's claim of entitlement to a total rating for compensation purposes based on individual unemployability. The appellant appeared at a hearing held at the RO on January 4, 1999. A transcript of that hearing has been associated with the record on appeal. This case was before the Board previously in January 2001 when it was remanded for additional development. The additional development has been completed. FINDINGS OF FACT 1. VA has notified the claimant of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate her claims and has indicated which portion of that information and evidence, if any, is to be provided by her and which portion, if any, VA would attempt to obtain on her behalf. 2. All relevant evidence necessary for an equitable disposition of the appellant's appeal has been obtained. 3. The appellant's narcolepsy is currently manifested by an average of more than 10 narcoleptic episodes per week. 4. The appellant's pelvic inflammatory disease is resolved and currently manifested by occasional pelvic pain that does not require continuous treatment. 5. The appellant does not have current symptoms of peptic ulcer disease. 6. The appellant is service-connected for narcolepsy, which is rated as 80 percent disabling; hypertension, which is evaluated as 10 percent disabling; peptic ulcer disease, which is rated as noncompensably disabling; pelvic inflammatory disease, which is rated as noncompensably disabling; and history of pilonidal cystectomy, which is rated as noncompensably disabling. 7. The appellant meets the schedular requirements for assignment of a total disability rating based on individual unemployability. 8. The appellant completed two years of high school, passed a General Educational Development (GED) test, and has experience working as a cook, a nurse's aide, and a substitute teacher. 9. The evidence shows that the appellant's service-connected disabilities are of such severity as to preclude substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for an 80 percent disability rating, but no higher, for narcolepsy have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.124a, Diagnostic Codes 8108, 8911 (2003). 2. The criteria for a compensable disability rating for pelvic inflammatory disease have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.116, Diagnostic Code 7614 (2003). 3. The criteria for a compensable disability rating for peptic ulcer disease have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.114, Diagnostic Codes 7304, 7305, 7306, 7308 (2003). 4. The criteria for assignment of a total disability rating based on individual unemployability have been met. 38 C.F.R. §§ 3.340, 4.16 (2003). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Factual Background In June 1996 the appellant was treated as a VA outpatient for narcolepsy. She complained that her narcolepsy was getting worse. She also complained of epigastric pain with burning and indigestion. Diagnoses included narcolepsy and peptic ulcer disease. In July 1996 the appellant was treated as a VA outpatient for narcolepsy. She reported eight episodes of narcolepsy per day. The appellant was counseled and encouraged to avoid driving until her disability was controlled more. In March 1997 the appellant underwent a VA esophagogastroduodenoscopy. She had reported symptoms of dyspepsia. The procedure revealed erythema in the duodenum. Duodenitis was diagnosed. At an April 1997 VA gynecological examination, the appellant reported that she took Ritalin for her narcolepsy. She took one-half of a tablet three times per week, especially when she wanted to go out and had to keep herself awake. The medication caused palpitation and chest tightness. It also made her sleepier after the medication wore off. She took Tagamet twice per day. She had persistent epigastric pain, which was a burning sensation radiating into her back. She felt that food became stuck in her chest. She had undergone a salpingectomy by laparotomy in 1981 and a second surgery of salpingectomy done in 1991 when the right ovary had also been removed. She was currently employed on a part-time basis as a home health helper. She fell asleep when standing or driving. She continued to have stomach burning and pain, which radiated into her back. She took Maalox frequently because of indigestion and heartburn. She also suffered from lower abdominal pain due to her pelvic surgery. On examination, the appellant's weight was shown to be stable. She did not look anemic. She did not have periodic vomiting or diarrhea. She had no history of hematemesis or melena. She continued to have epigastric pain. Her abdomen was soft. She gave a history of occasional urinary incontinence, especially when she coughed. Diagnoses included narcolepsy, poorly controlled with Ritalin; dyspepsia secondary to peptic ulcer disease; bilateral salpingectomy; history of pelvic inflammatory disease, resolved at the time of the examination; and mixed incontinence disorder. A May 1997 VA upper gastrointestinal x-ray series showed no significant abnormality of the esophagus, stomach, or duodenum. No gastroesophageal reflux was seen. There was no significant abnormality. In February 1998 the appellant was treated as a VA outpatient for multiple complaints, including indigestion and heartburn. She had a stabbing pain in her epigastric area. She had been taking Tagamet with continued symptoms. Diagnoses included duodenitis. Tagamet was discontinued. Prevacid was prescribed. Helicobacter pylori antibody testing was ordered. In May 1998 the appellant was treated as a VA outpatient. She had been treated for Helicobacter pylori infection. Diagnoses included treated Helicobacter pylori duodenitis. In August 1998 the appellant was evaluated by a VA vocational rehabilitation counselor. The appellant reported that she had been medically retired from service due to her narcolepsy. She had been employed as a short order cook but was dismissed because of falling asleep and presenting a safety hazard. She had also been dismissed from a position as a nurse's aide. She was currently employed as a substitute teacher. She stated that she was able to sleep while working. It was unclear to the counselor whether the school board was aware that the appellant slept on the job. The appellant was unable to drive unless accompanied by another person. She was unable to remain awake during the counseling session. Although the counselor found that the appellant's narcolepsy was a serious employment handicap, the appellant was not a viable candidate for vocational rehabilitation because her symptoms were not controlled. In November 1998 the appellant was treated as a VA outpatient for complaints of dyspepsia, indigestion, and epigastric pain. Her symptoms had persisted for approximately two years. She was positive for Helicobacter pylori. An esophagogastroduodenoscopy approximately one year previously was negative for ulcers. The appellant took Prevacid, which made her abdomen burn. Pepcid, however, helped to relieve her symptoms. Her narcolepsy had not improved. Diagnoses included history of Helicobacter pylori duodenitis. At a January 4, 1999 hearing, the appellant testified that she had been unemployed. She was unable to retain employment because she fell asleep while working. She drove occasionally. She sometimes fell asleep during the course of her trips. She fell asleep between 9 and 12 times per day. At the time of the hearing, the appellant had had only one episode that day. The episodes varied in frequency and duration. Ritalin allowed her to remain awake for approximately 4 hours in a single day but left her sleepier on subsequent days. She had last taken Ritalin on December 17, 1998. Regarding her peptic ulcer disability, the appellant testified that she avoided eating tomato sauces. She took Pepcid daily to control her symptoms. She had been diagnosed with Helicobacter pylori. Regarding her pelvic inflammatory disease, the appellant complained of occasional sharp pains in her lower abdomen. She had previously taken pain medication to relieve her symptoms but had discontinued the medication because it upset her stomach. She also had occasionally urinary incontinence. In September 2000 the appellant was treated as a VA outpatient for narcolepsy. The appellant was awake and alert. The physician spoke with the appellant at length regarding the use of medical therapy for narcolepsy. The appellant reported that her narcolepsy was no longer responding to Ritalin. In September 2000 the appellant was also treated as a VA outpatient for a general examination. It was noted that her Helicobacter pylori duodenitis was resolved. At a March 2001 VA gynecological conditions and disorders of the breast examination, the examiner reviewed the appellant's claims folder and records of her VA treatment. The appellant had been treated in service for ulcers and had had surgery in 1981 for removal of an infected fallopian tube. She had also been treated in service for female problems that began as pain in the lower part of her stomach. The appellant had had an additional fallopian tube removed in 1991 due to infections. The appellant had not been treated for pelvic inflammatory disease since she had gone through menopause, but she still had pain in her lower abdomen. The pain was sharp. It could occur as infrequently as once per week. She treated the pain with Tylenol #3. She gave a history of noting blood in the area of her scar on her underwear if she failed to apply petroleum jelly to her scar. She denied scratching this area. She stated that the irritation from the scar was worse in warm weather due to heavy perspiration. Regarding peptic ulcer disease, the appellant reported that she had no vomiting. She had never spit up blood. She was treated with Zantac. She became bloated and had heartburn after every meal. She had had diarrhea and constipation since her military service. She complained of distention after each meal but no nausea or cramping. Her weight had remained steady. She had had no anemia. She also gave a history of being treated for Helicobacter pylori. Her symptoms had not improved following the treatment. She had undergone an esophagogastroduodenoscopy two years previously, which had not revealed anything abnormal. Regarding narcolepsy, the appellant reported that she was unable to work due to her narcolepsy. She was unable to stay awake. On examination, there were multiple striae scattered across the abdomen in all quadrants. No bruits were heard. No enlarged organs or masses were felt. Bowel sounds were present. The abdomen was soft. There was some tenderness in the epigastric area and in the lower left and right quadrants. A bikini-line scar was well healed and nontender. There was no evidence of ulceration. No bleeding was noted. The skin did not appear greasy. Diagnoses included pelvic inflammatory disease in service, peptic ulcer disease in service, and reflux. The examiner stated that no peptic ulcer disease or hiatal hernia was present. The appellant had reflux from lifestyle factors such as being overweight and smoking. Pelvic inflammatory disease was resolved and not active. The scar from the appellant's 1981 surgery was well nourished, nontender, and not painful. There was no repeated ulceration, and the scar did not limit the function of any part. The appellant's narcolepsy was moderate in severity. She had between four and ten episodes of narcolepsy per day. The episodes varied. Each episode lasted approximately 15 minutes. In April 2001 the appellant requested that VA fill a prescription for Provigil, which she had received from a private neurologist. The appellant was informed that VA did not have this medication. The appellant had been unable to tolerate Ritalin. At a June 2001 VA social survey, a VA social worker stated that, during the interview, the appellant did not complain of problems with narcolepsy and made only a couple of comments regarding problems with sleepiness. The appellant did not become drowsy or fall asleep during the interview. The appellant did report that she continued to drive but only when she had someone with her to wake her if she began to doze off. The social worker reported some difficulty contacting the appellant at home and suggested that the appellant had employment income in addition to her disability benefits to support her lifestyle. The social worker opined that, although the appellant might not be able to function on many jobs, the social worker found no reason to conclude that the appellant was incapable of receiving training and/or functioning in the workforce on a job that would take into account the problems that the appellant appeared to have with narcolepsy. The appellant was treated as a VA outpatient twice in July 2000 for physical therapy for acute low back pain. The physical therapist noted that the appellant's tolerance to treatment was "good" because she "slept through the entire treatment." In January 2001, the appellant was examined by L. T., M.D. (Dr. T.). The appellant reported a history of narcolepsy. She related that she fell asleep as many as nine times per day. The episodes of sleeping occurred suddenly and without warning. She took Ritalin if she had to drive but avoided taking the medication due to side effects from it. She had last worked in June 2000. She had cooked at a restaurant that she owned. Dr. T. diagnosed narcolepsy. An upper gastrointestinal x-ray series performed at Healthsouth Diagnostic Center in April 2001 showed no ulcerations or ulcer scars on current examination. The radiologist diagnosed essentially normal upper gastrointestinal series. In November 2001 the appellant was examined by J. G., Ph.D. (Dr. G.), a neuropsychologist. Dr. G. noted that the appellant had been diagnosed previously with narcolepsy. The appellant fell asleep during psychological testing. There was no indication of feigned behavior. She fell asleep three times during the three-hour examination. She reported that she fell asleep as often as eight times per day. Dr. G. opined that falling asleep so frequently was not compatible with any employment and would be dangerous in many circumstances. Dr. G. added that the appellant was able to understand and follow instructions during the examination but that she would not be able to do so if she fell asleep. He explained that patients with this type of problem were notorious for getting terminated from employment. Diagnoses included narcolepsy. Dr. G. opined that the appellant's tendency to fall asleep approximately every 40 minutes would be a substantial impediment to any sort of vocational activity. The appellant's disability fluctuated, but it fluctuated rapidly during the day and during periods of somnolence. Dr. G. characterized the appellant's disability as "severe". In November 2001 the appellant was treated as a VA outpatient for severe epigastric pain since one week previously. She had symptoms of reflux. She had burning in her stomach with a bad taste in her mouth, especially upon lying down. She denied vomiting or diarrhea. The examiner diagnosed severe gastroesophageal reflux disease. The appellant returned for treatment the following day. The appellant had noted some improvement in her abdominal pain. She had had a small, constipated stool on the previous night. She stated that it had been "some time" since she had had a "real good" bowel movement. Diagnostic imaging revealed much stool in her colon. Constipation was diagnosed. In July 2002 the appellant sought VA telephone advice regarding a problem with her stomach. The appellant thought that the problem was related to antibiotic medicine that she was taking. A pharmacist advised that the appellant discontinue the antibiotics. In the report of an October 2002 VA epilepsy and narcolepsy examination, a VA neurologist reviewed the appellant's claims folder. The neurologist opined that the appellant had documented narcolepsy with variable symptoms affected primarily by lack of compliance with medications that would affect her employability to a limited extent. Observation of the appellant would not add clinical information that was not already available. In a December 2002 supplemental report, the neurologist stated that, given the appellant's stability on her present medication regimen, the appellant should be able to pursue gainful employment. In a February 2003 statement, officials from the appellant's church stated that they had observed the appellant in a profound sleeping pattern, accompanied by snoring sounds. In February 2003 the appellant was treated as a VA outpatient for narcolepsy. The examiner noted that the appellant fell asleep while awaiting treatment and that the appellant was so sleepy during the examination that foot sensation could not be reliably or validly tested. The appellant reported that she had driven to the appointment. She was counseled to avoid doing so in the future. In March 2003 the appellant was treated for narcolepsy by J. A., M.D. (Dr. A.). Dr. A. noted that the appellant's narcolepsy was not controlled by medication. The appellant was unable to drive or work. She had fallen asleep over a deep fryer while working. She fell asleep during sexual intercourse. The appellant reported that she did drive but carefully and only under ideal circumstances. Dr. A. encouraged the appellant to refrain from any driving. Dr. A. prescribed a trial of Provigil. At an April 2003 VA general medical examination, the examiner noted that the appellant had a history of narcolepsy, which was not controlled well. The examiner noted that the appellant had symptoms of gastroesophageal reflux disease with reflux symptoms and had a history of peptic ulcer disease but currently had no symptoms of peptic ulcer. She was antibiotic positive for Helicobacter pylori. She took a proton pump inhibitor. On examination, abdominal examination was negative. The examiner diagnosed untreated narcolepsy with questionable cataplexy and peptic ulcer disease with gastroesophageal reflux disease symptoms. The examiner explained that the appellant was mildly symptomatic from her gastroesophageal reflux disease but had no symptoms of peptic ulcer disease. At an April 2003 VA gynecological conditions and disorders of the breast examination, the appellant complained of pain in her right lower quadrant, which came and went. The pain lasted only a few seconds. It was not related to activity. It had never been related to her menstrual cycle. The frequency of the episodes varied. Episodes did not occur every day or every week. The pain was not associated with bodily functions. The pain began in 1981 after she underwent laparoscopy for infertility followed by a laparotomy and a left salpingectomy. In 1991 she underwent a right exploratory laparotomy with a right salpingo-oophorectomy for pain. On examination, the appellant's abdomen was benign with a well-healed umbilical scar as well as a well-healed transverse suprapubic incision. The examination was otherwise normal. The examiner diagnosed status post bilateral salpingectomy for presumed old pelvic inflammatory disease and chronic pelvic pain in the right lower quadrant. The examiner stated that the pain might be adhesive disease, musculoskeletal pain, or gastrointestinal pain but that, because of the short nature of the pain, no further treatment or workup was indicated. The examiner recommended that the appellant return in one year for further follow up. Analysis VA has a duty to assist veterans in the development of facts pertinent to their claims. On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. § 5100 et seq. (West 2002); see also Veterans Benefits Act of 2003, Pub. L. No. 108-183, § 701, 117 Stat. 2651, ____ (Dec. 16, 2003) (to be codified at 38 U.S.C. §§ 5102, 5103); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2003) (VA regulations implementing the VCAA). This law redefines the obligations of VA with respect to the duty to assist and includes an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. First, VA has a duty to notify the veteran and his or her representative, if represented, of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103 (West 2002); 38 C.F.R. § 3.159(b) (2003). Information means non-evidentiary facts, such as the veteran's address and Social Security number or the name and address of a medical care provider who may have evidence pertinent to the claim. See 66 Fed. Reg. 45620, 45630 (2001); 38 C.F.R. § 3.159(a)(5) (2003). Second, VA has a duty to assist the veteran in obtaining evidence necessary to substantiate the claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2003). VA regulations implementing the VCAA are applicable to all claims filed on or after the date of enactment of the VCAA, November 9, 2000, or filed before the date of enactment and not yet final as of that date. 66 Fed. Reg. 45620, 45629 (2001); see VCAA, 38 U.S.C.A. § 5100 et seq. (West 2002); see also VAOPGCPREC 7-2003 (Nov. 19, 2003) (determining that VA regulations implementing the VCAA are more favorable to claimants than the law in effect prior to their enactment). As discussed below, the RO fulfilled its duties to inform and assist the appellant on these claims. Accordingly, the Board can issue a final decision because all notice and duty to assist requirements have been fully satisfied, and the appellant is not prejudiced by appellate review. In the present case, a substantially complete application for the appellant's increased rating claims was received on September 10, 1996. Thereafter, in a rating decision dated in September 1997, the appellant's claims were denied. Only after that rating action was promulgated did VA, on July 7, 2003, provide notice to the appellant regarding what information and evidence is needed to substantiate her increased rating claims, as well as what information and evidence must be submitted by the appellant, what information and evidence will be obtained by VA, and the need for the claimant to submit any evidence in her possession that pertains to the claims. Nevertheless, the Board finds that any defect with respect to the timing of the VCAA notice requirement was harmless error. While the notice provided to the appellant on July 7, 2003, was not given prior to the first AOJ adjudications of the claim, the notice was provided by VA at that time, and the content of the notice fully complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). After the notice was provided, the case was readjudicated. A Supplemental Statement of the Case (SSOC), adjudicating the appellant's claims, was provided to the appellant in July 2003. The appellant has been provided with every opportunity to submit evidence and argument in support of her claims, and to respond to VA notices. Therefore, to decide the appeal would not be prejudicial error to the appellant. With regard to the appellant claim of entitlement to a total rating for compensation purposes based on individual unemployability, a substantially complete application was received on May 16, 2002. In a July 24, 2002 letter, the RO provided notice to the appellant regarding what information and evidence is needed to substantiate that claim, as well as what information and evidence must be submitted by the appellant, what information and evidence will be obtained by VA, and the need for the claimant to submit any evidence in her possession that pertains to the claim. Thereafter, in a rating decision dated in January 2003, the appellant's claim was denied. The appellant has been provided with every opportunity to submit evidence and argument in support of her claim, and to respond to VA notices. Therefore, to decide the appeal would not be prejudicial error to the appellant. VCAA notice consistent with 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request or tell the claimant to provide any evidence in the claimant's possession that pertains to the claim. This new "fourth element" of the notice requirement comes from the language of 38 C.F.R. § 3.159(b)(1). The letters from the RO dated on July 24, 2002, and July 7, 2003, complied with these requirements. Additionally, the Board notes that the July 24, 2002, and July 7, 2003 letters to the appellant properly notified her of her statutory rights. That is, even though the July 24, 2002, and July 7, 2003 letters requested a response within 60 days and 30 days, respectively, a recently enacted amendment to the VCAA clarified that the one-year period within which evidence may be submitted does not prohibit VA from making a decision on a claim before expiration of that time period. Veterans Benefits Act of 2003, Pub. L. No. 108-183, § 701, 117 Stat. 2651, ___ (Dec. 16, 2003) (to be codified at 38 U.S.C. §§ 5102, 5103). As for VA's duty to assist a veteran, the appellant's service medical records, VA medical records, private medical records, and records from the Social Security Administration have been obtained. There is no indication that relevant (i.e., pertaining to treatment for the claimed disabilities) records exist that have not been obtained. In response to the July 7, 2003 letter, the appellant responded that she had no additional evidence to submit. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim. The appellant was provided VA examinations in April 1997, March 2001, and April 2003. Supplemental medical opinions were obtained in October 2002 and December 2002. The Board finds that VA has done everything reasonably possible to assist the appellant. A remand or further development of these claims would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). VA has satisfied its duties to inform and assist the appellant in this case. Further, VA's efforts have complied with the instructions contained in the January 2001 Remand from the Board. See Stegall v. West, 11 Vet. App. 268 (1998). Further development and further expending of VA's resources is not warranted. Any "error" to the appellant resulting from this Board decision does not affect the merits of her claims or her substantive rights, for the reasons discussed above, and is therefore harmless. See 38 C.F.R. § 20.1102 (2003). There is no reasonable possibility that further assistance to the appellant would substantiate her claims. See 38 C.F.R. § 3.159(d) (2003). Having determined that the duties to inform and assist the appellant have been fulfilled, the Board must assess the credibility, and therefore the probative value of proffered evidence of record in its whole. Owens v. Brown, 7 Vet. App. 429, 433 (1995); see Elkins v. Gober, 229 F.3d 1369 (Fed. Cir. 2000); Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Guimond v. Brown, 6 Vet. App. 69, 72 (1993); Hensley v. Brown, 5 Vet. App. 155, 161 (1993). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 3.102 (2003). Disability ratings are intended to compensate reductions in earning capacity as a result of the specific disorder. The ratings are intended, as far as practicably can be determined, to compensate the average impairment of earning capacity resulting from such disorder in civilian occupations. 38 U.S.C.A. § 1155 (West 2002). Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. §§ 4.1, 4.2 (2003); Peyton v. Derwinski, 1 Vet. App. 282 (1991). 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. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994); Peyton, 1 Vet. App. 282; 38 C.F.R. §§ 4.1, 4.2 (2003). It is also necessary to evaluate the disability from the point of view of the veteran working or seeking work, 38 C.F.R. § 4.2 (2003), and to resolve any reasonable doubt regarding the extent of the disability in the veteran's favor. 38 C.F.R. § 4.3 (2003). An evaluation of the level of disability includes consideration of the functional impairment of the appellant's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10 (2003). If there is a question as to which evaluation to apply to the veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2003). 1. Narcolepsy The appellant's narcolepsy is currently rated as 40 percent disabling under Diagnostic Code 8108. Diagnostic Code 8108 provides that narcolepsy should be rated as petit mal epilepsy. 38 C.F.R. § 4.124a, Diagnostic Code 8108 (2003). Diagnostic Code 8911 for petit mal epilepsy provides that petit mal epilepsy should be rated under the general rating formula for minor seizures. According to the general rating formula for major and minor epileptic seizures, a 40 percent disability rating is assigned for an average of at least 5 to 8 minor seizures per week. A 60 percent disability rating requires 9 to 10 minor seizures per week. An 80 percent disability rating is warranted for more than 10 minor seizures per week. 38 C.F.R. § 4.124a, Diagnostic Code 8911 (2003). Although the general formula provides criteria for a 100 percent disability rating for major seizures, the 80 percent disability rating is the highest available for minor seizures. See id. A note following the diagnostic codes for epilepsy, including Diagnostic Code 8911 for petit mal epilepsy, cautions rating specialists that an epileptic may find employment and rehabilitation difficult to attain because of employer reluctance to the hiring of the epileptic. See 38 C.F.R. § 4.124a, Diagnostic Code 8911, note on Epilepsy and Unemployability (2003). In this case, the appellant has reported as that she has as few as 4 narcoleptic episodes per day and as many as 12 episodes per day; however, using even the minimum number of reported episodes, 4 per day, the appellant still averages more than 10 episodes per week. Accordingly, the evidence shows that the appellant is entitled to an 80 percent disability rating under Diagnostic Code 8108 for narcolepsy using the rating criteria for petit mal epilepsy. The appellant is not entitled to a disability rating greater than 80 percent, because the 80 percent disability rating is the highest available for petit mal epilepsy. In exceptional cases where a schedular evaluation is found to be inadequate, the RO may refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service for consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." 38 C.F.R. § 3.321(b)(1) (2003). "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) (2003). The Board notes first that the schedular evaluations for the disabilities in this case are not inadequate. Higher ratings are provided for impairment due to seizure disorders, such as grand mal epilepsy; however, the medical evidence reflects that those manifestations are not present in this case. Second, the Board finds no evidence of an exceptional disability picture in this case. The appellant has not required any periods of hospitalization for her service- connected narcolepsy. It is undisputed that the appellant's service-connected narcolepsy has an adverse effect on her employment, but it bears emphasizing that the schedular rating criteria are designed to take such factors into account. The schedule is intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C.A. § 1155 (West 2002). "Generally, the degrees of disability specified [in the rating schedule] are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." 38 C.F.R. § 4.1 (2003). Therefore, given the lack of evidence showing unusual disability not contemplated by the rating schedule, the Board concludes that a remand to the RO for referral of this issue to the VA Central Office for consideration of an extraschedular evaluation under 38 C.F.R. § 3.321(b)(1) is not warranted. 2. Pelvic inflammatory disease The appellant's service-connected pelvic inflammatory disease is currently evaluated as noncompensably disabling under Diagnostic Code 7614 for disease, injury, or adhesions of the fallopian tube (including pelvic inflammatory disease (PID)). (The appellant also receives special monthly compensation under 38 C.F.R. § 3.350(a) for loss of use of a creative organ.) Under Diagnostic Code 7614, a noncompensable rating is assigned where symptoms do not require continuous treatment. Where symptoms require continuous treatment, a 10 percent rating is warranted. Where symptoms are not controlled by continuous treatment, a 30 percent rating is warranted. 38 C.F.R. § 4.116, Diagnostic Code 7614 (2003). The reports of VA examinations in April 1997, March 2001, and April 2003 show that the appellant's pelvic inflammatory disease has resolved and that she does not take medication for her pelvic inflammatory disease. She has undergone salpingectomies bilaterally and receives special monthly compensation for the loss of use of a creative organ. The appellant has complained of urinary incontinence, but she is not service-connection for urinary incontinence, and there is no medical evidence describing the appellant's urinary incontinence as a symptom of her pelvic inflammatory disease or subsequent surgeries. The appellant has complained of occasional episodes of pelvic pain occurring since her surgery, but she receives no medical treatment for her pain. At the April 2003 VA gynecological conditions and disorders of the breast examination, the examiner stated that the appellant's chronic pelvic pain in the right lower quadrant might be adhesive disease, musculoskeletal pain, or gastrointestinal pain but that, because of the short nature of the pain, no further treatment or workup was indicated. Because the appellant's symptoms of her pelvic inflammatory disease do not require continuous treatment, the preponderance of the evidence is against the assignment of a compensable disability rating. The Board notes that additional disability evaluations are available for scars that are poorly nourished, with repeated ulceration; are tender and painful on objective demonstration; or cause any limitation of function. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994) (holding that evaluations for distinct disabilities resulting from the same injury could be combined so long as the symptomatology for one condition was not "duplicative of or overlapping with the symptomatology" of the other condition); 38 C.F.R. § 4.118, Diagnostic Codes 7803, 7804, 7805 (2002). 38 C.F.R. § 4.118, Diagnostic Codes 7803, 7804, 7805 (2002); 38 C.F.R. § 4.71a, Diagnostic Codes 7801, 7802, 7803, 7804, 7805 (2003) (the amended rating criteria for scars, effective from August 30, 2002). In this case, the appellant has a surgical scar on her abdomen result from her 1981 salpingectomy. On examination in March 2001, the scar was shown to be well healed. The scar was not tender and did not limit the function of any part. It was well nourished and without repeated ulceration. Accordingly, the preponderance of the evidence is against a separate disability rating for the scar on the appellant's abdomen. 3. Peptic ulcer disease Regulations note that "peptic ulcer" is not sufficiently specific for rating purposes. 38 C.F.R. § 4.110 (2003). Accordingly, the appellant's peptic ulcer disease is rated noncompensably disabling under Diagnostic Code 7399-7906. When a veteran is diagnosed with an unlisted condition, it must be rated under an analogous diagnostic code. 38 C.F.R. §§ 4.20, 4.27 (2003). The diagnostic code is "built-up" by assigning the first two digits from that part of the schedule most closely identifying the part of the body involved and then assigning "99" for the last two digits for all unlisted conditions. 38 C.F.R. § 4.27 (2003). Then, the disability is rated by analogy under a diagnostic code for a closely related disability that affects the same anatomical functions and has closely analogous symptomatology. 38 C.F.R. §§ 4.20, 4.27 (2003). Therefore, her service- connected peptic ulcer disease is rated according to the analogous condition of marginal (gastrojejunal) ulcer under Diagnostic Code 7306. Where the rating schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31 (2003). Under Diagnostic Code 7306, no zero percent evaluation is provided for marginal ulcers. A 10 percent disability rating requires a mild marginal ulcer with brief episodes of recurring symptoms once or twice per year. 38 C.F.R. § 4.114, Diagnostic Code 7306 (2003). In this case, although VA treatment records show occasional treatment of the appellant for gastrointestinal symptoms and reflux symptoms, these symptoms have been attributed to gastroesophageal reflux disease and duodenitis rather than the appellant's service-connected peptic ulcer disease. The record contains no evidence of recent treatment of the appellant for peptic ulcer disease. At the April 2003 VA general medical examination, the examiner noted that the appellant had symptoms of gastroesophageal reflux disease with reflux symptoms and had a history of peptic ulcer disease but currently had no symptoms of peptic ulcer disease. The examiner explained that the appellant was mildly symptomatic from her gastroesophageal reflux disease but had no symptoms of peptic ulcer disease. Accordingly, because the appellant has no symptoms of peptic ulcer disease, the preponderance of the evidence is against the assignment of a compensable disability rating for peptic ulcer disease. The Board has considered other diagnostic codes that provide for compensable disability ratings for disorders of the digestive system. There is no evidence of gastric ulcers or duodenal ulcers that are mild with symptoms recurring once of twice yearly to warrant a compensable rating under Diagnostic Codes 7304 or 7305 respectively. 38 C.F.R. § 4.114, Diagnostic Codes 7304, 7305 (2003). Likewise, there is no evidence of chronic hypertrophic gastritis with small nodular lesions and symptoms to support a 10 percent disability rating under Diagnostic Code 7308 for hypertrophic gastritis. 38 C.F.R. § 4.114, Diagnostic Code 7308 (2003). 4. Entitlement to a total rating for compensation purposes based on individual unemployability Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. §§ 3.340, 4.16(a) (2003). However, if there is only one such disability, it shall be ratable at 60 percent or more, and, if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a) (2003). The United States Court of Appeals for Veterans Claims (formerly the United States Court of Veterans Appeals) (Court) has stated: In determining whether appellant is entitled to a total disability rating based upon individual unemployability, neither [the] appellant's non-service- connected disabilities nor his advancing age may be considered. See 38 C.F.R. § 3.341(a) (1992); Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992). The Board's task was to determine whether there are circumstances in this case apart from the non-service-connected conditions and advancing age which would justify a total disability rating based on unemployability. In other words, the BVA must determine if there are circumstances, apart from non-service- connected disabilities, that place this veteran in a different position than other veterans with [the same] combined disability rating. See 38 C.F.R. § 4.16(a) (1992). Van Hoose v. Brown, 4 Vet. App. 361, 363 (1995). The appellant is service-connected for narcolepsy, which is rated as 80 percent disabling; hypertension, which is evaluated as 10 percent disabling; peptic ulcer disease, which is rated as noncompensably disabling; pelvic inflammatory disease, which is rated as noncompensably disabling; and history of pilonidal cystectomy, which is rated as noncompensably disabling. The combined rating for the appellant's disabilities is 82 percent. 38 C.F.R. § 4.25, Table I (2003). Therefore, the appellant meets the schedular criteria for consideration of unemployability under 38 C.F.R. § 4.16(a) (2003). In Van Hoose, the Court noted: The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. See 38 C.F.R. § 4.16(a) (1992). Van Hoose, 4 Vet. App. at 363. The appellant completed two years of high school and passed a General Educational Development (GED) test. She was medically discharged from service. She has experience working as a cook, a nurse's aid, and a substitute teacher. She last worked full time in June 2000. Although the appellant has been determined to be unemployable by the Social Security Administration (SSA), VA is not bound by that determination although it is certainly "pertinent" to the appellant's claim. See Collier v. Derwinski, 1 Vet. App. 413, 417 (1991); Murincsak v. Derwinski, 2 Vet. App. 363 (1992) Martin v. Brown, 4 Vet. App. 136, 140 (1993). Nevertheless, the medical evidence of record indicates that the appellant is incapable of doing productive work due to her service-connected disabilities. Dr. G. opined in November 2001 that the appellant's narcolepsy was not compatible with any employment and would be dangerous in many circumstances. His opinion is supported by the appellant's intermittent work history preceding her unemployment and by her discharge from service. It is further supported by the August 1998 VA vocational rehabilitation evaluation. Although, a VA physician in December 2002 and a VA social worker in June 2001 have opined that the appellant should be employable, their opinions are based upon mere speculation and are not supported by the evidence of record. The appellant's narcolepsy is a clear diagnosis based upon multiple studies. In addition to the appellant's reports of her symptoms, VA treatment professionals have noted on numerous occasions the appellant's inability to remain awake even when seeking medical treatment. In short, the preponderance of the evidence shows that the appellant is precluded from substantially gainful employment due to her service-connected disabilities. The Board concludes that a total disability rating for compensation purposes based on individual unemployability under 38 C.F.R. § 4.16 is warranted. ORDER Entitlement to a disability rating of 80 percent, but no higher, for the appellant's narcolepsy, is granted subject to statutory and regulatory provisions governing the payment of monetary benefits. Entitlement to a compensable rating for pelvic inflammatory disease is denied. Entitlement to a compensable rating for peptic ulcer disease is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), is granted, subject to the governing regulations pertaining to the payment of monetary benefits. ____________________________________________ BETTINA S. CALLAWAY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (BVA or Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the "Order." If you are satisfied with the outcome of your appeal, you do not need to do anything. We will return your file to your local VA office to implement the BVA's decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: ? Appeal to the United States Court of Appeals for Veterans Claims (Court) ? File with the Board a motion for reconsideration of this decision ? File with the Board a motion to vacate this decision ? File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: ? Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. None of these things is mutually exclusive - you can do all five things at the same time if you wish. However, if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your case because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the BVA, the BVA will not be able to consider your motion without the Court's permission. How long do I have to start my appeal to the Court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the United States Court of Appeals for Veterans Claims. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the Court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will then have another 120 days from the date the BVA decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to Court is filed on time. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's web site on the Internet at www.vetapp.uscourts.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the BVA to reconsider any part of this decision by writing a letter to the BVA stating why you believe that the BVA committed an obvious error of fact or law in this decision, or stating that new and material military service records have been discovered that apply to your appeal. If the BVA has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Send your letter to: Director, Management and Administration (014) Board of Veterans' Appeals 810 Vermont Avenue, NW Washington, DC 20420 VA FORM JUN 2003 (RS) 4597 Page 1 CONTINUED Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the BVA to vacate any part of this decision by writing a letter to the BVA stating why you believe you were denied due process of law during your appeal. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address above for the Director, Management and Administration, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address above for the Director, Management and Administration, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the BVA, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: www.va.gov/vso. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before VA, then you can get information on how to do so by writing directly to the Court. Upon request, the Court will provide you with a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to represent appellants. This information is also provided on the Court's website at www.vetapp.uscourts.gov. Do I have to pay an attorney or agent to represent me? Except for a claim involving a home or small business VA loan under Chapter 37 of title 38, United States Code, attorneys or agents cannot charge you a fee or accept payment for services they provide before the date BVA makes a final decision on your appeal. If you hire an attorney or accredited agent within 1 year of a final BVA decision, then the attorney or agent is allowed to charge you a fee for representing you before VA in most situations. An attorney can also charge you for representing you before the Court. VA cannot pay fees of attorneys or agents. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. For more information, read section 5904, title 38, United States Code. In all cases, a copy of any fee agreement between you and an attorney or accredited agent must be sent to: Office of the Senior Deputy Vice Chairman (012) Board of Veterans' Appeals 810 Vermont Avenue, NW Washington, DC 20420 The Board may decide, on its own, to review a fee agreement for reasonableness, or you or your attorney or agent can file a motion asking the Board to do so. Send such a motion to the address above for the Office of the Senior Deputy Vice Chairman at the Board. VA FORM JUN 2003 (RS) 4597 Page 2