Citation Nr: 1307282 Decision Date: 03/04/13 Archive Date: 03/11/13 DOCKET NO. 08-37 656 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to service connection for sleep apnea. 2. Entitlement to an increased rating for idiopathic central nervous system hypersomnolence syndrome (narcolepsy), to include whether a December 2006 reduction from 60 percent to 20 percent for narcolepsy was proper. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Veteran represented by: Robert V. Chisholm, Attorney WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD J.A. Flynn, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1984 to March 1991. This matter comes before the Board of Veterans' Appeals (Board) from a December 2006 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that reduced the rating for the Veteran's idiopathic central nervous system hypersomnolence syndrome from 60 percent to 20 percent, effective March 1, 2007. This case was previously before the Board in January 2011 and found that the reduction of the rating for the Veteran's excessive sleepiness from 60 percent to 20 percent effective March 1, 2007, was not proper and that the Veteran was entitled to restoration of the 60 percent rating for excessive sleepiness effective March 1, 2007, and. The Board also denied a disability rating in excess of 60 percent for excessive sleepiness. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims. A May 2012 Memorandum Decision set aside the Board's January 2011 decision for proceedings consistent with the findings of the Decision. The Veteran submitted additional pertinent evidence in November 2012 and waived RO jurisdiction of that evidence. The issues of entitlement to service connection for sleep apnea and entitlement to TDIU are REMANDED to the RO. FINDINGS OF FACT 1. Since March 1, 2007, the Veteran's excessive sleepiness has not demonstrated sustained improvement because the evidence shows that the Veteran has continued to experience 9 to 10 minor attacks of excessive sleepiness per week. 2. The Veteran's excessive sleepiness has been manifested by 9 to 10 minor attacks of excessive sleepiness per week. CONCLUSIONS OF LAW 1. The December 2006 reduction of the rating for excessive sleepiness from 60 percent to 20 percent was not proper. 38 U.S.C.A. § 5112(b)(6) (West 2002); 38 C.F.R. §§ 3.105, 3.344 (2012). 2. The criteria for an increased rating for excessive sleepiness have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.7, 4.31, 4.124, 4.124a, Diagnostic Codes 8108, 8911 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist VA has a duty to notify Veterans of the information and evidence necessary to substantiate claims for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012). VA also has a duty to assist Veterans in the development of claims. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012). When VA receives a complete or substantially complete application for benefits, VA must notify the Veteran of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the Veteran is expected to provide. 38 U.S.C.A. § 5103 (West 2002 & Supp. 2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.326 (2012); Dingess v. Nicholson, 19 Vet. App. 473 (2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The RO sent correspondence in March 2005 and July 2008; rating decisions in August 2005, April 2006, December 2006, September 2007, and November 2007; and a statement of the case in October 2008. Those documents discussed specific evidence, the particular legal requirements applicable to the claim, the evidence considered, the pertinent laws and regulations, and the reasons for the decisions. VA made all efforts to notify and to assist the Veteran with regard to the evidence obtained, the evidence needed, the responsibilities of the parties in obtaining the evidence, and the general notice of the need for any evidence in the Veteran's possession. The Board finds that any defect with regard to the timing or content of the notice to the Veteran is harmless because of the thorough and informative notices provided throughout the adjudication and because the Veteran had a meaningful opportunity to participate effectively in the processing of the claim with an adjudication of the claim by the RO subsequent to receipt of the required notice. There has been no prejudice to the Veteran, and any defect in the timing or content of the notices has not affected the fairness of the adjudication. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess v. Nicholson, 19 Vet. App. 473 (2006). With regard specifically to the notice that must accompany a rating reduction, as a general rule, VA must abide by specific procedural protections that apply when a Veteran's rating is reduced. 38 C.F.R. § 3.105(e) (2012). More specifically, before implementing a rating reduction, the agency of original jurisdiction (AOJ) must issue a rating decision proposing the reduction and setting forth all material facts and reasons, notify the beneficiary of the contemplated action, furnish detailed reasons for the action, and allow 60 days for the presentation of additional evidence to show that compensation payments should be continued at the present level. 38 C.F.R. § 3.105(e) (2012). In the advance written notice, the beneficiary will be informed of the right to a pre-determination hearing, and if a timely request for hearing is received within 30 days, benefit payments shall be continued at the previously established level pending a final determination. 38 C.F.R. § 3.105(i)(1) (2012). The additional procedural requirements found in 38 C.F.R. § 3.344(a)-(b) apply only to ratings in effect for five years or more. They do not apply in this case because the Veteran's 60 percent rating for excessive sleepiness was in effect from June 3, 2004, to March 1, 2007, or fewer than five years. 38 C.F.R. § 3.344(c) (2012). An April 2006 letter notified the Veteran of a proposal to reduce the rating assigned for his excessive sleepiness. He was notified that he had 60 days for the presentation of additional evidence to show that compensation payments should be continued at the present level, and that if he did not respond within those 60 days, his disability rating would be reduced, effective no earlier than June 1, 2006. The record shows that the Veteran responded to the April 2006 letter by requesting a pre-determination hearing and submitting additional evidence in the form of a letter from his treating VA physicians. The Board finds that the RO complied with the procedures required under 38 C.F.R. § 3.105(e) for reducing the Veteran's rating by notifying him of his rights and giving him an opportunity for a pre-determination hearing and time to respond. The Board notes that the January 2011 Board decision found that the reduction was improper and the RO restored the rating in a March 2011 rating decision. However, that January 2011 Board decision was set aside by the May 2012 Court of Appeals for Veterans Claims decision. Therefore, the Board has again reviewed the issue. With respect to the duty to assist, VA has done everything reasonably possible to assist the Veteran with respect to his claim for benefits. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2012). The Veteran's service medical records and VA and private treatment records have been obtained, to the extent available. There is no indication in the record that any additional evidence relevant to the issues decided herein is available and not part of the claims file. The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the veteran. Green v. Derwinski, 1 Vet. App. 121 (1991). More specifically, a VA examination must be conducted when the evidence of record does not reflect the current state of the Veteran's disability. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2012). When VA undertakes to provide a VA examination, it must ensure that the examination is adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). The reports of the VA examinations indicate that the examiners reviewed the Veteran's past medical history and claims file, recorded his current complaints, conducted appropriate evaluations, and provided the information necessary to evaluate his excessive sleepiness under the applicable rating criteria. The Board, therefore, concludes that the examination reports are adequate for the purpose of rendering a decision as to the Veteran's disability. 38 C.F.R. § 4.2 (2012); Barr v. Nicholson, 21 Vet. App. 303 (2007). The Veteran presented testimony before the undersigned in December 2010, and a transcript of that hearing has been associated with the claims file. Thus, the duties to notify and assist have been met, and the Board will proceed to a decision. Factual Background In June 2004, the Veteran reported that he felt more tired and was falling asleep more easily at his job, especially when his work was finished and he had "down time." The Veteran's medications were increased. In July 2004, following an incident in which the Veteran fell asleep for an hour at work, the Veteran requested that his VA physician write a letter to his employer explaining his condition. In August 2004, the Veteran requested assistance in applying for Family Medical Leave for times when he was unable to go to work due to hypersomnolence. The Veteran complained that he continued to fall asleep at work while doing paperwork. In February 2004, the Veteran indicated that he was no longer a part of a carpool, so he had to exercise care in driving to and from work. An April 2005 letter from the Veteran's treating VA physicians indicated that despite being on medication, the Veteran required two to three naps at work daily and a nap during the drive from work. The Veteran also expressed a need to take a three to four hour nap on his first day off from work. The Veteran was found to struggle to maintain wakefulness both at work and home despite being on medication. The Veteran received a VA examination in October 2005, at which time the Veteran was alert and oriented. The Veteran reported having worked as an airline mechanic for the same company for the previous five years. He stated that he was generally doing "fine" at work, but he related that in June 2004 he fell asleep and missed an important deadline, causing him to nearly get fired. He maintained that since September 2004, he had increased his medication so that he was safe to drive to and from work. The Veteran received an additional VA examination in March 2006, at which time he indicated that during a typical narcoleptic attack, he fell asleep easily, often at inappropriate times. Those events were prompted by a lack of sleep or inactivity. He reported experiencing 100 attacks in the previous two years and reported experiencing an average of four attacks monthly. The Veteran complained of falling asleep while sitting in church, reading, or watching television, and he stated that he often had to pull over while driving in order to take a nap. He stated that he had not fallen asleep while driving, but he had to take a nap at work. He complained that the symptoms occurred intermittently as often as daily with each nap lasting for 30 minutes. The examiner found that the Veteran's ability to perform daily functions during flare-ups was significantly impaired. The examiner noted that the Veteran was functionally impaired by occasionally oversleeping and missing work. The Veteran was occasionally late to work or other appointments because he sometimes had to stop while driving. The examiner stated that the Veteran's narcolepsy had resulted in him missing work eight times per year. Neurological examination was within normal limits. In May 2006, the Veteran's VA physicians reported that the Veteran continued to have uncontrolled sleep episodes, despite taking two medications to control his hypersomnolence. The physicians stated that in order to commute to work, the Veteran drove his own vehicle 32 miles, joined a vanpool, and then traveled the remaining 33 miles to work in the van. The Veteran reported that he fell asleep up to a few times a day, including in church every Sunday, in the van going to work at least twice a week, and in the van on the way home from work every day. The Veteran stated that because he was able to sleep in the van, he was able to stay awake when he drove himself home and avoid taking as much Ritalin to stay awake as he did when he was driving the entire way to the airport. On a typical work day, the Veteran would take a Modafinil pill when he arrived at work and then nap during his meal break. He would oversleep during his meal break about once a week. He took one to two Ritalin pills on his days off and one Ritalin pill on his work days. He took two to four Ritalin pills if he worked overtime. The Veteran had to call in sick about 12 times in the preceding year due to sleepiness. On the Veteran's days off, he had to shift his sleep cycle from daytime sleeping to nighttime sleeping in order to see his family, and that contributed to his sleep problems. He would thereafter fall asleep three to four times a day on his days off. The physicians concluded that the Veteran continued to struggle to maintain wakefulness both at work and home despite his medication. A July 2006 statement from a technical training instructor who trained the Veteran indicated that during the classroom portion of the qualification training for engine run and taxi procedures, he observed the Veteran to have difficulty staying alert. He stated that he had been made aware that the Veteran was being treated for a sleep disorder and that due to the inherent risks in engine run and taxi procedures, it had been determined that the Veteran would not be qualified for those responsibilities. At a July 2006 pre-determination hearing, the Veteran testified that his narcoleptic episodes occurred every day. He testified that he participated in a vanpool to and from work and that he fell asleep in the van. He reported that as a result of this napping, he was usually able to stay awake for the drive home although he sometimes had to keep himself awake by turning up the music very loud, rolling down the windows, or slapping his face. He stated that he had to pull over to the side of the road to take a nap quite frequently, especially if he worked overtime. He testified that once at work, he did not go out to work on his airplane when it had arrived because he had fallen asleep for four hours. He reported that due to his sleepiness, he had also been in several car accidents where he ran into a freeway barrier and a tree. The Veteran's wife testified that over the course of the previous month, the Veteran had probably fallen asleep in the middle of a conversation about 20 to 30 times. She reported that he fell asleep in church every week. She stated that she had to do most of the driving if they were in the car together because otherwise, he fell asleep while driving. In a September 2007 VA treatment report, it was noted that the Veteran was taking up to seven or eight pills of Ritalin in addition to two pills of Modafinil a day in order to control his narcolepsy and that his disability was found to be poorly controlled. A March 2009 VA treatment report found that there had been no change in the Veteran's narcolepsy symptoms. The Veteran reported still having to pull over to nap once or twice while driving to and from work. The Veteran received an additional examination in May 2010, at which time he indicated that during a typical narcoleptic attack he became drowsy and had difficulty keeping his eyes open. The Veteran reported that during the past two years, he had experienced 800 such attacks and averaged 30 attacks each month. He complained that he was functionally impaired due to his disability because he was unable to perform all of his duties with his employment, including engine run and taxiing of aircraft. He also maintained that his commute to and from work required him to pull over several times to take naps. Neurological examination of the upper and lower extremities and mental examination were within normal limits. In October 2010, the Veteran testified before the undersigned. Testimony revealed that the Veteran fell asleep at work once while he was waiting for his assigned aircraft to arrive and that he was almost fired as a result. Since that incident, the Veteran took extra steps to prevent himself from falling asleep at work again. He reported that he always carried a radio and his cell phone at work so that his friends could contact him when he dozed off. He stated that on his days off from work, his wife had to drive and that he would fall asleep as she was trying to talk to him. He maintained that he still had to pull over and take a nap on the way to work about once a week and that he had to pull over and take a nap about twice a week when coming home from work. He further testified that when he tried to get engine room qualified to allow him to perform ground operation of the aircraft, he fell asleep both while he was training in the simulator and while in the classroom. He reported that the engine room qualification instructor informed him that due to his sleep disorder, it was too much of a liability to get him engine room qualified and taxi qualified. He stated that he lost a bid for an available job with better hours at an airport closer to his house because the job required him to be engine room qualified and taxi qualified. He maintained that he got into a car accident in May 2010 when he fell asleep and hit a parked car just a few feet away from his house. He testified that taking public transportation was not a viable alternative to driving because it would take three hours to get to work. He reported that his company was no longer reimbursing its employees for half the cost of the van pool that he had been taking, which caused him to stop taking the van pool in January 2007 due to the expensive cost. The Veteran submitted an October 2010 letter from an automobile insurance company showing that the Veteran had been involved in an at-fault car accident in May 2010, when he struck a parked and unoccupied vehicle. That report did not indicate whether the Veteran's excessive sleepiness played a role in the accident. Restoration The Veteran argues that his excessive sleepiness has not improved since March 1, 2007 and that the December 2006 reduction of his disability rating was improper. A Veteran's disability rating shall not be reduced unless a material improvement in the disability is shown to have occurred. 38 U.S.C.A. § 1155 (West 2002). In an August 2005 rating decision, the RO increased the Veteran's rating for narcolepsy from 10 percent to 60 percent, effective June 3, 2004, because the Veteran's disability was found to be no longer controlled by medication and was equivalent to an average of 9 to 10 minor seizures a week. 38 C.F.R. § 4.124a, Diagnostic Code 8911 (2012). In a December 2006 rating decision, the RO reduced the Veteran's rating from 60 percent to 20 percent disabling, effective March 1, 2007, because his disability was found to be controlled with less medication, he was able to drive 32 miles without pulling over to take a nap, and he did not need to invoke family medical leave at work due to his naps. Evaluating whether the Veteran's disability indeed underwent a material improvement, the Board finds that the Veteran's lack of naps during the drive to and from his house does not demonstrate an actual improvement in his disability. The Veteran still required naps while riding as a passenger in the van pool both to and from work each day. Because the Veteran required naps during the 33 mile drive in the van pool, that indicates that he would have had to pull over to nap had he been driving those 33 miles. Additionally, the Veteran's treating physicians have consistently stated both that the Veteran continued to have uncontrolled sleep episodes despite being on two different medications to control his hypersomnolence and that there had been no change in his condition. In fact, the medical evidence demonstrates that despite taking medication before work, during his shift, and before driving home from work, the Veteran still had to pull over while driving and take a nap. In a September 2007 VA treatment report, it was also noted that the Veteran's disability was poorly controlled, as he was taking up to seven or eight pills of Ritalin and two pills of Modafinil a day in order to control his narcolepsy. Therefore, the Board finds that the evidence does not demonstrate that Veteran's disability underwent actual improvement since the time of the August 2005 rating decision that granted a 60 percent rating for his narcolepsy. Accordingly, resolving all reasonable doubt in the Veteran's favor, the Board finds that a reduction in the 60 percent rating was not warranted because actual improvement was not shown. Therefore, he is entitled to a restoration of the 60 percent rating for idiopathic central nervous system hypersomnolence, effective March 1, 2007, the effective date of the reduction. While the Veteran was able to drive the 32 miles to and from his house without having to take a nap during his period of participation in the van pool for work, the Board finds that sustained improvement was not demonstrated because the Veteran's disability was still present, as he continued to need to take daily naps while riding in the van as a passenger. Therefore, the evidence does not conclusively establish improvement such that the 60 percent rating is no longer warranted. In sum, the weight of the credible evidence shows that the December 2006 reduction of the disability rating from 60 percent to 20 percent was not proper because actual sustained improvement was not shown. Therefore, restoration of the 60 percent rating, effective March 1, 2007, is warranted. Increased Rating With the Veteran's 60 percent disability rating restored effective March 1, 2007, the Board will next determine whether a rating in excess of 60 percent is available to the Veteran at any time during the appeal period. The Board has clarified and expanded its schedular analysis pursuant to the May 2012 Court Decision. Ratings for service-connected disabilities are determined by comparing the Veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4 (2012). When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Rating Schedule does not contain a diagnostic code specifically applicable to the Veteran's diagnosed disability of idiopathic central nervous system hypersomnolence syndrome. However, when an unlisted condition is encountered, it is permissible to rate it under a closely related disease or injury, in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20 (2012). In this case, the Veteran's primary disability is excessive drowsiness. The Board finds that Diagnostic Code 8108, which pertains to narcolepsy and directs the rater to rate the disability as petit mal epilepsy under Diagnostic Code 8911, is the most closely analogous diagnostic code, considering the Veteran's symptomatology. 38 C.F.R. §§ 4.84, 4.124a, Diagnostic Codes 8108, 8911 (2012). Under the diagnostic code applicable to petit mal epilepsy, both the frequency and type of seizures that the veteran experiences are considered in determining the appropriate rating. A major seizure is characterized by generalized tonic-clonic convulsion with unconsciousness. A minor seizure consists of a brief interruption in consciousness or conscious control associated with staring or rhythmic blinking of the eyes or nodding of the head (pure petit mal), or sudden jerking movements of the arms, trunk, or head (myoclonic type) or sudden loss of postural control (akinetic type). 38 C.F.R. § 4.124a (2012). When there is doubt as to the nature of epileptiform attacks, neurological observation in a hospital adequate to make such a study is necessary. To warrant a rating, the seizures must be witnessed or verified at some time by a physician, and regarding the frequency of epileptiform attacks, competent, consistent lay testimony emphasizing convulsive and immediate post-convulsive characteristics may be accepted. The frequency of seizures should be ascertained under the ordinary conditions of life while not hospitalized. 38 C.F.R. § 4.121 (2012). Under the general formula for rating major and minor epileptic seizures, both the frequency and type of seizure a Veteran experiences are considered in determining the appropriate rating. Diagnostic Code 8911 provides a 60 percent rating for an average of at least one major seizure in four months over the last year, or nine to 10 minor seizures per week; an 80 percent rating for an average of at least one major seizure in three months over the last year, or more than 10 minor seizures weekly; and a 100 percent rating for an average of one major seizure per month over the last year. 38 C.F.R. § 4.124a, Diagnostic Code 8911 (2012). In the presence of major and minor seizures, the predominating type of epilepsy is to be rated. There will be no distinction between diurnal and nocturnal major seizures. 38 C.F.R. § 4.124a, General Rating Formula for Major and Minor Epileptic Seizures, Notes (1)-(3) (2012). With regard to a 100 percent rating based on narcolepsy rated as petit mal seizures, the Board finds that such a rating would be available to the Veteran only if the frequency and severity of Veteran's bouts of excessive sleepiness were analogous to experiencing an average of at least one major seizure, a generalized tonic-clonic convulsion with unconsciousness, per month over the past year. 38 C.F.R. § 4.124a, Diagnostic Code 8911 (2012). Narcolepsy is a recurrent, uncontrollable, brief episode of sleep, often associated with hypnagogic or hypnopompic hallucinations, cataplexy, and sleep paralysis. Cataplexy is a condition in which there are abrupt attacks of muscle weakness and hypotonia triggered by an emotional stimulus such as mirth, anger, fear, or surprise. Dorland's Illustrated Medical Dictionary (31st ed. 2007). The evidence of record contains no evidence of convulsiveness, cataplexy, or paralysis associated with the Veteran's napping. Furthermore, the Board observes that the Veteran's excessive sleepiness is markedly different from a major seizure both because the Veteran can be roused from his sleep, and because the Veteran can control, at least on occasion, whether or not he stays awake. With regard to his ability to be roused from sleep, for example, in September 2012, the Veteran stated that at work, when he fells asleep, some of his coworkers knew that if he did not answer a radio call, to try his cell phone first, then if he still did not answer, they had to come and wake him. With regard to whether the Veteran can control, at least on occasion, whether or not he stays awake, the Veteran indicated in his October 2011 hearing that he took extra steps to prevent himself from falling asleep at work. In a March 2009 VA treatment record, the Veteran stated that he avoided naps at work for fear of losing his job. Therefore, to the extent that a 100 percent rating requires a major seizure that typified by unconsciousness and convulsion, without evidence of record demonstrative of an unconscious, convulsive, cataplectic, or paralytic quality to the Veteran's narcolepsy, and with evidence of record that the Veteran can be roused from sleep and can prevent himself from sleeping at least on occasion, the Board finds that a 100 percent rating is not warranted because the Veteran's episodes of excessive drowsiness and sleeping do not more nearly approximate a major seizure. With regard to an 80 percent rating based on narcolepsy rated as petit mal seizures, the Board finds that such a rating would be available to the Veteran only if the frequency and severity of his bouts of excessive sleepiness were analogous to at least one major seizure in three months over the past year, or more than 10 minor seizures weekly. The evidence demonstrates neither the occurrence of sleepiness or napping is analogous to a major seizure and therefore, the Veteran does not meet that criterion for the assignment of a higher rating. Similarly, the board finds that the evidence does not demonstrate episodes of sleepiness analogous to petit mal seizures occurring in excess of 10 times weekly. The Veteran's reports of the frequency of his narcoleptic events have varied. In June 2004, the Veteran reported experiencing excessive sleepiness two to three times at work each day and once on the drive back from home each day. In a May 2006 VA medical record, the Veteran reported napping a few times each day. At a March 2006 VA examination, the Veteran reported experiencing four instances of falling asleep easily in the past month. At the May 2010 examination, the Veteran reported the he had experienced 30 events involving excessive sleepiness in the previous month. The Board finds that the frequency and severity of these events do not approximate the 10 or more minor weekly seizures that would be required for an 80 percent rating. Considering the average of the Veteran's reported occurrences of episodes of drowsiness, the Board finds that the frequency is not such that the criteria for an 80 percent rating are met. The Board's January 2011 decision found that referral of the Veteran's claim for consideration on an extraschedular basis was not warranted. The Court's May 2012 Decision indicated that the Board's statement of its reasons and bases for that finding was inadequate. The following analysis incorporates the Court's guidance from the May 2012 Decision and again concludes that referral of the Veteran's claims on an extra-schedular basis is not warranted. The Board has considered whether the Veteran is entitled to a greater level of compensation on an extraschedular basis. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors that render application of the schedule impractical. Fisher v. Principi, 4 Vet. App. 57 (1993). The schedular rating criteria are designed 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 (2012). In determining whether referral for consideration of an extraschedular rating is warranted, first, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular rating for that service-connected disability are inadequate. Second, if it is determined that the available schedular ratings are inadequate, the Board must determine whether the claimant's exceptional disability picture exhibits other related factors, such as marked interference with employment or frequent periods of hospitalization. Finally, if the first two steps of the inquiry have been satisfied, the third step requires referral of the claim to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination of whether an extraschedular rating is warranted. 38 C.F.R. § 3.321(b)(1) (2012); Thun v. Peake, 22 Vet. App. 111 (2008). The Court's May 2012 Decision indicated that the Board did not consider in its analysis that the Veteran's disability was rated by analogy to narcolepsy, and the Board did not consider the difference between his narcoleptic episodes and the seizures contemplated by Diagnostic Code 8911 when determining whether the Veteran's disorder was so exceptional or unusual that it rendered application of the regular schedular standards inadequate. While the Veteran's excessive sleepiness is not directly addressed by the rating criteria, the symptoms associated with the Veteran's disability are adequately approximated by the diagnostic codes applicable to narcolepsy and petit mal seizures. Higher 80 percent or 100 percent ratings are available under the schedular rating criteria, but the Board has found that the Veteran does not meet the criteria for the assignment of those higher ratings. The Board noted that a 100 percent rating is not warranted absent symptoms approximating a major seizure with tonic-clonic convulsion and unconsciousness. Similarly, an 80 percent rating is not warranted without a demonstrated greater number of narcoleptic events approximating petit mal seizure, as specified in the rating criteria. Therefore, while the Veteran's excessive sleepiness is not directly addressed by the available it does not appear that the Veteran has an "exceptional or unusual" disability. He merely disagrees with the assigned rating for his level of impairment. In other words, he does not have any symptoms from his service-connected narcolepsy condition that are unusual or are different from those contemplated by the schedular criteria. Therefore, the Board finds that the available schedular ratings are adequate. In addition, the Board finds that the evidence does not show frequent hospitalization for the disability. While the Veteran has claimed marked interference with employment, the evidence shows that he continues to retain employment, with accommodations from his employer. Therefore, the Board finds that the marked interference with employment, beyond that contemplated by the assigned rating, is not shown. The Veteran maintains employment despite his disability. Therefore, the Board finds that referral for extraschedular consideration is not warranted. ORDER The reduction of the rating for the Veteran's idiopathic central nervous system hypersomnolence syndrome from 60 percent to 20 percent, effective March 1, 2007, was not proper and the Veteran is entitled to restoration of the 60 percent rating for idiopathic central nervous system hypersomnolence syndrome, effective March 1, 2007. A disability rating in excess of 60 percent for idiopathic central nervous system hypersomnolence syndrome is denied. REMAND A claim for TDIU is part of an increased rating claim when a request for TDIU is reasonably raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Court's May 2012 decision found that possible entitlement to TDIU had been raised by the record, and the Board will therefore remand the claim for additional evidentiary development. Under the relevant statutes, TDIU may be granted under two circumstances. A TDIU may be assigned 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 disability. Marginal employment is not considered substantially gainful employment. Marginal employment includes situations in which the Veteran's annual income does not exceed the poverty threshold for one person. Employment may be marginal even when the Veteran's earned income exceeds the poverty threshold if the Veteran is employed in a protected environment such as a family business or sheltered workshop. 38 C.F.R. § 4.16(a) (2012). While the term sheltered workshop is not defined in the regulation applicable to TDIU, the Board observes that the Wage and Hour Division of the United States Department of Labor uses the terms sheltered workshop and work center interchangeably to mean a place that has "historically provided rehabilitation services, day treatment, training, and/or employment opportunities to individuals with disabilities." Sheltered Workshop, Department of Labor, Wage & Hour Division, Field Operations Handbook, available at http://www.dol.gov/whd/FOH/ch64/64k00.htm (last accessed Jan. 30, 2013). A private report dated in November 2012 indicated that the Veteran was employed full-time at $32 per hour, exclusive of fringe benefits. The Veteran argues that although his earned income places him well above the poverty threshold that his employment is nonetheless marginal because his employer represents a protected environment analogous to a family business or sheltered workshop. In November 2012, the Veteran's representative submitted a statement from a private vocational consultant indicating that the Veteran's employment was essentially sheltered employment offered in a protected environment. The consultant reviewed the Veteran's claims file and engaged in a one-hour telephone conference before offering that conclusion. However, the Board further notes that this conclusion is contradicted by the Veteran's statements. For example, the Veteran stated in September 2012 that he thought he could be employed somewhere else, but was comfortable with his current employer because they knew about his disability. The Veteran has also repeatedly stated his employers knew that he had narcolepsy when they hired him. Thus, the Board observes, while the Veteran's consultant concluded that the Veteran was employable only in his current protected environment, the Veteran himself has simultaneously contended that he believes himself to be employable elsewhere, and he has demonstrated an ability to obtain employment even when prospective employers knew about his disability. Furthermore, with accommodations, he has retained his employment and is shown to engage in working overtime on a regular basis. Accordingly, an examination of the Veteran's employability, considering all evidence of record, including the Veteran's statements, the statement of the November 2012 vocational consultant, and other pertinent evidence, should be conducted on remand. A November 2011 rating decision denied service connection for sleep apnea. In January 2012, the Veteran filed a notice of disagreement to that decision. The evidence does not show that a statement of the case has been issued. Where a notice of disagreement has been filed with regard to an issue, and a statement of the case has not been issued, the appropriate Board action is to remand the issue for issuance of a statement of the case. Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following actions: 1. Issue a statement of the case which addresses the issue of entitlement to service connection for sleep apnea. 2. Send a notice letter notifying the Veteran and his representative of any information or lay or medical evidence not previously provided that is necessary to substantiate the TDIU claim on appeal. The notice must state the information or evidence the Veteran should provide and the information or evidence that VA will attempt to obtain on his behalf. The letter should also advise him regarding the elements of an effective date. In addition, send the Veteran a VA Form 21-8940, a Veteran's Application for Increased Compensation Based on Unemployability. Request that the Veteran submit all information necessary to demonstrate that he is incapable of obtaining and maintaining substantially gainful employment. 2. Schedule the Veteran for an examination with an examiner of appropriate expertise to evaluate the effects of the Veteran's service-connected excessive sleepiness on his ability to maintain substantially gainful employment. The examiner is reminded that the Veteran is currently employed full-time. The examiner must review the claims file and must note that review in the report. The complete rationale for opinions should be provided in the examination report, to include reference to pertinent evidence where appropriate. The examiner is asked to opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran is unable to secure or follow a substantially gainful occupation due to his service-connected central nervous system hypersomnolence syndrome (narcolepsy). The examiner should provide an opinion as to whether the Veteran's current employment is marginal in nature such that the Veteran is employed in a protected environment that is analogous to a family business or sheltered workshop. The examiner should assume for the purpose of this opinion that a "sheltered workshop" is a work center that provides rehabilitation services, day treatment, training, or employment opportunities to individuals with disabilities. Please discuss the findings of the November 2012 vocational consultant indicating that the Veteran's employment was essentially sheltered in a protected environment. The opinion should consider the Veteran's ability to procure and maintain gainful employment consistent with his education and occupational experience. This opinion should not consider the Veteran's age or any nonservice-connected disorders. The examiner should not base the opinion solely upon demonstrated difficulty in obtaining employment in one particular field, which could also potentially be due to external bases such as economic factors, but rather to all reasonably available sources of employment under the circumstances. 3. Then readjudicate the claim. If the decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the claim to the Board. The Veteran is hereby notified that it is his responsibility to report for any examination, and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). The Veteran has the right to submit additional evidence and argument on the matter that the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West 2002 & Supp. 2012). ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs