Citation Nr: 1414087 Decision Date: 04/01/14 Archive Date: 04/11/14 DOCKET NO. 08-18 852 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to an initial evaluation in excess of 80 percent for narcolepsy. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD James A. DeFrank, Counsel INTRODUCTION The Veteran served on active duty from August 1999 to October 2002. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In August 2010, the Veteran testified at a personal hearing before the undersigned Veterans Law Judge. A transcript of this hearing was prepared and associated with the claims file. In an October 2010 decision, the Board remanded these issues for additional development. In a February 2012 supplemental statement of the case (SSOC), the RO increased the Veteran's disability rating to an initial 80 percent evaluation, effective November 30, 2006. Since the Veteran asserted that he was not satisfied with this rating and an 80 percent evaluation does not constitute a full grant of the benefits sought, the issue of an initial rating in excess of 80 percent remains in appellate status. AB v. Brown, 6 Vet. App. 35, 39 (1993). The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file reveals additional evidence that will be considered by the Board in this appeal. FINDINGS OF FACT 1. The Veteran's narcolepsy has not been manifested by major seizures characterized by the generalized tonic-clonic convulsion with unconsciousness. 2. In September 2012, the Veteran was asked to provide identifying information and the releases needed to secure pertinent outstanding evidence necessary to adjudicate his claim of entitlement to a TDIU rating; more than a year has lapsed since that request; he has not responded. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 80 percent for narcolepsy have not been met. 38 U.S.C.A. § 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.124a, Diagnostic Code 8108-8911 (2013). 2. By failing to submit requested identifying information and releases for critical evidence needed to properly adjudicate his claim for entitlement to a TDIU the Veteran has abandoned his claim, and his appeal in this matter must also be considered abandoned. 38 U.S.C.A. §§ 5107, 7105(d) (5) (West 2002); 38 C.F.R. § 3.158(a) (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002) and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). See also 73 Fed. Reg. 23,353-23,356 (April 30, 2008) (concerning revisions to 38 C.F.R. § 3.159). Regarding the Veteran's claim for entitlement to a TDIU, the notice described above is not required because the issue presented involves a claim that cannot be substantiated as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law and not the evidence is dispositive the Board should deny the claim on the ground of the lack of legal merit or the lack of entitlement under the law); VAOPGCPREC 5- 2004 (June 23, 2004) (VA is not required to provide notice of the information and evidence necessary to substantiate a claim where that claim cannot be substantiated because there is no legal basis for the claim or because undisputed facts render the claimant ineligible for the claimed benefit). Regarding the Veteran's claim for a higher initial rating for narcolepsy, the RO provided notice to the Veteran in a January 2007 letter, prior to the date of the issuance of the appealed June 2007 rating decision. The January 2007 letter explained what information and evidence was needed to substantiate a claim for service connection and, as well as what information and evidence must be submitted by the Veteran, and what information and evidence would be obtained by VA. The letter also provided the Veteran with information pertaining to the assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations, consistent with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA has also fulfilled its duty to assist in obtaining the identified and available evidence needed to substantiate the claim adjudicated in this decision. The RO has either obtained, or made sufficient efforts to obtain, records corresponding to all treatment for the claimed disorder described by the Veteran. Additionally, he was afforded VA examinations in May 2007, September 2008 and November 2010. The Board finds these examination reports to be thorough and consistent with contemporaneous medical records. The examinations in this case are adequate upon which to base a decision with regards to this claim. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (defining adequacy with respect to medical examinations and opinions as those providing sufficient detail so that the Board can perform a fully informed evaluation of the claim). Overall, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. I. Narcolepsy Laws and Regulations The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claims or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claims, in which case, the claims are denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2013). Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2013). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2013). The Veteran's entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1 (2013). Where service connection has already been established, and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, in Fenderson v. West, 12 Vet. App. 119 (1999), it was held that evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder. The Court also discussed the concept of the "staging" of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. See also Hart v. Mansfield, 21 Vet. App. 505 (2008). The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14 (2013). The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261- 62 (1994). 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 (2013). Factual Background and Analysis In this case, in a June 2007 rating decision, the RO granted service connection for migraine headaches and assigned an initial 10 percent disability evaluation, effective November 30, 2006 under Diagnostic Code 8108. In a February 2012 SSOC, the RO increased the Veteran's disability rating to an initial 80 percent evaluation, effective November 30, 2006 under Diagnostic Code 8108. This diagnostic code provides that narcolepsy shall be evaluated as petit mal epilepsy under 38 C.F.R. § 4.124a, Diagnostic Code 8911. The Board acknowledges that there are differences between narcolepsy and epilepsy. However, VA's diagnostic codes often require a disability to be evaluated by analogy under rating criteria that do not precisely match those of the disability at issue. While it is not expected that all cases will show all of the findings specified, findings sufficiently characteristic to identify the disability and coordination of rating with impairment of function are expected in all cases. 38 C.F.R. § 4.21 (2013). Diagnostic Code 8911 directs that petit mal epilepsy should be rated under the general rating formula for minor seizures. Notes to the general rating formula describe minor seizures as brief interruptions in consciousness or conscious control associated with staring or rhythmic blinking of the eyes, nodding of the head, sudden loss of postural control, or sudden jerking of the arms, trunk, or head. A major seizure is characterized by the generalized tonic-clonic convulsion with unconsciousness. To warrant a 100 percent evaluation under Diagnostic Code 8911, the Veteran has to average at least 1 major seizure per month over the last year. A May 2002 sleep study revealed slight snoring. The Veteran underwent a VA examination in May 2007. The diagnosis was narcolepsy for 10 years. On examination, he was neurologically normal. A February 2008 private treatment note indicated that the Veteran had narcolepsy without cataplexy. His condition had been controlled while on Provigil. In a May 2008 letter, the same private physician again noted that the Veteran had a known diagnosis of narcolepsy without cataplexy. The Veteran underwent a VA examination in September 2008. The examiner noted that of interest, the Veteran drove 2 1/2 hours by himself to the examination. The diagnosis was narcolepsy for approximately 8 years. He was neurologically negative. The Veteran underwent a VA examination in November 2010. The Veteran reported having "sleeping" episodes about 3 times a day (20-25 times per week) and cataplexy, when he loses control of his body and can actually fall or stumble 3 times a week. With the cataplexy, he can fall but usually managed to catch himself. He now limited his driving to short trips and had not fallen asleep when driving. The diagnosis was narcolepsy. The Veteran's disability is currently evaluated as 80 percent disabling under Diagnostic Code 8911, which contemplates minor seizures that occur 10 or more times per week. However, in light of the foregoing, the Board finds that the preponderance of the evidence is against the assignment of an initial rating in excess of 80 percent as his symptoms are not analogous to a major seizure as contemplated by the rating criteria under Diagnostic Code 8911. Specifically, they are not manifested by symptoms akin to tonic-clonic seizures. The Board notes that on VA examination the Veteran reported cataplexy where he lost control of his body 3 times a week. However, it was also noted that he could fall but usually caught himself. No report of jerking movements, stiffening, convulsions, or similar manifestations was made. The symptoms as described by the Veteran during this examination and throughout the record do not suggest that his narcolepsy has ever been manifested by symptoms akin to tonic-clonic seizures. Accordingly, the Board finds that they do not rise to the level and severity of incapacitation of major seizures. 38 C.F.R. § 4.124a, Diagnostic Code 8911, Note (1). As noted above, to warrant a 100 percent rating under Diagnostic Code 8919, the Veteran has to average at least 1 major seizure per month over the last year. Accordingly, an initial rating in excess of 80 percent is not warranted for the Veteran's service-connected narcolepsy. The Board has also considered the potential application of other various provisions, evaluations are found to be inadequate. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three- step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the Veteran's service-connected narcolepsy is inadequate. A comparison between the level of severity and symptomatology of the Veteran's disability with the established criteria shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology for service-connected narcolepsy. There is no evidence in the medical records of an exceptional or unusual clinical picture. The Board, therefore, has determined that referral of this case for extra-schedular consideration pursuant to 38 C.F.R. 3.321(b) (1) is not warranted. II. TDIU With respect to the claim of entitlement to a TDIU; VA is unable to properly proceed with adjudication of this matter because the Veteran has not provided identifying information and releases for VA to secure private records pertaining to the impact of the Veteran's service connected narcolepsy disability on his employability. A governing regulation provides that where evidence requested in connection with an original claim or a claim for increase is not furnished within 1 year after the date of the request, the claim will be considered abandoned. 38 C.F.R. § 3.158(a). The Veteran contends that his service-connected narcolepsy disability has rendered him unemployable. Specifically, he argues that employees either let him go or refuse to hire him once they become aware of his narcolepsy. While the record contains a statement from the Veteran's former employer from April 2004 to February 2005, a September 2012 notation from the RO indicated that information from the Veteran's past two employers, Nutro and Screenvision, was not of record and needed to be obtained. Accordingly, in September 2012 the RO sent the Veteran a letter asking him to complete and return an enclosed VA Form 21-4192 (Request for Employment Information In Connection With Claim For Disability Benefits) for his two previous employers, Nutro and Screenvision. In addition, the letter requested that the Veteran provide a copy of his tax returns showing his income from 2011. The letter was mailed to his current address, and was not returned as undelivered. He did not respond. More than a year has passed since the September 2011 request. Given the nature of the Veteran's contention, that employers frequently refuse to hire or retain him when they become aware of his disability, the information sought by the RO was critical evidence pertaining to his claim for a TDIU. As a result, the Board is presented with a less than complete evidentiary record. The remaining claim cannot be properly addressed without the employment records sought, and proper merits adjudication is simply not possible. The regulation governing in this situation, 38 C.F.R. § 3.158(a), is clear and unambiguous, and mandates that the claim will be considered abandoned. See Hurd v. West, 13 Vet. App. 449, 452 (2000) (when the RO requests additional evidence and the appellant does not respond within one year, the claim is considered abandoned under 38 C.F.R. § 3.158 ); Wamhoff v. Brown, 8 Vet. App. 517, 521-22 (1996) (when an appellant does not furnish the requested evidence within the specified one year of the request, the RO is required, by VA regulations, to consider the claim abandoned). Notably, more recently the Court has held that even if an appellant is ignorant of the abandonment provisions of 38 C.F.R. § 3.158(a), VA regulations are "binding on all who seek to come within their sphere," regardless of whether an appellant has actual knowledge of what is in the regulations. See Jernigan v. Shinseki, 25 Vet. App. 220 (2012). Hence, the Board has no recourse but to conclude that the Veteran has abandoned the remaining claim. See Hyson v. Brown, 5 Vet. App. 262 (1993). As the claim for a TDIU rating is abandoned there is no allegation of error in fact or law for appellate consideration in the matters. Under 38 U.S.C.A. § 7105(d) (5), the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. ORDER Entitlement to an initial evaluation in excess of 80 percent for narcolepsy is denied. Entitlement to a TDIU is dismissed. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs