Citation Nr: 1237166 Decision Date: 10/26/12 Archive Date: 11/09/12 DOCKET NO. 09-48 307 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to an initial disability rating higher than 60 percent for service-connected narcolepsy/idiopathic hypersomnia. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A.J. Turnipseed, Counsel INTRODUCTION The Veteran served on active duty from February 1999 to March 2008. This matter comes before the Board of Veterans' Appeals (Board) from a January 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) above. In September 2012, the Veteran testified before the undersigned Veterans Law Judge at a hearing held at the Central Office in Washington, DC. A transcript of the hearing is associated with the claims file. FINDING OF FACT The preponderance of the most competent, credible, and probative evidence reflects that the Veteran's service-connected narcolepsy/idiopathic hypersomnia has been manifested by episodes of daytime sleep attacks at least 14 times a week throughout the appeal period, which are analogous to minor seizures manifested by a brief interruption in consciousness. There is no medical evidence of cataplexy or any other symptoms that more nearly approximate a major seizure as contemplated by the rating criteria. CONCLUSION OF LAW The schedular criteria for an 80 percent rating, but no higher, for service-connected narcolepsy/idiopathic hypersomnia have been met. 38 U.S.C.A. § 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.124a, Diagnostic Code 8108-8911 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations require VA to provide claimants with notice and assistance in substantiating a claim. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Proper VCAA notice must inform the claimant of any information and evidence not in the record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183, 186 (2002). These notice requirements apply to all elements of a claim, including the degree and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Proper VCAA notice must be provided prior to the initial unfavorable decision on the claim. Pelegrini v. Principi, 18 Vet. App. 112, 119-20 (2004). In this case, the Veteran is challenging the initial disability rating assigned following the grant of service connection. In Dingess, the Court of Appeals for Veterans Claims held that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Id. at 490-91. Review of the record reveals that, in July 2008, prior to the initial rating decision in January 2009, the RO sent the Veteran a letter advising him of the evidence and information necessary to substantiate a service connection claim and the responsibilities of the Veteran and VA in obtaining such evidence. Thus, because the notice that was provided before service connection was granted was legally sufficient, VA's duty to notify in this case has been satisfied. Nevertheless, the Board notes that the RO also sent the Veteran a letter in May 2009 that advised him of how disability ratings and effective dates are assigned, as well as the rating criteria used to evaluate his service-connected narcolepsy disability. As such, the Board finds that the Veteran has been provide all required notice in this case. With regard to the duty to assist, all pertinent, identified medical records have been obtained and considered. The Board notes that the Veteran also has a Virtual VA paperless claims file, which is a highly secured electronic repository that is used to store and review documents involved in the claims process. The Board has reviewed the contents of the paperless file, and it is apparent that the RO reviewed all evidence in the paperless claims file as well. In addition to the foregoing, the Veteran was afforded a VA/QTC examination in August 2008. There is no allegation or indication that the VA examination was not adequate for rating purposes. As such, all rating criteria have been addressed, and the medical evidence of record is sufficient for a fair adjudication of the Veteran's claims. Therefore, the Board will proceed with review of the Veteran's claim based upon all relevant evidence. For the foregoing reasons, the Board finds that VA has satisfied its duties to inform and assist the Veteran at every stage in this case. As such, the Veteran will not be prejudiced by a decision on the merits of his claim. II. Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, 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. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when the current appeal arose from the initially assigned rating, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). Entitlement to service connection for narcolepsy/idiopathic hypersomnia (hereinafter "service-connected narcolepsy") was established in January 2009, and the RO assigned a 10 percent disability rating pursuant to 38 C.F.R. § 4.124a, Diagnostic Code (DC) 8108-8911, effective March 6, 2008. The Veteran disagreed with the initial 10 percent rating assigned to his service-connected narcolepsy disability and, in September 2009, the RO increased his disability rating to 60 percent, effective March 6, 2008. The Veteran was advised of the grant of the increased rating by letter and by a Supplemental Statement of the Case (SSOC) in September, but he did not withdraw his appeal. Instead, the Veteran's increased rating claim continued and he perfected his appeal by submitting a timely substantive appeal via VA Form 9. See AB v. Brown, 6 Vet. App. 35 (1993); 38 C.F.R. § 20.200; 20.202. Accordingly, the issue of entitlement to an initial disability rating higher than 60 percent for service-connected narcolepsy has been certified to the Board for adjudication. As noted, the Veteran's service-connected narcolepsy is rated 60 percent disabling under DC 8108-8911. Indeed, under DC 8108, narcolepsy is to be rated as petit mal epilepsy under DC 8911, which in turn is rated under the general rating formula for minor seizures. Note (1) explains that a major seizure is characterized by the generalized tonic-clonic convulsion with unconsciousness. Note (2) explains that 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). The criteria of the General Rating Formula for Major and Minor Epileptic Seizures are as follows. A rating of 10 percent is assigned with a confirmed diagnosis of epilepsy with a history of seizures. A rating of 20 percent is assigned with at least 1 major seizure in the past two years or at least two minor seizures in the past six months. A rating of 40 percent is assigned with at least one major seizure in the past six months or two in the last year, or averaging at least five to eight minor seizures weekly. A rating of 60 percent is assigned with averaging at least one major seizure in four months over the last year, or 9-10 minor seizures per week. A rating of 80 percent is assigned with averaging at least one major seizure in three months over the last year, or more than 10 minor seizures weekly. A rating of 100 percent is assigned with averaging at least one major seizure per month over the last year. Note (1) to the General Rating Schedule states that when continuous medication is shown necessary for control of epilepsy the minimum rating will be 10 percent, not to be combined with any other rating for epilepsy. Note (2) states that in the presence of major and minor seizures, the major type will be rated. Note (3) states that there will be no distinction between diurnal and nocturnal major seizures. Turning to the merits of this case, the Board notes that the pertinent evidence of record includes treatment records from Dr. N.F. dated March 2007 to March 2008, an August 2008 VA/QTC examination report, a December 2008 VA outpatient treatment record, and the Veteran's testimony at the September 2012 Central Office hearing. The Board finds that the evidence of record is the most competent, credible, and probative evidence regarding the current severity of the Veteran's service-connected narcolepsy. In making this determination, the Board notes that it has been four years since the last VA examination was conducted and there is only one VA treatment record associated with the paper and paperless claims file; however, the Veteran's representative stated at the September 2012 hearing that the Veteran's service-connected narcolepsy disability has essentially stayed the same throughout the appeal period and there is no other lay or medical evidence suggesting that the Veteran's disability has increased in severity. Therefore, the Board finds that a remand is not needed in order to obtain additional evidence in support of the Veteran's claim, as the evidence of record adequately reflects the level of severity of the Veteran's service-connected narcolepsy disability throughout the pendency of the appeal. Treatment records from Dr. N.F. reflect that the Veteran presented for treatment in March 2007 with a history of excessive daytime sleepiness for which he had undergone several sleep studies that demonstrated pathological hypersomnolence but did not show sleep apnea or sleep onset REM periods. The Veteran reported having dreams with short naps and sleep paralysis about five to six times per month manifested by waking up and being unable to move. Dr. N.F. noted, however, that the Veteran did not appear to have cataplexy and no symptoms compatible with REM behavior disorder. After examining the Veteran, Dr. N.F. stated that the Veteran suffered from clinically significant excessive daytime somnolence (EDS), but he also opined that the Veteran had narcolepsy without cataplexy manifested by dreams with short naps and the presence of sleep paralysis five to six times per month. See March 2007 treatment record. Subsequent treatment records from Dr. N.F. document the medication treatment the Veteran was prescribed for his narcolepsy and, in December 2007, the Veteran reported that he was likely to fall asleep three to four times a day. See treatment records from Dr. N.F. dated from March 2007 to March 2008. At the August 2008 VA/QTC examination, the Veteran reported feeling very tired during the day, which resulted in him taking naps about twice a day. However, the examiner noted that the Veteran denied having cataplexy or any other classic features of narcolepsy. Based upon his interview of the Veteran, the VA examiner rendered a diagnosis of idiopathic hypersomnia, i.e., daytime sleepiness without a specific known pathogenic underlying cause or condition. The December 2008 VA treatment record reflects that this was the Veteran's initial visit for narcolepsy without cataplexy. The Veteran reported having between two to three sleep attacks with his prescription regimen, as well as sleep paralysis one to two times a month. Based on the foregoing, the Board finds the preponderance of the evidence shows that the Veteran's service-connected narcolepsy is manifested by daytime sleep attacks that occur between two to four times a day, or 14 to 28 times a week. The evidence also shows that the Veteran has a history of sleep paralysis five to six times a week, while the most recent evidence of record shows that his episodes of sleep paralysis occur once or twice a month. See March 2007 treatment record from Dr. N.F.; December 2008 VA outpatient treatment record; September 2012 hearing transcript. The preponderance of the evidence consistently shows that the Veteran does not have cataplexy or any other classic features of narcolepsy. Applying these findings to the rating criteria detailed above, the Board finds the preponderance of the evidence supports the grant of an 80 percent rating under DC 8911 throughout the appeal period. Indeed, the evidence shows that the Veteran has experienced episodes of daytime sleep attacks at least 14 times a week throughout the appeal period, which are analogous to minor seizures manifested by a brief interruption in consciousness and which warrant a 60 percent rating under the general rating formula. A higher, 100 percent rating is not warranted, however, because the Veteran's daytime sleep attacks are not analogous to a major seizure as contemplated by the rating criteria under DC 8911, as they are not manifested by tonic-clonic convulsions with unconsciousness. In this context, the Veteran has argued that his episodes of sleep paralysis are essentially cataplexia, which is analogous to a major seizure that warrants a 100 percent rating under DC 8911. In support of his assertion, the Veteran has submitted copies of two Board decisions which granted increased ratings for narcolepsy on the basis that the veteran in those cases was experiencing cataplexy which amounted to a major seizure activity. The Board has considered the Veteran's assertions in this regard; however, the Board finds that his argument must fail because the evidence in this case shows that the Veteran does not have cataplexy or any other seizure disorder. Indeed, the evidence of record shows that every physician who has examined the Veteran in conjunction with his narcolepsy disability noted his episodes of sleep paralysis but, nonetheless, specifically stated that he does not have cataplexy. See treatment records from Dr. N.F. dated March 2007 to March 2008, August 2008 VA/QTC examination report, and December 2008 VA outpatient treatment record. In this regard, the Board notes that, in the other Board decisions submitted by the Veteran, there was documented evidence of cataplectic attacks or a diagnosis of narcolepsy with cataplexy, which supported the Board's grant of an increased rating. However, there is no medical evidence of cataplexy or any other symptoms that more nearly approximate a major seizure as contemplated by the rating criteria in the instant case. In addition, the Veteran is not competent as a layperson to state that his episodes of sleep paralysis are essentially cataplexy, as such is a complex medical question. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In fact, the Board finds particularly probative that medical professionals have noted the Veteran's episodes of sleep paralysis and specifically stated that he does not have cataplexy. As such, the Veteran's statements are not considered competent or credible evidence which supports the grant of a rating higher than 80 percent. The Board has considered the Veteran's service-connected narcolepsy under all other potentially applicable provisions of 38 C.F.R. Parts 3 and 4, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). However, after careful review of the available diagnostic codes and the medical evidence of record, the Board finds there are no other DCs that provide a basis to assign an evaluation higher than the 80 percent rating assigned herein. Final Considerations The Board has considered whether the issue on appeal should be referred for extra-schedular consideration pursuant to 38 C.F.R. § 3.321(b)(1). In fact, the Veteran has specifically argued that extra-schedular consideration is warranted in this case because the evidence shows that he experiences sleep attacks that average between 14 to 28 times a week, which nearly doubles the amount needed to warrant an 80 percent rating under the rating criteria. See July 2009 statement from the Veteran. An extra-schedular rating is warranted if a case presents such an exceptional or unusual disability picture, with such related factors as marked interference with employment or frequent periods of hospitalization, that it would be impracticable to apply the schedular standards. Analysis under this provision involves a three-step inquiry, and extra-schedular referral is necessary only if analysis under the first two steps reveals that the rating schedule is inadequate to evaluate the claimant's disability picture and that such picture exhibits such related factors as marked interference with employment or frequent periods of hospitalization. Thun v. Peake, 22 Vet. App. 111, 115-16 (2008). In this case, the Board finds that the manifestations of the Veteran's narcolepsy disability are fully contemplated and adequately addressed by the schedular rating criteria. Indeed, the rating criteria used to evaluate minor seizures, to which episodes of narcolepsy are rated by analogy, specifically contemplates the occurrence of more than 10 episodes a week. Therefore, the Board finds that the rating criteria is not rendered inadequate simply because the Veteran experiences more than twice the amount specified in the rating criteria, particularly given the use of the phrase "more than 10" episodes a week in the rating criteria. Because the Board finds that the rating schedule is adequate to evaluate the disability picture associated with the Veteran's service-connected narcolepsy disability, it is unnecessary to discuss the second prong, i.e., whether there are related factors such as marked interference with employment or frequent periods of hospitalization. See id. However, the Board notes that the Veteran has not been hospitilzied for his narcolepsy disabity at any time during the course of the appeal. Further, the percentage ratings are considered adequate to compensate for considerable loss of working time from exacerbations proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. As such, referral for consideration of an extra-schedular rating is not necessary. See Thun, 22 Vet. App. at 115-16. The Board has also considered whether a claim for a TDIU has been raised. When evidence of unemployability is submitted during the course of an appeal from a rating assigned for a disability, a claim for a TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). In this case, the Veteran testified that he is currently employed as a security specialist for a contract company, which requires that he perform office related administrative work. The Veteran has not asserted that he has lost any time during the appeal period as a result of his service-connected narcolepsy and no medical professional has stated that his service-connected narcolepsy renders him unemployable. In this regard, Dr. N.F. noted that the Veteran's narcolepsy would result in a profound social and industrial impairment, as his tendency to fall asleep during sedentary activities limits his occupational options. He also noted that narcolepsy patients are ill-suited for sedentary jobs that require sitting and concentrating for long periods of time and that any occupation that requires operation of dangerous machinery is medically contraindicated. However, Dr. N.F. also stated that the Veteran would be best adapted to an occupational that includes a moderate amount of physical activity and varying tasks, in order to help maximize alertness. Therefore, while Dr. N.F. has noted the functional limitations that could be caused by the Veteran's narcolepsy, his statements show that the Veteran's narcolepsy does not render him incapable of securing or performing any substantial gainful employment, as the Veteran could likely obtain a job with moderate amounts of physical activity and varying tasks. In this regard, the Board also notes that the August 2008 VA examiner noted that the overall affect of the Veteran's narcolepsy on his usual occupation and daily activities is minimal. Based on the foregoing, the Board finds the evidence does not show the Veteran is unemployable due to his service-connected narcolepsy disability and that any affect his disability has on his employability is contemplated by the 80 percent disability rating currently assigned to his disability. As such, further discussion of a TDIU is not necessary. In summary, and based on the foregoing reasons and bases, the Board finds the preponderance of the evidence supports the grant of an 80percent disability rating, but no higher, throughout the pendency of the appeal. In making this determination, all reasonable doubt has been resolved in favor of the Veteran. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER An 80 percent disability rating for service-connected narcolepsy/idiopathic hypersomnia is granted, subject to the laws and regulations governing monetary awards. ____________________________________________ C. TRUEBA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs