Citation Nr: 1329816	
Decision Date: 09/18/13    Archive Date: 09/25/13

DOCKET NO.  09-37 927	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUES

1.  Entitlement to an initial compensable rating for gastrointestinal reflux disease (GERD) and irritable bowel syndrome (IBS).  

2.  Entitlement to an initial rating in excess of 10 percent for hypertension.

3.  Entitlement to an initial rating in excess of 10 percent for narcolepsy.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

K. Neilson, Counsel


INTRODUCTION

The Veteran served on active duty from October 1987 to September 2001.  He had additional service with a reserve component that included a period of active duty from October 2001 to October 2007.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama.  

On June 18, 2013, the Veteran testified at a Board hearing via videoconferencing before the undersigned Veterans Law Judge.  A transcript of that proceeding is of record.

(The decision below addresses the issue of entitlement to higher initial ratings for service-connected GERD and IBS and hypertension.  The issue of entitlement to a higher initial rating for narcolepsy is addressed in the remand that follows the Board's decision.)


FINDINGS OF FACT

1.  The Veteran's GERD and IBS has been manifested by symptomatology resulting in a moderate level of disability without regard to the ameliorative effects of medication.

2.  The Veteran's diastolic pressure has not been not predominantly 110 or more, and his systolic pressure has not been predominantly 200 or more.  Continuous use of medication for treatment of hypertension is required, and the relief provided by medication is specifically contemplated by the applicable schedular rating criteria.


CONCLUSIONS OF LAW

1.  The criteria for an initial 10 percent disability rating for service-connected GERD and IBS have been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.114, Diagnostic Code 7319 (2013).

2.  The criteria for an initial schedular disability rating in excess of 10 percent for hypertension have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.104, Diagnostic Code 7101 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Notice and Assistance

The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2013), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim.  They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim.  As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant.

The VCAA notice requirements apply to all five elements of a service connection claim.  These are: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).

The Board notes that VA's General Counsel has held that VCAA notice is not required for downstream issues.  VAOPGCPREC 8-2003.  Additionally, the Court held that "the statutory scheme contemplates that once a decision awarding service connection, a disability rating, and an effective date has been made, § 5103(a) notice has served its purpose, and its application is no longer required because the claim has already been substantiated."  Dingess, 19 Vet. App. at 490.  In this case, the Veteran's claims of service connection for GERD and IBS and hypertension were granted in May 2008.  He was also assigned a disability rating and an effective date.  As the Veteran's current appeal stems from a disagreement with a downstream element, no additional notice is required because the purpose that the notice is intended to serve has been fulfilled.  See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).

The Board also finds that VA has adequately fulfilled its obligation to assist the Veteran in obtaining the evidence necessary to substantiate the claims decided herein.  Indeed, all available evidence pertaining to the matters decided herein has been obtained.  The evidence includes the Veteran's service treatment records (STRs), VA examination reports, and lay statements from the Veteran.  The Veteran was also afforded a hearing in connection with his case.  The Board notes that it is remanding the issue of entitlement to a higher initial rating for narcolepsy, in part, for the agency of original jurisdiction (AOJ) to attempt to obtain records related to treatment of the Veteran's narcolepsy, as identified during his June 2013 hearing.  The Veteran has not, however, alleged medical treatment during the relevant time period related to GERD and IBS.  Accordingly, because the Veteran has not indicated that there are outstanding relevant and available records that VA should have obtained and the Board is also aware of none, the Board finds no basis upon which to remand that matter.  

As the Veteran's hypertension claim, the Board acknowledges that the Veteran indicated during his June 2013 hearing that his blood pressure was taken at a recent doctor's appointment.  Although a record from that appointment has not been associated with the claims folder, the Veteran reported his blood pressure reading and the Board finds that he is competent to do so.  As his reported reading does not suggest a worsening of his hypertension, the Board finds no reason to remand solely to obtain a copy of the recent blood pressure reading.

Further, the Veteran was afforded an examination in connection with his claim of service connection for GERD and IBS and hypertension in January 2008.  The VA examiner indicated that the claims folder had been reviewed and the examiner took into account the Veteran's subjective complaints associated with his claimed disabilities.  All appropriate testing was conducted, and the examiners made all findings necessary to apply the rating criteria.  Upon review of the examination report, and in light of the Veteran's hearing testimony, the Board is satisfied that the record contains sufficient evidence by which to evaluate the Veteran's service-connected GERD and IBS and hypertension throughout the appeal period.  Accordingly, the Board has properly assisted the Veteran by affording him adequate VA examinations.

While an extended period of time has gone by since the January 2008 VA examination, neither the Veteran nor his attorney has asserted, nor does the evidence demonstrate, that his disabilities have worsened or undergone some material change since the January 2008 VA examination.  Further, the Veteran is competent to testify as to certain symptoms of his disability and was given the opportunity to do so during his June 2013 hearing.  Accordingly, the Board does not find that a new examination is warranted in this case.  Palczewski v. Nicholson, 21 Vet. App. 174, 182 (2007) (mere passage of time does not require VA to provide a new medical examination).  Thus, the Board finds that the duty-to-assist requirements have been met.  

II.  Analysis

Disability ratings are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2013).  The veteran's entire history is reviewed when making disability evaluations.  See generally Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 4.1.  Where, as in the case of the Veteran's current claims, the question for consideration is the propriety of the initial evaluations assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of a staged rating are required.  See Fenderson v. West, 12 Vet. App. 119, 126 (1999).  Further, "[w]here there is a question as to which of two evaluations shall be applied, the higher evaluation 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).

A.  GERD and IBS

The Veteran's GERD and IBS has been evaluated as noncompensably disabling percent disabling under 38 C.F.R. § 4.104, DC 7399-7346, effective since November 1, 2007.  The Board notes that "[t]here are diseases of the digestive system, particularly within the abdomen, which, while differing in the site of pathology, produce a common disability picture characterized in the main by varying degrees of abdominal distress or pain, anemia, and disturbances in nutrition."  38 C.F.R. § 4.113 (2013).  Consequently, certain co-existing diseases in this area do not lend themselves to distinct and separate disability ratings without violating the fundamental principle relating to pyramiding as outlined in 38 C.F.R. § 4.14.  Id.  Therefore, ratings under DCs 7301 to 7329, 7331, 7342, and 7345 to 7348 will not be combined with each other.  38 C.F.R. § 4.114 (2013).  Rather, a single evaluation will be assigned under the diagnostic code which reflects the predominant disability picture, with elevation to the next higher evaluation where the severity of the overall disability warrants such an evaluation.  In the instant case, the RO determined that GERD is the Veteran's predominate disability when rating him under DC 7399-7346.

Hyphenated DCs are used when a rating under one DC requires use of an additional DC to identify the basis for the evaluation assigned.  38 C.F.R. § 4.27 (2013).  When an unlisted disease, injury, or residual condition is encountered, requiring rating by analogy, the DC number will be "built-up" as follows: the first two digits will be selected from that part of the schedule most closely identifying the part, or system of the body involved, in this case, the digestive system, and the last two digits will be "99" for all unlisted conditions.  Then, the disability is rated by analogy under a DC to a closely related disability that affects the same anatomical functions and has closely analogous symptomatology.  38 C.F.R. §§ 4.20, 4.27 (2012).  In this case, the RO initially determined that the DC most analogous to the Veteran's GERD and IBS was DC 7346, which pertains to "[h]ernia, hiatal."  However, the Board must consider whether any other potentially applicable DC would support a higher rating or whether the Veteran's disability is more appropriately rated under an alternate DC.  Thus, the Board will also discuss the applicability on DC 7319, which pertains to irritable colon syndrome.


Under DC 7346, a 10 percent disability rating is warranted with two or more of the symptoms for the 30 percent evaluation, though of less severity.  38 C.F.R. § 4.114, DC 7346 (2013).  A 30 percent rating is warranted for persistently recurrent epigastric distress with dysphagia, pyrosis and regurgitation accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health.  Id.  Lastly, a 60 percent rating is warranted for symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health.  Id.  

Under DC 7319, a noncompensable rating is assigned for mild irritable colon syndrome, characterized by disturbances of bowel function with occasional episodes of abdominal distress.  38 C.F.R. § 4.114, DC 7319 (2013).  A 10 percent rating contemplates a moderate disability, manifested by frequent episodes of bowel disturbance with abdominal distress.  Id.  A 30 percent rating requires severe irritable colon syndrome, manifested by diarrhea or alternating diarrhea and constipation with more or less constant abdominal distress.  Id.

By way of background, the Board notes that the Veteran's STRs showed treatment related to vomiting and constipation and contain as assessment of probable reflux syndrome.  In August 1997, the Veteran was diagnosed as having a small hiatal hernia with milder GERD.  IBS was not specifically diagnosed in service.

The Veteran was afforded a VA examination in January 2008.  His symptoms of disability reportedly consisted of constipation, indigestion, gas, and heartburn.  Nausea, vomiting, regurgitation, and diarrhea were denied.  It was noted that initial manifestations of his disability were frequent constipation, indigestion, gas, and heartburn, which were treated with over the counter fiber tablets and Prilosec.  The Veteran's symptoms were said to be intermittent with remissions and/or improved since onset and the Veteran's response to medication was good.

In his July 2008 notice of disagreement (NOD) and his October 2009 VA Form 9 (Appeal to the Board of Veterans' Appeals), the Veteran reported experiencing daily regurgitation and shoulder pain related to his GERD.  During his June 2013 hearing, the Veteran reported constipation and occasional diarrhea.  He stated that he treated his symptoms with Prilosec and fiber.

Upon review of the evidence, the Board finds that the Veteran's GERD and IBS more nearly approximates the criteria required for a 10 percent rating under DC 7319.  Although the relevant evidence suggests that the Veteran's current symptoms are mild with only occasional disturbance of bowel function and episodes of abdominal distress, a closer review of the record demonstrates that the severity of the Veteran's symptoms has been diminished due to the medication used to treat his GERD and IBS.  As recently held by the United States Court of Appeals for Veterans Claims (Court), "the Board may not deny entitlement to a higher rating on the basis of relief provided by medication when those effects are not specifically contemplated by the rating criteria."  Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). As the current versions of DCs 7319 and 7346 do not contemplate the effects of medication in alleviating symptoms of the Veteran's GERD and IBS, the Board is now precluded from considering the relief afforded by the Veteran's medication in evaluating the severity of his disability.  Id.

With respect to DC 7319, the competent and probative evidence demonstrates that, when reasonable doubt is resolved in the Veteran's favor and when the ameliorative effects of the Veteran's medication are disregarded, the Veteran's overall symptomatology, to include constipation, diarrhea, indigestion, gas, heartburn, and regurgitation more closely approximates a moderate disability, as the evidence shows that prior to beginning medication his constipation was frequent and his other symptoms are indicative of abdominal distress.

The Board cannot, however, find that the evidence of record supports a rating greater than 10 percent at any point during the claims period, even when the ameliorative effects of the Veteran's medication are disregarded.  There is no objective evidence that constant abdominal distress exists.  Although the Veteran reports occasional diarrhea and daily regurgitation, there are no signs of significant weight loss or malnutrition, which would indicate a more severe disability.  Likewise, evaluation of the Veteran's GERD and IBS under DC 7346 would not result in a disability rating in excess of 10 percent.  Pertinently, the objective evidence of record is absent any indication of dysphagia or pyrosis.  Further, although the Veteran has reported shoulder pain, there is no indication that his should pain is related to his GERD and the Veteran is not competent to report on the etiology of his should pain, especially when the record shows that he has a service-connected shoulder strain, which required surgical repair.  Again, there is also not evidence of significant weight loss or malnutrition.  As such, an evaluation in excess of 10 percent is not assignable under DC 7346.

In consideration of the evidence of record, the Board finds that that the criteria for rating of 10 percent, but no higher, for GERD and IBS have been met.  See 38 C.F.R. § 4.104, DC 7319.  The above determination is based upon consideration of applicable rating provisions.  The Board also finds that the Veteran's disability level and symptomatology is adequately described by the rating criteria.  Indeed, the Veteran's symptomatology, to include regurgitation, constipation, diarrhea, vomiting, and indigestion, are specifically contemplated by the applicable rating criteria.  Without sufficient evidence reflecting that the Veteran's disability picture is so "exceptional or unusual," such that the "the available scheduler evaluation for [his service-connected GERD and IBS is] inadequate," referral for a determination of whether the Veteran's disability picture requires the assignment of an extra-schedular rating is not warranted.  Thun v. Peake, 22 Vet. App. 111, 115-16 (2008); 38 C.F.R. § 3.321(b)(1) (2013).  

Moreover, there is no indication in the record that the Veteran is unemployable on account of his GERD and IBS.  As such, the Board finds that the issue of entitlement to a total disability evaluation based on individual unemployability (TDIU) has not been raised by the evidence of record as part of the Veteran's claim for an increased rating for GERD and IBS.  See Rice v. Shinseki, 22 Vet. App. 447, 453-55 (2009) (holding that the issue of entitlement to TDIU is part of an increased rating claim when that issue is raised by the record).  

B.  Hypertension

The Veteran's hypertension has been evaluated as 10 percent disabling under 38 C.F.R. § 4.104, DC 7101, effective since November 1, 2007.  Under that DC, a 10 percent evaluation is warranted where diastolic blood pressure is predominantly 100 or more, or systolic blood pressure is predominantly 160 or more, or when an individual with a history of diastolic blood pressure predominantly 100 or more requires continuous medication for control; a 20 percent evaluation is warranted where diastolic blood pressure is predominantly 110 or more, or systolic blood pressure is predominantly 200 or more; a 40 percent evaluation is warranted where diastolic pressure is predominantly 120 or more, and; a 60 percent evaluation is warranted where diastolic blood pressure is predominantly 130 or more.  38 C.F.R. § 4.104, DC 7101  (2013).  "Note (1)" provides that hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days.  Id. at Note 1.  

On examination in January 2008, the Veteran's blood pressure readings were recorded to be 129/91; 111/72; and 121/79.  It was noted that hypertension had its onset in 2003 and was being treated with medication.  His course of hypertension since onset was stable and there was no history of hypertensive renal disease, epitaxis, headache, stroke, hypertensive cardiovascular, or other related, disease.  The Veteran's diagnosis was that of essential hypertension and there were significant effects of occupation or usual daily activities.  

During his June 2013 hearing, the Veteran indicated that at a recent medical appointment his blood was "139 or 140 over like 85 or something[g] like that."  The Veteran asserted that without medication his blood pressure would be "totally different."

Based on the January 2008 blood pressure readings and the most current reading relayed by the Veteran during his June 2013 hearing, an evaluation greater than 10 percent is not warranted as the evidence showed a diastolic blood pressure ranging from 72 to 91, and a systolic blood pressure range from 111 to 129.  See 38 C.F.R. § 4.104, DC 7101 (20 percent evaluation is warranted where diastolic blood pressure is predominantly 110 or more, or systolic blood pressure is predominantly 200 or more).  

The Board acknowledges the Veteran's assertion made in his notice of disagreement that without medication his blood pressure would be higher than 160/100 and has considered his argument proffered during his hearing that his blood pressure would be "totally different" were it not for medication.  Although "the Board may not deny entitlement to a higher rating on the basis of relief provided by medication when those effects are not specifically contemplated by the rating criteria," Jones, supra, given that VA has included the effect of medication as a factor to be considered when rating hypertension, the reasoning of Jones indicates that the Board may reject the Veteran's specific theory of entitlement to a higher rating in this case.  Id. at 62 (reasoning that had VA wanted to include the effect of medication as a factor to be considered when rating a particular disability, it would have done so, as it had done in other diagnostic codes (citing 38 C.F.R. § 4.71a, DC 5025 (10 percent rating for fibromyalgia requires symptoms "[t]hat require continuous medication for control"); 38 C.F.R. § 4.97, DC 6602 (rating criteria for bronchial asthma)). 

Furthermore, even were medication not a factor, there is no evidence to support the Veteran's assertion that his hypertension would rise to the level required for a higher rating.  Notably, a review of the Veteran's STRs shows that his blood pressure was as 152/93 in May 2003, as 138/75 in June 2003 and as 141/86 in September 2003.  It appears that the Veteran was placed on medication after May 2003 and at an October 2003 re-check, his blood pressure was recorded as 126/76.  It was noted at that time that the Veteran's high blood pressure was controlled.  Thus, even prior to being placed on medication, the Veteran's blood pressure readings failed to show a diastolic blood pressure of 110 or more or a systolic blood pressure of 200 or more, which is required for a 20 percent rating.  See 38 C.F.R. § 4.104, DC 7101.  

In consideration of the evidence of record, the Board finds that that the criteria for rating in excess of 10 percent for hypertension have not been met at any point during the relevant time period.  See 38 C.F.R. § 4.104, DC 7101.  In making the above findings, the Board has considered the doctrine of reasonable doubt, but finds that the record does not provide an approximate balance of negative and positive evidence on the merits.  The Board is unable to identify a reasonable basis for granting a rating in excess of 10 percent for the Veteran's hypertension at any point since November 1, 2007.  38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990); 38 C.F.R. § 3.102 (2013).

The above determination is also based upon consideration of applicable rating provisions.  The Board also finds that the Veteran's disability level and symptomatology is adequately described by the rating criteria.  Indeed, the Veteran's symptomatology, elevated diastolic and systolic blood pressure readings and the use of continuous medication for control, are specifically contemplated by the rating criteria set forth in DC 7101.  Without sufficient evidence reflecting that the Veteran's disability picture is so "exceptional or unusual," such that the "the available scheduler evaluation for [his service-connected hypertension] are inadequate," referral for a determination of whether the Veteran's disability picture requires the assignment of an extra-schedular rating is not warranted.  Thun, supra; 38 C.F.R. § 3.321(b)(1).

Moreover, there is no indication in the record that the Veteran is unemployable on account of his hypertension.  As such, the Board finds that the issue of entitlement to a total disability evaluation based on individual unemployability (TDIU) has not been raised by the evidence of record as part of the Veteran's claim for an increased rating for hypertension.  See Rice, supra.


ORDER

Entitlement to an initial disability evaluation in excess of 10 percent for service-connected hypertension is denied.

Entitlement to a disability rating for GERD and IBS of 10 percent is granted, subject to the laws and regulations governing the payment of monetary benefits.


REMAND

During the Veteran's June 2013 hearing, he indicated having received treatment related to his narcolepsy at the Atlanta, Georgia, VA medical center (VAMC) and from a private physician in Huntsville, Alabama.  The record reveals the results of a recent sleep study conducted at the Madison Sleep Center in Madison, Alabama, but is otherwise devoid of records from any private physician in Huntsville or from the Atlanta VAMC.  As records related to treatment of the disability for which the Veteran seeks an increased disability rating may be relevant to the adjudication of that issue, the matter must be remanded for the agency of original jurisdiction (AOJ) to attempt to obtain any such treatment records.  See Golz v. Shinseki, 590 F.3d 1317, 1323 (2010) ("[I]f there exists a reasonable possibility that the records could help the veteran substantiate his claim for benefits, the duty to assist requires VA to obtain the records").

The Veteran has also alleged an inability to maintain employment due to his narcolepsy.  In his July 2008 NOD, the Veteran stated that he had to resign from his job because it required driving and he was unable to stay awake.  During his June 2013 hearing, the Veteran stated that he was then currently employed, but in a short term position.  Notably, the January 2008 VA examiner indicated that the Veteran's narcolepsy had "significant" occupational effects.  

In light of this evidence, the Board finds that the issue of entitlement to TDIU has been raised as part of the Veteran's claim for an increased rating for narcolepsy.  See Rice, supra.  The Board notes that it may not deny TDIU without producing evidence, as distinguished from mere conjecture, that a veteran's disability does not prevent him from performing work that would produce sufficient income to be other than marginal.  Friscia v. Brown, 7 Vet. App. 294 (1995); Beaty v. Brown, 6 Vet. App. 532, 537   (1994).  In Friscia, the Court specifically stated that VA has a duty to supplement the record by obtaining an examination, which includes an opinion on what effect a claimant's service-connected disability has on his ability to work.  Friscia, 7 Vet. App. at 297.  Here, although the January 2008 examiner indicated that the Veteran's narcolepsy impacted his ability to work, no VA examination conducted during the pendency of the Veteran's appeal specifically assessed the Veteran's employability, based on both an assessment of all his service-connected disabilities and his educational and occupational history and experience.  Given the absence of relevant clinical information regarding the Veteran's employability, the Board finds that the current medical evidence of record is inadequate to address the Veteran's claim for a higher rating.  Further development is, therefore, necessary.  See 38 U.S.C.A. § 5103A(d) (West 2002); Friscia, supra.  

Accordingly, the case is REMANDED to the AOJ for the following action:

1.  The AOJ should contact the Veteran and specifically request from him that he provide the full name, address, and date(s) of treatment for the facility in Huntsville, Alabama, where he reportedly received treatment for his narcolepsy.  Following receipt of that information, the AOJ should contact the facilities in question, with a request that copies of any and all records pertaining to the Veteran on file be provided to the AOJ. The Veteran should be requested to sign the necessary authorization for release of any private medical records to VA. 

The Veteran has also indicated past treatment related to his narcolepsy at the Atlanta, Georgia, VAMC.  A query should also be made with that facility for any relevant treatment records dated since November 2007.

2.  After the development requested in paragraph 1 above has been completed, the Veteran should be afforded a VA examination to determine the current severity of his service-connected narcolepsy.  (Advise the Veteran that failure to appear for an examination as requested, and without good cause, could adversely affect his appeal.  See 38 C.F.R. § 3.655 (2013).)

The claims folder and a complete copy of this remand must be made available to and reviewed by the examiner prior to the requested examination.  All necessary tests and studies should be conducted and the examiner should review the results of any testing and include them in the report.

The examiner should provide a discussion of the frequency and severity of the Veteran's narcoleptic episodes and describe the manifestations of the Veteran's narcolepsy.  The VA examiner is reminded that the Veteran's narcolepsy is rated analogous to epilepsy under 38 C.F.R. § 4.124a, DC 8911, such that the Veteran's narcoleptic events are viewed to be congruent with petit mal seizures.  The examiner should state whether the Veteran's narcoleptic episodes are equivalent to minor seizures.  If the examiner finds that they are not, the examiner should why he/she believes this to be.

If narcoleptic episodes equivalent to minor seizures are identified, the examiner should record the number of minor seizures on a "per week" or "per month" basis.  

The examiner should also comment on the Veteran's employment and employability.  (A detailed history of employment should be taken.)  The examiner is requested to provide an opinion as to whether the Veteran is unable to secure or follow substantially gainful employment (i.e., whether more than marginal employment would be feasible) consistent with the Veteran's education and occupational experience on account of his service-connected narcolepsy alone, or in combination with his other service-connected disabilities.  (In addition to his narcolepsy, the Veteran is service connection for sleep apnea, diabetes mellitus, degenerative joint disease of both knee and the lumbar spine, left shoulder strain, hypertension, residuals of anal surgery, GERD and IBS, and pseudofolliculitis barbae and psoriatic toenails.)  A complete rationale for the opinion provided, to include citation to pertinent evidence of record and/or medical authority, as appropriate, should be set forth. 

3.  After completing the requested actions and any additional notification and/or development deemed warranted, the AOJ should readjudicate the issue of entitlement to a higher initial rating for the Veteran's service-connected narcolepsy.  The AOJ must also specifically consider whether a rating of TDIU is warranted as part of its readjudication of the Veteran's increased rating claim.  If a benefit sought on appeal is not granted, the Veteran and his representative must be furnished a supplemental statement of the case (SSOC) and afforded the appropriate time period for response.  (The SSOC should also address the TDIU claim if this benefit is not granted.)

Thereafter, the case should be returned to the Board for further appellate review.  No action is required of the Veteran until he is notified.  The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This case must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013).



______________________________________________
J. A. MARKEY
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs