Citation Nr: 1334661 Decision Date: 10/30/13 Archive Date: 11/06/13 DOCKET NO. 09-48 307 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to an initial disability in excess of 80 percent for service-connected narcolepsy/idiopathic hypersomnia. 2. Entitlement to an extra-schedular evaluation for service-connected narcolepsy/idiopathic hypersomnia. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Jeng, 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) in Roanoke, Virginia, which granted service connection for narcolepsy/idiopathic hypersomnia and assigned a 10 percent disability evaluation effective March 6, 2008. During the pendency of the appeal in a September 2009 rating decision, the RO increased the disability evaluation to 60 percent effective March 6, 2008. 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. In an October 2012 decision, the Board granted an increased disability evaluation of 80 percent for narcolepsy/idiopathic hypersomnia. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In a February 2013 Order, the Court vacated the October 2012 Board decision to the extent that it denied entitlement to an initial disability rating higher than 80 percent for narcolepsy/idiopathic hypersomnia, and remanded the case to the Board for further proceedings consistent with a Joint Motion for Partial Vacatur and Remand (Joint Motion). The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claims. The Board has reviewed the documents in both the paper claims file and the electronic claims file. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Veteran was last afforded an examination for his narcolepsy/idiopathic hypersomnia in August 2008, over five years ago. The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. See VAOPGCPREC 11-95 (April 7, 1995). The current evidence of record shows that the Veteran has denied having cataplexy or any other classic features of narcolepsy. He was likely to fall asleep three to four times a day, experienced episodes of daytime sleep attacks at least 14 times a week and sleep paralysis five to six times a month. It is unclear from the record whether the Veteran's symptoms are analogous to one major seizure a month over the past year as contemplated by 38 C.F.R. § 4.124a, Diagnostic Code 8911 (2013), i.e. generalized tonic-clonic convulsion with unconsciousness per month over the past year. Therefore, the Veteran should be afforded an examination to determine the current nature and severity of his narcolepsy/idiopathic hypersomnia. Additionally, the Veteran has argued that extra-schedular consideration is warranted because 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. The Board notes that an extra-schedular rating under 38 C.F.R. § 3.321(b)(1) is based on the fact that the schedular ratings are inadequate to compensate for the average impairment of earning capacity due to the Veteran's disability. Exceptional or unusual circumstances, such as frequent hospitalization or marked interference with employment, are required. Based on the Veteran's assertions, the Board will refer the Veteran's claim to the Under Secretary for Benefits or Director of Compensation and Pension Service for an extra-schedular evaluation. Accordingly, the case is REMANDED for the following actions: 1. Make arrangements with the appropriate VA medical facility for the Veteran to be afforded a VA examination to determine the severity of his service-connected narcolepsy/idiopathic hypersomnia. The claims folder and electronic record, including a copy of this remand, must be made available to the examiner in conjunction with the examination. The examiner should indicate that the claims folder and electronic record were reviewed. Any testing deemed necessary should be performed. With respect to the Veteran's service-connected narcolepsy, the examiner should provide a discussion of the frequency and severity of the Veteran's narcoleptic episodes. The VA examiner is reminded that the Veteran's narcolepsy is rated analogous to epilepsy under Diagnostic Code 8911, that the Veteran's narcoleptic events are viewed to be congruent with petit mal seizures, and that VA may consider lay evidence competent and credible. The examiner must specifically address if the Veteran's narcoleptic episodes are equivalent to one major seizure a month over the past year, i.e. generalized tonic-clonic convulsion with unconsciousness per month over the past year. A complete rationale for all opinions must be provided. 2. Refer the Veteran's case to the Under Secretary for Benefits or Director of Compensation and Pension Service for consideration of whether an extra-schedular rating is warranted for the service-connected under 38 C.F.R. § 3.321(b). The response from the Under Secretary for Benefits or the Director of Compensation and Pension Service must be included in the claims file. 3. Then, readjudicate the claims based upon the response from the Under Secretary for Benefits or the Director of Compensation and Pension Service. If the determinations of the claims remain less than fully favorable, the Veteran and his representative must be furnished with a Supplemental Statement of the Case and given an opportunity to respond before this case is returned to the Board. 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 claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ C. TRUEBA Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).