Citation Nr: 1406307 Decision Date: 02/12/14 Archive Date: 02/24/14 DOCKET NO. 09-18 368 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for service-connected narcolepsy. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and K.M. ATTORNEY FOR THE BOARD Eli White, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1983 to September 2006. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In November 2010, the Veteran testified at a hearing before the undersigned Acting Veteran's Law Judge (VLJ) at the RO. A transcript of the hearing has been associated with the Veteran's claims file. In November 2010, the Veteran submitted new evidence directly to the Board, along with a waiver of initial AOJ review of this evidence. The Board will therefore consider this evidence below. 38 C.F.R. § 20.1304(c) (2013). In reviewing the relevant procedural history of this case, the Veteran filed a claim of entitlement to service connection for sleep apnea in August 2006. In January 2007, the RO granted service connection, assigning a 50 percent rating effective October 1, 2006. In July 2007, the Veteran submitted a claim for service connection for narcolepsy, and in an October 2007 rating decision, the RO characterized his service-connected sleep apnea to include narcolepsy, and continued the 50 percent rating. The Veteran disagreed with the rating decision, asserting that he was entitled to service connection for narcolepsy separate from sleep apnea. In a May 2008 rating decision, the RO severed the service connection of narcolepsy, and in a November 2008 rating decision, granted service connection for narcolepsy, separate from sleep apnea, assigning a 10 percent rating effective October 1, 2006. A claim for a TDIU is part of an increased rating claim when such a claim is raised by the record. See Rice v. Shinseki, App. 447 (2009). In this case, the Veteran has raised the issue of whether he is unemployable as the result of service-connected disability. As the record now raises a question of whether the Veteran is unemployable due his service-connected disability, a claim for a TDIU is properly before the Board. The issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran's narcolepsy, prior to November 20, 2007, was manifested by more than 10 minor seizures weekly, consisting of uncontrollable episodes of sleep, analogous to a brief interruption in consciousness or conscious control. 2. The Veteran's narcolepsy for the period from November 20, 2007, is manifested by at least 1 major seizure per month, consisting of uncontrollable episodes of sleep, cataplexy, sleep paralysis, and lack of muscle control, analogous to a generalized tonic-clonic convulsion with unconsciousness. CONCLUSIONS OF LAW 1. The criteria for an evaluation of 80 percent, but no higher, for narcolepsy have been met for the period of October 1, 2006 to November 19, 2007. 38 U.S.C.A. §§ 1155, 5103, 5103A (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.124a, Diagnostic Codes (DC) 8199-8108, 8911 (2013). 2. The criteria for an evaluation of a maximum 100 percent rating for narcolepsy have been met for the period from November 20, 2007. 38 U.S.C.A. §§ 1155, 5103, 5103A (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.124a, DCs 8199-8108, 8911 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. The Veterans Claims Assistance Act of 2000 VA satisfied its duty to notify the Veteran pursuant to the Veterans Claims Assistance Act of 2000 (VCAA). 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). The VCAA requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of the evidence that is necessary, or would be of assistance, in substantiating their claims. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006). The VCAA applies to the instant claim. The notice required by the VCAA can be divided into three elements. Specifically, VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is to provide; and (3) that VA will attempt to obtain. Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005) (outlining VCAA notice requirements). While the required notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim, any initial errors of notice will not be prejudicial if: (1) corrective actions (e.g., issuances of a post-adjudication notice letter containing the required information) are taken, and (2) the appeal is readjudicated (e.g., in a Supplemental Statement of the Case). 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004); see Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). In the instant case, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in August 2007. The letter informed the Veteran of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. The letter also informed the Veteran of how ratings and effective dates are assigned. See Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008) rev'd in part by Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (Fed. Cir. 2009). VA also has a duty to assist a claimant in the development of a claim. This duty includes assisting the claimant in the procurement of service and other pertinent treatment records and providing an examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran's service treatment records and relevant VA treatment records have been obtained and associated with the claims file. VA has also obtained relevant private treatment records. The Veteran has not identified any additional relevant evidence not obtained to date, nor is there any other indication of such evidence. The Veteran was afforded a VA examination in February 2009. The February 2009 examination report discussed the clinical findings as necessary to rate the Veteran's narcolepsy under the applicable rating criteria, and discussed the impact of his disability on his daily living. See Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007); Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (holding that once VA undertakes the effort to provide an examination when developing a claim, even if not statutorily obligated to do so, VA must ensure the examination is adequate). The Veteran also was afforded a hearing before the undersigned during which he presented oral argument in support of his claim. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) (2013) requires that the VLJ or Decision Review Officer who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the VLJ fully explained the issues on appeal during the hearing and asked questions specifically regarding the elements necessary to establish the benefits sought. Significantly, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the evidence necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the evidence necessary to substantiate his claims. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). As VA satisfied its duties to notify and assist the Veteran, the Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. §§ 5103(a), 5103A, or 38 C.F.R. § 3.159, and the Veteran will not be prejudiced as a result of the Board's adjudication of his claim. II. Analysis Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a reasonable doubt as to the degree of disability, such doubt shall be resolved in favor of the claimant, and where 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. 38 C.F.R. §§ 3.102, 4.3, 4.7. In addition, the Board will consider the potential application of the various other provisions of 38 C.F.R., Parts 3 and 4, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disorder in reaching its decision, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. II.A. Schedular Consideration The Veteran seeks a higher initial rating for his service-connected narcolepsy, currently evaluated as 10 percent disabling by analogy under DC 8199-8108. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27 (2013). Pursuant to the rating schedule, narcolepsy is evaluated as epilepsy, petit mal. 38 C.F.R. § 4.124a, DC 8108. Petit mal epilepsy is rated under the general rating formula for minor seizures. 38 C.F.R. § 4.124a, DC 8911. Under DC 8911, 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, DC 8911. DC 8911 provides a 10 percent rating for a confirmed diagnosis with a history of seizures. A 20 percent rating is warranted for at least 1 major seizure in the last 2 years; or at least 2 minor seizures in the last 6 months. A 40 percent rating is assigned for at least 1 major seizure in the last 6 months or 2 in the last year; or averaging at least 5 to 8 minor seizures weekly. A 60 percent rating is warranted where the Veteran averages at least 1 major seizure in 4 months over the last year; or 9 to 10 minor seizures per week. An 80 percent rating is assigned for an average of at least 1 major seizure in 3 months over the last year; or more than 10 minor seizures weekly. A maximum 100 percent rating is warranted where the Veteran averages at least 1 major seizure per month over the last year. Id. Narcolepsy consists of recurrent, uncontrollable, brief episodes of sleep, often associated with hypnagogic or hypnopompic hallucinations, cataplexy, and sleep paralysis. Dorland's Illustrated Medical Dictionary (32nd ed. 2012). 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. Id. Tonic-clonic convulsion consists of a spasm or seizure consisting of a convulsive twitching of the muscles. Id. 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) (2013). The Veteran's service treatment records reflect that he complained of daytime sleepiness and fatigue in May 2006. Post-service, the Veteran received continuous treatment from Dr. T.D., a private physician, in an attempt to treat his excessive daytime sleepiness and associated symptoms. In an August 2006 report of medical history completed in connection with his treatment from Dr. T.D., the Veteran reported "falling asleep uncontrollably . . . 2-3 [times] during the day," and difficulty staying awake on duty. In June 2007 and August 2007, the Veteran underwent sleep latency tests, the results of which were noted as suggestive of a narcolepsy diagnosis. An August 2007 private treatment record further reflected that the Veteran had a history of restless leg syndrome, with no symptoms suggestive of cataplexy, hypnagogic, or hynopompic hallucinations or sleep paralysis. The Veteran was again seen in September 2007 in a follow-up visit. Notably, the Veteran denied symptoms suggestive of cataplexy, sleep paralysis, or hypnagogic or hynopompic hallucinations. His physician reported that his symptoms of excessive daytime sleepiness improved significantly with an increase of his medication, and opined that the Veteran had a likely diagnosis of narcolepsy without cataplexy, as supported by laboratory testing. A November 2007 record reflects that the Veteran reported experiencing "recurrent . . . sleep attacks associated with vivid intense dreaming," since his last visit, and possible sleep paralysis upon awakening and falling asleep. Dr. T.D. found "[no] symptoms . . . to suggest new onset of cataplexy," and noted that the Veteran's symptoms of restless leg syndrome were well controlled with medication. The Veteran was diagnosed with narcolepsy without cataplexy, with persistent excessive daytime sleepiness and symptoms suggestive of REM intrusion phenomenon during wakefulness. In a statement dated November 2007, the Veteran reported that he had experienced day time sleep attacks, including muscle weakness with his head falling uncontrollably and body surging forward, 2 to 3 times per day, and that the severity of these attacks had increased over the past 14 months despite the use of Provigile and Ritalin medications. In January 2008, the Veteran reported that he experienced intermittent symptoms of generalized decrease in body tone with the inability to move for over 20 to 30 minutes, followed by fatigue and gradual recovery lasting up to 3 hours, at least 2 times per week. March 2008 private treatment records reflect a worsening of daytime sleepiness, with frequent sleep attacks. The Veteran's symptoms included episodes of sleep paralysis associated with hallucinations and questionable cataplexy, persisting up to 1 hour followed by sleep drunkenness for another 1 to 2 hours. He was given a diagnosis of narcolepsy with cataplexy with persistent sleepiness including sleep paralysis and hallucinations. During an April 2008 follow-up visit, Dr. T.D. witnessed the Veteran experience a sleep attack with generalized weakness. The Veteran reported recurrent sleep paralysis with occasional hallucinations. Dr. T.D. additionally submitted a letter noting that the Veteran was diagnosed with narcolepsy with cataplexy, with persistent severe daytime sleepiness associated with difficulty concentrating, episodic periods of sleep attacks, and generalized weakness triggered by emotional events. The Veteran was provided with a VA examination in February 2009, during which he reported first experiencing excessive daytime sleepiness and fatigue in-service in the 1990s. He further stated that beginning in approximately October 2006, he began to experience spells of sleep paralysis and cataplexy occurring daily, including suddenly becoming tachycardiac, weak, and unable to speak clearly. In addition, the Veteran reported that the frequency and severity of his narcoleptic episodes had improved; however, he also reported continued spells of weakness and a need to lie down 1 to 2 times per day, with spells of paralysis often triggered by emotion 2 to 3 times per day. During these spells the Veteran noted that he was unable to function with respect to employment or activities of daily living, and that he had to avoid any type of emotional stressors. The examiner provided a diagnosis of narcolepsy with cataplexy. The Veteran and witness K.M. testified at a Travel Board hearing below the undersigned Acting VLJ in November 2010. At the hearing, the Veteran described experiencing two distinct types of narcoleptic attacks which he categorized as major and minor. He testified that during a major attack, he experienced a racing heart, followed by inhibition of speech, concentration, and memory, and paralysis. He indicated that he then fell asleep, with no control over stopping the progression of the attack. The Veteran reported that such attacks lasted 15 to 30 minutes at a time. The Veteran's friend, K.M., testified that he had witnessed the Veteran during both minor and major attacks, and described the associated symptoms. Specifically, he testified that during a minor attack, he witnessed the Veteran's speech response slow and cease, and the Veteran blinking and weaving while standing. K.M. indicated that he helped the Veteran sit down, and after about 30 minutes, the Veteran would again become responsive. He reported that during a major attack, the Veteran did not appear to be conscious, and that the Veteran would not respond to stimuli. He further stated that following such an attack, it took the Veteran at least a couple of hours to recover from the sleep paralysis experienced during the attacks. Both the Veteran and K.M. reported that the Veteran's narcolepsy disability prevented him from driving for long distances or periods of time. Upon review of the evidence of record, and resolving all doubt in favor of the Veteran, the Board finds that for the period from October 1, 2006 to November 1, 2007, the Veteran's narcolepsy was manifested by up to 85 episodes per month, consisting of uncontrollable falling asleep, without any paralysis, cataplexy, or hallucinations, thus warranting an 80 percent evaluation, based on minor narcoleptic episodes occurring more than 10 times weekly. See 38 C.F.R. § 4.124a, DC 8911. The Veteran is competent to report his narcoleptic episodes and associated symptoms. See Charles v. Principi, 16 Vet. App. 370 (2002) Additionally, VA regulations provide that "[a]s to frequency, competent, consistent lay testimony emphasizing convulsive and immediate post-convulsive characteristics maybe accepted. The frequency of seizures should be ascertained under the ordinary conditions of life (while not hospitalized)." 38 C.F.R. § 4.121 (2013). The Board has no reason to doubt the Veteran's credibility as to the frequency of his narcoleptic episodes. Indeed, the medical evidence of record corroborates the Veteran's reports of experiencing one or more attacks per day. Thus, the Board finds that an 80 percent evaluation for narcolepsy is warranted, based on minor narcoleptic episodes occurring more than 10 times weekly. An initial evaluation greater than 80 percent is not warranted for this period, as there is no evidence that the Veteran experienced any major narcoleptic attacks during this time. September 2007 private treatment records specifically reflect that the Veteran denied any symptoms suggestive of cataplexy, sleep paralysis, or hypnagogic or hynopompic hallucinations, and he was diagnosed with narcolepsy without cataplexy. As the Veteran has not been shown to have such symptomatology or symptoms analogous to a generalized tonic-clonic convulsion with unconsciousness, a 100 percent disability rating is not warranted from October 1, 2006 to November 19, 2007. Resolving all doubt in the Veteran's favor, the Board additionally finds that an evaluation of 100 percent is warranted from November 20, 2007, as the evidence shows that the Veteran began to experience more severe episodes of narcoleptic attacks, including cataplexy with muscle weakness, symptoms of his body surging forward uncontrollably, restless leg syndrome, and sleep paralysis; symptoms which are analogous to the generalized tonic-clonic convulsion with unconsciousness outlined in DC 8911, Note (1). Though the Veteran was not diagnosed with narcolepsy with cataplexy until March 2008, the Board finds that his competent and credible November 2007 lay statement describing the worsening of his symptoms to include sleep paralysis and lack of muscle control, and experienced in 2 to 3 attacks per day, is adequate for rating purposes. Thus, the Board finds that the Veteran's service-connected narcolepsy warrants a 100 percent disability rating from November 20, 2007, based on experiencing an average of at least 1 major seizure per month. See 38 C.F.R. § 4.124a, DCs 8108, 8911. The Board has additionally considered rating the Veteran's service-connected narcolepsy under a different diagnostic code, but finds none that may be assigned on the facts of record or which would avail the Veteran of a higher disability rating. II.B. Extraschedular Consideration Also considered by the Board is whether referral is warranted for a rating outside of the rating schedule. To accord justice in an exceptional case where the schedular standards are found to be inadequate, the field station is authorized to refer the case to the Under Secretary for Benefits or the Director, Compensation and Pension Service, for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.21(b)(1) (2013). The criterion for such an award is a finding that the case presents an exceptional or unusual disability picture with related factors as marked interference with employment or frequent periods of hospitalization as to render impractical application of regular schedular standards. 38 C.F.R. § 3.321(b). Extraschedular consideration involves a three step analysis. Thun v. Peake, 22 Vet. App. 11 (2008). First, the Board or the RO must determine whether the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe the Veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. Id. If the RO or the Board finds that the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the Veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id., at 116. If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. Extra schedular consideration is not warranted in this case. The record establishes that the schedular rating for the Veteran's narcolepsy is adequate for the time period prior to November 20, 2007. A rating in excess of the 80 percent assigned rating is provided where a higher level of severity of narcolepsy is experienced; however, such a rating is for certain manifestations which the medical evidence reflects were not present in the Veteran's clinical picture. The diagnostic criteria also adequately describe the severity and symptomatology of the Veteran's narcolepsy. Therefore, the first prong of the Thun test is not satisfied, and referral for extraschedular consideration is not warranted. ORDER An 80 percent initial evaluation for narcolepsy for the period from October 1, 2006 until November 19, 2007, is granted, subject to the laws and regulations controlling the award of monetary benefits. A 100 percent evaluation for narcolepsy for the period from November 20, 2007, is granted, subject to the laws and regulations controlling the award of monetary benefits. REMAND A claim for TDIU is part of an increased rating issue when such claim is raised by the record. Rice, 22 Vet. App. at 447. The raised TDIU issue has not been adjudicated. In his May 2009 substantive appeal, the Veteran stated that he has "had issues at work, with working, and going to school," and "would be a huge liability" for any employer, and thus a company would not want to hire him due to his narcolepsy. The February 2009 VA examiner noted that the Veteran reported he is unable to complete training or continue his usual occupation as an air traffic controller due to his narcolepsy episodes. At the November 2010 Travel Board Hearing, the Veteran additionally reported that he could not maintain employment due to his service-connected narcolepsy. The Board finds that the Veteran has reasonably raised a claim for TDIU in conjunction with his increased rating claim. TDIU may be assigned where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a) (2013). The Board observes that the evaluations assigned herein to the Veteran's narcolepsy increase his combined evaluation for compensation to 100 percent. However, because the 100 percent combined evaluation assigned to the Veteran's service-connected disabilities is not permanent and total, and is subject to reduction in the future, the Board has determined that the question of entitlement to a TDIU should be adjudicated by the AOJ. Moreover, as noted in Bradley v. Peake, 22 Vet. App. 280 (2008), VA must consider a TDIU claim despite the existence of a schedular total rating and award SMC under 38 U.S.C.A. § 1114(s) if VA finds the separate disability supports a TDIU independent of the other 100 percent disability rating. The Board concludes a remand is required prior to adjudication of the claim for TDIU so as to provide the Veteran with proper VCAA notice and adjudication. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with appropriate notice under the VCAA to substantiate his claim for entitlement to TDIU. 2. Adjudicate the issue of entitlement to TDIU. A Supplemental Statement of the Case is to be issued to the Veteran and his representative if the determination is unfavorable, as the issue is deemed to be presently on appeal in view of Rice. The appellant has the right to submit additional evidence and argument on the matter or 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. 2013). ______________________________________________ J. K. BARONE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs