Citation Nr: 1800574 Decision Date: 01/05/18 Archive Date: 01/19/18 DOCKET NO. 14-31 575A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an increased rating for vasovagal syncope. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Edwards, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1974 to August 1995 This appeal to the Board of Veterans' Appeals (Board) arose from a June 2012 rating decision of the Regional Office (RO) in Waco, Texas. In January 2017, the Veteran testified is a videoconference hearing before the undersigned Veterans Law Judge (VLJ); a transcript of the hearing is of record. Based on the evidence of record, particularly the Veteran's statements regarding his disability, the Board has interpreted his syncope claim to include a separate claim for peripheral vestibular disorder. The issue of entitlement to service connection for PVD has been raised by the Veteran's January 2017 hearing testimony but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action, if any. 38 C.F.R. § 19.9(b) (2017). In this decision, the Board is denying an increased rating for vasovagal syncope. The issue of a TDIU is REMANDED for further development. FINDING OF FACT The record shows that the Veteran has had no syncopal episodes since his September 2012 pacemaker implant. CONCLUSION OF LAW The criteria for an increased rating for service-connected vasovagal syncope are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.3, 4.7, 4.121, 4.122, 4.124a, Diagnostic Code 8910 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has considered the Veteran's claims and decided entitlement based on the evidence. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record, with respect to his claims. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (reaffirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Increased Rating for Vasovagal Syncope The Veteran's vasovagal syncope is analogously rated as a seizure disorder, due to his diagnosed condition, loss of consciousness, and the fact that continuous medication was necessary for control, under Diagnostic Code (DC) 8911, Note 1, for petit mal epilepsy. 38 C.F.R. § 4.124a. Epilepsy or seizure disorders are rated under the General Rating Formula for Major and Minor Epileptic Seizures (General Rating Formula). 38 C.F.R. § 4.124a, DCs 8910 and 8911. Petit mal epilepsy is rated as minor seizures. Id. 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). Id at Note (2). Epilepsy or seizure disorder warrants a 10 percent rating when there is a confirmed diagnosis of epilepsy with a history of seizures. A 20 percent rating is warranted when there is 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 where there is at least 1 major seizure in the last 6 months or 2 in the last year, or an average of at least 5 to 8 minor seizures weekly. 38 C.F.R. § 4.124a, DC 8911, General Rating Formula. When continuous medication is shown necessary for the control of epilepsy, the minimum evaluation will be 10 percent. Id at Note (1). Competent, consistent lay testimony emphasizing convulsive and immediate post-convulsive characteristics may be accepted to establish the frequency of seizures or epileptic attacks. The frequency of seizures should be ascertained under the ordinary conditions of life (while not hospitalized). 38 C.F.R. § 4.121. As noted above, the Veteran is service-connected for vasovagal syncope under the General Rating Formula for petit mal seizures due to the need for continuous medication to control resulting episodes of dizziness and disorientation with a 10 percent evaluation. In September 2012, the Veteran had a pacemaker implanted. Private treatment records note that the Veteran's syncope "resolved with pacemaker placement." Discontinued treatment included the use of Florinef and selective serotonin reuptake inhibitors (SSRIs). A January 2015 VA examination noted that syncope should have resolved without residual with pacemaker placement. At a February 2017 VA examination, the Veteran reported no syncopal episodes since pacemaker placement but stated that he limited his exertion due to a feeling he associated with syncope (hearing the sound of a train). The examiner opined that if the pacemaker is functional, the Veteran will not experience syncope secondary to the heart condition. The examiner also noted that the Veteran had had no syncopal episodes since pacemaker placement. In this case, the medical evidence establishes a confirmed diagnosis of vasovagal syncope, formerly treated by medications before pacemaker implantation. However, it establishes that the implantation of a pacemaker resolved the Veteran's vasovagal syncope. Based on the foregoing, the Board finds that the weight of the evidence of record shows no current vasovagal syncope disability. Therefore, an increased rating is not warranted. ORDER An increased rating for service-connected vasovagal syncope is denied. REMAND The Veteran has a number of service connected and nonservice-connected disabilities. He requests a TDIU. The Veteran's claim for TDIU is inextricably intertwined with the service connection claim for PVD referred to the AOJ above. See Smith v. Gober, 236 F.3d. 1370 (Fed. Cir. 2001). Accordingly, the case is REMANDED for the following action: 1. Make arrangements to obtain any outstanding VA and private treatment records. 2. Schedule the Veteran for a VA examination for TDIU to determine the Veteran's current level of functioning and its impact on his ability to obtain substantially gainful employment. The examiner is asked to address the referred issue above regarding whether the Veteran has PVD. Any conclusion reached should be fully explained. 3. After completion of any action deemed appropriate in addition to that requested above, readjudicate the claim. The Board again notes that the issue remanded here is inextricably intertwined with an issue referred to the AOJ. Each of the claims must be finally resolved prior to returning the case to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter 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. §§ 5109B, 7112 (2012). ______________________________________________ BRADLEY W. HENNINGS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs