Citation Nr: 18143941 Decision Date: 10/22/18 Archive Date: 10/22/18 DOCKET NO. 14-30 992A DATE: October 22, 2018 ORDER Entitlement to a schedular disability rating of 20 percent (but no higher) for syncope (rated analogous to narcolepsy) is granted. Entitlement to an extraschedular disability rating for syncope is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The evidence including the Veteran’s contentions on appeal show that the Veteran’s disability picture for syncope is analogous to narcolepsy or minor seizures occurring at least twice every six months on average. 2. The preponderance of the evidence is against a finding that the Veteran’s episodes of syncope occur averaging at least five to eight episodes weekly. 3. The Veteran’s service-connected syncope does not present an exceptional or unusual disability picture, and relevant symptoms including (1) feeling dizzy and passing out without warning, (2) chronic sleep disturbance, and (3) fatigue are contemplated by his schedular disability ratings under analogous rating criteria for narcolepsy and secondary mental disabilities. 4. The preponderance of the evidence is against a finding that the Veteran’s service-connected disabilities preclude him from obtaining and retaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability rating of 20 percent (but no higher) for syncope have been met. 38 U.S.C. §§ 1101, 1113, 1131 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.124a, Diagnostic Codes (DCs) 8108, 8911 (2017). See also 38 C.F.R. § 4.20 (2017). 2. Application of the extraschedular rating provisions for syncope is not warranted in this case. 38 C.F.R. § 3.321(b)(1) (2017). 3. The criteria for entitlement to TDIU have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1979 to July 1982. This appeal comes to the Board of Veterans’ Appeals (Board) from a December 2010 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran had a hearing before the undersigned Veterans Law Judge in January 2018. A transcript of that proceeding has been associated with the claims file. In April 2018, the Board remanded these matters for further development including obtaining additional, adequate VA examination evidence. The Board notes that the Veteran indicated the examinations obtained on remand were inadequate in a July2018 statement in support of his claim in part because they followed a narcolepsy disability benefits questionnaire rather than one for syncope. However, the Board finds that the examinations are adequate for the purpose of rating the Veteran’s disability in this case as the Veteran’s syncope is rated analogous to narcolepsy, and neither the Veteran nor his representative have clearly identified specific manifestations of syncope that require additional examination. Ultimately, the Board notes that the Veteran’s representative argued in the more recent September 2018 brief that Veteran’s disability picture for syncope meets the criteria for an analogous 20 percent rating. As the Board is granting the 20 percent analogous rating, the Board finds no cause to delay disposition of the matter for further development in the absence of evidence of an exceptional or unusual disability picture. On return of these matters to the Board, the Veteran and his representative have not raised additional issues with the duty to notify or duty to assist in regard to the Veteran’s claims. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). Rating Criteria: Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. Disabilities must be reviewed in relation to their history. Where there is a question as to which of two evaluations apply, the Board assigns the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating. See 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.7, 4.10 (2017); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. Conjectural analogies will be avoided, as will the use of analogous ratings for conditions of doubtful diagnosis, or for those not fully supported by clinical and laboratory findings. Nor will ratings assigned to organic diseases and injuries be assigned by analogy to conditions of functional origin. See 38 C.F.R. § 4.20. A veteran 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. Accordingly, separate ratings may be assigned for separate periods of time based on the facts found, which is a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Pyramiding, that is the evaluation of the same disability or the same manifestation of a disability under different diagnostic codes (DCs), is to be avoided when evaluating a Veteran’s service-connected disability. 38 C.F.R. § 4.14 (2017). Separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition was not “duplicative of or overlapping with the symptomatology” of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994). It is the defined and consistently applied policy of the Department of Veterans Affairs to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3 (2017).   1. Entitlement to a disability rating exceeding 10 percent for syncope Service connection for syncope was granted in a December 2010 rating decision with an evaluation of 10 percent. It is rated under the rating criteria for narcolepsy as the evidence shows its anatomical localization and symptomatology is closely analogous. See 38 C.F.R. § 4.124a, DCs 8108, 8911 (2017). See also 38 C.F.R. § 4.20 (2017). Under DC 8108, narcolepsy is rated as epilepsy, petit mal (DC 8911). Under DC 8910 (Epilepsy, grand mal) and DC 8911 (Epilepsy, petit mal), seizures are rated according to a General Rating Formula for Major and Minor Epileptic Seizures (“General Formula”). Per Note (1) under DC 8911, a major seizure is characterized by the generalized tonic-clonic convulsion with unconsciousness. Per Note (2) under DC 8911, 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). Under the General Formula, such seizures are rated as follows: A 10 percent disability rating contemplates a confirmed diagnosis of epilepsy with a history of seizures. A 20 percent rating contemplates 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 contemplates 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 contemplates an average of at least 1 major seizure in 4 months over the last year; or 9-10 minor seizures per week. An 80 percent rating contemplates an average of at least 1 major seizure in 3 months over the last year; or more than 10 minor seizures weekly. A 100 percent rating contemplates seizures averaging at least 1 major seizure per month over the last year. The Veteran was afforded a December 2010 VA examination of his syncope, and the examiner opined that the Veteran’s syncope spells are most likely either neurocardiogenic syncope or possibly from anxiety hyperventilation and these spells are at least as likely as not a continuation of those that he had in service. The examiner noted they were associated with dizziness and that the Veteran reported they began with a feeling of a band-like tightness around his head and shortness of breath before he passes out. The examiner noted that the Veteran comes around quickly and that the episodes usually occur when the Veteran is standing up. The Veteran was afforded an August 2011 VA mental disorder examination, and the report indicated that an axis one diagnosis of depressive disorder secondary to service-connected syncope was not found and the examiner did not find evidence of another psychiatric disorder. The examiner explained that he believed the Veteran had some symptoms of depression impairing his overall functioning. The examiner further explained that the Veteran’s depression symptoms were situationally related to his living environment and may also be related to his chronic drug abuse. The Veteran was afforded an October 2012 VA seizure examination, and the report indicated that the Veteran has never been diagnosed with a seizure disorder. The report described the history of the Veteran’s condition as syncope about one to two times per month with no bowel or bladder incontinence, no clonic or tonic activity, and no post ictle phase. The report indicated that the Veteran did not have any findings, signs, or symptoms attributable to seizure disorder activity. The report further indicated that the Veteran has never had epilepsy associated with a psychiatric disorder, psychoneurotic disorder, or personality disorder. The Veteran was afforded a July 2014 VA mental disorders examination, and the report indicated that the Veteran had a diagnosis of somatic symptom disorder, persistent, severe with the diagnosis being the DSM-5 name for his service-connected syncope episodes. The report further noted that the Veteran’s symptoms of depressed mood, anxiety, disturbances of motivation and mood, difficulty establishing and maintaining effective work and social relationships, and difficulty adapting to stressful circumstances (including work or a work-like setting) applied to the Veteran’s diagnosed somatic symptom disorder. The examiner indicated the Veteran’s mental disabilities resulted in occupational and social impairment with reduced reliability and productivity. At his January 2018 Board hearing, the Veteran’s representative testified that the Veteran experienced passing out and losing consciousness. The representative and the Veteran asserted that the Veteran’s disability picture was not adequately considered under his current rating at the time. The representative indicated the Veteran’s syncope should be rated as major rather than minor seizures. The Veteran’s representative testified that the VA examinations of record have suggested that the Veteran’s syncope is part of his anxiety and his anxiety is part of his syncope, which warranted consideration of a higher rating based on his psychiatric symptoms. The Board remanded the matter in April 2018 in part to obtain another examination of the Veteran’s mental health in the context of syncope. Following the remand in April 2018, the Agency of Original Jurisdiction (AOJ) obtained additional evidence pertinent to the Veteran’s claims including VA treatment records and examinations. On a May 2018 narcolepsy disability benefits questionnaire, a VA examiner noted the Veteran has been diagnosed with syncope. The examiner reported that the Veteran stated that he has not been diagnosed with narcolepsy. The examiner noted the Veteran stated that over the last 12-18 months he had been passing out about two times a month. The examiner noted the Veteran stated that once when he passed out, he knocked out his front teeth. The examiner noted the Veteran stated that at times he can feel bright lights and tightness of the head and at other times he has no warning prior to episodes. The examiner noted that the Veteran stated that he gets fatigued a lot and if he tries to overwork himself, and then he gets dizzy and passes out.   The Veteran was also afforded a May 2018 VA mental health examination to assess the extent to which his current mental health disabilities were related to his service to include as secondary to his service-connected syncope. The examiner found the Veteran has a current mental health disorder to include an adjustment disorder with depressed mood. The examiner opined the disorder began subsequent to the service-connected syncope and lung cancer and is the direct result of efforts to control or cope with, (or a direct psychological response to) the antecedent condition. Regarding mental health symptoms and activities of daily living, the Veteran reported having hobbies including dominos and chess and that he attended AA meetings occasionally. The examiner noted that the Veteran also reported low motivation and energy and variable sleep from “all day” to “1-2 hours/night.” The examiner found the Veteran suffered from a depressed mood, chronic sleep impairment, and disturbances of motivation and mood. In regard to employability, the May 2018 mental health examiner opined the Veteran had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily) with normal routine behavior, self-care, and conversation. Specifically, the examiner noted the Veteran (1) has difficulty attending to or is easily distracted from the task at hand and that (2) his sleep is so disrupted that he is usually fatigued at work, making concentration and focus on work assignments difficult. In consideration of the Veteran’s contentions and additional evidence, the AOJ ultimately granted the Veteran entitlement to service connection for mental disabilities secondary to his service-connected syncope, which are currently rated at 50 percent under 38 C.F.R. § 4.130. See July 2018 Rating Decision. The Veteran has not filed a notice of disagreement regarding the rating decision for his mental disabilities, and the issue is not raised in the representative brief on appeal. In light of the totality of the evidence and current disability ratings, the Veteran’s representative recently asserted that the Veteran’s disability picture for syncope meets the criteria for an analogous 20 percent schedular rating under the criteria applicable to narcolepsy and seizures. See September 2018 Informal Hearing Presentation. After reviewing the totality of the evidence, the Board finds that it supports an increase to a 20 percent rating under 38 C.F.R. § 4.124a, DC 8911. The Board finds the record shows that the Veteran has been observed by treatment providers and third parties during episodes of syncope manifested by dizziness and a brief interruption in consciousness or conscious control, which has resulted in the Veteran falling and injuring himself. However, the Board finds no compelling evidence of record that the Veteran suffers from seizures or prolonged episodes of loss of consciousness akin to a major seizure. The Veteran has indicated stated that these episodes occurred as frequently as one to two times per week and as seldom as seven to eight times per year during the period at issue. See, e.g., November 2017 Diagnostic Assessment Consult Result from Central Arkansas VA Healthcare System; October 2012 VA seizure disorder examination. The Board finds that the Veteran is competent to report a brief interruption in consciousness or conscious control, and the Board affords great probative value to the Veteran’s report regarding the frequency of such events. The reports are credible and are supported by documentation of treatment for such events in the Veteran’s VA treatment records. Ultimately, considering the Veteran’s contentions about the frequency of the syncope events akin to narcolepsy and minor seizures, a 20 percent rating is assigned under DC 8911. However, as the Board finds no compelling evidence or argument such events occurred on average least five to eight times weekly, the preponderance of the evidence is against a finding that the Veteran’s disability picture for syncope more nearly approximated schedular criteria for a 40 percent or higher rating under DC 8911. 2. Entitlement to an extraschedular disability rating for syncope The rating criteria outlined above is applicable when rating disability claims on a schedular basis. While the Board does not have authority to grant an extraschedular rating in the first instance, the Board does have the authority to decide whether the claim should be referred to the VA Director of Compensation for consideration of an extraschedular rating. 38 C.F.R. § 3.321(b)(1). The governing norm for an extraschedular rating is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or necessitated frequent periods of hospitalization so as to render the regular schedular standards impractical. The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular rating for the service-connected disability is inadequate. There must be a comparison between the level of severity and symptomatology of the service-connected disability with the established criteria. If the criteria reasonably describe the Veteran’s disability level and symptomatology, then the disability picture is contemplated by the Rating Schedule, and the assigned schedular evaluation is, therefore, adequate, and no referral is required. Thun v. Peake, 22 Vet. App. 111 (2008). In addition to a schedular disability rating of 20 percent, the Veteran’s representative asserted in the Veteran has symptoms not contemplated by the rating schedule including: (1) dizziness, (2) passing out without warning, (2) a lot of fatigue. See September 2018 brief. The Veteran’s representative asserts that the Veteran’s claim should be referred to the VA Director of Compensation for consideration of an extraschedular rating. However, the Board finds that the claim should not be referred because the available schedular rating for the service-connected disability is adequate. While there is no specific diagnostic code for syncope, the Veteran has been granted a schedular disability rating of 20 percent under DC 8911 for his syncope episodes, which the Board finds more nearly approximate brief interruptions in consciousness or conscious control and associated dizziness without the jerking movements or other similar traits associated with a seizure. As discussed above, the rating criteria contemplates a similar condition of narcolepsy, and the Veteran’s representative has argued that evidence supports a schedular rating of 20 percent under DC 8911 for such symptoms. The Veteran’s representative cites the frequency of syncope episodes as a basis for a 20 percent schedular rating while also arguing the characteristic symptom (passing out without warning) of such episodes is not contemplated by the rating. The Board finds this argument is inconsistent and ultimately finds the Veteran’s passing out without warning is contemplated by the 20 percent rating under DC 8911 by analogy to narcolepsy or minor seizures. In regard to dizziness, the Board finds that the evidence shows it is a component of the syncope episodes including brief interruption in consciousness or conscious control. See, e.g., May 2018 VA Narcolepsy Disability Benefits Questionnaire (“Veteran states that he gets fatigued a lot and if he tries to overwork himself, then he gets dizzy and passes out”). The Board finds no compelling evidence that the Veteran experiences related dizziness for extended periods apart from the syncope episodes. Therefore, the Board finds the dizziness that the Veteran experiences is contemplated by the current 20 percent disability rating for syncope. In regard to fatigue, the Board finds that the Veteran’s current disability rating of 50 percent for mental disabilities secondary to and associated with his syncope contemplates chronic sleep impairment. See 38 C.F.R. § 4.130. Fatigue is the natural result of chronic sleep impairment, and the Board finds no compelling evidence or argument that the Veteran’s fatigue is somehow exceptional in a way that is not contemplated by the rating for psychological symptoms including chronic sleep impairment secondary to syncope. In light of the above, the Board finds that application of the extraschedular rating provisions for syncope is not warranted in this case because the Veteran’s current schedular ratings (including by analogy to narcolepsy under the provisions of 38 C.F.R. § 4.20) contemplate the Veteran’s disability picture for syncope. 3. Entitlement to a total disability rating based on individual unemployability (TDIU) Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation 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, provided that the veteran meets the schedular requirements. If there is only one service-connected disability, this disability should be rated at 60 percent or more; if there are two or more disabilities, at least one should be rated at 40 percent or more with sufficient additional service-connected disability to bring the combination to 70 percent or more. 38 C.F.R. § 4.16(a). Where the percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and consideration is given to the Veteran’s background including her employment and educational history. 38 C.F.R. §4.16(b). The Board does not have the authority to assign an extraschedular total disability rating for compensation purposes based on individual unemployability in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). In determining whether unemployability exists, consideration may be given to the Veteran’s level of education, special training, and previous work experience, but it may not be given to her age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The Veteran has been rated for syncope (20 percent as of this decision), secondary mental disabilities (50 percent), and left ear hearing loss (noncompensable). His combined disability rating is currently 60 percent. Ultimately, as the etiology of Veteran’s syncope is unknown and multiple treatment providers have indicated it is a symptom related to the Veteran’s mental disabilities, the Board will consider the combined rating of 60 percent for syncope and mental disabilities to be a single disability for the purpose of meeting the criteria for a schedular TDIU. See 38 C.F.R. § 4.16(a). However, the Board ultimately finds the preponderance of the evidence is against a finding that the Veteran’s service-connected disabilities preclude him from obtaining and retaining substantially gainful employment. The Board notes the record contains findings and evidence from the Social Security Administration (SSA) pertaining to the Veteran’s disability under standards applicable to SSA. The legal standards for disability for SSA purposes differ from those of VA, and the records show SSA considered disabilities for which the Veteran is not service-connected including lung disease and extensive abuse of illicit drugs. The Board considered the evidence pertaining to the Veteran’s functional limitations due to service-connected disabilities, but the evidence regarding other disabilities and findings regarding SSA disability standards are not pertinent to the TDIU analysis on appeal. Pertinent evidence in the records from SSA include a February 2011 Physical Residual Functional Capacity Assessment by L.S., M.D.. L.S. specifically identified the following work-related limitations from lung disease, musculoskeletal complains, and syncope: (1) occasional lifting and carrying up to 20 pounds, frequent lifting and carrying up to 10 pounds, (2) standing and/or walking about six hours in and eight-hour workday, (3) sitting (with normal breaks) for a total of about six hours in an eight-hour workday, (4) avoid even moderate exposure to fumes, odors, dusts, gases, poor ventilation, (5) avoid all exposure to hazards (machinery, heights, etc.). The Board affords the opinion some probative value to the extent that it is consistent with the totality of the evidence including the later VA examinations addressing the service-connected disabilities specifically. As the VA examinations and contentions noted above have revealed, the Veteran is limited by (1) feeling dizzy and passing out without warning, (2) chronic sleep disturbance, (3) chronic fatigue, and (4) associated problems with maintaining concentration and persistent or pace on tasks and establishing and maintaining effective relationships with others. The Board finds the Veteran is limited to performing sedentary work (defined as work that can be performed but is not required to be performed entirely from a seated position) due to his sleep deprivation, chronic fatigue, and syncope associated with overexertion and standing. Furthermore, the Board finds that due to syncope, the evidence shows the Veteran must avoid environmental hazards identified by L.S., M.D. (particularly exposure to heights due to a likelihood of falls). Additionally, the Board finds that the Veteran’s mental disabilities secondary to his syncope (as noted by the VA examinations discussed above) and a noncompensable degree of unilateral hearing loss preclude him from performing in jobs involving complex tasks involving a lot of steps, work involving production quotas, and work that that requires teamwork or frequent communication with others to complete. However, while the evidence indicates the ability of the Veteran to perform work is significantly limited by his service-connected disabilities, the Board finds it does not preclude him from performing all sedentary work at a substantially gainful level. For example, the record shows that the Veteran has a high school education (plus one year of college), worked service as an equipment records and parts specialist, and worked for over a decade thereafter including work with a pallet jack loading newspapers on a truck. See January 2018 hearing testimony; July 2014 VA mental health examination; Veteran’s Certificate of Release or Discharge. Therefore, while the Veteran’s syncope prevents him from operating dangerous machinery such as a pallet jack, the Veteran has otherwise demonstrated the ability to learn how to use tools and complete multi-step semi-skilled work. The Board finds no compelling evidence the Veteran could not meet the mental and physical demands of sedentary work involving simple one to three step tasks and occasional social interaction. See generally Veteran’s VA treatment records (showing he has been able to travel frequently for treatment and interact appropriately with treatment providers). To the extent that SSA and other treatment providers in the records obtained from SSA show the Veteran to be more limited, the Board affords such opinions little probative value because they do not clearly separate the effects of the Veteran’s service-connected disabilities from his other disabilities and extensive substance abuse as the later VA examinations have in this case. In light of the totality of the evidence, the Veteran’s claim for entitlement to TDIU must be denied as the preponderance of the evidence is against a finding that the Veteran’s service-connected disabilities preclude him from obtaining and retaining substantially gainful employment.   REFERRED The issue of entitlement to service connection for damaged teeth to include as secondary to service-connected syncope was raised in a February 2018 Application for Disability Compensation and Related Compensation Benefits and is referred to the AOJ for adjudication. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Michael Duffy, Associate Counsel