Citation Nr: 1807291 Decision Date: 02/05/18 Archive Date: 02/14/18 DOCKET NO. 17-43 300 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to an initial rating in excess of 50 percent for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), bipolar disorder type 2 and major depression. 2. Entitlement to an initial rating in excess of 10 percent for narcolepsy without cataplexy. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Sarah Custer, Agent ATTORNEY FOR THE BOARD Dan Brook, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from July 2010 to October 2013. This matter comes before the Board of Veterans' Appeals (Board) from rating decisions of the Atlanta, Georgia Regional Office (RO) of the Department of Veterans' Affairs (VA). The Board notes that the Veteran had initially appealed the RO's denial of service connection for pityriasis through the filing of a January 2016 notice of disagreement. The RO subsequently proceeded to issue a July 2017 statement of the case, which continued this denial and which also denied increased ratings for psychiatric disorder and narcolepsy. Then, in an August 2017 Form 9, the Veteran specifically indicated that he was only appealing the claims for increased ratings for psychiatric disorder and narcolepsy. Accordingly, the claim for service connection for pityriasis is no longer on appeal and will not be addressed by the Board. The Board notes that when there is evidence that a Veteran may be unemployable due to service connected disabilities, a claim for a TDIU is part-and-parcel of a claim for increase. See Rice v. Shinseki, 22 Vet. App. 447. As such a situation in present in this case, a claim for a TDIU must also be considered as on appeal before the Board. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. The Veteran's psychiatric disorder is reasonably shown to result in occupational and social impairment with deficiencies in most areas; total occupational and social impairment has not been shown. 2. The Veteran has a confirmed diagnosis of narcolepsy but is not shown to suffer from major or minor seizures. 3. The Veteran's service-connected disabilities are reasonably shown to render him unable to secure or follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for a 70 percent but no higher rating for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), bipolar disorder type 2 and major depression have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2017). 2. The criteria for an initial evaluation in excess of 10 percent for narcolepsy have not been met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.7, 4.121, 4.124a, Diagnostic Codes 8108, 8911 (2017). 3. The criteria for a TDIU have been met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Due Process VA has a duty to notify and assist claimants in substantiating claims for VA benefits. See e.g. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159; Dingess v. Nicholson, 19 Vet. App. 473 (2006). In this case, VA provided adequate notice in letters sent to the Veteran in October 2013 and July 2017. VA has a duty to assist a claimant in the development of a claim. This duty includes assisting the claimant in the procurement relevant treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The service treatment records, post-service VA treatment records and pertinent post-service private treatment records are all associated with the claims file. VA has also provided appropriate examinations in relation to the claims for increase for PTSD and narcolepsy. There is no indication of additional existing evidence that is necessary for a fair adjudication of the claims decided herein. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist. In specific regard to the claim for a TDIU, given the favorable outcome described below, an assessment of VA's duties under the VCAA is not necessary. II. Analysis A. Rating in excess of 50 percent for acquired psychiatric disability. The Veteran is currently assigned a 50 percent rating for his service connected acquired psychiatric disability under the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130, Diagnostic Code 9411. The Veteran's acquired psychiatric disorder is rated under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, Diagnostic Code 9411. Under this criteria, a 70 percent rating is warranted where there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical obscure, or irrelevant speech; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. Id. A 100 percent rating is warranted where there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. The evidence of record reasonably shows that the Veteran experiences occupational and social impairment with deficiencies in most areas. Notably, the medical evidence shows that the Veteran underwent private inpatient psychiatric hospitalization on more than one occasion in 2017. This generally indicates that the Veteran been experiencing a severe level of impairment due to his acquired psychiatric disorder. At a June 14, 2017 private emergency room visit, it was noted that the Veteran was brought into the emergency department after family members called 911 due to the Veteran's agitation and violent behavior. He had apparently been breaking windows at home and was out of control. The Veteran's family members reported that this type of behavior was common for him. Also, in a June 28, 2017 discharge summary from Emerson Hospital, it was noted that the Veteran had been hospitalized after making comments about wanting to die and to jump in front of cars. The Veteran was diagnosed with major depressive disorder, recurrent and PTSD. It was noted that the Veteran's current GAF score was 53 and that his highest GAF score over the past year was 50. Additionally, a June 9, 2017 private hospital progress note documents that the Veteran had had at least 3 failed work attempts after service, which were attributable at least in part to his service-connected psychiatric disorder. Moreover, in an earlier May 2017 private medical progress note, it was noted that the Veteran had attempted college at Salem State University but had dropped out within the first year because he was unable to concentrate on his course material. The above evidence reasonably shows that the Veteran experiences deficiencies in mood as evidenced by his significant level of depression and anxiety and his volatile behavior. It also reasonably shows that he has a deficiency in family relations as evidenced by what his family has described as chronic volatile behavior in their presence. Additionally, the evidence reasonably shows that the Veteran has a deficiency in work as evidenced by his inability to maintain employment and a deficiency in school as evidenced by his inability to continue pursuit of a post-secondary degree. Consequently, resolving any reasonable doubt in his favor, he is shown to have occupational and social impairment in most areas due to his service-connected psychiatric disorder. Accordingly, a 70 percent rating is warranted for this disability. 38 C.F.R. § 4.130, Diagnostic Code 9411. A rating in excess of 70 percent is not warranted as the Veteran is not shown to have total occupational and social impairment. In this regard, he continues to maintain relationships with at least some of his family members, indicating that his social impairment is not total. Additionally, on mental status examinations, he has been generally noted to be oriented with adequate intelligence, which tends to indicate that his occupational impairment is not total. Moreover, there is no other evidence of record tending to indicate that he actually has total occupational and social impairment. Accordingly, there is no basis for assigning a higher, 100 percent rating for the service connected acquired psychiatric disorder. Id. B. Rating in excess of 10 percent for narcolepsy The Veteran's narcolepsy has been assigned an initial rating of 10 percent pursuant to Diagnostic Code 8108. This code pertains to narcolepsy, which is to be rated as epilepsy, petit mal under Diagnostic Code 8911. 38 C.F.R. § 4.124a. Under this latter code, both the frequency and type of seizures a 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. To warrant a rating the seizures must be witnessed or verified at some time by a physician, and regarding the frequency of epileptiform attacks, competent, consistent lay testimony emphasizing convulsive and immediate post-convulsive characteristics may be accepted. It is also provided that the frequency of seizures should be ascertained under the ordinary conditions of life while not hospitalized. 38 C.F.R. § 4.121. Under Code 8911, a 20 percent rating is warranted for 1 major seizure during the preceding 2 years or 2 minor seizures during the preceding 6 months. A 40 percent rating is assigned for 1 major seizure during the preceding 6 months or 2 major seizures, or 5 to 8 minor seizures weekly, during the preceding year. A 60 percent rating is warranted for 3 major seizures or 9 to 10 minor seizures weekly, during the preceding year. An 80 percent rating is assigned for 4 major seizures, or more than 10 minor seizures weekly, during the preceding year. A 100 percent rating is warranted for 12 major seizures during the preceding year. Finally, Note 1 to Code 8911 provides that a 10 percent rating is warranted when continuous medication is shown to be necessary for the control of epilepsy, and that this 10 percent rating is not to be combined with any other rating for epilepsy. 38 C.F.R. § 4.124a. A May 2012 private sleep latency test produced findings consistent with narcolepsy. It was noted that the Veteran reported parasomnia, including sleep walking and sleep eating. He also gave a history for sleep paralysis and hypnagogic hallucinations. He did not report cataplexy but did have daytime sleepiness. It was noted that the Veteran might eventually need medication for narcolepsy. At an October 2012 psychological evaluation done on behalf of VA, the Veteran was diagnosed with narcolepsy. The Veteran reported symptoms of sleep paralysis, parasomnia, extreme fatigue and insomnia. He felt that he needed to move around all of the time to stay awake. He reported that he had trouble sleeping for over a year. The Veteran described his sleep as 'horrible.' It would take him a long time to fall asleep and then when he did go to sleep, he went straight into REM sleep, which typically involved nightmares. He would wake up sweating or might startle himself awake. The examiner noted that the Veteran's sleep difficulties were related to his PTSD but the diagnosis of narcolepsy accounted for the severity of the sleep problems as well as the difficulties in getting restful sleep. At a July 2017 VA examination, the examiner diagnosed the Veteran with narcolepsy. It was noted that continuous medication was not required to control the disease. The Veteran reported symptoms associated with the narcolepsy of excessive daytime sleepiness, sleep paralysis and sleep onset/sleep offset hallucinations. The Veteran indicated that he tried to sleep during the day when sleepy but could not ever get to sleep. The examiner noted that the Veteran denied cataplexy/cataplectic episodes and had never had major or minor seizures. The examiner commented that the Veteran's narcolepsy impacted his ability to do work by causing daily drowsiness. In a statement accompanying his August 20017 Form 9, the Veteran indicated that he did not have cataplexy but that his narcoleptic events were a separate symptom that needed to be considered for rating purposes. He noted that in addition to daytime sleepiness attacks (which he asserted included blank staring and sudden jerking movements), he had sleep paralysis at least 5 times per week and sleep onset/offset hallucinations about 3 times per week. He also asserted that he had been diagnosed with a sleep eating disorder during his military service. He argued that if his narcoleptic events were described as minor seizures, he had at least one such event per day or 30 per month. Consequently, under Code 8911, his narcolepsy would warrant at least a 40 percent rating. The Board notes that neither the May 2012 psychologist nor the July 2017 VA examiner characterized the Veteran's narcoleptic events as major or minor seizures. To the contrary, the July 2017 VA examiner specifically noted that the Veteran had never had major or minor seizures. There is also no other medical evidence of record indicating that the Veteran has had major or minor seizures. Notably, the Veteran has essentially asserted that his narcoleptic events should be characterized as minor seizures. However, as he is a layperson, without any demonstrated specific medical expertise in diagnosing seizure activity, the Board finds that his assertion must be afforded less probative weight than the medical evidence of record. See e.g. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Consequently, the weight of the evidence is against a finding that the Veteran has suffered major or minor seizures at any time during the appeal period. Accordingly, in the absence of a showing of such events, a rating in excess of 10 percent is not warranted for the Veteran's narcolepsy. 38 C.F.R. § 4.124a, Diagnostic Codes 8108, 8911. C. TDIU Regarding TDIU, the Veteran is service connected for the acquired psychiatric disability, now rated 70%: cervical strain, currently rated 20%: tinnitus, rated 10%; and narcolepsy, rated 10%. His current combined rating is 80 percent and he meets the schedular rating requirements for assignment of a TDIU. 38 C.F.R. § 4.16 (a). The remaining question is whether he is unemployable due to his service-connected disabilities. The Veteran filed a freestanding claim for a TDIU in July 2017. He indicated that he is a high school graduate and received a small amount of training at Bucks Community College for rail car inspection. Additionally, he reported that he had attempted 3 post-service jobs but had been unable to maintain employment in any of them. He did manual labor for the town of Chelmsford in June 2016 but was unable to continue due to his cervical strain, fatigue and psychiatric symptomatology. He also worked in food service for a local ski area for two weeks in February 2016 but was unable to continue after an altercation with his supervisor. Additionally, he worked for a party rental company for approximately a month in June 2014 but was unable to continue due to his cervical strain, fatigue and difficulty interacting with strangers. Given the Veteran's severe level of psychiatric disability combined with his cervical strain and narcolepsy; given his limited education and training; given his previous failed work attempts; and resolving any reasonable doubt in his favor, it is reasonable to conclude that his service connected disabilities currently preclude him from performing substantial gainful employment. Accordingly, assignment of a TDIU is warranted. 38 C.F.R. § 4.16 (a). ORDER Entitlement to a 70 percent but no higher rating for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), bipolar disorder type 2 and major depression is granted subject to the regulations governing the payment of monetary awards. Entitlement to an initial rating in excess of 10 percent for narcolepsy without cataplexy is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is granted. ____________________________________________ KELLI A. KORDICH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs