Citation Nr: 1814149 Decision Date: 03/08/18 Archive Date: 03/14/18 DOCKET NO. 13-28 301 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to an initial disability rating in excess of 10 percent for hypoglycemia. 2. Entitlement to a disability rating in excess of 10 percent for hypertension. 3. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Brian S. Wayson, Esq. ATTORNEY FOR THE BOARD L. Silverblatt, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1963 to August 1967 and from November 1968 to August 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. The Board notes that the Veteran requested a Board hearing, but failed to appear for a hearing scheduled on February 21, 2017. As such, the Board finds that the Veteran's hearing request has been withdrawn. The matters were previously remanded by the Board in August 2017 for additional development. The matters have since returned to the Board. The issue of entitlement to TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran has a confirmed diagnosis of hypoglycemia, which has not manifested in one major seizure during the preceding two years or two minor seizures during the preceding six months. 2. The Veteran's hypertension does not most nearly approximate diastolic pressure predominantly 110 or more; or, systolic pressure predominantly 200 or more. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 10 percent for hypoglycemia have not been met. 38 U.S.C. §§ 1155, 5103, 5107 (2014); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8199-8108 (2017). 2. The criteria for a disability rating in excess of 10 percent for hypertension have not been met. 38 U.S.C. §§ 1155, 5103, 5107 (2014); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.3, 4.7, 4.104, Diagnostic Code 7101(2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act (VCAA), codified in part at 38 U.S.C. §§ 5103, 5103A, and implemented in part at 38 C.F.R. § 3.159, amended VA's duties to notify and assist a claimant in developing the information and evidence necessary to substantiate a claim. Duty to Notify VA's duty to notify was satisfied by letters in September 2011, May 2012, and August 2012. Neither the Veteran, nor his attorney, has alleged prejudice with regard to notice. The Federal Circuit Court of Appeals has held that "absent extraordinary circumstances...it is appropriate for the Board and the Veterans Court to address only those procedural arguments specifically raised by the veteran...." See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). In light of the foregoing, nothing more is required. Duty to Assist VA has fulfilled its duty to assist in obtaining identified and available evidence needed to substantiate the claim. Service treatment records, post-service VA and private treatment records, Social Security Administration (SSA) records, and lay statements have been associated with the record. The Veteran was afforded VA examinations in September 2011 for hypoglycemia and in June 2012 for hypertension. Pursuant to the August 2017 Board remand, the Veteran was again afforded VA examinations in August 2017 to determine the severity of his hypoglycemia and hypertension. The examination reports contained all opinions as requested by the Board. The RO then readjudicated the Veteran's claims in a December 2017 Supplemental Statement of the Case (SSOC). As such, the Board finds that the RO substantially complied with the 2017 remand directives and no further action in this regard is warranted. The Board has carefully reviewed the VA examinations of record and finds that the examinations, along with the other evidence of record, are adequate for purposes of rendering decisions in the instant appeal. The Veteran has not identified any outstanding evidence that could be obtained to substantiate his claims. The Board is also unaware of any such evidence. Accordingly, the Board will address the merits of the Veteran's claims. II. Increased Rating Claims A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Hypoglycemia An October 2012 rating decision granted service connection for hypoglycemia with a 10 percent disability rating, effective August 2, 2011. The Veteran has disagreed with the initial rating and has perfected an appeal. The Veteran's service-connected hypoglycemia is rated under Diagnostic Code 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 rating assigned. 38 C.F.R. § 4.27 (2017). The hyphenated disability will be rated by analogy under a diagnostic code for a closely related disability that affects the same anatomical functions and has closely analogous symptomatology. 38 C.F.R. §§ 4.20, 4.27 (2017). Diagnostic Code 8108, which pertains to narcolepsy, is to be rated as analogous to epilepsy, petit mal. Epilepsy, petit mal, in turn, is to be rated under the general rating formula for minor seizures. 38 C.F.R. § 4.124a, Diagnostic Code 8911. Under the General Rating Formula, a 10 percent rating is assigned for a confirmed diagnosis of epilepsy with a history of seizures. See 38 C.F.R. § 4.124a, Diagnostic 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 Diagnostic 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 10 percent rating is not to be combined with any other rating for epilepsy. The rating schedule defines a major seizure as being characterized by the generalized tonic-clonic convulsion with unconsciousness. 38 C.F.R. § 4.124a, Diagnostic Code 8911, Note 1. A minor seizure is considered to consist 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., Note 2. Furthermore, in order to warrant a rating for epilepsy, the seizures must be witnessed or verified at some time by a physician. See 38 C.F.R. § 4.121 (2017). As to frequency, competent, consistent lay testimony emphasizing convulsive and immediate post-convulsive characteristics may be accepted. Moreover, the frequency of seizures should be ascertained under the ordinary conditions of life while not hospitalized. The competent evidence of record shows that a disability rating in excess of 10 percent for hypoglycemia is not warranted. There is no medical evidence of record that shows that the Veteran has suffered from one major seizure during the preceding two years or two minor seizures during the preceding six months during the course of the appeal. In a September 2010 VA treatment record, the Veteran reported his first seizure in 1979, which occurred after he was drinking alcohol heavily and then drank approximately 20 caffeinated beverages leading up to the seizure. During the Veteran's second seizure in 2000, the Veteran felt acutely dizzy and weak and lost consciousness. He recalled having palpitations at the time, but was unsure if there was any motor activity and how long he was unconscious for. The Veteran believed this seizure was due to withdrawal from Wellbutrin. The Veteran reported subsequent spells since 2000, but none with loss of consciousness. In a September 2010 neurology follow-up for possible seizures, the Veteran reported spells of dizziness, possible loss of consciousness, and confusion in July and August 2010. The Veteran questioned whether hypoglycemia or arrhythmia triggered these spells; however, it was explained to the Veteran that these triggers were unsupported during his recent admission. In a January 2011 VA treatment record, the Veteran reported having a seizure one month ago. In a February 2011 private treatment record, the Veteran reported three episodes of hypoglycemic "seizures," approximately 10 years apart. The Veteran described that the first incident lead to loss of consciousness; he felt dizzy with palpations during the second incident; and during the third incident in October 2010, his dizziness resolved with glucose tablets but he had a near loss of consciousness episode hours after. The physician administered a glucose tolerance test, and after the Veteran began experiencing symptoms, the Veteran was admitted to the emergency department due to generalized seizure and hypoglycemia. During a March 2011 follow-up appointment, the physician noted that following the glucose tolerance test performed in February 2011, the Veteran began experiencing symptoms consistent with his prior events and had a near-syncopal episode. The physician recommended that the Veteran try to spread his calories out throughout the day. An April 2011 private treatment record noted that the Veteran's symptoms were most consistent with reactive hypoglycemia. Since starting acarbose, the Veteran had been doing much better with no symptoms of hypoglycemia. An August 2011 VA treatment record noted no recent seizures. In a September 2011 VA examination, the Veteran reported having a seizure two years ago while in Costco. He was started on acarbose in March 2011 and reported that he had only had symptoms of low blood sugar since. May 2012 VA treatment records noted that the Veteran was doing well on acarbose and had not experienced loss of consciousness in a year. Pursuant to an August 2017 Board remand, the Veteran was provided with a VA examination for his hypoglycemia. The VA examiner noted that the Veteran treated his hypoglycemia with glucose tablets as needed and was no longer taking acarbose. The Veteran denied any episodes of hypoglycemic reactions requiring hospitalization in the last 12 months. The Veteran reported that he continued to experience anxiety, confusion, shakiness, and visual blurring that were reversible with glucose tablets. He stated that he could not always tell if his symptoms were due to a panic attack or his anxiety disorder. The examiner noted that medical records did not show objective evidence of seizures despite "seizure disorder" periodically noted as part of the Veteran's health history. The examiner further noted that numerous glucose level readings at the VA medical center (VAMC) had consistently been normal or above normal, but not hypoglycemic. As the examiner had found no medical evidence of hypoglycemia after 2004, she determined that if she had to choose a level of severity for the Veteran's disability, she would categorize his hypoglycemia as mild due to the evidence that for the vast majority of the time, the Veteran did not have hypoglycemia. The examiner explained that reactive hypoglycemia meant a temporary period of low blood sugar, not an ongoing one. In light of the above, the Board finds that a rating in excess of 10 percent is not warranted, as the criteria for a more severe rating has not been met during the appeal period. In this regard, treatment records indicate that the Veteran has often experienced dizziness, palpations, and near episodes of loss of consciousness; however, there is no objective medical evidence that the Veteran has experienced major or minor seizures during the appeal period. While a February 2011 private treatment record noted the Veteran's emergency department admission for generalized seizure and hypoglycemia, a March 2011 follow-up treatment record clarified that the Veteran experienced hypoglycemic symptoms and a near syncopal episode following a glucose tolerance test. Further, following review of the evidentiary record and examination of the Veteran, the August 2017 VA examiner determined that the Veteran's hypoglycemia was mild, as he did not have any hypoglycemia for a majority of the time. The Board acknowledges that the Veteran believes he has seizures warranting an increased disability rating; however, the Board notes that the Veteran's reports of his seizures have been somewhat imprecise. Specifically, the Veteran has included episodes of dizziness and palpations without loss of consciousness when reporting past seizures. See September 2010 VA Treatment Record. The Veteran has also inconsistently reported episodes of seizures. For instance, the Veteran reported suffering from a seizure one month prior in a January 2011 VA treatment record; however, in a February 2011 VA treatment record, the Veteran reported that his last "seizure" was in October 2010, but he did not lose consciousness. Additionally, in the September 2011 VA examination, the Veteran reported having a seizure two years ago (2009) while in Costco; however, in a September 2010 VA treatment record, the Veteran reported that he last lost consciousness in 2000 and that he had experienced subsequent spells, but none with loss of consciousness. As such, the Board finds that the Veteran is not a credible historian as to his claimed incidents of seizure and assigns the Veteran's statements regarding his episodes of seizures limited probative weight and finds that the medical evidence of record, specifically the absence of medical evidence of seizures and the August 2017 VA examination findings, is the most probative evidence of record. As there is no competent evidence indicating that the Veteran has suffered from 1 major seizure during the preceding 2 years or 2 minor seizures during the preceding 6 months, the Veteran's hypoglycemia does not most nearly approximate the criteria contemplated by a rating in excess of 10 percent at any time during the course of the appeal. Accordingly, a disability rating in excess of 10 percent for the Veteran's hypoglycemia is denied. As the preponderance of the evidence is against a higher disability rating, the benefit-of-the-doubt doctrine does not apply. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Hypertension The Veteran contends that his hypertension is more severe than reflected by the criteria under which he is currently rated. Specifically, the Veteran's asserts he deserves a higher disability rating because he was told that his hypertension contributes to his coronary artery disease. The Board notes these effects are currently being compensated under his service-connected ischemic heart disease associated with hypertension. A January 1977 rating decision granted service connection for hypertension with a 10 percent disability rating under Diagnostic Code 7101, effective August 27, 1976. The Veteran filed a claim for an increased rating for his hypertension in April 2012 and the 10 percent disability rating was continued in an October 2012 rating decision. The Veteran disagreed and perfected an appeal. Under Diagnostic Code 7101, hypertension warrants a 10 percent rating where diastolic pressure is predominately 100 or more; systolic pressure predominately 160 or more, or if there is a history of diastolic pressure predominately 100 or more and the individual requires continuous medication for control. A 20 percent disability evaluation for hypertension requires diastolic pressure predominantly 110 or more, or systolic pressure predominantly 200 or more. A 40 percent disability evaluation for hypertension requires diastolic pressure predominantly 120 or more. A 60 percent disability evaluation for hypertension requires diastolic pressure predominantly 130 or more. The Board notes that the rating criteria for Diagnostic Code 7101 are successive. In other words, the evaluation for each higher disability rating includes the criteria of each lower disability rating. Therefore, if any criterion is not met at a particular level, the Veteran can only be rated at the level that does not require the missing component. See Tatum v. Shinseki, 23 Vet. App. 152, 156 (2009); see also Melson v. Derwinski, 1 Vet. App. 334 (1991) (noting that the conjunctive "and" and "with" in a statutory provision means that all of the listed conditions must be met). The Board has carefully reviewed all of the relevant medical evidence of record and finds that the Veteran's blood pressure has consistently measured under 110 and his systolic pressure has consistently measured under 200 during the course of the appeal. A June 2012 VA examination noted recent blood pressure readings of 145/72 in October 2011, 134/61 in March 2012, and 120/70 in June 2012. An August 2017 VA examination noted blood pressure readings of 148/75, 150/70, and 151/68 on August 30, 2015. Both VA examinations indicated that the Veteran was taking continuous medication for his hypertension and that he did not have a history of diastolic blood pressure elevation to predominantly 100 or more. Further, several VA and private treatment records during the course of the appeal indicate that the Veteran's blood pressure readings have never been recorded above 110 for diastolic pressure and 200 for systolic pressure. The Veteran's blood pressure results are contemplated by the current 10 percent disability rating, which is also consistent with the use of continuous hypertensive medication. As there is no competent evidence indicating that the Veteran's diastolic pressure is predominantly 110 or more or his systolic pressure is predominantly 200 or more, the Veteran's hypertension does not most nearly approximate the criteria contemplated by a rating in excess of 10 percent at any time during the course of the appeal. Accordingly, a disability rating in excess of 10 percent for the Veteran's hypertension is denied. As the preponderance of the evidence is against a higher disability rating, the benefit-of-the-doubt doctrine does not apply. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to an initial disability rating in excess of 10 percent for hypoglycemia is denied. Entitlement to a disability rating in excess of 10 percent for hypertension is denied. REMAND The Board finds that a VA examination is warranted to determine whether the Veteran is unemployable due to his service-connected disabilities. The Board notes that the Veteran is service connected for ischemic heart disease associated with hypertension at 60 percent, anxiety disorder and secondary dysthymic disorder associated with pericarditis at 50 percent, hypertension at 10 percent, tinnitus at 10 percent, hypoglycemia at 10 percent, and hearing loss, bronchitis, and pericarditis at noncompensable disability ratings. The threshold requirement of 38 C.F.R. § 4.16(a) has been met for the period under consideration in this appeal, as the Veteran has had a single service-connected disability rated at 60 percent from May 2004 and a combined disability evaluation of 90 percent from April 26, 2012. Thus, the question becomes whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. See 38 C.F.R. § 4.16(a). Although several VA examinations have been conducted for the Veteran's service-connected disabilities, none adequately address the impact of the Veteran's service connected disabilities on employment and his ability to function in an occupational environment. Therefore, remand for a VA examination is warranted to ensure that the record reflects the impact that the Veteran's service-connected disabilities have on his employability. While on remand, updated VA treatment records should also be obtained and associated with the evidentiary record. Accordingly, the case is REMANDED for the following action: 1. Undertake appropriate development to obtain any outstanding records pertinent to the Veteran's claim. 2. Next, schedule the Veteran for an examination with an appropriately qualified examiner to determine the impact the Veteran's service connected disabilities have on his employability. The claims file must be made available to, and reviewed by, the examiner. The examiner should be informed of each condition for which the Veteran is service connected. A complete employment history of the Veteran should be obtained, inclusive of the last date of full-time and/or part-time employment. An assessment of the Veteran's day-to-day functioning should be made. Information about the Veteran's level of education should also be obtained. After obtaining this information, the examiner is asked to discuss the Veteran's ability to function in an occupational environment and describe the functional impairment caused solely by his service-connected symptoms. The examiner should, for instance, describe the limitations and restrictions imposed by his service-connected impairments on such routine work activities as interacting with customers/coworkers and using technology, plus other such work activities as sitting, standing, walking, lifting, carrying, pushing, and pulling. The examiner is asked, if the Veteran is found likely to be able to work any physical or sedentary employment, to discuss the type or types of employment in which the Veteran would be capable of engaging, given his skill set and educational background. A report of the opinion should be prepared and associated with the claims file. A comprehensive rationale must be provided for all opinions rendered. If the examiner cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 3. After completing the development requested above and any other development deemed necessary, readjudicate the Veteran's claim of entitlement to TDIU. If any benefit sought remains denied, furnish the Veteran and his attorney a supplemental statement of the case (SSOC) and return the case to the Board. The Veteran 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 (2014). ______________________________________________ DONNIE R. HACHEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs