Citation Nr: 19187057 Decision Date: 11/19/19 Archive Date: 11/19/19 DOCKET NO. 08-06 806 DATE: November 19, 2019 REMANDED 1. Entitlement to increases in the staged (40 percent prior to December 19, 2012, and 80 percent from that date) ratings for partial complex seizures with narcolepsy, is remanded. 2. Entitlement to a compensable rating for residuals of a traumatic brain injury (TBI) is remanded. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to December 19, 2012, is remanded. REASONS FOR REMAND The appellant is a Veteran who served on active duty from February 1969 to September 25, 1980. These matters are before the Board of Veterans’ Appeals (Board) on appeal from rating decisions in January 2007, May 2007, December 2011, and May 2014. The procedural history (outlined in detail in the Board’s prior (December 2012, December 2016, and March 2018) decisions) is lengthy and will not be described in its entirety. Most recently, in March 2018, the Board increased the rating for a seizure disorder from 20 to 40 percent prior to December 19, 2012, increased the rating for a seizure disorder with narcolepsy from 40 to 80 percent from December 19, 2012, denied a compensable rating for TBI residuals, and denied a TDIU rating prior to December 19, 2012. [The March 2018 Board decision also remanded the matter of service connection for obstructive sleep apnea (OSA) for additional development; that development remains pending at the Agency of Original Jurisdiction (AOJ) and that matter is not currently before the Board.] The Veteran appealed the Board’s March 2018 decision to the U.S. Court of Appeals for Veterans Claims (CAVC), resulting in a May 2019 Joint Motion for Partial Remand (JMPR) by the parties. The parties initially noted that the portions of the Board decision that granted increases in the staged ratings for a seizure disorder prior to December 19, 2012, and for a seizure disorder with narcolepsy from December 19, 2012, are favorable to the Veteran and should not be disturbed. The parties also noted that an October 2018 rating decision granted an earlier effective date of September 26, 1980 for partial complex seizures with narcolepsy, and assigned a 40 percent rating from that date. The JMPR states, “The Board should take appropriate note of this holding when it readjudicates the matter of the appropriate rating for this condition prior to December 19, 2012.” A May 2019 Order remanded the matters for compliance with JMPR instructions, as discussed in further detail below. 1. Entitlement to increases in the staged (40 percent prior to December 19, 2012, and 80 percent from that date) ratings for partial complex seizures with narcolepsy This appeal presents a challenging disability picture, both in terms of the symptomatology presented (including in light of the pending (remanded) claim seeking service connection for OSA) and the duration of the period on appeal. Remand is necessary for further development of the medical evidence to satisfy VA’s duty to assist the Veteran. As noted in the JMPR, an October 2018 rating decision granted an earlier effective date of September 26, 1980 for partial complex seizures with narcolepsy. The record contains March and May 2019 VA regional office (RO) requests for VA medical records from July 1986 to December 2004 (noting the Veteran’s report of being “seen at Dallas VAMC from 07/21/1986”). Subsequently, 54 pages of treatment records dated June through October 1986 were associated with the record; however, the final treatment record, dated October 9, 1986, notes that the Veteran was to return to the clinic in 2 months; thus, it is not clear whether all VA treatment records (prior to December 2004) are associated with the record. Likewise, a January 19, 2017 VA treatment record notes that the Veteran “was following with private neurologist Dr. Bash in Maryland.” The record contains a September 14, 2008 medical evaluation report from Dr. Bash, but not records of ongoing treatment. Records of all evaluations and treatment for seizures and narcolepsy during the evaluation period are pertinent evidence in the claim for increase (and VA records are constructively of record); they must be sought (and to the extent possible, secured) on remand. Regarding the period prior to December 19, 2012, the parties agreed that the Board erred because it did not analyze the credibility and probative value of several items of evidence (including specifically a May 2005 statement, a June 2006 treatment record, a September 2008 statement, and a December 2008 treatment record) when it denied a rating in excess of 40 percent. The parties also agreed that the “Board must address the…argument presented by [the Veteran]” to the extent that he argues that the “schedular rating schedule is not adequate to rate his condition” (referencing sleep diaries from 2007 and 2008), and that the rating “schedule is not adequate” because “there is no 100% rating available no matter how many minor seizures occur.” See October 2017 and January 2018 statements in support of claim. Regarding the period from December 19, 2012, the parties agreed that the “Board erred when it did not adequately explain its finding that the applicable schedular rating criteria sufficiently contemplated all of [the Veteran’s] seizure and narcolepsy symptoms.” The parties specifically cited to an April 2017 VA (fee basis) seizure disorders examination report which noted symptoms of abnormalities of thinking and memory, loss of postural control, episodes of disturbances of gait, and weakness as possible symptoms beyond the criteria listed in Code 8914. However, the record suggests that at least some of the symptoms noted by the parties may be manifestations of his (at this time) nonservice-connected OSA. For example, an April 2017 VA (fee basis) sleep apnea examination report also notes symptoms of persistent daytime hypersomnolence, fatigue, and weakness with “attacks of involuntary sleep.” The same examiner opined (in an April 2017 TBI examination report), “Some of the excessive daytime sleepiness could be cause[d] by his severe obstructive sleep apnea,” Likewise, in a February 2016 private medical statement, a Johns Hopkins professor of neurology, Dr. G.B. noted the Veteran’s diagnoses of OSA and sleep disturbance and wrote, “Mention is made of narcolepsy but excessive daytime sleepiness is characteristic of OSA so it is not possible from the available records to diagnose narcolepsy.” [As noted above, the matter of service connection for OSA has been remanded for the development of additional medical evidence.] Considering the complex disability picture presented, remand for an examination to ascertain the current severity of the Veteran’s service-connected seizure disorder with narcolepsy and to ascertain whether the symptoms noted in the JMPR are manifestations of such, or manifestations of his nonservice-connected OSA is necessary. Following completion of the necessary development outlined above, the AOJ should review the evidence and determine whether the Veteran’s service-connected partial complex seizures with narcolepsy has related symptoms or functional impairment not contemplated in the schedular rating criteria. If so, referral to the VA Director of Compensation for consideration of an extraschedular increased rating would be warranted. 2. Entitlement to a compensable rating for TBI residuals In the May 2019 JMPR, the parties agreed that the Board misstated the relevant diagnostic criteria in denying a compensable rating for TBI residuals. The parties noted that the April 2017 VA (fee basis) TBI examiner selected the box indicating that the Veteran has a “Persistent altered state of consciousness, such as vegetative state, minimally responsive state, coma.” The examiner then explained that the “Veteran gets episodic excessive day time sleepiness where he can just fall asleep without warning.” The Board held such a description does not more nearly approximate a total impairment of consciousness; the parties noted “there is a distinction between a persistently altered state of consciousness and total impairment of consciousness.” In light of the internally inconsistent notations on examination (“persistent altered state of consciousness” vs. “episodic” sleepiness), remand for an clarifying addendum medical opinion is necessary (particularly in light of a finding of ‘Normal’ consciousness on November 2013 VA TBI examination). 3. Entitlement to a TDIU rating prior to December 19, 2012 As noted above, an August 2017 rating decision assigned an earlier effective date of December 19, 2012, for the assignment of a TDIU rating. Accordingly, the claim for a TDIU rating prior to December 19, 2012 remains on appeal and is inextricably intertwined with the claims being remanded, and appellate consideration of that matter must be deferred pending resolution of the increased ratings claims. See Harper v. Wilkie, 30 Vet. App. 356 (2018); see also Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following: 1. Secure for the record updated (to the present, any not already associated with the record) complete clinical records of all VA evaluations and treatment the Veteran has received for his claimed disabilities. Arrange for an exhaustive search to locate and secure for the record any outstanding (those not already associated with the record) VA treatment records dated from July 1986 to December 2004. If no additional records of such VA treatment can be located (or such records are determined to not have been created), it should be so certified for the record, with the scope of the search described. Also ask the Veteran to provide identifying information regarding all private evaluations or treatment he has received for his claimed disabilities (records of which are not already in the record) and submit authorizations for VA to secure complete clinical records of all such evaluations and treatment, including specifically any treatment records from his noted-on- VA examination “neurologist” Dr. Bash. Obtain all records identified. If there are no such records existing, it should so be noted in the record. [Ask the Veteran to identify all providers of his treatment for seizures and narcolepsy from July 1986 to December 2004. If there were extended periods when he did not receive treatment, those periods should be identified. Records of treatment by all providers must be accounted for.] Proceed with the further development below when this development is completed. 2. When the development requested above is completed, return the record to the examiner who conducted the April 2017 TBI examination for review and a clarifying addendum medical opinion. [If that examiner is unavailable or cannot provide the opinion sought, forward the record to another appropriate medical provider for the opinion (and if in such circumstances further examination of the Veteran is deemed necessary, such should be arranged).] On review of the record (including this remand, the April 2017 TBI examination report, and any new records received pursuant to the development ordered above) the examiner should clarify whether the Veteran’s TBI manifests in a persistently altered state of consciousness, such as vegetative state, minimally responsive state, coma. In providing the opinion requested, the examiner must reconcile his prior conflicting notations of a “persistent altered state of consciousness” vs. “episodic” sleepiness. Noting that it is impermissible to rate the same symptoms separately under various diagnoses, identified any symptoms and impairment that are more appropriately attributed to the Veteran’s service-connected seizures and narcolepsy. The provider must include rationale with all opinions, citing to supporting factual data and medical literature/treatise, as deemed appropriate. 3. Arrange for the Veteran to be examined by an appropriate examiner (a neurologist or sleep specialist) to ascertain the nature and severity of his service-connected partial complex seizures with narcolepsy. The entire record (to include this remand and any new records received pursuant to the development ordered above) must be reviewed by the examiner in conjunction with the examination. [Any tests or studies deemed necessary for proper evaluation must be completed.] The examiner should provide opinions that respond to the following: Describe all symptoms (and related functional impairment) of the Veteran’s service-connected partial complex seizures with narcolepsy, to specifically include (a) notation of the frequency and duration of the episodes and (b) whether the symptoms and impairment shown are better characterized as major or minor seizures. The examiner is also asked to review 38 C.F.R. § 4.124(a), and offer an opinion as to whether Diagnostic Code 8911 best reflects the Veteran’s partial complex seizures with narcolepsy disability picture, and if not, identify (with explanation) the Code that provides a more appropriate analogy to the disability picture presented. The examiner should also indicate whether there are any symptom(s) or impairment associated with the disability that are not encompassed by the schedular criteria. If such symptoms or impairment are identified, to the extent possible, distinguish what symptoms/impairment are attributable to his partial complex seizures with narcolepsy, with his TBI, and with his OSA (or other nonservice-connected disability). The examiner should discuss in detail the impact that the partial complex seizures with narcolepsy disability has on the Veteran’s daily activity and occupational functioning, and should include rationale with all opinions, citing to supporting factual data. 4. If deemed appropriate following the examination sought above, refer the matter of the ratings for the Veteran’s partial complex seizures with narcolepsy to the VA Director of Compensation for consideration of extraschedular increased rating(s). If a referral is made, include a full statement outlining the medical evidence and all other factors bearing on the matter. Then implement the Compensation Director’s determination. If referral is deemed not warranted, explain for the record why that is so. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Dupont, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.