Citation Nr: 19137828 Decision Date: 05/15/19 Archive Date: 05/15/19 DOCKET NO. 13-30 620 DATE: May 15, 2019 ORDER Entitlement to an initial rating in excess of 10 percent for narcolepsy without cataplexy (also claimed as idiopathic hypersomnia) is denied. FINDING OF FACT For the entire period on appeal, the Veteran’s narcolepsy, rated as epilepsy petit mal, is manifested by excessive day time sleepiness and sleep attacks which are controlled by continuous medication, with no seizure activity. CONCLUSION OF LAW The criteria for an initial rating in excess of 10 percent for service-connected narcolepsy have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.7, 4.121, 4.124a, DC 8108 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from September 1986 to June 1990, and in the United States Army from April 2006 to January 2013, respectively. This matter is before the Board of Veterans' Appeals (the Board) on appeal from a June 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. This matter was subsequently transferred to the New York, New York RO. This matter was previously before the Board in October 2017, at which time it was remanded for further development, including obtaining any outstanding medical records and a new VA narcolepsy examination with a clarifying opinion. Increasing Rating - Narcolepsy (claimed as Idiopathic Hypersomnia) The Veteran contends that he is entitled to a rating in excess of 10 percent because his narcolepsy diagnosis has been medically ruled out, and as such his idiopathic hypersomnia should not be rated the same as narcolepsy (which is rated as epilepsy petit mal); rather it should be rated at 30 percent under Diagnostic Code 6847 (sleep apnea), based on his symptoms of persistence daytime hypersomnolence. See, Veteran’s December 2018 correspondence. Diagnostic Code 8108 provides that narcolepsy is to be rated as analogous to petit mal epilepsy under Diagnostic Code 8911, which in turn is rated under the general rating formula for minor seizures. 38 C.F.R. § 4.124a, DC 8911. The General Rating Formula for Major and Minor Epileptic Seizures (General Rating Formula) provides that both the frequency and type of seizures a veteran experience are considered in determining the appropriate rating. 38 C.F.R. § 4.124a, DC 8910, 8911. A major seizure is characterized by generalized tonic-clonic convulsion with unconsciousness. Id. at Note (1). 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). As for minor seizures, the General Rating Formula for Major and Minor Epileptic Seizures provides that a 10 percent evaluation is warranted for a confirmed diagnosis of epilepsy with a history of seizures; a 20 percent evaluation is warranted for at least two minor seizures in the past six months; a 40 percent evaluation is warranted for averaging at least five to eight minor seizures weekly; a 60 percent evaluation is warranted for nine to 10 minor seizures per week; and an 80 percent evaluation, the maximum for minor seizures, for more than 10 minor seizures weekly. 38 C.F.R. § 4.124a. When continuous medication is shown necessary for the control of epilepsy, the minimum rating will be 10 percent. This rating will not be combined with any other rating for epilepsy. In the presence of major and minor seizures, the predominating type is rated, and there is no distinction between diurnal and nocturnal major seizures. Under 38 C.F.R. § 4.121, to warrant a rating, the seizures must be witnessed or verified at some time by a physician. Regarding the frequency of epileptiform attacks, competent, consistent lay testimony emphasizing convulsive and immediate post-convulsive characteristics may be accepted. The frequency of seizures is to be ascertained under the ordinary conditions of life while not hospitalized. Under Diagnostic Code 6847, a zero percent rating is provided for asymptomatic sleep apnea, but with documented sleep disorder breathing. A 30 percent rating is provided for persistent day-time hypersomnolence. A 50 percent rating is provided when the sleep apnea requires the use of a breathing assistance device such as CPAP machine. A 100 percent rating is provided for sleep apnea that causes chronic respiratory failure with carbon dioxide retention or cor pulmonale or requires tracheostomy. 38 C.F.R. § 4.97, Diagnostic Code 6847. In evaluating the evidence in an appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold same, and, in doing so, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to the evidence. Jandreau v. Nicholson, 492 F.3d 1372 (2007). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, VA shall give the benefit of the doubt to the Veteran. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Analysis The Veteran’s claim of service connection was filed using the VA/DoD (Department of Defense) Joint Disability Evaluation Board Claim pilot program prior to his January 2013 discharge from active service. He was diagnosed with narcolepsy without cataplexy by the Medical Examining Board (MEB) in January 2012. In September 2012, based on the MEB findings, the Veteran was awarded a proposed 10 percent rating for his narcolepsy. In December 2012, the Veteran filed a claim requesting a reconsideration of his claim, seeking a higher rating. After the June 2013 rating decision confirming his 10 percent rating, the Veteran filed a Statement in Support of Claim in July 2013, citing Clear and Unmistakable Error (CUE), on the basis he was not afforded a specific narcolepsy VA examination. However, as this is an initial rating decision, this issue is not final, and a failure in fulfilling a duty to assist does not constitute an error in fact or in law warranting a CUE claim. 38 U.S.C. § 5109A, 7105 (2012); 38 C.F.R. § 3.105 (a) (2018). The Veteran was afforded a VA examination for his narcolepsy in January 2017. The VA examiner noted that the Veteran’s January 2012 diagnosis was for idiopathic hypersomnia, and that his symptoms included excessive daytime sleepiness, and sleep attacks (strong urge to sleep, followed by short nap). The VA examiner also noted that the Veteran had never had any minor or major seizures and that Multiple Sleep Latency Test (MSLT) diagnostic testing in 2014 ruled out narcolepsy and confirmed his idiopathic hypersomnia diagnosis. The Veteran reported that without his medications (Adderall in the mornings and Modafinil in afternoon), he would not be able to function at his job (functional impact), and that without medication he could sleep on demand. In April 2017, the RO issued a Supplemental Statement of the Case (SSOC), stating that the evidence reflects the Veteran’s condition was well-controlled with medication, and that there is no indication he suffered from cataplectic/narcoleptic episodes which would warrant a higher rating. The matter was subsequently certified to the Board for review, which resulted in the October 2017 Board remand. The remand directives ordered the VA examiner to provide a thorough analysis of the Veteran’s symptoms related to his service-connected sleep apnea and narcolepsy, respectively; to identify whether the narcoleptic episodes are equivalent to minor seizures, and to provide a discussion regarding the frequency and severity of the Veterans sleep attacks and any other related symptoms, taking into consideration the Veteran’s previous contentions in any outstanding medical records. In compliance with the October 2017 remand directives, the December 2017 VA examiner reported his detailed findings (verbatim) as follows: 1) The veteran's hypersomnia disability is moderately severe when untreated and mildly disabling when treated. 2) Veteran describes excessive daytime sleepiness that is near constant, with episodes of uncontrolled urges to sleep, if veteran is not treated. The uncontrolled urges to sleep occur at least daily, are typically of several minutes’ duration, and associated with easy arousal. Symptoms are controlled when on medication. That is, sleepiness is minimized so as to allow employment, and uncontrolled sleeping is essentially eliminated. Therefore, hypersomnia episodes similar to petit mal seizures occur approximately 7-10 times a week when untreated. However, they cannot be considered equivalent for the important reason that the veteran can be aroused to wakefulness from a hypersomnia episode while one cannot be aroused from any seizure till the neurological event has passed. When the veteran is treated, as is the case currently, hypersomnia episodes are nearly eliminated. 3) Idiopathic hypersomnia and sleep apnea share the common symptom of hypersomnia. The veteran's hypersomnia symptoms are in greatest part the result of idiopathic hypersomnia. Sleep apnea has been diagnosed as mild, so it would therefore have minimal influence on current hypersomnia symptoms. Other contended symptoms such as irritability, lack of concentration, and memory problems are non-specific. The veteran has concurrent conditions which all influence these symptoms in varying degree. These conditions include idiopathic insomnia, sleep apnea, adjustment disorder, headache disorder, and intermittent/chronic use of sedating medication. It is likely all these conditions are dynamically equal contributors to these non-specific symptoms. 4) The veteran's contentions as documented in 12/2012 and 10/2013 were considered. The 9/2014 contention was unavailable for review. Hypersomnia produces a disability similar to petite mal seizure, but not equivalent. They cannot be considered equivalent for the important reason that the veteran can be aroused to wakefulness from a hypersomnia episode while one cannot be aroused from any seizure till the neurological event has passed. 5) The VA treatment notes of 02/2014 and 4/2014 were reviewed. The note of 02/2014 stating hypersomnia is secondary to sleep apnea and (idiopathic) daytime hypersomnia is correct. I would clarify by saying the idiopathic hypersomnolence is predominantly responsible. The note is also correct in that a diagnosis of narcolepsy has not been established. The note of 4/2014 is correct in that stress will affect nighttime sleep which in turn impacts daytime hypersomnolence. I would clarify that hypersomnolence is predominantly responsibly. In addition, the examiner reported that though the Veteran has not met the diagnostic criteria for narcolepsy, he did meet multiple sleep latency testing (MSLT) and sleep onset rapid eye movement periods (SOREMP) criteria for his idiopathic hypersomnia diagnosis. Further, the examiner stated that he found no documented change in the Veteran’s current status since his previous VA examination in January 2017. The Board finds this December 2017 VA medical report put forth to be highly probative because it is based on a review of the record and contain clear conclusions with supporting data connected by a reasoned medical explanation. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301–02 (2008). On the other hand, the Veteran or his representative has not submitted any other medical evidence that contradicts this finding. In weighing these facts, the Board finds that the most credible evidence of record establishes that the Veteran is not entitled to an initial rating in excess of 10 percent for his idiopathic hypersomnia. The Veteran also contends that his current rating does not take into consideration that he has to constantly be on medication to control his hypersomnolence symptoms. The Board may not deny entitlement to a higher rating on the basis of relief provided by medication when those effects are not specifically contemplated by the rating criteria. Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). However, in this case, the effects of medication are already contemplated by the rating criteria and the Board will therefore consider them. Further, as noted by the December 2017 VA examiner, idiopathic hypersomnia and sleep apnea share the common symptom of hypersomnia, and the Veteran’s persistence daytime hypersomnolence which warrants a 30 percent rating under Diagnostic Code 6847 pursuant 38 C.F.R. § 4.97, has also been contemplated as part of the Veteran’s service-connected obstructive sleep apnea (OSA), for which he is currently rated at 50 percent disabling. In addition, as also reported by the VA examiner, although hypersomnia produces a disability similar to petite mal seizure, they are not equivalent, since the veteran can be woken up from a hypersomnia episode, but not cannot be woken up from a seizure, which is neurological, and must run its cause. Therefore, the Veteran’s daytime hypersomia cannot be rated as a seizure under 38 C.F.R. § 4.121. As such, the evidence on record indicates that the Veteran’s condition is well-controlled with medication, and there is no indication he suffers from seizures. Consequently, in light of all the above, the Board finds that the Veteran is not entitled to an initial evaluation in excess of 10 percent for his service-connected narcolepsy (claimed as idiopathic hypersomnia). Further, the evidence does not support a staged rating for any time period on appeal, and as such, for no period would the Veteran be entitled to a higher rating under a different Diagnostic Code. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J.B. King, Associate 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.