Citation Nr: 19150135 Decision Date: 06/27/19 Archive Date: 06/26/19 DOCKET NO. 16-29 028 DATE: June 27, 2019 ORDER Entitlement to a 40 percent disability rating from August 1, 2017, for neurocardiogenic syncope, claimed as possible psychomotor epilepsy, is granted. FINDING OF FACT From August 1, 2017, the Veteran’s neurocardiogenic syncope, claimed as possible psychomotor epilepsy, was manifest by 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. CONCLUSION OF LAW The criteria for a 40 percent disability rating from August 1, 2017, for neurocardiogenic syncope, claimed as possible psychomotor epilepsy have been met. 38 U.S.C. §§ 1155, 5107 (b) (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.27, 4.121, 4.122, 4.124a, Diagnostic Codes 8199-8108 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1953 to December 1954. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2013 rating decision issued by the Department of Veterans Affairs (VA) Appeals Management Center in Washington, DC. The appeal is currently under the jurisdiction of the VA Regional Office (RO) in New Orleans, Louisiana. The Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge in August 2017. The Veteran’s neighbor, W.E. Jr., was present as a witness. A transcript of the hearing is of record. The Board remanded this matter in December 2017. The Board finds there has been substantial compliance with its December 2017 remand directives. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268 (1998)) violation when the examiner made the ultimate determination required by the Board’s remand.) Entitlement to a rating in excess of 20 percent for neurocardiogenic syncope, claimed as possible psychomotor epilepsy The Veteran generally asserts that his service-connected neurocardiogenic syncope, claimed as possible psychomotor epilepsy, is worse than his current evaluation reflects. The Veteran’s neurocardiogenic syncope, claimed as possible psychomotor epilepsy, has been currently evaluated as 20 percent disabling, effective June 11, 2009, under 38 C.F.R. § 4.124a, Diagnostic Codes 8199-8108, which is rated by analogy for narcolepsy. 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 evaluation assigned. In this case, the hyphenated code indicates that the Veteran’s disability is an unlisted condition that has been rated by analogy as narcolepsy. See 38 C.F.R. § 4.20. Under Diagnostic Code 8100, narcolepsy is to be rated as epilepsy, petit mal under Diagnostic Code 8911, which states to rate under the general rating formula for minor seizures. 38 C.F.R. § 124a. Under the General Rating Formula for Major and Minor Epileptic Seizures, both the frequency and type of seizures experienced are considered in determining the appropriate rating. A major seizure is characterized by the generalized tonic-clonic convulsion with unconsciousness. 38 C.F.R. § 4.124a, 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). 38 C.F.R. § 4.124a, Note 2. To warrant a rating for epilepsy, the seizures must be witnessed or verified at some time by a physician. As to the frequency of epileptiform attacks, competent, consistent lay testimony emphasizing convulsive and immediate post-convulsive characteristics may be accepted. The frequency of seizures should be ascertained under the ordinary conditions of life while not hospitalized. 38 C.F.R. § 4.121. Under the General Rating Formula for Major and Minor Epileptic Seizures, a 20 percent rating is warranted for 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 is warranted for 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 is warranted for averaging at least 1 major seizure in 4 months over the last year; or 9-10 minor seizures per week. An 80 percent rating is warranted for averaging at least 1 major seizure in 3 months over the last year; or more than 10 minor seizures weekly. A 100 percent rating is warranted for averaging at least 1 major seizure per month over the last year. Based on a careful review of all the subjective and clinical evidence, the Board finds that throughout the appeal period, the Veteran’s neurocardiogenic syncope, claimed as possible psychomotor epilepsy, warrants a 40 percent rating under the General Rating Formula for Major and Minor Epileptic Seizures. In a June 2009 statement, the Veteran said he was taken to the hospital for his seizures condition 6 months earlier. He said he stayed about 3 hours, but they could not find anything wrong. In a June 2009 VA treatment record, it was noted that the Veteran was admitted to the hospital on June 5, 2009, diagnosed with transient ischemic attack. Syncope/presyncope was noted. The Veteran was discharged from the hospital on June 8, 2009. In an August 2009 statement submitted by two of the Veteran’s friends, they said that they were with the Veteran in October 2007 when he had a seizure. They said he was taken to the hospital by ambulance; he was checked out and was released. They also stated that the Veteran has had seizures at home when he was alone. The Veteran told them that he had seizures several times over the years. In an October 2009 VA treatment record, the Veteran reported an episode of blacking out 3 months earlier with urinary incontinence. He said this occurred after getting out of bed. There were no post-ictal symptoms. The Veteran said he always felt weak and hot prior to these events. The VA physician noted that there was a history of one similar episode in 2007, at which time neurology was consulted and EEG showed no abnormalities. In November 2009, the Veteran was afforded a tilt table test for syncope. It was determined that initial blood pressure and pulse rate were normal. The initial heart rate response to head-up tilt was normal. Following sublingual nitroglycerine, blood pressure and heart rate responses at the end of 20 minutes were abnormal and consistent with neurocardiogenic syncope. In a December 2009 VA treatment record, the Veteran said he had not had any syncope episodes in about 4 months. He said he did get dizzy at times, particularly when he changed position quickly. In a January 2010 VA treatment record, the Veteran reported he last fell 4 months earlier. In another January 2010 VA treatment record, the Veteran reported he had blackouts when he changed positions. In a March 2010 VA treatment record, the Veteran was started on medication for neurocardiogenic syncope. It was noted that the Veteran had been syncope free since his last clinic visit. At the October 2011 Board hearing with a judge no longer with the Board due to retirement, the Veteran testified that he did not experience seizures that often. He said the last time he experienced a seizure was 2.5 months earlier, and his seizure before that was 6 months prior to that. He said when he felt dizzy he had to get down on the floor to keep from falling. In a March 2012 seizure disorder VA examination, the examiner determined that the Veteran had not been diagnosed with a seizure disorder. The Veteran stated that seizure episodes began about 2 weeks after he left service. He said he would feel weak, dizzy, hot and faint as if he would pass out. He said that if he caught it in time it would pass. The Veteran said he was told he would shake if he was “out.” There was no tongue biting. He had wet himself. The Veteran reported that spells may occur every 2 to 3 months and had gone up to 4 months between spells. He said he did not use medication. The examiner found that continuous medication was not required for control of epilepsy or seizure activity. A seizure diagnosis had not been confirmed. The Veteran had the following signs or symptoms attributable to seizure disorder activity: episodes of unconsciousness and episodes of tremors. The examiner determined that the Veteran did not have any type of seizure activity including major, minor, petit mal, or psychomotor seizure activity. The examiner noted that the Veteran had been retired for 17 years and his episodes had never interfered with his ability to work. In a September 2012 VA treatment record, the Veteran complained of neck pain and syncope/pre-syncope. The VA physician noted that in 2010, the Veteran was given medication for neurocardiac syncope, which he took until 2011. It was determined that the Veteran should start taking medication again and evaluate the response. In another September 2012 VA treatment record, the Veteran complained of dizzy spells and neck pain. He said his dizzy spells happened any time and were most pronounced when he went from a sitting to a standing position. He said when he got up he felt light-headed and dizzy. The Veteran stated that his dizzy spells had gotten progressively worse. He said his fainting/seizure activity was associated with these episodes, but he denied any bladder/bowel incontinence or tongue biting. He said he previously had a seizure at a funeral and was taken to the local emergency room, but nothing was done. In a May 2013 seizure disorders VA examination, the examiner noted that the Veteran had not been diagnosed with a seizure disorder. The Veteran said his loss of consciousness came on about once a month. He denied being admitted to the hospital for this. He said he had multiple tests, including brain imaging and multiple EEGs, all of which had been unrevealing. No continuous medication was required for the Veteran’s condition. It was noted that the Veteran had not had a witnessed seizure. The examiner noted the symptom of episodes of unconsciousness associated with a seizure disorder. The examiner noted that the Veteran had never had any type of seizure activity including major, minor, petit mal, or psychomotor seizure activity. The examiner said that the Veteran should avoid working at heights or in any safety-sensitive environment wherein he could have a syncopal episode, fall down and become injured. In a July 2013 VA treatment record, the Veteran said that in the past 3 weeks he had an episode where he felt a spell where he became dizzy/sweaty and then would pass out. He said these instances were similar to his previous episodes; these were witnessed by family members who stated no seizure like activity was present along with the Veteran did not lose bladder/bowel incontinence. In a December 2013 VA treatment record, the Veteran said that he currently experienced a few syncope events a month; however, the physician noted that upon further questioning it seemed to be orthostatic when he got up too fast from bed. The Veteran denied any black outs or loss of consciousness episodes. In a July 2014 VA treatment record, it was noted that the Veteran had not had any episodes of blacking out lately. In an October 2014 VA treatment record, it was noted that the Veteran had a recent syncope event where he did black out after standing from a sitting position. The VA physician determined that since the Veteran’s blood pressure was low, his medication for his syncope events would be increased. In a February 2015 VA treatment record, it was noted that the Veteran was doing well on his medication. There were no acute issues and no recent falling/fainting spells. In a December 2015 VA treatment record, the Veteran said that his syncopal episodes had increased in frequency though they had not changed in character. He had not had any accidents or falls and said he could catch himself in time. In a July 2016 VA treatment record, recurrent neurocardiogenic syncope was noted. The Veteran stated that he continued to have occasional episodes; however, no falls. He could catch himself. In an October 2016 VA treatment record, neurocardiogenic syncope presented with 4 days of dizziness. The Veteran had not fallen or lost consciousness. He stated that he had occasional blackouts. His most recent black was noted to have occurred 2 months earlier. In a December 2016 VA treatment record, the Veteran was seen at urgent care with complaints of dizziness and heart palpitations. He was given a diagnosis of benign paroxysmal positional vertigo. It was noted that his dizziness was almost certainly related to chronic low blood pressure that worsened upon standing. In a May 2017 VA treatment record, the Veteran stated that vertigo and dizziness had worsened. He had not had a syncopal episode and had not fallen. He did not believe he had lost consciousness. He said that if he were not able to catch and steady himself when he was having a pre-syncopal prodrome, then he believed he would fall or possibly lose consciousness. The Veteran was assessed with dizziness and the plan was for the Veteran to have an audiology vestibular consult. The Veteran reported that there was no history of seizures. At a July 2017 vestibular evaluation, the Veteran said daily episodes of dizziness. There were no central findings and the Veteran was diagnosed with dizziness. At the August 2017 Board hearing, the Veteran testified that he had minor seizures 6 to 10 times per week. He said he was provided medication for dizziness. The Veteran’s neighbor, W.E. Jr., stated that he had been around the Veteran many times when he had his seizure episodes. He said the Veteran would become completely unconscious or dizzy. In a September 2017 VA treatment record, it was noted that the Veteran had a syncope episode. He blacked out while getting out of the tub and woke up on the bathroom floor. In an August 2018 narcolepsy VA examination, the examiner determined that the Veteran had not been diagnosed with narcolepsy. The Veteran denied any diagnosis of narcolepsy. He said he only slept 3 to 4 hours and then woke up; he did not fall asleep in the day. The Veteran reported having episodes of passing out after beginning with nausea, dizziness, weakness, hot, sometimes sweating. He reported these episodes happened 8 to 9 times were day and that he would actually pass out 4 to 5 times per month. There was no witnessed seizure activity, but there may have been urinary incontinence. The examiner opined that the Veteran had a diagnosis of neurocardiogenic syncope, i.e. vasovagal syncope, that was less likely than not caused by service. The examiner stated that the Veteran’s spells were not consistent with seizures and workup for seizures had been negative. The examiner said that while the Veteran suffered a head injury in service, head injuries would be unlikely to cause vasovagal syncope as a residual. The examiner found that while the Veteran may have labrythine vertigo, and would defer that diagnosis to his ENT, vertigo was not the cause of his syncope. The Veteran had no symptoms to suggest narcolepsy. The Veteran’s syncope shortly after service. There was no documentation of syncopal episodes in service treatment records. In a February 2019 seizure disorders VA examination, the Veteran was not found to have a seizure disorder. The Veteran said that he was now having blackouts up to 2 to 3 times per day. He said he never went a week without one. He had some spinning sensation “every once in a while” with spells. He said getting nervous or short of breath due to his emphysema would bring on the spell; also, if he went to a place with poor ventilation he might have one. Continuous medication was not required. The examiner noted that the Veteran had episodes of unconsciousness; the examiner clarified that he did not have seizures but would pass out briefly. The examiner found that the Veteran had not had any type of seizure activity, including major, minor, petit mal, or psychomotor seizure activity. The examiner opined that the Veteran less like likely than not had a seizure disorder and if he did have a seizure disorder it would less likely than not be caused by a vestibular disorder. The examiner reasoned that the Veteran did not have a diagnosis of a seizure disorder and vestibular disorders did not cause seizures. The examiner stated that the diagnosis of neurocardiogenic syncope claimed as psychomotor seizures was incorrect. Neurocardiogenic syncope or vasovagal syncope was the correct diagnosis. This was not due to or associated with or in any way the same thing as psychomotor seizures. The examiner said that the “claimed as psychomotor seizures” phrase should be removed. The examiner noted that the Veteran complained of some spinning dizziness with syncopal episodes at times, and an ENT exam for vertigo could be considered. However, his diagnosis of cardiogenic syncope or vasovagal syncope appeared to be well established, having undergone a tilt table test in the past. The examiner concluded that the Veteran should be followed by an internist or cardiologist and the appropriate disability benefit questionnaires (DBQs) ordered. The examiner stated that the Veteran should not be sent for further seizure DBQs as he did not have a diagnosis of seizures and this DBQ was, therefore, irrelevant. In a February 2019 narcolepsy VA examination, it was again determined that the Veteran had not been diagnosed with narcolepsy. The Veteran reported the same symptoms from the August 2018 narcolepsy VA examination. The examiner stated that the Veteran did not have nor had ever had symptoms of narcolepsy or a diagnosis of narcolepsy. The examiner was unclear as to why the DBQ had now been ordered twice. In an April 2019 heart conditions VA examination, the Veteran was diagnosed with neurocardiogenic syncope. The Veteran stated he started having blackout episodes around January 1955. He noted they occurred only when he was standing and sometimes they occurred quickly after he stood, but could also occur after standing for a long time or even walking a long distance. He said he generally could feel them coming on and if he sat down or lied down it “abort[ed] the episode.” The Veteran reported that this occurred frequently when he was getting out of the shower, and now only took baths. He said he had 3 to 4 episodes per day currently, but noted that he had more episodes per day in the past. He said he blacked out and woke up on the floor approximately 3 times per week. He took continuous medication for this heart condition. Upon examination, the Veteran reported dyspnea and fatigue. His METs level was 1 to 3. The limitation in METs level was due to the Veteran’s multiple medical conditions including the heart condition. The examiner stated that vasovagal syncope occurred when the part of the nervous system that regulated heart rate and blood pressure malfunctioned in response to a trigger, standing for a long period of time, heat exposure, seeing blood, having blood drawn, fear and straining. Given that the Veteran had consistent symptoms and a positive tilt table test, the diagnosis of neurocardiogenic syncope was accurate. The examiner stated that since the Veteran had daily symptoms and the symptoms affected his activities, he should be classified as having moderate to severe symptoms since he did not injure himself. There also appeared to be an orthostatic component as well. In an April 2019 ear conditions VA examination, the examiner noted that the Veteran was diagnosed with syncopy in 1955. The Veteran currently had a diagnosis of neurosyncopy and vasovagal syncopy. The Veteran said that the dizziness often occurred when he changed his body position as well as after standing for a while. The Veteran reported vertigo that occurred on a daily basis. He said if he did not sit down then he would black out. He did not take continuous medication or his condition. The examiner determined that the Veteran’s exam and history showed that he was most likely having dizziness secondary to his neurosyncopy and or vasovagal syncopy which correlated with the cardiologist exam of the Veteran. The examiner did not believe that the inner ear was leading to the dizziness especially since he had a positive tilt table test. Overall, the Board finds that giving the Veteran the benefit of the doubt, the Veteran’s neurocardiogenic syncope warrants a 40 percent rating from August 1, 2017. Prior to this date, the record shows that the Veteran’s episodes of blackouts were infrequent. In fact, at the March 2012 VA examination, the Veteran reported that spells of dizziness and blackouts may occur every 2 to 3 months and had gone up to 4 months between spells. Records show that these symptoms were controlled by medication. However, at the August 2017 Board hearing, the Veteran testified that he had minor seizures 6 to 10 times per week. At the August 2018 narcolepsy VA examination, the Veteran reported dizziness episodes happened 8 to 9 times were day and that he would actually pass out 4 to 5 times per month. At the February 2019 seizures disorders VA examination, the Veteran said that he was now having blackouts up to 2 to 3 times per day. At the April 2019 heart conditions VA examination, the Veteran stated that his blackout episodes occurred only when he was standing and sometimes they occurred quickly after he stood; he said they could also occur after standing for a long time or even walking a long distance. He said he generally could feel them coming on and if he sat down or lied down it “abort[ed] the episode.” He said he had 3 to 4 episodes per day currently, but noted that he had more episodes per day in the past. He said he blacked out and woke up on the floor approximately 3 times per week. The examiner noted that the Veteran’s symptoms were moderate to severe. At the April 2019 ear conditions VA examination, the Veteran reported vertigo that occurred on a daily basis. He said if he did not sit down then he would black out. The Board notes that the Veteran’s testimony since August 2017 has varied on how frequently he experienced blackouts. The Board also notes that the Veteran has found ways to mitigate his blackouts by sitting down when he felt the onset of one coming. However, as stated above, as to the frequency of epileptiform attacks, competent, consistent lay testimony emphasizing convulsive and immediate post-convulsive characteristics may be accepted. The frequency of seizures should be ascertained under the ordinary conditions of life while not hospitalized. 38 C.F.R. § 4.121. Additionally, the evidence does show that the Veteran suffers consistently from dizziness that leads to blackouts, unless he is able to quickly mitigate this effect. Finally, the evidence is clear that from August 1, 2017, the Veteran’s symptoms have increased to more than at least 1 major seizure in the last 2 years; or at least 2 minor seizures in the last 6 months. Considering his medical records, the VA examination reports as well as his testimony, the Board finds that from August 1, 2017, the Veteran’s neurocardiogenic syncope, claimed as possible psychomotor epilepsy, was manifest by 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. The Board finds, however, that allegations of frequencies more severe than that are not credible. Such levels of frequency have never been documented in the treatment records, and there have been discrepancies in the histories reported by the Veteran. Accordingly, a rating higher than 40 percent is not warranted. Therefore, the Board finds that the benefit-of-the-doubt rule does apply, and a 40 percent rating for the Veteran’s neurocardiogenic syncope, claimed as possible psychomotor epilepsy is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Extraschedular Consideration The Board has considered whether referral of the matter for extraschedular consideration is indicated. There is no objective evidence or allegation that the Veteran’s neurocardiogenic syncope is manifested by symptoms or impairment not encompassed by the schedular criteria; the requirements for seizures, are specifically contemplated by the schedular criteria. See 38 C.F.R. § 3.321 (b); Thun, 22 Vet. App. 111 (2008). Consequently, those criteria are not inadequate, and referral for extraschedular consideration is not indicated. Total Disability Based on Individual Unemployability (TDIU) (Continued on the next page)   Entitlement to total disability rating based upon individual unemployability (TDIU) is an element of all increased rating claims. See Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). Where a veteran (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability, the requirements in 38 C.F.R. § 3.155 (a) that an informal claim “identify the benefit sought” has been satisfied and VA must consider whether the veteran is entitled to TDIU. Id. A TDIU claim is not raised unless the Roberson requirements are met. Jackson v. Shinseki, 587 F. 3d 1106 (Fed. Cir. 2009). The Veteran has not submitted evidence of unemployability and has never raised a claim for TDIU. He has thus not raised the question of entitlement to a TDIU and the Board need not consider such a claim. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Saudiee Brown, 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.