Citation Nr: 20018187 Decision Date: 03/10/20 Archive Date: 03/09/20 DOCKET NO. 12-08 334A DATE: March 10, 2020 ORDER Entitlement to an initial evaluation in excess of 40 percent disabling for narcolepsy and cataplexy is denied. FINDING OF FACT Throughout the period on appeal, the Veteran's service-connected narcolepsy manifested as less than 9 or 10 minor seizures per week. CONCLUSION OF LAW The criteria for an initial evaluation in excess of 40 percent disabling for narcolepsy and cataplexy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.20, 4.121, 4.124a, Diagnostic Codes 8108, 8911. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1989 to May 1997 and from December 2003 to April 2005. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2010 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran’s April 2012 VA Form 9 contains a request for a hearing before a Veterans Law Judge (VLJ) regarding both issues on appeal; however, the Veteran withdrew his request in a March 2017 written statement. This issue was previously remanded by the Board in September 2019 for additional development. The Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. See Stegall v. West, 11 Vet. App. 268 (1998). The Board notes that in Rice v. Shinseki, the United States Court of Appeals for Veterans Claims held that an entitlement to a total disability rating based on individual unemployability (TDIU) claim may be considered part and parcel of an increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009). While the Board acknowledges that the Veteran contends that he is unemployable due to his narcolepsy, entitlement to TDIU has been separately awarded and is in effect from the date of his initial separate application for benefits. See i.e. May 2011 VA Form 21-8940 ([service-connected condition] narcolepsy and cataplexy…[last worked] Coca-Cola 04/15/2011); January 2020 Rating Decision Code sheet (“Individual Unemployability Granted from April 9, 2011”). As such, Rice is not applicable in the instant matter. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). While the Veteran’s entire history is reviewed when making a disability determination, where service connection has already been established and an increase in the disability rating is at issue, it is a present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). The Court has held that, in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. Consideration is given to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4, whether or not they are raised by the Veteran, as required by 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. All benefit of the doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. Entitlement to an initial evaluation in excess of 40 percent disabling for narcolepsy and cataplexy. As reflected on the title page, the appeal has been characterized as a claim for an initial evaluation in excess of the current 40 percent rating for narcolepsy and cataplexy. However, the Board notes that, to date, the Veteran has not actually expressed dissatisfaction with his current evaluation. Specifically, the March 2012 statement of the case (SOC) increased the initial disability rating from a 10 to a 40 percent rating. Thereafter, the Veteran perfected an appeal of the matter by filing a VA Form 9 in April 2012 which contradictorily states that he does “not believe the rating of 10% is appropriate for my conditions narcolepsy and cataplexy.” Narcolepsy is "recurrent, uncontrollable, brief episodes of sleep, often associated with hypnagogic or hypnopompic hallucinations, cataplexy, and sleep paralysis." Narcolepsy, Dorland's Illustrated Medical Dictionary (32d ed. 2012). Cataplexy is "a condition in which there are abrupt attacks of muscular weakness and hypotonia triggered by an emotional stimulus such as mirth, anger, fear, or surprise. It is often associated with narcolepsy." Cataplexy, Dorland's Illustrated Medical Dictionary (32d ed. 2012). The Veteran's service-connected narcolepsy was evaluated under 38 C.F.R. § 4.124a, Diagnostic Code 8108, which directs that narcolepsy be rated as for epilepsy, petit mal. 38 C.F.R. § 4.124a, Diagnostic Code 8108. In turn, epilepsy, petit mal is evaluated under 38 C.F.R. § 4.124a, Diagnostic Code 8911, which directs that it be rated under the general rating formula for minor seizures. 38 C.F.R. § 4.124a, Diagnostic Code 8911. Accordingly, narcolepsy is evaluated by analogy to epilepsy. See 38 C.F.R. § 4.20. To warrant a rating for epilepsy, or in this case narcolepsy, the seizures must be witnessed or verified at some time by a physician. As to frequency, competent, consistent lay testimony emphasizing convulsive and immediate post-convulsive characteristics may be accepted. Furthermore, the frequency of seizures should be ascertained under the ordinary conditions of life (while not hospitalized). 38 C.F.R. § 4.121. 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, Diagnostic Code 8911. Note (1) to the general rating formula states that when continuous medication is shown necessary for the control of epilepsy, the minimum evaluation will be 10 percent. This rating will not be combined with any other rating for epilepsy. 38 C.F.R. § 4.124a, General Rating Formula for Major and Minor Epileptic Seizures, Note (1). Note (2) to the diagnostic code directs that 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, Diagnostic Codes 8910, 8911, Note (2). VAMC and Private treatment records dated throughout the period on appeal reflect symptoms including inadequate sleep and intermittent sleep attacks with daily medication including Adderall, without any petit or mal seizures. See i.e. November 2007 Neurological Associates note (“sleep disorders are treated with adequate sleep habits but also he is reliant on stimulant medication”); November 2011 Neurological Associates note (“most important and disabling feature of his narcolepsy is his sleepiness or hypersomnia. He is not able to drive professionally”); September 2012 Neurological Associates note (“sleeping an amazing amount of time during the day. He sleeps all night and then naps for two to five hours a day and in-between has sleep attacks…he is gaining partial benefit from Adderall”); August 2013 Neurological Associates note (“failed his maintenance of wakefulness test and showed pathological sleepiness on a multiple sleep latency test”); October 2014 VAMC Caregiver Eligibility (“Seizures…No”); September 2015 VAMC Telephone Encounter note (“does not have seizures…does fall asleep easily due to narcolepsy”). In June 2011 the Veteran underwent a VA general medical examination. Veteran was assessed with diagnoses of narcolepsy and cataplexy and reported symptoms of being “drowsy all the time” that is treated with Adderall with a “fair response.” Veteran reported daily episodes of cataplexy with frequent naps. A March 2016 VA examination assessed a diagnosis of narcolepsy and the Veteran reported “no changes” since his last C&P examination, endorsing symptoms of low energy and treatment with Adderall. Findings included symptoms of excessive daytime sleepiness and cataplexy with more than 10 episodes of narcoleptic episodes a week. No findings of major or minor seizures were assessed. The Veteran was most recently examined for his narcolepsy in November 2019. Diagnoses of narcolepsy and cataplexy were assessed, and the Veteran reported symptoms that were “persistently the same” since the 2005 onset including sleeping issues, lethargy, and daily cataplexy treated with Adderall. The examiner noted more than 10 episodes of cataplexy a week with sporadic weakness in his hands. No major seizures were found, but 0-4 minor seizures weekly were noted. In light of the above, the Board finds that the currently assigned initial 40 percent evaluation is an appropriate assessment of the Veteran’s narcolepsy and cataplexy symptoms. While the evidence demonstrates that the Veteran suffers from sleeplessness and lack of energy addressed with continuous medication, there is no evidence in the record that the Veteran suffers from more than 10 petit seizures a week. Absent the November 2019 finding of 4 or less minor seizures a week, there is no other evidence in support of seizure symptomatology. The aforementioned examination reports and treatment records indicate that the Veteran has not endorsed or found to be experiencing symptomatology which would support a disability rating higher than that presently assigned under Diagnostic Code 8108. M. KILCOYNE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Marcus J. Colicelli 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.