Citation Nr: 21011379 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 17-34 792 DATE: March 1, 2021 ORDER An effective date of January 27, 2014, but no earlier, for the assignment of an initial disability rating of 60 percent for idiopathic central nervous system hypersomnia is granted. An effective date of January 27, 2014, but no earlier, for the award of a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. An effective date of January 27, 2014, but no earlier, for the award of basic eligibility to Dependents’ Educational Assistance under 38 U.S.C. Chapter 35 (DEA) is granted. FINDINGS OF FACT 1. VA received the Veteran’s claim for an increased disability rating of his obstructive sleep apnea (with hypersomnolence) and entitlement to TDIU on January 27, 2015. 2. From January 27, 2014, it was factually ascertainable that there had been an increase in severity of the Veteran’s idiopathic central nervous system hypersomnia to warrant a higher disability rating. 3. From January 27, 2014, the Veteran’s service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation, which was permanent in nature. CONCLUSIONS OF LAW 1. The criteria for an effective date of January 27, 2014, but no earlier, for an initial disability rating of 60 percent for idiopathic central nervous system hypersomnia are met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. § 3.102, 3.400(o)(2). 2. From January 27, 2014, but no earlier, the criteria for TDIU are met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 3.400(o)(2), 4.16, 4.18, 4.19, 4.25. 3. From January 27, 2014, but no earlier, the criteria for basic eligibility to DEA are met. 38 U.S.C. §§ 3500, 3501, 3510, 5110; 38 C.F.R. §§ 3.400(o)(2), 3.807, 21.3020, 21.3021. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 2007 to August 2009. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a May 2015 rating decision. In a March 2019 decision, the Board denied: (1) entitlement to an increased disability rating in excess of 50 percent for obstructive sleep apnea; (2) entitlement to an initial disability rating in excess of 60 percent for idiopathic central nervous system hypersomnia; (3) entitlement to an effective date earlier than January 27, 2015, for entitlement to TDIU; (4) entitlement to an effective date earlier than January 27, 2015, for the establishment of basic eligibility to DEA; and (5) entitlement to an effective date earlier than January 27, 2015, for an initial disability rating in excess of 60 percent for idiopathic central nervous system hypersomnia. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). Finding that the Board had failed to consider 38 C.F.R. § 3.400(o)(2) when deciding the issues pertaining to assigned effective dates, in a June 2020 memorandum decision, the Court set aside the Board’s decision denying effective dates earlier than January 27, 2015, for the awards of (1) service connection (assignment of an initial disability rating) for idiopathic central nervous system hypersomnia; (2) entitlement to TDIU; and (3) establishment of basic eligibility to DEA, and remanded the issues for readjudication consistent with its decision. The balance of the appeal was dismissed. Effective Date Generally, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400; see Mitchell v. McDonald, 27 Vet. App. 431, 433 (2015). As to claims for an increase in disability rating specifically, the effective date is the earliest date as of which it is factually ascertainable based on all evidence of record that an increase in disability had occurred if a complete claim or intent to file a claim is received within one year from such date, otherwise, date of receipt of claim. 38 U.S.C. § 5110(a), (b)(3); 38 C.F.R. § 3.400(o)(2). Generally, for the purpose of assigning an effective date, a request for TDIU is considered to be a claim for an increased evaluation. E.g. Hurd v. West, 13 Vet. App. 449 (2000). In other words, for increased rating claims, the evidence must show that the increase in disability was sufficient to warrant a higher rating under the rating criteria. Hazan v. Gober, 10 Vet. App. 511, 517-19 (1997). Hence, determining the proper date for an increased rating requires (1) a determination of the date of receipt of the claim for the increased rating and (2) a review of all the evidence of record since one year prior to the date of claim to determine when an increase in disability was “factually ascertainable” in terms of meeting or approximating the criteria for a higher rating. Id. at 521-22; Harper v. Brown, 10 Vet. App. 125, 126-27 (1997); see also Gaston v. Shinseki, 605 F.3d 979 (Fed. Cir. 2010); VAOPGCPREC 12-98. In pertinent part, basic eligibility for DEA under 38 U.S.C. Chapter 35 is based upon a total disability permanent in nature resulting from service-connected disability. 38 U.S.C. § 3501(a)(1)(A)(ii), (a)(1)(D)(i); see also 38 U.S.C. § 3501(a)(8) (defining “total disability permanent in nature”); 38 C.F.R. §§ 3.807, 21.3021. Effective dates of basic eligibility shall, to the extent feasible, correspond to effective dates relating to awards of disability compensation. 38 U.S.C. §§ 5113(a), 3512. In a November 2009 rating decision, service connection was granted for obstructive sleep apnea (with hypersomnolence) evaluated as 50 percent disabling under 38 C.F.R. § 4.97, Diagnostic Code 6857, effective August 31, 2009. The Veteran filed a notice of disagreement, contending that his disabilities were distinct and should be evaluated separately, but he did not perfect his appeal. Consequently, the November 2009 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 19.20, 19.32, 19.52, 20.1103. On January 27, 2015, VA received the Veteran’s claim for an increased disability rating and entitlement to TDIU. In the May 2015 rating decision on appeal, the evaluation of obstructive sleep apnea was continued as 50 percent disabling under Diagnostic Code 6857; service connection was granted for idiopathic central nervous system hypersomnia, evaluated as 60 percent disabling under 38 C.F.R. § 4.124a, Diagnostic Code 8999-8911, effective January 27, 2015; TDIU was granted effective January 27, 2015; and basic eligibility to DEA was established from January 27, 2015. The Veteran perfected this appeal and, accordingly, the date of receipt of claim is January 27, 2015. 1. Idiopathic Central Nervous System Hypersomnia. The Veteran contended before the Court that, because the compensation he initially received for service-connected sleep apnea included hypersomnolence, the Board should have considered an effective date for the assignment of a disability rating of 60 percent for idiopathic central nervous system hypersomnia up to one year prior to his January 27, 2015, claim for an increased evaluation. The question for the Board, therefore, is whether during the year prior to January 27, 2015, it was factually ascertainable that there had been an increase in severity of the Veteran’s symptomatology of hypersomnia to warrant a higher disability rating if he had been separately service-connected for the disability at that time. The Physical Evaluation Board Proceedings show that the Veteran’s hypersomnia was equated to VA’s Diagnostic Code 8199-8108, which pertains to narcolepsy. See also December 2016 addendum medical opinion identifying narcolepsy as the most analogous disability. Conditions not specifically listed in the ratings schedule may be rated by analogy under the diagnostic code for a closely related disease or injury. 38 C.F.R. §§ 4.20, 4.27. It will be permissible to rate under a closely rated disease or injury in which the functions affected, anatomical location, and symptomatology are closely analogous. 38 C.F.R. § 4.20; Lendenmann v. Principi, 3 Vet. App. 345 (1992). Narcolepsy is rated as petit mal epilepsy. 38 C.F.R. § 4.124a, Diagnostic Code 8108. Petit mal epilepsy, in turn, is rated under the general rating formula for minor seizures. 38 C.F.R. § 4.124a, Diagnostic Code 8911. 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). Under the general rating formula for minor seizures, in pertinent part, a disability rating of 10 percent is warranted for a confirmed diagnosis of epilepsy with a history of seizures. A rating of 20 percent is warranted for at least 2 minor seizures in the last 6 months. A rating of 40 percent is warranted for averaging at least 5 to 8 minor seizures weekly. A rating of 60 percent is warranted for 9 to 10 minor seizures per week. 38 C.F.R. § 4.124a, General Rating Formula for Major and Minor Epileptic Seizures. The Veteran’s service treatment records show that after he was observed falling asleep during classes, field training, marching, and laying his head against the soldier’s ruck in front of him while on the static line ready to jump from airplanes, he was medically evaluated. He was found to have both mild obstructive sleep apnea and idiopathic central nervous system hypersomnia as distinct disorders. After the start of treatment, he was getting minimal relief from CPAP as evidenced by continued falling asleep during the day approximately five times per day. He reported not having benefit from prescribed medication. It was concluded that he could not perform his duties as a soldier “secondary to chronic hypersomnolence.” The January 2009 Medical Evaluation Board Proceedings show that the Veteran’s mild obstructive sleep apnea was not medically disqualifying but that his idiopathic chronic hypersomnolence was. During a June 2009 VA examination, however, the examiner opined that the Veteran had a hypersomnolence condition that was successfully treated with CPAP. VA medical records show that in August 2010 the Veteran reported still having a driver’s license and being able to feel his symptoms prior to falling asleep such that he could pull off the road when driving. In September 2013, he applied for a stipend from the Caregiver Support Program. Although it was documented that the Veteran was asked “why he would need a dedicated caregiver for sleep apnea,” his response was not recorded. An October 2014 neurology consultation note shows that the Veteran did not bring his service treatment records to the appointment and his recounting of his medical history was vague. It was felt, therefore, that a new sleep study was required, but by January 2015, the Veteran had failed to provide his old records and had not responded to attempts to schedule the sleep study. In May 2015, the Veteran was afforded a VA examination for sleep apnea, during which the examiner identified the distinct disabilities of obstructive sleep apnea and idiopathic central nervous system hypersomnia. It was noted that he experienced persistent daytime hypersomnolence with the use of CPAP. It was stated that the idiopathic central nervous system hypersomnia caused excessive daytime hypersomnolence resulting in spontaneous sleeping such that, on good days, he took multiple short naps and, on bad days, he slept most of the day waking up for brief periods throughout the day. The Veteran reported that he was aware of other medications than the Ritalin and Provigil that he had been prescribed during service and that he had sought a neurology consultation for that purpose. He reported that the neurologist “just wanted to do more sleep studies,” so he did not get treatment. The examiner stated that the Veteran could not drive due to his excessive somnolence. In a December 2016 addendum medical opinion, it was reiterated that the Veteran suffered from two distinct disabilities. It was noted that despite optimum correction, mild obstructive sleep apnea can still cause some sleepiness, typically about the same as getting up earlier than one’s normal rising time or similar to two-time-zone-eastward jet lag with an 8:00 am meeting. It was stated that for the Veteran’s excessive sleepiness, which persisted despite correction of his sleep apnea, it was attributed almost entirely to idiopathic central nervous system hypersomnia. Based upon the foregoing, the evidence shows that, prior to September 2013, the Veteran had been found to have a distinct disability of hypersomia for which medication had been prescribed, he fell asleep approximately five times per day, he had a driver’s license, and he could sense when he was falling asleep and take corrective action. The Board finds that, if the Veteran had been evaluated separately for hypersomnia, a disability rating of 40 percent would have been warranted under Diagnostic Code 8911 due to daily symptomatology of hypersomnolence approximating 5 to 8 minor seizures weekly. The evidence shows that in September 2013 the Veteran sought a stipend from the Caregiver Support Program; in October 2014, he sought new medication by consulting with the neurology service; and in May 2015, he reported that some days he slept most of the day with only brief awakenings. He no longer drove. This symptomatology supported the assignment of a disability rating of 60 percent due to daily symptomatology of hypersomnolence approximating 9 to 10 minor seizures per week. The Board finds that, as this worsening of symptoms straddle January 27, 2014, it was factually ascertainable that there had been an increase in severity of the Veteran’s service-connected hypersomnia to warrant a higher disability rating from January 27, 2014, if he had been separately evaluated at that time. That being the case, an effective date of January 27, 2014, but no earlier, for the assignment of an initial disability rating of 60 percent for idiopathic central nervous system hypersomnia is warranted. 2. TDIU. The Veteran contended before the Court that, because a claim for TDIU is considered to be a claim for increased evaluation for the referenced service-connected conditions for effective date purposes, the Board should have considered an effective date up to one year prior to his January 27, 2015, claim for an increased rating. As addressed above, from January 27, 2014, the Veteran’s idiopathic central nervous system hypersomnia should be evaluated as 60 percent disabling and his obstructive sleep apnea was evaluated as 50 percent disabling such that up to one year prior to his January 27, 2015 claim, his service-connected disabilities met the schedular criteria for TDIU. See 38 C.F.R. § 4.16(a). The May 2015 rating decision on appeal indicated that the Veteran had total service-connected disability that was permanent in nature. On a March 2015 application for increased compensation based on unemployability, the Veteran reported that the last day he worked full-time was his last day on active duty. He reported that he had become too disabled to work on that date and that he had left his employment because of his disabilities of sleep apnea and hypersomnia. This information is supported by the Veteran’s service treatment records, which show that he was found unable to perform his duties “secondary to chronic hypersomnolence” thereby medically disqualifying him from further service. The Physical Evaluation Board Proceedings show that the Veteran was regarded “to have a total disability and completely unemployable and entitled to a 100% rating for his condition.” Consequently, the Board finds that from January 27, 2014, the Veteran’s service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation and, accordingly, an effective date of January 27, 2014, but no earlier, is warranted for an award of a TDIU. 3. DEA. (Continued on the next page)   As an effective date of January 27, 2014, but no earlier, is warranted for entitlement to TDIU based on total permanent disability, as stated above, so too is an effective date of January 27, 2014, but no earlier, warranted for establishing basic eligibility to DEA. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Leanne M. Innet, 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.