Citation Nr: 18160390
Decision Date: 12/27/18	Archive Date: 12/26/18

DOCKET NO. 15-20 180
DATE:	December 27, 2018
ORDER
Entitlement to service connection for narcolepsy with cataplexy is granted.
Entitlement to an initial 10 percent rating, but no higher, from July 18, 2013, for residuals of shortening of the left lower extremity is granted, subject to controlling regulations governing the payment of monetary awards.
Entitlement to an initial rating higher than 20 percent for splenectomy is denied.
REFERRED
The issues of entitlement to service connection for back disability, bilateral hip disability, and bilateral knee disability (all to include as secondary to service-connected residuals of shortening of the left lower extremity) were raised in a December 2018 “Application for Disability Compensation and Related Compensation Benefits” form (VA Form 21-526EZ). These issues are referred to the agency of original jurisdiction (AOJ) for adjudication.
FINDINGS OF FACT
1. The Veteran’s narcolepsy with cataplexy is related to injuries sustained in a motor vehicle accident in service.
2. Since the July 18, 2013 effective date of service connection, the shortening of the Veteran’s left lower extremity has been measured to be at most 3.8 centimeters.
3. Since the July 18, 2013 effective date of service connection, the Veteran has been in receipt of the maximum schedular rating for splenectomy and there is no evidence of any symptomatology warranting a separate and/or higher rating under the rating schedule.
CONCLUSIONS OF LAW
1. The criteria for service connection for narcolepsy with cataplexy are met.  38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.
2. With reasonable doubt resolved in favor of the Veteran, the criteria for an initial 10 percent rating, but no higher, since July 18, 2013, for residuals of shortening of the left lower extremity, are met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.71a, Diagnostic Code (DC) 5275.
3. The criteria for an initial rating higher than 20 percent for splenectomy are not met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.117, Diagnostic Code (DC) 7706.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty from October 1977 to March 1982. These matters come before the Board of Veterans’ Appeals (Board) from an April 2014 rating decision. The Veteran testified before the undersigned Veterans Law Judge at a December 2018 videoconference hearing. A transcript of the hearing has not yet been associated with the Veteran’s claims file. However, as the Board is granting the specific benefits sought on appeal by the Veteran, the transcript is not necessary at this time.
I. Service Connection
Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two.  Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).
When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).
Entitlement to service connection for narcolepsy with cataplexy
The Veteran contends that he has current narcolepsy with cataplexy which was caused by a head injury that he sustained in a motor vehicle accident in service. 
The Board concludes, for the following reasons, that the Veteran has a current diagnosis of narcolepsy with cataplexy and that this disability was incurred in service. 38 U.S.C. §§ 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a).
Medical records, including a January 2014 VA primary care treatment note and a July 2014 letter from M.S. Myers, M.D., show the Veteran has a current diagnosis of narcolepsy with cataplexy. He contends that this disability is related to a head injury that he sustained in a motor vehicle accident in service. His service treatment records confirm that in May 1979 he was involved in a head on collision on a highway and that he was not wearing a seatbelt at the time of the accident. The Board acknowledges that the Veteran reported during a January 1981 examination with A.C. McClay, M.D. that he did not lose consciousness after the accident and that he reported on a January 1982 report of medical history form completed for purposes of separation from service that he did not have any history of a head injury. Nevertheless, a forehead scar which was not noted during his September 1977 entrance examination was noted during his January 1982 separation examination. Also, the Veteran submitted a March 2018 letter from F.F.J., who reported that he was serving with the Veteran at the time of the May 1979 accident and that he was traveling in the vehicle that was immediately in front of the Veteran’s vehicle. F.F.J. confirmed that he observed the Veteran immediately following the accident and that the Veteran was unconscious at that time.
The Veteran is competent to report a head injury from a motor vehicle accident in service and F.F.J. is competent to report his observations of the Veteran’s condition following the accident. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). In light of the evidence contained in the Veteran’s service treatment records (including the evidence of a forehead scar at the time of his separation examination) and the March 2018 letter from F.F.J., and resolving all reasonable doubt in the Veteran’s favor, the Board finds that the reports of a head injury from a motor vehicle accident in service are credible. Hence, a head injury in service is conceded. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.303 (a) (each disabling condition for which a veteran seeks service connection must be considered on the basis of the places, types, and circumstances of his service, as shown by the evidence).
As for the etiology of the Veteran’s narcolepsy with cataplexy, Dr. Myers reported in his July 2014 letter that he had examined the Veteran and reviewed his service treatment records and post-service treatment records. He opined that the Veteran’s narcolepsy with cataplexy was secondary to a traumatic brain injury (TBI) sustained during his motor vehicle accident in service. He cited various sources of medical literature and reasoned, in pertinent part, that narcolepsy is a neurological disorder that is characterized by frequent, irresistible attacks of sleepiness. Chronic daytime sleepiness is a major, disabling symptom for many patients with TBI, but thus far, its etiology is not well understood. Extensive loss of the hypothalamic neurons that produce the wake-promoting neuropeptide hypocretin (orexin) causes the severe sleepiness of narcolepsy, and partial loss of these cells may contribute to the sleepiness of Parkinson’s disease and other disorders. It was found that the number of hypocretin neurons is significantly reduced in patients with severe TBI, and this observation highlights the often-overlooked hypothalamic injury in TBI and provides new insights into the causes of chronic sleepiness in patients with TBI. Obtundation is common during the acute period following a TBI, but even after 6 months of recovery, 43 percent of patients have symptoms of sleep disorders. In a prospective study of 65 TBI patients, 1 in 4 patients reported excessive daytime sleepiness, irrespective of the location or severity of the head trauma. Another study of 87 patients revealed similar results, with sleepiness in 25 percent of patients after TBI.
Dr. Myers further explained that head trauma frequently leads to the appearance of significant sleep disturbance, and more frequently in those suffering mild head injury as opposed to more severe head injury. In all instances, the altered sleep pattern deviates greatly from the pre-head trauma sleep patterns. One of the more common patterns following head injury involves difficulties initiating and maintaining sleep either with or without subjective daytime sleepiness. Hypersomnia, with or without involuntary sleep attacks, may also develop after a head injury. In this case, the Veteran was involved in a motor vehicle accident in service, has suffered from narcolepsy and cataplexy since the accident, and was evidently diagnosed as having this disability in 1989. The disorder has never been fully controlled despite medication, he experiences daily attacks of narcolepsy and cataplexy, and he does not have any genetic predisposition for the disorder. Hence, the Veteran’s sleep disorder is secondary to the TBI that he sustained in service in a motor vehicle accident.
Dr. Myers’ July 2014 opinion is based upon an examination of the Veteran, a review of medical literature and his treatment records, and consideration of his reported history, and it is accompanied by a detailed rationale which is consistent with the evidence of record. Hence, this opinion is entitled to substantial probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed).
In sum, the preponderance of the evidence reflects that the Veteran has current narcolepsy with cataplexy and that this disability is related to a head injury sustained in a motor vehicle accident in service. There is no medical opinion contrary to this conclusion. In light of the probative opinion described above and resolving any reasonable doubt in the Veteran’s favor, the Board finds that the criteria for service connection for the currently diagnosed narcolepsy with cataplexy have been met. Entitlement to service connection for this disability is therefore warranted.
II. Higher Initial Ratings
Disability ratings are determined by the application of rating criteria set forth in the VA Schedule for Rating Disabilities (38 C.F.R. Part 4) based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155.
Where service connection has been granted and the assignment of an initial rating is disputed, separate ratings may be assigned for separate periods of time based on the facts found. In other words, the ratings may be “staged.” Fenderson v. West, 12 Vet. App. 119, 125-126 (1999).
Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7.
In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected. 38 C.F.R. § 4.21.
The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10.
1. Entitlement to an initial compensable rating for residuals of shortening of the left lower extremity
The Veteran’s residuals of shortening of the left lower extremity are rated under 38 C.F.R. § 4.71a, DC 5275 as shortening of the bones of the lower extremity. Under DC 5275, the following ratings apply: a 10 percent rating is warranted for shortening of 1 ¼ to 2 inches (3.2 centimeters to 5.1 centimeters); a 20 percent rating is warranted for shortening of 2 to 2 ½ inches (5.1 centimeters to 6.4 centimeters); a 30 percent rating is warranted for shortening of 2 ½ inches to 3 inches (6.4 centimeters to 7.6 centimeters); a 40 percent rating is warranted for shortening of 3 to 3 ½ inches (7.6 centimeters to 8.9 centimeters); a 50 percent rating is warranted for shortening of 3 ½ to 4 inches (8.9 centimeters to 10.2 centimeters); and a 60 percent rating is warranted for shortening over 4 inches (10.2 centimeters). 38 C.F.R. § 4.71a, DC 5275.
A Note to DC 5275 provides that both lower extremities should be measured from the anterior superior spine of the ilium to the internal malleolus of the tibia. Ratings under this code are not to be combined with other ratings for fracture or faulty union of the same extremity. Id.
Considering the pertinent evidence in light of the applicable rating criteria and considerations delineated above, the Board finds, for the following reasons, that the Veteran has manifested residuals of shortening of the left lower extremity of the type and extent, frequency, and/or severity, as appropriate, to warrant an initial 10 percent rating (but no higher) during the entire period since the July 18, 2013 effective date of service connection.
The report of a March 2014 VA knee and lower leg examination reflects, in pertinent part, that the Veteran sustained a compound fracture of the left femoral shaft, among other injuries, in a motor vehicle accident in service. Following hospitalization for his injuries, examination revealed full flexion and extension of the knees and no ligamentous laxity. His leg lengths at the time were measured as being 34 ½ inches on the right and 33 ¾ inches on the left. Hence, there was ¾ inches shortening of his left leg and he was given a lift for his left shoe. During the March 2014 examination, the Veteran reported that he experienced left knee and back pain, that he limped on the left while walking, and that he took muscle relaxers and Aspirin. Examination revealed that the Veteran’s left lower extremity disability interfered with sitting, standing, and weight-bearing, but that muscle strength associated with left knee motion was normal (5/5), joint stability testing was normal, and the Veteran did not have any shin splints (medial tibial stress syndrome), stress fractures, or chronic exertional compartment syndrome. There were scars associated with the Veteran’s left lower extremity disability, but none of the scars were painful or unstable and the total area of all related scars was not greater than 39 square centimeters (6 square inches). There were no other pertinent physical findings, complications, conditions, signs, or symptoms. The Veteran did not use any assistive devices, there was no functional impairment of an extremity such that no effective function remained other than that which would have been equally well served by an amputation with prosthesis, and his disability did not impact his ability to work.
An April 2014 VA left lower extremity scanogram report reflects that there was pelvic obliquity with the right iliac crest projecting higher and deformity of the mid left femoral shaft with central lucency and surrounding callus compatible with sequelae of old fracture. The remainder of the osseous structures showed no focal abnormalities. The lower extremity leg length discrepancy was estimated to be approximately 3 centimeters, with the right lower extremity measuring longer (measured from the mid weight-bearing femoral head articular surface to the mid tibial plafond articular surface). There was no focal soft tissue abnormality.
In a May 2014 letter, a VA physician reported that he had reviewed the results of the Veteran’s scanogram with the radiology department, that his limb lengths were remeasured, and that the results still reflected a 3 centimeter shortening of the left lower extremity as compared to the right. There was a left femoral abnormality due to the Veteran’s prior trauma and an obvious pelvic tilt due to the limb length discrepancy.
In his July 2014 letter, Dr. Myers reported that he examined the Veteran and that his left leg was 3.8 centimeters shorter than the right, when measured from the anterior superior spine of the ilium to the internal malleolus of the tibia. This discrepancy caused an antalgic gait and external rotation of the leg and thigh which created opposite knee, hip, pelvic bone, and back distortions. The Veteran treated his pain with over-the-counter medications, ointments, shoe lifts, heat, and ice. Dr. Myers acknowledged the result of the April 2014 VA scanogram and explained that scanograms have a large degree of variability in measurement, secondary to the technique used in producing the results.
An October 2018 VA scanogram report reveals that the Veteran’s left leg was approximately 2.4 centimeters shorter than the right leg. There was an old healed left femur fracture with residual deformity.
The Veteran reported in a December 2018 statement that as a result of his left leg fracture and corrective surgery, his left leg was considerably shorter than the right leg. As a result of this leg shortening, there was a visible bow in his leg, he walked with an obvious limp, and he experienced back, hip, leg, and knee pain. He used cream and Aspirin to treat his pain and attempted to use shoe lifts.
The above evidence reflects that since the effective date of service connection, the shortening of the Veteran’s left lower extremity has been measured to be between 2.4 centimeters and 3.8 centimeters. In light of Dr. Myers’ July 2014 finding of left leg shortening of 3.8 centimeters, his explanation that scanograms have a large degree of variability in measurement, and resolving all reasonable doubt in the Veteran’s favor, the Board finds that the shortening of his left lower extremity has more closely approximated the criteria for a 10 percent under DC 5275 (which contemplates shortening of 3.2 centimeters to 5.1 centimeters) for the entire claim period. As the leg length discrepancy has measured at most 3.8 centimeters and neither the Veteran nor his representative has alluded to the existence of any evidence of more severe shortening, a rating higher than 10 percent is not warranted at any time during the claim period because the next higher percent rating under DC 5275 (i.e. 20 percent) contemplates shortening of at least 5.1 centimeters.  The Veteran and his representative indicated during the hearing that they sought a 10 percent rating based on Dr. Myers’ measurement, and that benefit has been granted in full.
The Board points out that the Veteran has separately claimed service connection for back, bilateral hip, and bilateral knee disabilities (all claimed as secondary to the service-connected shortening of the left lower extremity) (see the December 2018 VA Form 21-526EZ). These issues have not yet been adjudicated by the AOJ. As noted above, these issues are being referred to the AOJ for adjudication. Hence, an initial 10 percent rating, but no higher, for residuals of shortening of the left lower extremity, since July 18, 2013, is granted.
2. Entitlement to an initial rating higher than 20 percent for splenectomy
The Veteran’s splenectomy is rated under 38 C.F.R. § 4.118, DC 7706. Under DC 7706, a 20 percent rating is warranted for splenectomy. This is the maximum schedular rating for this disability under DC 7706. 38 C.F.R. § 4.118, DC 7706. A Note to DC 7706 indicates that complications such as systemic infections with encapsulated bacteria are to be rated separately.
As a preliminary matter, the Board acknowledges that the Veteran has not been afforded a VA examination for his service-connected splenectomy. As explained below, however, he is already in receipt of the maximum rating allowable for this disability under DC 7706 and there is no evidence suggestive of any complications of splenectomy that would warrant any separate and/or higher rating. Moreover, splenectomy is specifically listed as the disability that is rated under DC 7706.  “[W]hen a condition is specifically listed in the Schedule, it may not be rated by analogy.”  Copeland v. McDonald, 27 Vet. App. 333, 337 (2015).  Thus, the Veteran’s splenectomy cannot be rated by analogy and must be rated under DC 7706 which, as indicated, contains a maximum rating of 20 percent.  Thus, remanding this matter for a VA examination would serve only to delay resolution of the claim with no benefit flowing to the Veteran. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (noting that “[a] veteran’s interest may be better served by prompt resolution of his claims rather than by further remands to cure procedural errors that, at the end of the day, may be irrelevant to final resolution and may indeed merely delay resolution”). Accordingly, the Board will proceed to adjudicate the appeal for a higher initial rating for splenectomy.
In this case, the Veteran is already in receipt of the maximum schedular rating for his splenectomy under DC 7706 since the effective date of service connection. Thus, this is the maximum rating allowable and a higher rating is not warranted under DC 7706 on the basis of the Veteran’s splenectomy. There is no evidence of any complications of his splenectomy (including systemic infections) at any time during the claim period, neither he nor his representative have alluded to any such complications, and he suggested in a statement received in December 2018 that he was satisfied with his currently assigned rating for his splenectomy in that he reported that he was only appealing the narcolepsy and left lower extremity shortening issues discussed above. The Veteran confirmed this understanding during the Board hearing and indicated he did not experience additional symptoms.  Overall, the Board finds that the service-connected splenectomy has not been shown to involve any other factor(s) warranting evaluation under any other provision(s) of VA’s rating schedule. Hence, an initial rating higher than 20 percent is not warranted for the Veteran’s service-connected splenectomy at any time since the July 18, 2013 effective date of service connection and the appeal is denied. 
3. Additional Considerations
As a final point, the Board notes that in conjunction with the appeal for higher initial ratings for the service-connected residuals of shortening of the left lower extremity and splenectomy, neither the Veteran nor his representative has raised any other related issues, nor have any other such issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).

 
Jonathan Hager
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	B. Elwood, Counsel 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

For More Information on Veterans Disability Compensation Benefits! Visit: DisableVeteran.org ~ A Non-Profit Non Governmental Agency


Advertisements

Leave a Reply

Please log in using one of these methods to post your comment:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.