Citation Nr: 1224582 Decision Date: 07/16/12 Archive Date: 07/20/12 DOCKET NO. 07-17 373A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to service connection for a sleep disorder, to include narcolepsy. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD L. B. Yantz, Counsel INTRODUCTION The Veteran served on active duty with the United States Air Force from November 1979 to November 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2006 rating decision by the Seattle, Washington, Regional Office (RO) of the United States Department of Veterans Affairs (VA). In August 2010, the Board remanded this case for further evidentiary development. In August 2010, the Board determined that the severance of the award of service connection for posttraumatic stress disorder (PTSD) was improper. Thereafter, a December 2011 rating decision restored the award of service connection for major depression with PTSD to 50 percent. As such, this issue is no longer a part of the current appeal. The current issue has been characterized as indicated on the title page to comport with the evidence of record. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Veteran's service treatment records document the following findings. In June 1980, she reported being extremely tired for one week and sleeping during all off-duty time. In December 1981, she took medication for neck and back pain that "may cause drowsiness." In September 1982, she was bitten by a rattlesnake; one week after the bite, she was taking Talwin for pain and Benadryl for swelling, and she was very drowsy. Following her discharge from service in November 1983, the medical evidence of record consistently documents the Veteran's ongoing complaints of feeling tired all the time and sleeping for excessively long amounts of time, beginning as early as September 1986 (as documented by a July 1987 private treatment record). A September 1995 private treatment record included "rule out sleep disorder" in an assessment of the Veteran. An October 1995 private treatment record noted that testing was negative for sleep apnea. A January 1999 private treatment record noted the Veteran's report of sleeping all the time and feeling fatigued with no energy, and she said the "exact thing happened in the 80s." A January 2004 VA treatment record noted the Veteran's report of sleeping 14 to 18 hours per day for 20 years. A January 2005 VA treatment record noted an assessment of narcolepsy. A June 2005 private treatment record noted a past medical history of possible narcolepsy. An October 2005 private treatment record noted the Veteran's report of falling asleep "at the blink of an eye" routinely for 20 years. A November 2005 private sleep study resulted in a diagnosis of narcolepsy; the accompanying report noted the Veteran's allegation that she has been told that she might have had narcolepsy since 1983. The record also contains evidence relevant to a link between the Veteran's sleep disorder and her service-connected disabilities (including depression and irritable bowel syndrome). During a November 2000 VA PTSD examination, the Veteran reported that her symptoms of depression in the past year included sleeping more than usual (up to 20 hours per day). In a January 2001 statement, the Veteran's private physician (Dr. R.) stated that the Veteran's sleep patterns are abnormal (in that she sleeps too much) due to clinical depression. A May 2002 VA treatment record noted the Veteran's complaint that she could not take Desipramine (used to treat depression) because it makes her too sleepy. During an August 2003 fee-basis VA psychiatric examination by QTC Medical Services, the Veteran reported a history in 1983 of sleeping all the time and not being able to get up; she stated that she was not given a diagnosis at the Air Force Mental Hospital where she was sent for evaluation during service, but that after service she was diagnosed with depression. An April 2004 VA treatment record noted the Veteran's complaint of a long history of depression with excessive sleep (16 to 20 hours per day) being the primary symptom; she was diagnosed with depression not otherwise specified with hypersomnia. Prescription slips dated in August 2004 for Diphenoxylate (used to treat diarrhea) and Effexor (used to treat depression), and dated in November 2004 for Hyoscyamine (used to treat irritable bowel syndrome), note that all three of these medications may cause drowsiness. An October 2004 VA treatment record noted the Veteran's report that Venlafaxin (used to treat depression) makes her a little more sleepy and that she has to take a nap in the afternoon. During a December 2005 fee-basis VA psychiatric examination by QTC Medical Services, the examiner noted that the Veteran's mental symptoms began in 1981 and that the condition has caused problems with sleeping for 24 years, including excessive sleeping with two 2-hour naps per day. Pursuant to the Board's August 2010 remand, the Veteran underwent a VA narcolepsy examination in March 2012. The examiner, a physician assistant, noted the Veteran's report of excessive sleepiness in service which she alleges became significantly worse after being bitten by a snake in service and placed on Benadryl and Desipramine. After reviewing the claims file and examining the Veteran, the March 2012 examiner diagnosed the Veteran with narcolepsy. He opined that the Veteran's narcolepsy was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner stated that there is very limited objective evidence that "clearly" would lead to a belief that the Veteran had narcolepsy while in the service. The examiner stated that excessive sleepiness is not enough to make a diagnosis of narcolepsy, based on only one symptom. The examiner concluded that there is not enough evidence from the time of the Veteran's service discharge to 2005 (when she was diagnosed with narcolepsy based on a private sleep study), other than her personal account, that would validate a diagnosis of narcolepsy. The examiner stated that episodes of excessive sleepiness in the service tend to be linked to IV sedation or excessive medication. The examiner also noted that research states that narcolepsy is not related to depression. The March 2012 examination is inadequate for several reasons. The examiner did not discuss the large amount of relevant post-service medical evidence outlined above; did render an adequate opinion regarding whether the Veteran's current sleep disorder is related to any of her service-connected disabilities, to include major depression with posttraumatic stress disorder; and appears to have used the wrong standard of proof. The examiner indicated that there was limited evidence that would "clearly" lead to a certain conclusion. Under 38 U.S.C.A. § 5107, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall go to the claimant. The Veteran is to be scheduled for a new VA examination, preferably conducted by a physician, to obtain the requested opinions with adequate supporting rationale. The record reflects that the Veteran may be receiving disability benefits from the Social Security Administration (SSA). A request must be made to the SSA for all records pertaining to the Veteran, including any decisions and any medical evidence relied upon in making those decisions. See Murincsak v. Derwinski, 2 Vet. App. 363 (1992). Accordingly, the case is REMANDED for the following: 1. Contact the SSA and request copies of all records pertaining to the Veteran, including any decisions and any medical evidence relied upon in making those decisions. If provided by disc, print out the records and associate the copies with the claims file. Any negative search result should be noted in the record and communicated to the Veteran. 2. After completion of the foregoing, schedule the Veteran for an appropriate VA examination conducted by a physician to determine the current nature and likely etiology of the claimed sleep disorder, to include narcolepsy. The entire claims file (i.e., both the paper claims file and any medical records contained in Virtual VA) is to be made available to and be reviewed by the examiner in conjunction with the examination. If the examiner does not have access to Virtual VA, any treatment records contained in the Virtual VA file must be printed and associated with the paper claims file so they can be available to the examiner for review. Based on the examination and review of the record, the examiner is to address the following: (a) For each pertinent disorder that is diagnosed, is it at least as likely as not (a 50 percent or greater probability) that such disorder is related to any incident of the Veteran's military service. The examiner is to specifically consider and address the relevant findings documented in the Veteran's service treatment records, her allegations of continuity of symptomatology since service, and the relevant post-service medical evidence. (b) If the examiner determines that any diagnosed sleep disorder was not incurred in service, the examiner is to offer an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that any diagnosed sleep disorder was caused or aggravated by the Veteran's service-connected disabilities (major depression with PTSD, irritable bowel syndrome, and residuals of nose fracture/rhinoplasty with chronic sinusitis). The examiner is informed that "aggravation" is defined for legal purposes as a chronic worsening of the underlying condition versus a temporary flare-up of symptoms, beyond its natural progression. If aggravation is present, the clinician is to indicate, to the extent possible, the approximate level of disability present (i.e., a baseline) before the onset of the aggravation. A complete rationale for all opinions expressed must be provided. If the examiner feels that the requested opinions cannot be rendered without resorting to speculation, the examiner is to state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). 3. Review the claims file to ensure that all of the foregoing development is completed, and arrange for any additional development indicated. Then readjudicate the claim on appeal. If the benefit sought remains denied, issue an appropriate supplemental statement of the case and provide the Veteran and her representative the requisite period of time to respond. The case should then be returned to the Board for further appellate review. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011). _________________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2011).