Citation Nr: 1531336 Decision Date: 07/22/15 Archive Date: 08/05/15 DOCKET NO. 09-27 249 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for narcolepsy. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD C. L. Krasinski, Counsel INTRODUCTION The Veteran served on active duty from August 1974 to August 1978. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In a July 2009 substantive appeal, the Veteran requested a hearing before a member of the Board. In June 2014, he withdrew the request for a hearing. 38 C.F.R. § 20.704(e) (2014). In October 2014, this matter was remanded to the agency of original jurisdiction (AOJ) for further development, including an additional VA examination. As will be discussed below, the Veteran declined to report to the scheduled multiple sleep latency test. The Board concludes that all reasonable efforts have been undertaken to comply with the October 2014 remand. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand by the Board confers on a veteran, as a matter of law, the right to compliance with the remand orders). See also Wood v. Derwinski, 1 Vet. App. 190, 193 (1991); Olson v. Principi, 3 Vet. App. 480, 483 (1992) (holding that the duty to assist is not always a one-way street, or a blind alley, and that the veteran must be prepared to cooperate with the VA's efforts to provide an adequate medical examination and submit all the medical evidence supporting his claim). This case is appropriately before the Board for appellate review. In February 2012 and May 2015, the Veteran submitted waivers of AOJ consideration of additional pertinent evidence pursuant. 38 C.F.R. § 20.1304 (2014). FINDINGS OF FACT 1. The Veteran sought medical treatment in active service in March 1975 for complaints of falling asleep during the day, a neurological evaluation and electroencephalogram (EEG) were normal, and a diagnosis of narcolepsy was not made. 2. The Veteran did not have chronic or continuous narcolepsy symptoms in active service or after service separation, and narcolepsy was not diagnosed within one year of service separation. 3. It is not as likely as not that the Veteran currently has narcolepsy that is related to disease or injury or other event in active service. CONCLUSION OF LAW The criteria for service connection for narcolepsy are not met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION 1. Duty to Notify and Duty to Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). VA has met its duty to notify for the claim. The RO provided a notice letter to the Veteran in December 2007, prior to the initial adjudication of the claim. The content of the letter complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). Neither the Veteran, nor his representative, has either alleged, or demonstrated, any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009) (clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). Thus, adjudication of the claim at this time is warranted. All relevant evidence has been obtained with regard to the Veteran's claim, and the duty to assist requirements have been satisfied. His service treatment records, VA treatment records dated from 2008 to March 2014, and Social Security Administration records have been obtained and associated with the claims file. The Board has reviewed his statements and medical evidence of record and concludes that there is no outstanding evidence with respect to the Veteran's claim. VA provided examinations in February 2008 and December 2014 to obtain medical evidence addressing the nature and etiology of the claimed narcolepsy. The Veteran declined a multiple sleep latency test (MSLT) through VA. The Veteran indicated that he would have the testing done but did not provide any results to VA. The United States Court of Appeals for Veterans Claims (Court) has held in Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) that VA's duty to assist "is not always a one-way street," and that, if a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence. As such, the Board deems the AOJ's good faith attempt to solicit cooperation from the Veteran to have sufficiently discharged its duty to assist with regard to affording him an adequate examination and its obligation to comply substantially with the Board's remand instruction, notwithstanding the absence of cooperation from the Veteran in the development of his claim. Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The 2008 and 2014 examinations are adequate because a medical professional performed the examinations and issued a medical opinion based on review of claims file, solicitation of history and symptomatology from the Veteran, and examination of the Veteran. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Neither the Veteran nor his representative has challenged the adequacy of the examinations. See Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011). Accordingly, the Board finds that the duties to notify and assist the Veteran have been met. Thus, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim. 2. Service Connection Legal Authority Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). In this case, a disease of the nervous system, is listed among the "chronic diseases" under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) applies. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. For the showing of "chronic" disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. When a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b). Where a veteran served ninety days or more of active service, and certain chronic diseases become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. Once the evidence has been assembled, it is the Board's responsibility to evaluate the evidence. 38 U.S.C.A. § 7104(a). The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. 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.A. § 5107; 38 C.F.R. §§ 3.102, 4.3. 3. Analysis: Service Connection for Narcolepsy The Veteran contends that he has had excessive daytime sleepiness since age 14 and that narcolepsy was diagnosed in active service. He asserts that he had daytime sleepiness in service and that, therefore, service connection for narcolepsy is warranted. See the December 2014 VA examination report. Service treatment records indicate that, upon enlistment examination in June 1974, the Veteran denied having frequent trouble sleeping or periods of unconsciousness. He did not report any symptoms of daytime sleepiness. Examination of the neurologic system was normal. Narcolepsy was not detected upon examination. Service treatment records dated in March 1975 indicate that the Veteran reported having excessive sleeping; he reported that he had been falling asleep constantly since December. Physical examination of the heart, lungs, and abdomen were within normal limits. The impression was rule out organic. Another March 1975 service treatment record indicates that a "mono spot" was positive and that it was noted that this could be why the patient was drowsy but that the indices in the blood work were normal. Physical examination indicated that the tonsils were enlarged. A March 1975 neurologic examination noted that the Veteran had a one year history of falling asleep during the day. Physical examination was entirely normal. The impression was "not sure." An EEG was recommended to rule out narcolepsy. The March 1975 EEG was normal. A December 1975 administrative discharge examination report indicates that neurologic examination was normal. Thus, the weight of the evidence demonstrates that the Veteran did not have a diagnosis of narcolepsy in active service or chronic and continuous symptoms of narcolepsy in active service and since service separation. The service treatment records show that he had symptoms of daytime sleepiness for one year, beginning in about 1974, and narcolepsy was not diagnosed. Neurologic evaluation and EEG were normal. Service treatment records dated after the March 1975 workup do not show continuing complaints of daytime sleepiness. There is no medical evidence generated contemporaneous to the time of active service which establishes a diagnosis of narcolepsy. The Veteran separated from service in August 1978. There is no medical evidence or other competent evidence establishing a diagnosis of narcolepsy within one year from service separation. Thus, service connection on a presumptive basis under 38 C.F.R. § 3.309(a) is not warranted. Further, the Veteran was afforded a VA examination in January 1992. He did not report any symptoms of narcolepsy, and a diagnosis of narcolepsy was not made. Neurologic examination was negative. The first mention of narcolepsy was in August 2007, when he filed his claim for service connection. He reported that he was evaluated for excessive daytime sleepiness in active service in 1975, that he had a clinical diagnosis of narcolepsy, and that no specific tests were performed. The Veteran first reported having symptoms of narcolepsy since the age of 14 at the February 2008 VA examination report. The February 2008 VA examination report indicates that he recounted feeling excessively sleepy during the daytime, beginning around age 14. The examiner noted that the Veteran reported having symptoms of a breathing disorder while sleeping around the same age that he had the excessive sleepiness. The examiner indicated the Veteran had obstructive sleep apnea but that he was not receiving treatment for the obstructive sleep apnea. The VA examiner noted that excessive daytime sleepiness and fatigue are known symptoms of obstructive sleep apnea. The examiner found that a diagnosis of narcolepsy under these circumstances cannot be ruled out. However, the examiner indicated that the Veteran must undergo treatment for obstructive sleep apnea and that, if residual symptoms remain, then further testing including a MSLT (multiple sleep latency testing) has to be done to confirm or refute the diagnosis of narcolepsy. The Veteran, as a lay person, is competent to describe observable symptoms such daytime sleepiness. See Falzone v. Brown, 8 Vet. App. 398, 403 (1995). However, the Board finds that the Veteran's lay statements that he has had the narcolepsy symptoms since age 14 and that narcolepsy was diagnosed in active service to have limited credibility because the statements are inconsistent with, and are undermined by, the medical evidence. In determining whether statements submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, consistency with other evidence, and statements made during treatment. Caluza v. Brown, 7 Vet. App. 498 (1995). Service treatment records do not support the Veteran's lay statements. The enlistment examination dated in June 1974 indicates that he denied having any frequent trouble sleeping or periods of unconsciousness. He did not report any symptoms of daytime sleepiness. Neurologic examination was normal. Narcolepsy was not noted or detected upon enlistment examination. The service treatment records dated in March 1975 show that he sought medical treatment for excessive sleeping. However, he reported having the symptoms for 4 to 12 months, not since the age of 14. He underwent neurologic evaluation and EEG, and the results were normal. A diagnosis of narcolepsy was not made. The Veteran's in-service history of symptoms at the time of service is more contemporaneous to service and is thus of more probative value than the more recent assertions made many years after service separation. Harvey v. Brown, 6 Vet. App. 390, 394 (1994) (assigning more probative value to a contemporaneous medical record report of cause of a fall than later lay statements asserting different etiology); Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (giving more probative value to a contemporaneous letter a veteran wrote during treatment than to his subsequent assertion years later). Service treatment records were generated contemporaneously with the Veteran's service and are thus felt to have greater probative value than assertions made by him that he had a diagnosis of narcolepsy which were made almost 30 years after service separation and in conjunction with a VA benefits claim. Curry v. Brown, 7 Vet. App. at 68 (contemporaneous evidence has greater probative value than history as reported by a veteran). The Board finds that the weight of the evidence demonstrates that, while the Veteran had symptoms of excessive sleeping in service for 4 to 12 months, a diagnosis of narcolepsy was not confirmed. The Board finds that the weight of the competent and credible evidence establishes that he did not have chronic symptoms during active service and since active service; therefore, the criteria for presumptive service connection under 38 C.F.R. § 3.303(b) are not met. There are VA treatment records which indicate that the Veteran has had narcolepsy for 30 years or since active service. A September 2006 VA emergency room record indicates that the Veteran reported having narcolepsy for 30 years and that he was on Provigil for 2 years. He reported having narcolepsy episodes once a day for the past two weeks. An October 2006 VA primary care initial evaluation consultation report indicates that the Veteran reported that he had narcolepsy that was diagnosed in the military. The Board finds these notations to be a reported medical history of the Veteran and the diagnoses do not appear to be based upon medical examination. The Court has long recognized that the Board is not bound to accept medical opinions that are based on history offered by the Veteran when that history is unsupported by the medical evidence. See Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005) (the Court reaffirmed that, in evaluating medical opinion evidence, the Board may reject a medical opinion that is based on facts provided by the Veteran that have been found to be inaccurate or that are contradicted by other facts of record); Reonal v. Brown, 5 Vet. App. 458 (1993). As discussed above, the Veteran underwent evaluation in active service in March 1975, and a diagnosis of narcolepsy was not confirmed. The Board further finds that the weight of the competent and credible evidence does not establish a clear diagnosis of narcolepsy at the current time that is related to injury or disease or other event in active service. The Veteran was afforded a VA examination in February 2008 to confirm a diagnosis of narcolepsy and to obtain medical evidence of any relationship to active service. The February 2008 VA examination report indicates that the Veteran had obstructive sleep apnea but that he was not receiving treatment for obstructive sleep apnea. The examiner noted that excessive daytime sleepiness and fatigue are known symptoms of sleep apnea. The examiner found that a "diagnosis of narcolepsy under these circumstances cannot be ruled out. However, he must undergo treatment for obstructive sleep apnea. If residual symptoms remain, then further testing which includes a MSLT [multiple sleep latency testing] has to be done, in order to confirm or refute the evidence to confirm the diagnosis of narcolepsy." The Veteran was afforded a second VA examination in December 2014 to obtain medical evidence as to whether he had a current diagnosis of narcolepsy. The December 2014 VA examination report indicates that sleep apnea was diagnosed after service. An April 2007 VA sleep study report indicates that obstructive sleep apnea was diagnosed in 1994. The December 2014 VA examination report indicated that the Veteran underwent UPPP in 2004, with modest initial clinical benefit, and he has undergone C-PAP titration in the past but has not been able to tolerate the mask. The Veteran subsequently failed BIPAP desensitization in 2013 and has not used BIPAP since the last 9 months. It was further noted that the Veteran has been unsuccessful in losing weight and currently weighs approximately 365 pounds. The Veteran reported that he continued to experience intermittent daytime sleepiness, however the symptoms fluctuate from month to month. The Veteran was unsure if he had true sleep attacks, but stated that he had perhaps 6 episodes of irresistible sleepiness in the last 6 months. He reported having consistent fatigue. It was noted that he had no reported episodes of cataplexy and no reported features consistent with sleep paralysis. The VA examiner indicated that the Veteran's obstructive sleep apnea was untreated at that time. The VA examiner also noted that in 2008 it was recommended that this condition be treated and that, if residual symptoms remain, the Veteran should undergo a MSLT before a diagnosis of narcolepsy could be made. The VA examiner indicated that he was unable to provide an opinion regarding the diagnosis of narcolepsy without resorting to speculation. Review of the record shows that the RO attempted to schedule the Veteran for a MSLT but he declined. "[T]he duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Veteran, without good cause, failed to report to the additional tests needed to clarify the diagnosis. Thus, despite VA's efforts to assist the Veteran in substantiating his claim, the Veteran's failure to cooperate and report to the MSLT has effectively thwarted VA's efforts. Without additional assistance from the Veteran, VA is unable to provide any additional assistance. In this case, without assistance and cooperation part of the Veteran, VA is unable to obtain the medical evidence needed to clarify whether the Veteran has a current diagnosis of narcolepsy. The record does not contain competent evidence establishing a current diagnosis of narcolepsy and the medical evidence of record does not confirm a current diagnosis of narcolepsy. The VA treatment records note a history of narcolepsy as reported by the Veteran but this reported diagnosis is not supported by a clinical diagnosis or medical testing. The April 2007 VA sleep study indicates that the Veteran reported having uncontrollable sleep attacks. The examiner noted that the Veteran may have possible narcolepsy without cataplexy. The examiner further noted that there were no MSLT results available and that there was no convincing cataplexy but that the Veteran had "spells of absence." The diagnosis was obstructive sleep apnea since 1994. The examiner noted that the Veteran claimed to have narcolepsy but that there were no details of study. The examiner further noted that the Veteran used Provigil for a brief time but that it was stopped. The Board notes that service connection is in effect for obstructive sleep apnea and a 50 percent rating is currently assigned. The Veteran himself has made a general assertion that he has narcolepsy that was incurred in or aggravated by active service. However, the Board cannot rely on the Veteran's general assertion as to medical diagnosis and nexus to service because he is not shown to possess the type of medical expertise that would be necessary to opine regarding the diagnosis and etiology of narcolepsy. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). The question of diagnosis and causation involves a complex medical issue that the Veteran is not competent to address. In light of the above, the Board finds that the preponderance of the evidence is against a finding that the narcolepsy was incurred in, related to, or aggravated by active service. As the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). The claim for service connection for narcolepsy is denied. ORDER Service connection for narcolepsy is denied. ____________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeal Department of Veterans Affairs