Citation Nr: 0814070 Decision Date: 04/29/08 Archive Date: 05/08/08 DOCKET NO. 07-02 455 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Togus, Maine THE ISSUE Whether new and material evidence has been received to reopen the veteran's claim of entitlement to service connection for narcolepsy with cataplexy and headaches along with coexisting obstructive sleep apnea syndrome requiring CPAP. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Veteran and D.B. ATTORNEY FOR THE BOARD M. N. Hyland, Counsel INTRODUCTION The veteran had active duty from November 1958 to October 1962. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2005 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). The veteran testified at an RO hearing in February 2007 and testified via videoconference at a Board hearing in April 2008. In April 2008, the Board granted the veteran's motion to advance his case on the docket pursuant to the provisions of 38 C.F.R. § 20.900(c). FINDINGS OF FACT 1. By rating decision in April 2004, the RO denied the veteran's claim to reopen his service connection claim for narcolepsy with cataplexy and headaches along with coexisting obstructive sleep apnea syndrome requiring CPAP; a timely notice of disagreement was not received to initiate an appeal from that determination. 2. Evidence received since the April 2004 rating decision raises a reasonable possibility of substantiating the claim. 3. The veteran's pre-existing narcolepsy with cataplexy and headaches along with coexisting obstructive sleep apnea syndrome requiring CPAP was aggravated during active duty service. CONCLUSIONS OF LAW 1. The April 2004 rating decision is final. 38 U.S.C.A. § 7105(c) (West 2002). 2. New and material evidence has been received to reopen the veteran's claim of entitlement to service connection for narcolepsy with cataplexy and headaches along with coexisting obstructive sleep apnea syndrome requiring CPAP. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2007). 3. Narcolepsy with cataplexy and headaches along with coexisting obstructive sleep apnea syndrome requiring CPAP was aggravated during the veteran's active duty service. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304(b) (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). In this case, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. New and Material Evidence - Service Connection for narcolepsy with cataplexy and headaches along with coexisting obstructive sleep apnea syndrome requiring CPAP In an April 2004 rating decision, the veteran's claim to reopen his service connection claim for narcolepsy with cataplexy and headaches along with coexisting obstructive sleep apnea syndrome requiring CPAP was denied. The veteran was notified of the April 2004 denial, but he did not file a notice of disagreement to initiate an appeal. As such, the April 2004 rating decision became final. 38 U.S.C.A. § 7105(c). However, when a claim is the subject of a prior final denial, it may nevertheless be reopened if new and material evidence is presented or secured. 38 U.S.C.A. § 5108. May 2005 correspondence from the veteran's representative was interpreted by the RO as a claim to reopen. When a claim to reopen is presented under section 5108, VA must first determine whether the evidence presented or secured since the last final disallowance of the claim is new and material. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a); Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The pertinent evidence received prior to the April 2004 rating decision included service medical records and VA treatment records. The claim was denied by the RO as the RO found that no new and material evidence had been submitted to reopen the veteran's claim. Specifically, there was a lack of evidence that the veteran's pre-existing narcolepsy with cataplexy and headaches along with coexisting obstructive sleep apnea syndrome requiring CPAP was aggravated during service. Evidence received since the April 2004 rating decision includes VA treatment records, private medical evidence, and VA examination reports which address the issue of whether or not the veteran's pre-existing narcolepsy with cataplexy and headaches along with coexisting obstructive sleep apnea syndrome requiring CPAP was aggravated during active duty service. All of this evidence is new as it was not of record at the time of the April 2004 rating decision. The medical evidence addressing the issue of whether or not the veteran's narcolepsy with cataplexy and headaches along with coexisting obstructive sleep apnea syndrome requiring CPAP was aggravated during active duty service is also material. As such, the Board finds that new and material evidence has been received to reopen the veteran's claim of entitlement to service connection for narcolepsy with cataplexy and headaches along with coexisting obstructive sleep apnea syndrome requiring CPAP. Service Connection for narcolepsy with cataplexy and headaches along with coexisting obstructive sleep apnea syndrome requiring CPAP Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury or disease occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Under 38 C.F.R. § 3.304(b), the veteran will be considered to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. Only such conditions as are recorded in examination reports are to be considered as noted. When no preexisting condition is noted upon entry into service, the veteran is presumed to have been sound upon entry. VA may only rebut this presumption of soundness by clear and unmistakable evidence that the veteran's disability was both preexisting and not aggravated by service. See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004) (emphasis added). A mere history of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions. See 38 C.F.R. § 3.304(b)(1); Crowe v. Brown, 7 Vet. App. 238 (1995). The veteran's October 1958 induction examination report shows that there is no notation of narcolepsy with cataplexy and headaches along with coexisting obstructive sleep apnea syndrome requiring CPAP. As such, the Board finds that the presumption of soundness attaches in this case. Consequently, the Board must now determine if there is clear and unmistakable evidence that the disability in question both pre-existed service and was not aggravated during service. In 2005, the veteran submitted several statements from high school friends that stated they observed him having problems with sleep disturbances. The veteran's service medical records show he stated that he had problems with headaches and sleep disturbance prior to entering the service. These statements are considered to be highly probative as they were made in the course of seeking medical treatment. See LILLY'S: AN INTRODUCTION TO THE LAW OF EVIDENCE, 2nd Ed. (1987), pp. 245-46 (many state jurisdictions, including the federal judiciary and Federal Rule 803(4), expand the hearsay exception for physical conditions to include statements of past physical condition on the rational that statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy since the declarant has a strong motive to tell the truth in order to receive proper care). Additionally, an October 2006 VA examination report shows that it was the examiner's opinion, after reviewing all the evidence of record, that the veteran's sleep problems began prior to his entry into service. Finally, a May 2007 VA examination report shows that it was the examiner's opinion that the veteran's sleep problems began prior to his entry into service. There are no contrary medical opinions of record. Based on this competent medical evidence, the Board finds that there is clear and unmistakable evidence that the veteran's narcolepsy with cataplexy and headaches along with coexisting obstructive sleep apnea syndrome requiring CPAP pre-existed service. Now the Board must turn to the issue of whether or not the veteran's pre-existing disability was aggravated during service. As noted above, in order to make a finding that service connection is not warranted in a case of a pre- existing disability that was not noted on the entrance/induction examination report, VA must show by clear and unmistakable evidence that the disability was not aggravated during service. To this end, there are two medical opinions of record - the October 2006 VA examination report and the May 2007 VA examination report. Both reports show that it was the examiner's opinion that the veteran's pre-existing disability was not permanently aggravated during active duty service. However, neither examiner stated that the evidence of record showed by clear and unmistakable evidence that the veteran's disability was not aggravated during active duty service. This is an important fact, as the Court of Appeals for Veterans Claims has held that: "The clear-and-unmistakable- evidence standard is an 'onerous' one ... and requires that the no-aggravation result be 'undebatable.'" Cotant v. Principi, 17 Vet. App. 116, 131 (2003). The veteran's service medical records show multiple instances of complaints of headaches and sleep problems during active duty service. The competent medical evidence of record shows that the veteran's headaches have been deemed to be a result of his sleep apnea. The veteran testified at his February 2007 RO hearing that he believed his headaches became worse during active duty service. The Board finds that the veteran is credible and that he is competent to testify as to the severity of his headaches during active duty service. Therefore, after resolving the benefit of the doubt in favor of the veteran under the provisions of 38 U.S.C.A. § 5107(b), the Board finds that VA has not met its burden of showing by clear and unmistakable evidence that the veteran's pre- existing disability was not aggravated during active duty service. As such, the Board finds that the veteran's narcolepsy with cataplexy and headaches along with coexisting obstructive sleep apnea syndrome requiring CPAP was aggravated during his active duty service period. As such, entitlement to service connection for narcolepsy with cataplexy and headaches along with coexisting obstructive sleep apnea syndrome requiring CPAP is warranted. ORDER New and material evidence has been received to reopen the service connection claim for narcolepsy with cataplexy and headaches along with coexisting obstructive sleep apnea syndrome requiring CPAP. Service connection for narcolepsy with cataplexy and headaches along with coexisting obstructive sleep apnea syndrome requiring CPAP is granted. ____________________________________________ VITO A. CLEMENTI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs