Citation Nr: 1324258 Decision Date: 07/30/13 Archive Date: 08/07/13 DOCKET NO. 06-07 114A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to service connection for cataplexy and narcolepsy. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. Marenna, Associate Counsel INTRODUCTION The Veteran had active service from September 1974 to January 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. The Board previously adjudicated the Veteran's claim in August 2011. The Veteran appealed the Board's denial of service connection for cataplexy and narcolepsy to the United States Court of Appeals for Veterans Claims (Court). The Veteran's attorney and VA's General Counsel filed a Joint Motion requesting that the Court vacate the Board's decision in regard to that issue. The Joint Motion also requested that the Court remand the case to the Board for further development and re-adjudication in accordance with the directives of the May 2012 Joint Motion. The Court granted the Joint Motion for remand in May 2012 and returned the case to the Board. In March 2013, the Board remanded the issue of entitlement to service connection for cataplexy and narcolepsy. The Veteran testified before a decision review officer (DRO) in November 2006. A transcript of the hearing has been associated with the claims file. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND In the March 2013 remand, the Board requested that the RO/AMC contact the appropriate source to obtain records associated with the Veteran's hospitalization in service at the Army hospital in Fort Carson, Colorado in October 1976. After completion of the above, the Veteran was to be an afforded a VA examination. The Veteran was provided with a VA examination on June 7, 2013. A June 29, 2013 response from the National Personnel Records Center (NPRC) reflects that the requested records from the army hospital in Fort Carson, Colorado were uploaded in VBMS (the Veterans Benefits Management System). The Board remand specified that only after completion of the above development, which included obtaining the service records, was the Veteran to be afforded a VA examination. As the VA examination was completed before the service treatment records were received, the VA examination did not comply with the March 2013 remand. Additionally, the Board does not have access to the records in VBMS. The Board further finds that the June 2013 VA opinion is inadequate. The VA examiner found that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In the rationale, the VA examiner stated that there was no documentation of a sleep condition, or disciplinary action related to a sleep disturbance. Therefore, it is less likely as not that the Veteran's currently diagnosed cataplexy/narcolepsy is related to his military service. Although the VA examiner noted that the Veteran reported falling asleep while in formation and cutting his finger after falling asleep, the VA examiner did not address whether these incidents or the documented falls in service indicated the Veteran had symptoms of cataplexy/narcolepsy in service. The VA examiner's opinion focused on the fact that the Veteran was not diagnosed with a sleep condition in service, but the Veteran is competent to report symptoms capable of lay observation, such as falling asleep. Thus, the opinion is inadequate. The Court has stated that compliance by the Board or the AOJ is neither optional nor discretionary. Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. See Stegall v. West, 11 Vet. App. 268 (1998). As the above development did not comply with the March 2013 remand and the June 2013 VA opinion is inadequate, the claim must be remanded to obtain a new VA opinion. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should associate the records from the Army Hospital in Fort Carson, Colorado, received in June 2013, with the claims file and/or upload the records onto Virtual VA. If the records are incomplete, the RO/AMC should make an additional request for the records. 2. After completion of the above, provide the claims file to the VA examiner who completed the June 2013 VA examination or, if unavailable, another appropriate VA clinician, to provide an opinion as to whether it is at least as likely as not (50 percent probability) that the currently diagnosed cataplexy/narcolepsy can be related to the Veteran's military service. The examiner must discuss the Veteran's claims that he suffered episodes of cataplexy/narcolepsy in service that were manifested by him falling asleep. He alleges this occurred while standing in formation. He also claimed that he sliced his finger on a meat slicer because he fell asleep while operating the slicer. The Veteran was in a motor vehicle accident in October 1976 and service treatment records show he suffered a concussion at that time. The service treatment records also document a number of falls in service. If the clinician determines that another VA examination is necessary to provide an opinion such should be accomplished. A complete rationale must be provided for any opinion expressed. If the clinician is unable to provide an opinion without resorting to speculation, the clinician should explain why a definitive opinion cannot be provided. 3. Thereafter, readjudicate the issue on appeal of entitlement to service connection for cataplexy and narcolepsy. If the benefit sought is not granted, issue a supplemental statement of the case and afford the Veteran an appropriate opportunity to respond. The case should then be returned to the Board, as warranted. The appellant 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. 2012). _________________________________________________ ROBERT E. SULLIVAN 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) (2012).