Citation Nr: 1303957 Decision Date: 02/05/13 Archive Date: 02/08/13 DOCKET NO. 08-02 004 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to an initial evaluation greater than 10 percent for narcolepsy. 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a left shoulder disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD M. Carsten, Counsel INTRODUCTION The Veteran served on active duty from February 1989 to November 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions dated in June 2005 and October 2005 by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The Veteran perfected an appeal regarding the issue of whether new and material evidence had been received to reopen a claim of entitlement to service connection for a right shoulder disorder. He also disagreed with an October 2008 denial of entitlement to a total disability rating based on individual unemployability (TDIU). In October 2009, the RO granted entitlement to service connection for post-operative right shoulder rotator cuff tear repair. In February 2010, the RO granted entitlement to TDIU. As these issues were resolved, they are no longer for consideration. In February 2010, the RO furnished a statement of the case addressing entitlement to service connection for an acquired psychiatric disorder, to include depression and posttraumatic stress disorder (PTSD). The Veteran did not submit a timely Form 9 and these issues were not perfected for appeal. Nonetheless, the Veteran subsequently reopened his claim, and in October 2011, the RO granted entitlement to service connection for depression. Therefore, the issue is not on appeal, and no further discussion is necessary. In February 2012, a hearing was held before the undersigned Veterans Law Judge (VLJ) sitting at the RO. At that time, the record was held open for 60 days for the submission of evidence. In March 2012, additional evidence was received with a waiver of the RO's initial consideration. See 38 C.F.R. § 20.1304 (2012). The Board observes that additional evidence was also added to the record following the November 2009 supplemental statement of the case and prior to the hearing. On review, this evidence largely duplicates, is cumulative of information already of record, or is not relevant to the issues decided. Additionally, considering the Veteran's waiver of evidence submitted following the hearing, the Board finds that a remand for additional supplemental statement of the case would serve no useful purpose and is not required. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). The Virtual VA eFolder has been reviewed. The merits of the claim for service connection for a left shoulder disorder is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran's narcolepsy with cataplexy has been found to be very severe with frequent attacks; resolving reasonable doubt in his favor, the disability picture more nearly approximates 10 or more episodes weekly. 2. The RO previously considered and denied the Veteran's claim for a left shoulder disorder in an October 1998 rating decision. The Veteran did not appeal that decision, and no evidence or information was received within the one year following its issuance. 3. In March 2003, the RO determined that new and material evidence had not been received to reopen a claim of entitlement to service connection for a left shoulder disorder. The Veteran did not appeal the decision, and no evidence or information was received within the following year. 4. The evidence associated with the record since the March 2003 rating decision relates to an unestablished fact and raises a reasonable possibility of substantiating the claim of entitlement to service connection for a left shoulder disorder. CONCLUSIONS OF LAW 1. The criteria for an initial 80 percent evaluation for narcolepsy have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.121, 4.124a, Diagnostic Codes 8108, 8911 (2012). 2. The October 1998 and March 2003 rating decisions are final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.156, 20.1103 (2012). 3. The evidence received subsequent to the March 2003 rating decision is new and material, and the claim for service connection for a left shoulder disorder is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) Upon receipt of a substantially complete application for benefits, VA must notify the claimant of what information or evidence is needed in order to substantiate the claim, and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and, (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). Upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In the decision below, the Board has reopened the claim of entitlement to service connection for a left shoulder disorder and remanded the merits of that claim for further development. Therefore, regardless of whether the requirements have been met in this case, no harm or prejudice to the appellant has resulted. Accordingly, the Board concludes that the current laws and regulations have been complied with, and a defect, if any, in providing notice and assistance to the Veteran was at worst harmless error in that it did not affect the essential fairness of the adjudication. Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004); Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004); Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92. With regard to the evaluation assigned for narcolepsy, the Veteran is challenging the initial evaluation assigned following the grant of service connection. In Dingess, the United States Court of Appeals for Veterans Claims (Court) held that. in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Id. at 490-91; see also VAOPGCPREC 8- 2003 (December 22, 2003). Thus, VA's duty to notify has been satisfied with respect to the issue of entitlement to a higher initial evaluation for narcolepsy. Notwithstanding, the Board notes that, by correspondence dated in December 2004, January 2005, and October 2006, VA notified the Veteran of the evidence necessary to substantiate his claims and of the division of responsibilities in obtaining such evidence. The letters also explained how disability ratings and effective dates are determined. Further, in July 2009, VA provided additional notice regarding the assignment of disability ratings, to include setting forth applicable rating criteria. See Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated and remanded sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The claim was most recently readjudicated in the November 2009 supplemental statement of the case. Prickett v. Nicholson, 20 Vet. App. 370, 377-78 (2006) (VA cured failure to afford statutory notice to claimant prior to initial rating decision by issuing notification letter after decision and readjudicating the claim and notifying claimant of such readjudication in the statement of the case). VA has also satisfied its duty to assist. The claims folder contains the Veteran's service treatment records, service personnel records, VA medical records, private medical records, and Social Security Administration (SSA) records. The Veteran was also provided VA examinations in September 2005 and September 2009. In December 2009, the Veteran stated that his service records were not present at the September 2009 examination, and therefore, the examiner could not provide a thorough evaluation. As discussed below, the diagnosis of narcolepsy has been established, and the absence of service records would likely have no bearing on determining the current level of disability, as the Board is assessing the evaluation warranted since service connection was granted on November 22, 2004, which was many years after his period of service. On review and under the circumstances of this case, the Board finds the evidence of record sufficient for rating purposes. In summary, VA has fulfilled its duties pursuant to the VCAA, and there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication with regard to the issues decided herein. Law and Analysis I. Narcolepsy In October 2005, the RO granted entitlement to service connection for narcolepsy and assigned a 10 percent evaluation effective from December 14, 2004. The Veteran disagreed with the evaluation and subsequently perfected this appeal. In July 2009, the RO granted an earlier effective date for service connection for narcolepsy based on clear and unmistakable error, and the 10 percent evaluation was assigned from November 22, 2004. The Veteran contends that the currently assigned rating does not adequately reflect the severity of his disability. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C.A. § 1155. Evaluation of a service-connected disorder requires a review of the Veteran's entire medical history regarding that disorder. 38 C.F.R. §§ 4.1, 4.2 (2012); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. If there is a question as to which evaluation to apply, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In Fenderson v. West, 12 Vet. App. 119 (1999), it was held that evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder. In Fenderson, the Court also discussed the concept of the "staging" of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Id. at 126-127; see also Hart v. Mansfield, 21 Vet. App. 505 (2007). Pursuant to the rating schedule, narcolepsy is evaluated as for epilepsy, petit mal. 38 C.F.R. § 4.124a, Diagnostic Code 8108. Petit mal epilepsy is rated under the general rating formula for minor seizures. 38 C.F.R. § 4.124a, Diagnostic Code 8911. Note (1) to this provision states that a major seizure is characterized by the generalized tonic-clonic convulsion with unconsciousness. Note (2) states that a minor seizure consists of a brief interruption in consciousness or conscious control associated with staring or rhythmic blinking of the eyes or nodding of the head ("pure" petit mal), or sudden jerking movements of the arms, trunk, or head (myoclonic type) or sudden loss of postural control (akinetic type). Id. The General Rating Formula for Major and Minor Epileptic Seizures is as follows: a confirmed diagnosis of epilepsy with a history of seizures (10 percent); at least 1 major seizure in the last 2 years or at least 2 minor seizures in the last 6 months (20 percent); at least 1 major seizure in the last 6 months or 2 in the last year or averaging at least 5 to 8 minor seizures weekly (40 percent); averaging at least 1 major seizure in 4 months over the last year or 9 to 10 minor seizures per week (60 percent); averaging at least 1 major seizure in 3 months over the last year or more than 10 minor seizures weekly (80 percent); and averaging at least 1 major seizure per month over the last year (100 percent). Id. In this case, a November 2004 statement from Dr. W.J.M. (initials used to protect privacy) indicates that the Veteran could return to work, but was unable to drive work vehicles pending specialist evaluations. The Veteran later underwent multiple sleep latency testing (MSLT) in May 2005. The impression was narcolepsy, which was suspected clinically on the basis of sleep paralysis, hypnogogic hallucinations, and cataplexy. There was pathologic sleepiness manifested by a mean sleep latency of 5.3 minutes without overt REM (rapid eye movement). A June 2005 statement from Dr. W.J. indicates that narcolepsy had been confirmed clinically by the presence of cataplexy and MSLT. The physician stated that it was highly likely that the current sleep disorders were the same as they were in 1997, if not more severe. A July 2005 statement from Dr. W.J. also indicates that the Veteran needed scheduled naps and that he was being treated with a stimulant medication to reverse daytime sleepiness. It was noted that there were no medical reasons to consider that he was malingering or unmotivated for proper performance of his duties. On VA examination in September 2005, the Veteran indicated that a typical attack of narcolepsy included cataplexy, loss of muscle tone, hallucinations, and vivid dreams. Over the last 2 years, he reported having 20 attacks, averaging 2 each month. He also reported that the symptoms described occurred intermittently as often as daily with each occurrence lasting for 20 minutes. His ability to perform daily functions during flare-ups was difficult due to somnolence and an inability to concentrate. He was taking Provigil, but the response had been minimal. It was further noted that the condition resulted in time lost from work 10 times per month. The diagnosis was narcolepsy. The subjective factors were increased somnolence, and objective factors were abnormal sleep study findings. An April 2006 statement from the Veteran's spouse indicated that his illness had affected his employment and that his attacks vary from three to four witnessed attacks a day. A September 2006 statement from the Veteran's employer also indicates that his driving privileges were temporarily suspended due to narcolepsy. Statements from Dr. W.J. dated in November 2006 and February 2007 indicate that the Veteran's narcolepsy was well controlled, but because of psychiatric problems, his daytime sleepiness was persisting to the point he was unable to drive in his job capacity and should be considered eligible for medical retirement. In April 2007, the Veteran underwent maintenance of wakeful testing (MWT). Continued pathologic sleepiness was shown with a mean sleep latency of 13.4 minutes. A September 2007 statement from Dr. W.J. essentially summarizes his previous statements. Again, it was noted that the Veteran was on stimulant medication and that there was no medical reason to consider malingering. He was unable to drive due to daytime sleepiness and should be considered eligible for medical retirement. A February 2008 VA consultation note documents very frequent episodes of cataplexy (up to four episodes a day), characterized by generalized loss of voluntary muscle control triggered by emotional stimuli and laughter. The physician described the narcolepsy with cataplexy as very severe and with frequent attacks. It was noted that the Veteran did not observe improvement with his current medications. New medication was started, and he was to continue with naps three times per day. A February 2008 statement from the Office of Personnel Management (OPM) showed that the Veteran was found disabled from his position as a letter carrier due to various disabilities, including narcolepsy. A February 2008 statement from Dr. W.J.M. indicates that the Veteran had been his patient since November 2004 and noted that his sleep apnea and narcolepsy had worsened to the point of concern. He observed that the Veteran had kept a history of documented sleep attacks (cataplexies), and in December, he averaged four to five per day. In January, the cataplexies became so severe that he experienced seven different days of seven or more cataplexies. The physician further noted that the Veteran had been unable to work with reasonable consistency for a reasonable amount of time because of his sleep apnea and narcolepsy. In March 2008, a MWT was conducted to measure the degree of sleepiness by assessing the Veteran's ability to stay awake. The study showed a sleep latency of 16 minutes and the Veteran fell asleep in all 4 naps. A December 2008 statement from a state vocational rehabilitation counselor indicates that the Veteran was sent for a 10 day work evaluation but only completed 6 days due to his narcolepsy and sleep apnea. In a March 2009 decision, the Social Security Administration (SSA) determined that the Veteran had been disabled since September 2006. The Veteran had multiple severe impairments, including narcolepsy with cataplexy. The Veteran most recently underwent a VA examination to assess the severity of his narcolepsy in September 2009. He described a typical attack as brief loss of muscle control, paralysis, hallucinations, vivid dreams, and jerking. Over the last 2 years, he had 2000 attacks, averaging 80 a month. The Veteran reported that he was unable to work at all due to narcolepsy and sleep apnea. The diagnosis was narcolepsy, and his condition was described as active. The examiner noted no objective evidence. A December 2009 VA sleep medicine progress note indicates the Veteran has to take multiple naps during the day to mitigate sleep attacks or cataplexy. He has two to three sleep attacks per day. He is able to function with Ritalin. In December 2009, the Veteran's representative argued that VA did not provide adequate reasons and bases for not considering the Veteran's reported symptoms (i.e., 80 episodes per month). The representative further argued that the Veteran was competent to provide this information and that a higher evaluation was warranted for narcolepsy. In March 2012, Dr. W.J. completed a Narcolepsy Disability Benefits Questionnaire. He indicated that there was a confirmed diagnosis of narcolepsy and that the Veteran reported having excessive daytime sleepiness, sleep attacks, cataplexy, sleep paralysis and hallucinations. The Veteran has more than 10 narcoleptic episodes per week, and continuous medication was required. To warrant a rating for epilepsy, the seizures must be witnessed or verified at some time by a physician. See 38 C.F.R. § 4.121. The Board observes that the Veteran was initially diagnosed with narcolepsy, but subsequent in-service testing resulted in a diagnosis of long sleeper syndrome. Notwithstanding, evidence of record shows a current diagnosis of narcolepsy based on clinical history and test results. Thus, the narcoleptic episodes are considered verified. A longitudinal review of the record shows that the Veteran has narcolepsy with cataplexy that has been described as severe with frequent attacks. At the travel board hearing, he reported up to 80 episodes per month. The Veteran is competent to report his narcoleptic episodes and associated symptoms. See Charles v. Principi, 16 Vet. App. 370 (2002) (appellant competent to testify regarding symptoms capable of lay observation). Additionally, VA regulations provide that "[a]s to frequency, competent, consistent lay testimony emphasizing convulsive and immediate post-convulsive characteristics may be accepted. The frequency of seizures should be ascertained under the ordinary conditions of life (while not hospitalized)." 38 C.F.R. § 4.121. On review, there is no evidence of malingering, and the Board has no reason to doubt the Veteran's credibility as to the frequency of episodes. Indeed, the medical evidence does suggest impairment, as the Veteran is unable to drive or work. Thus, the Board finds that an 80 percent evaluation for narcolepsy is warranted, based on narcoleptic episodes occurring more than 10 times weekly. In making this determination, the Board acknowledges there is some evidence that the Veteran's narcolepsy is controlled or improved with medication. The Court recently addressed whether improvement via medication in a service-connected disability could be considered for rating purposes. See Jones v. Shinseki, 26 Vet. App. 56 (2012). In Jones, the Court held that the Board may not deny entitlement to a higher rating on the basis of relief provided by medication when those effects are not specifically contemplated by the rating criteria. Id. at 9. Note (1) to the General Rating Formula for Major and Minor Epileptic Seizures indicates that when continuous medication is shown necessary for the control of epilepsy, the minimum evaluation will be 10 percent. This rating will not be combined with any other rating for epilepsy. Regardless of whether the effects of medication are specifically contemplated by the applicable rating criteria, the Board notes that throughout the appeal period, any improvement resulting from medication appears to have been intermittent and varied. Clearly, the Veteran continues with frequent episodes despite the use of medication. The Board has considered whether staged ratings are for application. See Fenderson. In addressing this question, the Board acknowledges that, during the VA examination in September 2005, the Veteran reported only 2 attacks per month. However, he also reported that the symptoms occurred as often as daily. An April 2006 statement from the Veteran's spouse also suggests episodes 3 to 4 times per day, and the evidence of record indicates that his disability was of such severity that he was unable to drive commercial vehicles. He ultimately lost his job and this was in part related to his narcolepsy. Resolving reasonable doubt in his favor, his disability picture has more nearly approximated the criteria for an 80 percent evaluation since service connection was established? The Board has also considered whether an initial evaluation in excess of 80 percent is warranted. However, the Veteran has not been shown to meet the criteria for the next higher evaluation. An evaluation greater than 80 percent is not warranted, as there is no evidence of any major seizures as defined by VA regulations. Under Diagnostic Code 8108, a 100 percent evaluation requires averaging at least one major seizure per month over the last year. Note (1) to this provision states that a major seizure is characterized by the generalized tonic-clonic convulsion with unconsciousness. As the Veteran has not been shown to have such symptomatology or something analogous to it, a 100 percent disability evaluation is not warranted. In reaching this decision, the potential application of various provisions of Title 38 Code of Federal Regulations have been considered, whether or not they were raised by the Veteran. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In particular, the Board has considered the provisions of 38 C.F.R. § 3.321(b)(1). However, in this case, the Board finds that the record does not show that the Veteran's service-connected disability is so exceptional or unusual as to warrant the assignment of a higher rating on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1)). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. See Thun v. Peake, 22 Vet. App. 111 (2008). In this regard, there must be a comparison between the level of severity and symptomatology of the claimant's service- connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule and the assigned schedular evaluation is therefore adequate, and no extraschedular referral is required. Id., see also VAOGCPREC 6-96 (Aug. 16, 1996). Otherwise, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, VA must determine whether the claimant's exceptional disability picture exhibits other related factors, such as those provided by the extraschedular regulation (38 C.F.R. § 3.321(b)(1) ) as "governing norms" (which include marked interference with employment and frequent periods of hospitalization). The evidence in this case does not show such an exceptional disability picture that the available schedular evaluations for the service-connected disability are inadequate. A comparison between the level of severity and symptomatology of the Veteran's assigned rating with the established criteria found in the rating schedule shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology, which consists primarily of frequent attacks involving cataplexy, loss of muscle tone, hallucinations, and vivid dreams. As discussed above, there are higher ratings available under the diagnostic code, but the Veteran's disability is not productive of such manifestations. Based on the foregoing, the Board finds that the requirements for an extraschedular evaluation for the Veteran's service-connected narcolepsy under the provisions of 38 C.F.R. § 3.321(b)(1) have not been met. Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995); Thun v. Peake, 22 Vet. App. 111 (2008). II. Left Shoulder In October 1998, the RO denied service connection for residuals of injuries to the shoulders, essentially based on a finding that although there was a record of treatment in service, no permanent residual or chronic disability subject to service connection was shown by service records or demonstrated by evidence following service. The Veteran was notified of the decision and of his appellate rights, but he did not appeal. Moreover, there was no evidence or other information submitted within one year of the rating decision. 38 C.F.R. § 3.156(b). Therefore, the Board finds that the October 1998 rating decision is final. In October 2002, the Veteran requested to reopen his claim. In March 2003, the RO determined that the claim of entitlement to service connection for left shoulder residuals remained denied because the evidence submitted was not new and material. The Veteran was notified of the decision and of his appellate rights, but he did not appeal. Moreover, there was no evidence or other information submitted within one year of the rating decision. 38 C.F.R. § 3.156(b). Therefore, the Board finds that the March 2003 rating decision is final. In November 2004, the Veteran requested that his claim be reopened. In May 2005, the claim to reopen was denied. Following the receipt of additional evidence within the one-year appeal period, the claim was readjudicated in June 2005. The RO again denied the claim for service connection for left shoulder residuals because the evidence submitted was not new and material. The Veteran disagreed and subsequently perfected this appeal. A claimant may reopen a finally adjudicated claim by submitting new and material evidence. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). 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(a). In Shade v. Shinseki, 24 Vet. App. 110 (2010), the Court interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." In determining whether evidence is new and material, the credibility of the new evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). For purposes of this discussion, the Board will consider whether new and material evidence has been received since the final March 2003 decision. See Evans v. Brown, 9 Vet. App. 273 (1996) (the evidence that is considered in determining whether new and material evidence has been submitted is that received by VA since the last final disallowance of the appellant's claim on any basis). The pertinent evidence at the time of the March 2003 decision included the Veteran's claim, service treatment records, and VA and private medical records. In his December 1997 claim, the Veteran reported that he was treated for his left shoulder in September 1995. His service treatment records show that he was seen in September 1995 with complaints that he had injured his left shoulder the prior day with pain over the anterior deltoid, which worsened with left arm flexion and abduction. The assessment was a left anterior deltoid strain. Further complaints and treatment are not shown during service. The VA and private medical evidence of record at the time of the March 2003 rating decision did not show a left shoulder disorder related to active military service. A significant amount of evidence has been added to the record since the March 2003 decision. Considering the favorable decision herein, the Board will limit its discussion to the evidence considered sufficient to reopen the claim. At the February 2012 hearing, the Veteran reported that he hurt his shoulder playing basketball on the military basketball team. He testified that the problems with his left shoulder continued until separation and following service. Notably, the Veteran had not previously made a statement regarding continuity of symptomatology. To the extent this evidence was not previously considered, it is new and relevant to the question of whether the Veteran currently has a left shoulder disability that is related to active military service. That is, the Veteran's testimony provides a more complete picture of the circumstances of injury, claimed onset, and current symptoms. This evidence relates to an unestablished fact and raises a reasonable possibility of substantiating the claim; therefore, the claim is reopened. However, as will be explained below, the Board is of the opinion that further development is necessary before the merits of the appellant's claim can be addressed. ORDER An initial 80 percent evaluation for narcolepsy is granted, subject to the laws and regulations governing the award of monetary benefits. New and material evidence having been submitted, the claim of entitlement to service connection for a left shoulder disorder is reopened, and to this extent only, the appeal is granted. REMAND Having reopened the claim of entitlement to service connection for a left shoulder disorder, the Board must consider the merits. On review, the Board finds that additional development is needed. See 38 C.F.R. § 3.159. Pursuant to the duty to assist, an examination is required when (1) there is competent lay or medical evidence of a current diagnosed disability or persistent or recurrent symptoms of disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. See 38 C.F.R. § 3.159(c)(4). In McLendon v. Nicholson, 20 Vet. App. 79 (2006), the Court held that the third prong, which requires an indication that the claimant's disability or symptoms 'may be' associated with the established event, is a low threshold. As noted above, the Veteran's service treatment records show that the Veteran was seen for a left shoulder injury in September 1995. At the hearing, he also testified that he had problems with his left shoulder following the injury and that these problems have continued to date. The Veteran is competent to describe his symptoms, including continuity of left shoulder pain since service. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (holding that the Veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses). On review, it is unclear whether the Veteran has a currently diagnosed left shoulder disorder that is related to active military service or events therein. The Board further notes that, at the hearing, the representative asserted a theory of entitlement to service connection as secondary to service-connected right shoulder disability. Under the circumstances of this case, a VA examination and medical opinion are needed. McLendon. On remand, any additional relevant VA records should be obtained. 38 C.F.R. § 3.159(c)(2). A review of the claims folder shows they were last printed in February 2010. Accordingly, the case is REMANDED for the following action: 1. The AMC/RO should obtain relevant records from the VA Medical Center in Atlanta, Georgia, for the period from February 2010 to the present. All records obtained should be associated with the claims folder or Virtual VA eFolder. If the AMC/RO cannot locate any Federal records requested herein, it must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The AMC/RO must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claim. The claimant must then be given an opportunity to respond. 2. The AMC/RO should then schedule the Veteran for a VA examination to determine the nature and etiology of any current left shoulder disorder. The claims folder must be available for review by the examiner. Additionally, all relevant medical records must be made available to the examiner for review, either in the Virtual VA eFolder, or if the eFolder is not available, then via paper copies. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions. The Veteran's service treatment records indicate that he was seen for a left shoulder injury in September 1995. He has testified that he continued to have left shoulder problems following his separation. It should be noted that he is competent to attest to factual matters of which he had first-hand knowledge. If there is a medical basis to support or doubt the history provided by the appellant, the examiner should provide a fully reasoned explanation. The examiner should identify all current left shoulder disorders. For each diagnosis identified, the examiner should opine as to whether it is at least as likely related to the Veteran's military service, including his symptomatology therein. The examiner should also state whether it is at least as likely as not that the current disorder is proximately due to or aggravated (permanently worsened) by the Veteran's service-connected right shoulder disability. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.) A complete rationale for any opinions expressed must be provided. 3. After the development requested has been completed, the AMC/RO should review the examination report to ensure that it is in complete compliance with the directives of this REMAND. If the report is deficient in any manner, the AMC/RO should implement corrective procedures. 4. The Veteran is hereby notified that it is his responsibility to report for the examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. § 3.655 (2012). 5. Upon completion of the above development, and any additional development deemed appropriate, the AMC/RO should readjudicate the issue of entitlement to service connection for a left shoulder disorder. All applicable laws, regulations, and theories of entitlement should be considered. If the benefit sought on appeal remains denied, the appellant and his representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. The appellant has the right to submit additional evidence and argument on the matter or matters 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). ______________________________________________ JESSICA J. WILLS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs