Citation Nr: 1632787 Decision Date: 08/18/16 Archive Date: 08/26/16 DOCKET NO. 14-18 073 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for narcolepsy. 2. Entitlement to service connection for narcolepsy. ATTORNEY FOR THE BOARD M. Riley, Counsel INTRODUCTION The Veteran served on active duty from February 1956 to April 1957. This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland. Jurisdiction over the claims file is currently held by the RO in Chicago, Illinois. The Veteran's May 2014 substantive appeal included a request to testify before the Board at a hearing held at local VA office. The requested hearing was scheduled for March 24, 2016 and the Veteran was notified of the time and place of the hearing in a February 2016 letter. He did not appear for the hearing and has not requested a postponement or provided an explanation for his failure to report. The Board therefore considers the hearing request as withdrawn in accordance with 38 C.F.R. § 20.704(d) (2015) and will proceed with a decision in this case. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). The reopened issue of entitlement to service connection for narcolepsy is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The claim for entitlement to service connection for narcolepsy was initially denied in an unappealed October 1982 rating decision. The Veteran later attempted to reopen the claim and service connection for narcolepsy was again denied in a January 2009 rating decision. 2. The evidence received since the January 2009 rating decision relates to an unestablished fact necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim. CONCLUSION OF LAW New and material evidence has been received and the claim for entitlement to service connection for narcolepsy is reopened. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156(a) (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION The claim for entitlement to service connection for narcolepsy was initially denied in an October 1982 rating decision. The RO found that the evidence of record, including service treatment records and records of private treatment for narcolepsy in 1976, did not establish a nexus between the Veteran's disability and active duty service. The Veteran did not appeal the October 1982 denial of the claim and the rating decision is final. 38 U.S.C.A. § 7105(c) (West 2014); 38 C.F.R. § 20.1103 (2015). A claim which has been finally denied in an unappealed rating decision or Board decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c). The exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The Court of Appeals for Veterans Claims (Court) has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court further held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to assist by providing a medical opinion. Id. The Veteran attempted to reopen the claim for entitlement to service connection for narcolepsy and it was readjudicated in a January 2009 rating decision. The evidence received since that time includes a report of contact with the Veteran in February 2011 documenting his statements regarding a long history of sleep problems prior to the diagnosis of narcolepsy in 1976. In February 2011, he reported experiencing sleep dysfunction during active service with the Navy and was taken off watch one night when his symptoms of narcolepsy almost caused an explosion involving the boilers. The Board notes that for the purposes of determining whether evidence is "new and material" the credibility of the new evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Veteran's statements are new as they were not of record when the January 2009 rating decision was issued and are material as they relate to an element not previously established-a possible link between the claimed narcolepsy and active duty service. The Board therefore finds that the evidence is new and material and reopening of the claim is granted. ORDER New and material evidence having been received, reopening of the claim for entitlement to service connection for narcolepsy is granted. REMAND The Board finds that additional development is necessary before adjudicating the reopened claim for entitlement to service connection for narcolepsy. Review of the claims file indicates that there are outstanding VA and private records relevant to the Veteran's claim that should be obtained. In an October 2008 correspondence, the Veteran reported receiving treatment for narcolepsy at the Chicago VA Medical Center (VAMC) for approximately 20 years. The claims file currently contains copies of a few VA records dating from July 1990 to January 2009 and records pertaining to a separate claim for a foot condition from 2012. However, the Veteran's statement regarding his narcolepsy indicates that additional VA treatment records may exist and requests for these records must be made. Additionally, the available VA clinical records include a notation in April 2005 that the Veteran's narcolepsy treatment and prescribed Ritalin are provided by a private medical doctor. Upon remand, the Veteran should be contacted and asked to identify the private physician who treats his narcolepsy and authorize VA to obtain copies of the private clinical records. Finally, copies of the Veteran's service personnel records should be obtained and added to the claims file. The Veteran reported in February 2011 that he was prohibited from standing watch during active duty service when his narcolepsy symptoms almost resulted in a boiler explosion. Service personnel records may contain some information verifying this report or indicating the Veteran experienced sleep problems during active duty. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Obtain the Veteran's service personnel records. 2. Obtain complete copies of the Veteran's treatment records from the Chicago VAMC dated prior to October 2008 and any VA records pertaining to treatment for narcolepsy from October 2008 to the present. All efforts to obtain these records must be documented in the claims file. 3. Contact the Veteran and ask him to identify all private health care providers who have treated his narcolepsy. Provide him medical release forms and ask that he complete them to allow VA to obtain records from all identified private facilities, including the private medical doctor referenced in the April 2005 general medicine outpatient note from the Lakeside VA Community-Based Outpatient Clinic (CBOC). If a valid release form is received, request records from the identified providers and associate copies of these records with the claims file. All attempts to obtain this evidence must be documented. If unable to obtain the evidence, contact the Veteran and ask that he submit the private treatment records. 4. Readjudicate the claim on appeal. If the benefit sought is not fully granted, issue a supplemental statement of the case (SSOC) to the Veteran before returning the case to the Board, if otherwise in order. 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 2014). ______________________________________________ A. C. MACKENZIE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs