Citation Nr: 1701351 Decision Date: 01/19/17 Archive Date: 01/27/17 DOCKET NO. 10-33 069 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for a sleep disability. 2. Entitlement to a rating in excess of 30 percent prior to June 1, 2015 and in excess of 70 percent thereafter for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Wishard, Counsel INTRODUCTION The Veteran had active military service from September 2003 to March 2007. He has had subsequent periods of National Guard service. 23 2003 to March 16 These matters come before the Board of Veterans' Appeals (Board) from a May 2009 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Cleveland, Ohio. In March 2016, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. FINDINGS OF FACT 1. At a March 2016 videoconference Board hearing, the Veteran indicated that it was his intent to withdraw the appeal for entitlement to a rating in excess of 30 percent prior to June 1, 2015 and in excess of 70 percent thereafter for PTSD. 2. The evidence reflects that the Veteran had complaints of excessive daytime sleepiness in service with a questionable diagnosis of narcolepsy, continued complaints since service, and a post-service diagnosis of narcolepsy. 3. The probative evidence of record supports a finding that the Veteran's narcolepsy was incurred in service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal by the appellant on the issue of entitlement to a rating in excess of 30 percent prior to June 1, 2015 and in excess of 70 percent thereafter for PTSD have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2016). 2. The criteria for service connection for narcolepsy have been met. 38 U.S.C.A. §§ 1110 , 1110, 1113, 1137;38 C.F.R. § 3.303 , 3.304, 3.307, 3.309 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Withdrawn issue - Entitlement to an increased rating for PTSD The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In the present case, the appellant, at the March 2016 Board hearing, indicated that it was his intent to withdraw the appeal for entitlement to a rating in excess of 30 percent prior to June 1, 2015 and in excess of 70 percent thereafter for PTSD. (See Board hearing transcript page two) Thus, there remain no allegations of errors of fact or law for appellate consideration on that issue. Accordingly, the Board does not have jurisdiction to review the issue. Adjudicated issue - Entitlement to service connection for a sleep disability Legal Criteria Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet.App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). For some "chronic diseases," presumptive service connection is available. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. With "chronic disease" shown as such in service (or within the presumptive period under § 3.307), so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). For the showing of a '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. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. If not manifest during service, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and the 'chronic disease' became manifest to a degree of 10 percent within 1 year from date of termination of 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 C.F.R. § 3.307. The term "chronic disease," whether as shown during service or manifest to a compensable degree within a presumptive window following service, applies only to those disabilities listed in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In each case where service connection for any disability is being sought, due consideration shall be given to the places, types, and circumstances of such Veteran's service as shown by such Veteran's service record, the official history of each organization in which such Veteran served, such Veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a). Analysis The Board finds, based on the record as a whole and which is summarized below, that service connection for narcolepsy is warranted. A July 2004 service treatment record (STR) reflects that the Veteran was seen for sleeping problems. It was noted that he was positive for waking suddenly in the middle of the night due to nightmares. The Veteran reported problems for six months in duration; this would have put the onset date after entrance onto active duty. It was also noted that the Veteran had been taking sleep medication after being seen in May 2004 and that he no longer had problems going to sleep at night; he had since ceased the medication. However, he reported that he now "wants to sleep during the day if not doing anything." Another July 2004 record reflects that the Veteran reported that he is "falling asleep anywhere and has problems sleeping at night once a [week]." The Veteran reported that this was causing problems with tardiness. He again reported that has difficulty staying awake throughout the day (e.g. "can't keep his eyes open") even though he slept six to eight hours a night. The diagnosis was questionable narcolepsy. September 2004 STRs reflect that the Veteran was seen with a complaint of difficulty staying awake during the duty day after eight to ten hours of sleep per night. The Veteran reported that he has no difficulty falling or staying asleep but has constant fatigue/sleepiness throughout the day. He was taking a Non-Drowsy allergy medication. The assessment was questionable narcolepsy. The Veteran reported sleeping problems for nine months. Again, this would have been the onset date as during active service. The Veteran was scheduled to be evaluated for narcolepsy in November 2004; however, he failed to report for the examination. The Veteran separated from service in March 2007. A post active service February 2008 VA psychology consult note reflects that during the examination, the examiner found, in pertinent part, as follows: [A]t times [the Veteran]would fall asleep if I did not elevate my voice to spark attention. His thoughts were linear and clear, but, he was slow to respond to discussion. When I queried why he looked like he very sleeping [sic], he responded by saying he does not get enough sleep and it affects his daily functioning. He did say that he has started taking medications to help him sleep and he believes it is helping him sleep better. Buddy statements dated in 2009 reflect that the writers witnessed the Veteran falling asleep at inappropriate times, to include while in service. A February 2009 report that the Veteran reported troubling falling asleep, staying asleep, or sleeping too much "nearly every day". A November 19, 2009 Neurology Sleep Consult record reflects that the Veteran has idiopathetic hypersomnia or narcolepsy. A November 2009 VA primary care record reflects the following, in pertinent part: [The Veteran] also related episodes about a year ago of having an inability to move while falling asleep or awakening and being aware of his environment but not being able to respond to it. Additionally he described episodes of paroxysmal loss of muscle tone in and around his mouth causing difficulty speaking. During these episodes it was difficult to open or close his mouth in a deliberate manner. What has been most disturbing to him has been the experience of auditory and tactile hallucinations during periods of time when he has been trying to fall asleep. He has heards [sic] voices and also had sensations that caused him to feel like someone was sitting next to him in his bed even though no one was there. The diagnosis was a sleep disorder "suspect narcolepsy given features of excessive daytime somnolence, hypnogogic hallucinations, possible sleep paralysis and possible cataplexy." A February 2010 VA Sleep Disorders Center record reflects that the Veteran had diagnoses of "primary snoring, periodic limb movement syndrome, excessive daytime sleepiness, and rule/out narcolepsy." An April 2010 VA record reflects that sleep studies were suggestive of narcolepsy and daytime somnolence interfering with school. An April 2010 VA Neurology service note reflects that the MSLT (multiple sleep latency test) results were consistent with extreme sleepiness, and that the Veteran had REM (rapid eye movement) onsets suggesting narcolepsy in concert with his reports of occasional cataplexy, hypnogogic hallucinations and sleep paralysis. A December 2010 DA Form 3349 (Physical Profile) reflects that the Veteran was given a "3" profile for his physical stamina ("P"). It was noted that he had narcolepsy (excessive sleepiness). A "3" signifies that the Veteran has one or more medical conditions or physical defects that may require significant limitations. (See Army Regulation (AR) 40-501.) It was noted that the Veteran had been diagnosed with PTSD and narcolepsy and that VA had recommended multiple therapies but the Veteran was noncompliant. 2011 VA records reflect that the Veteran was sleeping 10 hours a day and taking medication, and sleeping from midnight until 9:00 am with no daytime naps. He was noted to have narcolepsy. An August 2012 DA Form 199-1(Formal Physical Evaluation Board Proceedings) reflects that the Veteran had four disabilities, one of which was narcolepsy. It was noted as follows: "Soldier started experiencing excessive daytime sleepiness in 2005 . . . He was subsequently diagnosed with narcolepsy. Soldier improved partially with medication therapy but still falls asleep while reading and in classes. This condition is stable and rated for confirmed diagnosis of narcolepsy." An October 2012 VA clinical follow up record reflects that the Veteran had "PSG (polysomnogram) and MSLT conclusive of narcolepsy." It was noted that the Veteran had been started on medication (Modafinil). 2014 and 2015 VA neurology notes reflect Veteran had a diagnosis of narcolepsy with cataplexy. His narcolepsy was controlled with medication. The Board acknowledges the July 2015 VA examination report in which the examiner stated that the Veteran does not have a diagnosis of narcolepsy that was incurred in or caused by the excessive daytime sleepiness in 2005 "as there is nothing located in the evidence of record to support the claim"; however, the Board finds the opinion unpersuasive. As noted above, the Veteran clearly had complaints of daytime sleepiness in 2004 while on active duty as well as a diagnosis of questionable narcolepsy. A July 2016 progress note from Dr. M. Noel reflects that the Veteran was diagnosed with narcolepsy with cataplexy in February 2010. She also noted that during an evaluation in November 2009, the Veteran "complained of excessive daytime sleepiness that predated his basic training. [The Veteran] reported this during his office visit to me as well. According to his history, it does appear that his symptoms of Narcolepsy with cataplexy predated his diagnosis of PTSD." The Board has considered the conflicting records as to when the Veteran's daytime sleepiness began. In sum, it appears that the VA examiner misconstrued the onset date of symptoms by several years, and that Dr. Noel misconstrued the onset day of symptoms as having preexisted service. Neither report is probative as to the onset date. The Board finds that the records contemporaneous to service are the most credible. In this regard, the Board notes that the Veteran was not noted to have narcolepsy on entrance into service in 2003. Moreover, there are no clinical records prior to service which reflect a diagnosis of daytime somnolence or narcolepsy. Also importantly, when seen in service, the Veteran reported that onset to have been in service. The Board finds that the Veteran is entitled to the presumption of soundness with regard to a sleep disorder upon entrance. Under 38 C.F.R. § 3.303 (b), when there is a chronic disease shown in service, service connection is warranted when there are subsequent manifestations of the same chronic disease at any later date, however remote, unless clearly attributable to intercurrent causes. Narcolepsy is a neurological disorder (disease of the nervous system) and is rated under the diagnostic code for epilepsy; it is a chronic disease under 38 C.F.R. § 3.309. Based on the record as a whole, to include the Veteran's numerous in-service complaints of daytime sleepiness and the in-service diagnosis of questionable narcolepsy, together with the post service diagnosis of narcolepsy, the Board finds that service connection is warranted. In this regard, the evidence supports that the Veteran had symptoms of narcolepsy in service, and has had continued symptoms since service, as well as confirmation of a diagnosis. 38 U.S.C.A. § 5107 (West 2014), 38 C.F.R. § 3.102 (2016), and Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER The appeal as to the issue of entitlement to a rating in excess of 30 percent prior to June 1, 2015 and in excess of 70 percent thereafter for posttraumatic stress disorder (PTSD) is dismissed Entitlement to service connection for narcolepsy is granted. ____________________________________________ M.C. GRAHAM Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs