Citation Nr: 19190800 Decision Date: 12/03/19 Archive Date: 12/03/19 DOCKET NO. 12-41 843A DATE: December 3, 2019 ORDER Entitlement to an effective date prior to September 3, 1992 for the award of an 80 percent disability rating for service-connected narcolepsy is denied. FINDINGS OF FACT 1. Outpatient treatment records from the Department of Veterans Affairs dated February 6, 1991 are considered a claim for an increased rating for narcolepsy. 2. The earliest evidence of entitlement to an 80 percent disability rating for service-connected narcolepsy is a September 3, 1992 neurology note. CONCLUSION OF LAW The criteria for an effective date prior to September 3, 1992 for an 80 percent disability rating for narcolepsy have not been met. 38 U.S.C. §§ 1155, 5101, 5107, 5110; 38 C.F.R. §§ 3.151, 3.155, 3.157, 3.400, 4.124a, Diagnostic Codes 8911-8108. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from January 1975 to July 1986. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2004 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In the October 2004 rating decision on appeal, the RO increased the rating for the Veteran’s service-connected narcolepsy to 80 percent, effective July 25, 1996. In January 2005, the appellant filed a notice of disagreement with the assigned effective date. In a January 2008 decision, the Board denied the issue of entitlement to an earlier effective date for the award of an 80 percent rating for narcolepsy. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In January 2010, pursuant to a Joint Motion for Remand (JMR) filed by the Veteran’s attorney and the Secretary of Veterans Affairs, the Court issued an Order vacating the Board’s January 2008 decision and remanded the claim for an earlier effective date for the award of an 80 percent rating for narcolepsy to the Board for further action consistent with the terms of the JMR. Subsequently, in an August 2010 decision, the Board remanded the claim of entitlement to an earlier effective date for the award of an 80 percent rating for narcolepsy for additional development. The Board finds that there has been substantial compliance with the Board’s previous remand instructions. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008). Thereafter, in an April 2011 rating decision, the RO assigned an 80 percent rating for the Veteran’s service-connected narcolepsy, effective December 18, 1992. The Veteran continued her appeal. In a May 2018 decision, the Board granted an effective date of September 3, 1992, but no earlier, for the award of an 80 percent disability rating for narcolepsy. The Veteran again appealed this decision to the Court, which issued a June 2019 Order vacating the Board’s May 2018 decision to the extent that it denied an effective date earlier than September 3, 1992 for the award of an 80 percent disability rating for narcolepsy, consistent with the terms of a Joint Motion for Partial Remand (JMPR). Veterans Claims Assistance Act of 2000 (VCAA) As a preliminary matter, the Board notes that the Veteran has asserted that the RO failed to comply with the VCAA. However, she did not provide any argument to support her assertion. The evidence of record indicates that the Veteran was provided notice of the information and evidence needed to substantiate her claim and that VA has undertaken all necessary development action pursuant to the duty to assist. The Board finds that no further notice or development action is necessary in order to satisfy VA’s duties to the Veteran under the VCAA. Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Entitlement to an effective date prior to September 3, 1992 for the award of an 80 percent disability rating for service-connected narcolepsy The Veteran argues that the 80 percent disability rating for her service-connected narcolepsy should date back to the initial effective date, or July 17, 1986. Essentially, she states that the submission of new and material evidence within one year of the March 1987 rating decision granting service connection for narcolepsy prevented that decision from becoming final. By way of history, the Veteran’s claim for service connection for narcolepsy was received on July 17, 1986. In a March 1987 rating decision, the RO granted service connection for narcolepsy and assigned a 20 percent rating, effective July 17, 1986. As noted by the Veteran’s attorney, the Veteran submitted additional medical evidence and statements regarding the severity of her service-connected narcolepsy within one year of that decision. In an August 1987 rating decision, the RO indicated that additional treatment records were received regarding the evaluation of narcolepsy. The RO further noted that most of the treatment records dated prior to the VA examination in August 1986 except a June 1987 treatment record reflecting a complaint of “frequently going to sleep.” The RO ultimately found that the Veteran’s narcolepsy was being controlled on medication and there were no ratable changes. The Veteran filed a notice of disagreement in November 1987. A statement of the case was issued in December 1987 addressing all medical evidence of record. The Veteran filed a timely substantive appeal in January 1988. Following receipt of additional medical evidence and testimony, in a June 1988 rating decision, the RO increased the rating for the appellant’s service-connected narcolepsy to 40 percent, effective July 17, 1986. In a March 1989 decision, the Board remanded the increased rating claim for additional development. Thereafter, in a June 1990 decision, the Board denied entitlement to an initial rating in excess of 40 percent for narcolepsy. The Veteran’s attorney argues that, pursuant to Beraud v. McDonald, 766 F.3d 1402 (Fed. Cir. 2014), the Board should have addressed whether new and material evidence was submitted subsequent to the initial March 1987 rating decision and that the failure to do so prevented the rating decision from becoming final. See also, Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011). In Beraud, the appellant sought an earlier effective date for the grant of service connection for a headache disability on the basis of unaddressed evidence filed within a year of the rating decision that denied his claim. The Federal Circuit held that a claim remains pending where VA fails to fulfill a statutory duty under 38 C.F.R. § 3.156(b) to determine the character of evidence submitted within the one-year appeal period following the issuance of a rating decision. Beraud, 766 F.3d at 1402. The Federal Circuit similarly held, in Bond, that 38 C.F.R. § 3.156(b) requires VA to determine whether subsequently submitted evidence constituted new and material evidence relating to an earlier claim, even if the new submission may support a new claim. Bond, 659 F.3d 1362. In that case, the appellant sought an earlier effective date for an increased rating where VA treated evidence submitted within a year of the initial rating decision as a new claim for increase rather than evidence pertinent to his initial claim. Unlike the Beraud and Bond cases, in this case, there is no evidence that the RO failed to continue the Veteran’s initial July 17, 1986 claim. Indeed, the June 1988 rating decision specifically notes consideration of “new and material evidence”, including evidence and testimony presented at the March 1988 hearing and additional medical evidence. Further, that decision increased the initial disability rating awarded for the Veteran’s service-connected narcolepsy. As directed by the Federal Circuit, the RO classified the new and material evidence as a continuation of the initial claim rather than a new claim for increase. Then, the Board reviewed all evidence in determining that an increased initial rating for narcolepsy was not warranted. There is no evidence that the Veteran appealed or requested reconsideration of the Board’s June 1990 decision. Accordingly, the final June 1990 Board decision subsumed the March 1987 and June 1988 rating decisions. 38 C.F.R. §§ 20.1100, 20.1104. As noted above, an April 2011 rating decision assigned an 80 percent disability rating for the Veteran’s service-connected narcolepsy, effective December 18, 1992. The Veteran appealed and, in a May 2018 decision, the Board granted an effective date of September 3, 1992, but no earlier, for the award of an 80 percent disability rating for narcolepsy. In light of the preceding, the Board finds that the question before the Board is whether there is a claim for an increased disability rating for the Veteran’s service-connected narcolepsy between June 18, 1990, the date of the final Board decision, and September 3, 1992. Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400 As pertinent here, for claims filed prior to March 24, 2015, any communication or action indicating an intent to apply for one or more benefits under laws administered by VA, from a Veteran or his or her representative, may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the veteran, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155(a) (as in effect prior to March 24, 2015). Notably, under 38 C.F.R. § 3.157(b) (in effect prior to March 24, 2015), once a claim for compensation has been allowed, receipt of a VA outpatient or hospital examination or admission to a VA hospital will be accepted as an informal claim for increased benefits. The date on the VA outpatient or hospital examination will be accepted as the date of claim. 38 C.F.R. § 3.157(b) (as in effect prior to March 24, 2015). The Board observes that the evidence prior to September 1992 includes post-service VA treatment records beginning in February 1991. A February 6, 1991 VA pulmonary record indicates that the Veteran had a history of narcolepsy. However, this record does not describe the severity of the service-connected condition. There is also a VA optometry note dated in July 1992 that fails to mention the Veteran’s narcolepsy. VA medical records dated September 3, 1992 and October 8, 1992 note that the Veteran presented for neurological treatment for narcolepsy, reporting that she had 2 episodes per day. A November 18, 1992 neurology note states that the Veteran reported about 9 episodes per day. In affording the Veteran the benefit of the doubt, the Board views the February 6, 1991 VA pulmonary record noting the Veteran’s narcolepsy as an informal claim for increase under 38 C.F.R. § 3.157(b). Effective dates for increased evaluations for disability compensation are addressed under 38 C.F.R. § 3.400(o)(2), which provides that the effective date of an increased rating shall be the earliest date as of which it is factually ascertainable that an increase in disability occurred if the application was received within one year from such date. However, the exception articulated in 38 C.F.R. § 3.400(o)(2) only applies where an increase in disability precedes a claim for an increased disability rating; otherwise, the effective date is determined by the general rule outlined in 38 C.F.R. § 3.400. Hazan v. Gober, 10 Vet. App. 511 (1997); Servello v. Derwinski, 3 Vet. App. 196 (1992). Considering February 6, 1991 as the date of the claim, the Board must determine the date on which entitlement to an 80 percent disability rating for narcolepsy arose. The Veteran’s narcolepsy is rated under Diagnostic Code 8108, which directs that narcolepsy is to be rated as epilepsy, petit mal. 38 C.F.R. § 4.124a. Epilepsy, petit mal, in turn, is to be rated under the general rating formula for minor seizures. 38 C.F.R. § 4.124a, Diagnostic Code 8911. Under the General Rating Formula, a 40 percent rating is assigned for 1 major seizure during the preceding 6 months or 2 major seizures, or 5 to 8 minor seizures weekly, during the preceding year. A 60 percent rating is warranted for 3 major seizures or 9 to 10 minor seizures weekly, during the preceding year. An 80 percent rating is assigned for 4 major seizures, or more than 10 minor seizures weekly, during the preceding year. A 100 percent rating is warranted for 12 major seizures during the preceding year. The rating schedule defines a major seizure as being characterized by the generalized tonic-clonic convulsion with unconsciousness. 38 C.F.R. § 4.124a, Diagnostic Code 8911, Note 1. A minor seizure is considered to consist 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., Note 2. Considering both the law and facts set forth above, the Board finds that an effective date prior to September 3, 1992 for the award of an 80 percent rating for the Veteran’s narcolepsy is not warranted. In this regard, the first evidence subsequent to the June 1990 final Board decision indicating that the Veteran had more than 10 episodes per week is the September 3, 1992 neurology note. Prior to September 3, 1992, the medical evidence documented a history of narcolepsy, but did not provide any information regarding the severity of the condition. Under 38 C.F.R. § 3.400, as the date of receipt of the claim precedes the date on which entitlement to an 80 percent rating for narcolepsy arose, the Board finds that the effective date of September 3, 1992—the date entitlement to the rating arose, and the later of the two dates in question—is proper. (Continued on the next page) The Board finds that the preponderance of the evidence is against the Veteran’s claim for an earlier effective date. Thus, the benefit-of-the-doubt doctrine is not for application, and the claim must be denied. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). CAROLINE B. FLEMING Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Connor, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.