Citation Nr: 21004023 Decision Date: 01/25/21 Archive Date: 01/25/21 DOCKET NO. 15-15 650 DATE: January 25, 2021 ORDER Entitlement to service connection for narcolepsy with cataplexy is denied. REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) on an extraschedular basis under 38 C.F.R. § 4.16(b) is remanded.   FINDING OF FACT The preponderance of the evidence reflects that the Veteran’s narcolepsy with cataplexy did not have its onset in service and is not otherwise related to service. CONCLUSION OF LAW The criteria for service connection for narcolepsy with cataplexy are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1990 to July 1992. These matters come before the Board of Veteran’s Appeals (Board) on appeal from January 2013, October 2014, and March 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In those decisions, the RO, among other things, denied entitlement to service connection for narcolepsy with cataplexy and entitlement to a TDIU. In October 2018 and August 2019, the Veteran testified during videoconference hearings before two of the undersigned Veterans Law Judges (VLJs) as to the issues on appeal. Transcripts of those hearings are of record. Appeals can be assigned only to an individual VLJ or to a panel of not less than three members. See 38 U.S.C. § 7102(a) (2012). Thus, when an appellant has had hearings before two VLJs on one or more common issues, a third VLJ is assigned to the panel after the second Board hearing has been held and the appeal is ready for appellate review. In Arneson v. Shinseki, 24 Vet. App. 379 (2011), the Court interpreted 38 C.F.R. § 20.707 (2018) to require that an appellant must also be provided the opportunity for a hearing before all three VLJs involved in a panel decision. During the August 2019 hearing, the Veteran waived his right to a third hearing before the third VLJ on the panel. The undersigned VLJs will therefore proceed to the adjudication of the Veteran’s claims. In November 2019 and October 2020, the Board remanded the claims for further development.  For the reasons indicated in the discussion below, the November 2020 VA opinion is adequate to decide the claim. Therefore, the AOJ substantially complied with the Board’s October 2020 remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). Service connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service.  38 U.S.C. § 1110; 38 C.F.R. § 3.303(a).  Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).   Entitlement to service connection for narcolepsy with cataplexy The Veteran contends that his narcolepsy symptoms began during military service and that he was mistakenly diagnosed in service with a personality disorder instead of narcolepsy. He additionally contends his narcolepsy was caused by head trauma and stress he experienced in service. A January 1991 service treatment record indicated that the Veteran hit his right eye on a locker, and a February 1991 service treatment record noted an incident where the Veteran hit his head on a metal bar when a parked car he was sitting in was struck by another car. Service treatment records from May 1992 also show that he was involved in two motorcycle accidents, and he reported a number of symptoms, including ongoing fatigue, lightheadedness, faintness, and dizziness. His service treatment records additionally noted assessments of depression, insomnia complications, questionable sleep/food deprivation, and questionable personality disorder. The Veteran submitted a medical article in July 2014 that suggested that many patients with narcolepsy are often mistakenly diagnosed with other conditions, such as psychiatric or emotional problems, and that patients could wait decades before receiving a proper diagnosis. During his October 2018 Board hearing, the Veteran testified that he began to experience sleep difficulties during service, including oversleeping, as well as problems staying awake shortly after his separation from service. He also stated that his symptoms progressively worsened until he was ultimately diagnosed with narcolepsy with cataplexy. The Veteran recalled that his doctor stated that his condition could be related to head trauma or stress, and the Veteran contended that his in-service motor vehicle accidents, as well as the stress caused by disciplinary actions taken against him during service, were the causes of his narcolepsy with cataplexy. During his August 2019 Board hearing, the Veteran testified that he began to experience sleep difficulties during the final months of service, including an inability to wake up on time. He noted that his roommate during service called him “lethargy man.” The Veteran also testified that, during service, he was constantly fatigued, and he would constantly take naps. He reiterated that he believed his narcolepsy was related to his in-service head trauma and stress. In this regard, the Veteran recalled his in-service motor vehicle accidents, an incident when he was struck on the right side of his head that damaged his right eye, and in-service assessments of psychiatric problems, including a personality disorder. A July 2020 VA neurosurgeon noted that the Veteran’s service treatment records from May 1992 mentioned fatigue, but there were no symptoms of sleep paralysis. The neurosurgeon indicated that fatigue and daytime hypersomnolence have a broad differential diagnosis and, based on the Veteran’s records, there were no medical conditions that accounted for these symptoms. Furthermore, in regard to the Veteran’s contention he was misdiagnosed during service, the Veteran reported an episode of cataplexy for the first time in 2009, with a diagnosis of narcolepsy noted in December 2011. In October 2012, while at the Mayo Clinic, the treating physician confirmed the diagnosis of narcolepsy with cataplexy as per evidence-based guidelines to include the sleep latency of less than eight minutes as needed for the diagnosis. The records do not show that the Veteran experienced similar symptoms while in service that may have been overlooked, and the neurosurgeon found no evidence of a misdiagnosis prior to the December 2011 studies. There was no evidence of symptoms in service such as cataplexy, no studies supporting this diagnosis, and although the Veteran complained of fatigue, given the broad differential diagnosis of this complaint, and in the absence of any other supporting symptoms, it was less likely than not that the narcolepsy with cataplexy was due to unrecognized or missed symptoms while in service. He added that the research that the Veteran submitted did not substantiate a diagnosis of narcolepsy with cataplexy in service. The VA neurosurgeon noted in November 2020 that he reviewed the full record, including the Veteran’s lay statements, and found it was less likely than not that the Veteran’s diagnosed narcolepsy with cataplexy was due to any head injury that was not evaluated while in service. As the neurosurgeon stated in his July 2020 medical opinion, the Veteran did not have signs and symptoms of narcolepsy and cataplexy until 2009. To advance the claim that the Veteran experienced a head injury and, as a result, developed narcolepsy with cataplexy, lacked a medical foundation because the Veteran showed no evidence of damage to the diencephalon, brainstem or hypothalamus such that he would have developed “secondary narcolepsy.” The neurosurgeon noted that most narcolepsy is idiopathic (disease with an unknown cause) with multiple pathophysiological mechanisms at play. Secondary narcolepsy can be seen in the context of neurosarcoidosis, certain intracranial tumors such as craniopharyngiomas, cerebellar hemangioblastomas, as well as multiple sclerosis. The neurosurgeon reasoned that advancing the notion that the Veteran’s not evaluated traumatic brain injury is causally related to the development of narcolepsy with cataplexy is not noted by the multiple examinations completed to confirm the diagnosis of narcolepsy with cataplexy. Furthermore, there is no additional evidence in the claims file showing that the Veteran has additional pathologies that could lead to secondary narcolepsy. For the following reasons, entitlement to service connection for narcolepsy with cataplexy is not warranted. The July 2020 VA examination noted the Veteran was diagnosed with narcolepsy with cataplexy in December 2011 based on a sleep latency study. Thus, he meets the current disability requirement. There is also evidence of in-service head and eye injuries, as well as symptoms of fatigue, lightheadedness, faintness, and dizziness, that could satisfy the in-service injury or disease element. The preponderance of the below evidence reflects, however, a lack of relationship between the current disability and the in-service injury or disease. The Veteran’s service treatment records do not contain any reference to symptoms of, treatment for, or diagnoses relating to narcolepsy with cataplexy. The June 1992 separation examination was normal with regard to the neurologic system, with a personality disorder not otherwise specified noted, and the Veteran indicated on the contemporaneous report of medical history that he did not have frequent trouble sleeping, periods of unconsciousness, or related symptoms. While the Veteran contends the fatigue and related symptoms he experienced in service were manifestations of his narcolepsy with cataplexy, the VA neurosurgeon found in his July 2020 opinion that fatigue and daytime hypersomnolence have a broad differential diagnosis and, based on the Veteran’s records, there were no medical conditions that accounted for these symptoms, including symptoms of sleep paralysis. The neurosurgeon also indicated that the Veteran’s treatment records did not show that he had similar symptoms while in service that may have been overlooked or evidence of a misdiagnosis. As noted below, the neurosurgeon explained the reasons for his conclusions based on an accurate characterization of the evidence of record and is therefore entitled to significant probative weight in this regard. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). Post-service records also reveal no treatment or diagnosis for narcolepsy with cataplexy until approximately 19 years after separation from active duty.  In this regard, evidence of a prolonged period without medical complaint, and the amount of time that elapsed since military service, is one factor, along with those above including the normal separation examination and report of medical history with regard to relevant symptoms, that can be considered as evidence against the claim.  Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).  The VA neurosurgeon found in the July and November 2020 that it was less likely than not that the Veteran’s narcolepsy with cataplexy was related to service, to include any head injury that was not evaluated in service. Specifically, the Veteran showed no evidence of damage to the diencephalon, brainstem or hypothalamus such that he would have developed “secondary narcolepsy.” The neurosurgeon noted that most narcolepsy is idiopathic (disease with an unknown cause) with multiple pathophysiological mechanisms at play. The neurosurgeon reasoned that advancing the notion that the Veteran’s not evaluated traumatic brain injury is causally related to the development of narcolepsy with cataplexy is not noted by the multiple examinations completed to confirm the diagnosis of narcolepsy with cataplexy. Additionally, there is no additional evidence in the claims file showing that the Veteran has additional pathologies that could lead to secondary narcolepsy. The neurosurgeon additionally added that the research that the Veteran submitted in July 2014 did not substantiate a diagnosis of narcolepsy with cataplexy in service. As the VA neurosurgeon explained the reasons for these conclusions based on an accurate characterization of the evidence, the November 2020 opinion is adequate and therefore in substantial compliance with the October 2020 Board remand directives, and both the July and November 2020 opinions are entitled to substantial probative weight. Nieves-Rodriguez, 22 Vet. App. at 304. Furthermore, in regard to the Veteran’s contentions, the VA neurosurgeon specifically addressed whether the Veteran’s narcolepsy with cataplexy was related to in-service head trauma, but did not address any relation to in-service psychiatric symptomatology. However, lack of strict compliance with remand instructions with regard to a VA examination does not necessarily render the examination noncompliant. See Dyment v. West, 13 Vet. App. 141, 146–47 (1999). In Dyment, the Court held that an examiner’s failure to comply with Board’s instruction to presume asbestos exposure did not render examination invalid where examiner reviewed the Veteran’s medical history and made the ultimate determination requested by the Board. Id. Moreover, substantial compliance with the terms of a remand is shown when VA’s actions “resolve the issue that required the remand order.” D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); Missouri Veterans Comm’n v. Peake, 22 Vet. App. 123, 127 (2008) (“substantial compliance means actual compliance with...essential objectives”). Given that, for the reasons stated above, the neurosurgeon’s November 2020 opinion was adequate and probative, the Board finds that there was compliance with the essential objectives of the remand instructions and therefore substantial compliance. Moreover, the neurosurgeon indicated in the July 2020 that the records do not show that the Veteran experienced similar symptoms while in service that may have been overlooked and found no evidence of a misdiagnosis prior to the December 2011 studies. He thus specifically addressed the underlying questions as to which the Board inquired in its remand instructions. Another remand is therefore not warranted in these circumstances. Moreover, the Board has also considered the medical literature submitted by the Veteran. Medical article and treatise evidence may suffice to establish nexus in instances where “standing alone, [it] discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least plausible causality based upon objective facts rather than on an unsubstantiated lay medical opinion.” Sacks v. West, 11 Vet. App. 314, 317 (1998). However, treatise materials are generally not specific enough to show nexus. Id. Moreover, medical opinions directed at specific patients generally are more probative than medical treatises. Herlehy v. Brown, 4 Vet. App. 122, 123 (1993) (noting that medical opinions directed at specific patients generally are more probative than medical treatises). In this case, regardless of the specificity of the medical literature submitted by the Veteran, its probative value is outweighed by the specific, reasoned July and November 2020 VA neurosurgeon’s opinions, which acknowledged the Veteran’s submitted medical literature and considered it and the specific facts of the Veteran’s case. During his October 2018 Board hearing, the Veteran recalled that his doctor indicated that his condition could be related to head trauma or stress. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (lay evidence is competent when the layperson is reporting a contemporaneous medical diagnosis). Here, however, the Veteran’s report of an opinion without rationale is of less probative weight than the reasoned July and November 2020 opinions as discussed above. Nieves-Rodriguez, 22 Vet. App. at 304. In addition, to the extent that the Veteran’s lay statements suggest a relationship between narcolepsy with cataplexy and service, this is the type of complex medical issue relating to an internal medical process which extends beyond an immediately observable cause-and-effect relationship as to which lay evidence is not competent. Jandreau, 492 F.3d at 1376, n.4 (“sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer”). The specific, reasoned opinion of the trained VA neurosurgeon who provided the July and November 2020 opinions is of greater probative weight than the Veteran’s more general lay assertions that his narcolepsy with cataplexy is related to his non-evaluated head injuries or stress in service. For the foregoing reasons, the preponderance of the evidence is against finding that the Veteran’s narcolepsy with cataplexy had its onset in service or is otherwise related to service. The benefit of the doubt doctrine is therefore not for application, and the claim must be denied.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.   REASONS FOR REMAND Entitlement to a TDIU on an extraschedular basis under 38 C.F.R. § 4.16(b)  The Veteran claims entitlement to a TDIU due to his service-connected sleep apnea, as well as his narcolepsy with cataplexy, which is not service-connected. VA will grant a TDIU when the evidence shows that a Veteran is precluded, by reason of his service-connected disabilities, from securing and following “substantially gainful employment” consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16.   If the schedular rating is less than total, a total disability evaluation can be assigned based on individual unemployability if the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that he has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. 38 C.F.R. § 4.16(a).   The central inquiry is, “whether the Veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.”  Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993).  The Board must evaluate whether there are circumstances in the Veteran’s case, apart from any non-service-connected condition and advancing age, which would justify a total rating based on individual unemployability due solely to the service-connected conditions.  Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993).       The Veteran is currently in receipt of service connection for sleep apnea, evaluated 50 percent disabling from January 3, 2012; right medial malleolus ankle fracture, noncompensable from July 3, 1992, and 10 percent disabling from July 12, 2018; tinnitus, 10 percent disabling from July 12, 2018; and noncompensable sinusitis. The Veteran’s combined disability rating is 50 percent from January 3, 2012, and 60 percent from July 12, 2018, and none of the exceptions in 38 C.F.R. § 4.16 (a)(1)-(5) (disabilities of extremities, common etiology, single body system, incurred in action, or prisoner of war) are for application. Thus, the Veteran does not meet the schedular criteria in 38 C.F.R. § 4.16(a). Even where a Veteran does not meet the schedular criteria of 38 C.F.R. § 4.16(a), VA must consider whether TDIU is warranted on an extraschedular basis under 38 C.F.R. § 4.16(b). However, the Board cannot consider entitlement to TDIU under 38 C.F.R. § 4.16(b) in the first instance, but must first remand the claim for referral to VA’s Director of Compensation Service if such consideration is warranted.”  Bowling v. Principi, 15 Vet. App. 1, 10 (2001). Although the holding of Bowling has been questioned, see Wages v. McDonald, 27 Vet. App. 233, 239-240 (2015) (Kasold, C.J., concurring) (“The Bowling holding was rendered with little analysis of 38 C.F.R. § 4.16(b) or its interplay with the statutory scheme for adjudicating claims, which requires decisions of an agency of original jurisdiction to be appealed to the Board and final decisions to be rendered by the Board, see 38 U.S.C. §§ 7104 and 7105.  Frankly, Bowling appears to be wrongly decided”), the Court recently declined to address whether it should be overruled.  See Stafford v. Wilkie, No. 18-4520 (Vet. App. Apr. 15, 2020) (nonprecedential panel Order) (dismissing the appeal as moot) and id., slip op. at 2 (Greenberg, J., dissenting) (“What evil lurks behind the Court deciding whether Bowling v. Principi, 15 Vet. App. 1 (2001) remains good law?”).     However, as Bowling remains good law, the Board cannot decide entitlement to a TDIU on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b) in the first instance.  In determining whether remand for referral is warranted, the initial extraschedular referral under § 4.16(b) should address whether there is “sufficient evidence to substantiate a reasonable possibility that a Veteran is unemployable by reason of his or her service-connected disabilities.” Ray v. Wilkie, 31 Vet. App. 58, 66 (2019).    The Veteran meets this standard as a result of the severity of the symptoms of his service-connected disabilities and his limited education and occupational history.  Consequently, a remand for referral to the Director of Compensation for consideration of a TDIU on an extraschedular basis is warranted. Accordingly, the matter is REMANDED for the following action: Refer to the Director of Compensation the issue of entitlement to a TDIU on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b). Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals James L. March Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Styer, Associate 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.