Citation Nr: 21066614 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 17-41 751 DATE: November 1, 2021 ORDER As new and material evidence has been received, the claim of entitlement to service connection for narcolepsy is reopened and the underlying claim also granted. However, entitlement to service connection for the cause of the Veteran's death is denied. FINDINGS OF FACT 1. Additional evidence has been submitted that is not cumulative or redundant of the evidence of record at the time of the July 1958 denial of service connection for narcolepsy that raises a reasonable possibility of substantiating this claim. 2. It is just as likely as not the Veteran had narcolepsy from the time of his service until his death. 3. He died in September 2016 from congestive heart failure (CHF). 4. His service-connected disabilities bilateral hearing loss and narcolepsy did not cause or contribute substantially or materially to his death. CONCLUSIONS OF LAW 1. There is new and material evidence to reopen the claim for service connection for narcolepsy and sufficient evidence to meet the criteria for granting this claim. 38 U.S.C. §§ 1110, 1131, 5107, 5180, 7104; 38 C.F.R. §§ 3.102, 3.156, 3.303. 2. However, the criteria are not met for entitlement to service connection for the cause of the Veteran's death. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137, 1310; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1954 to August 1955. Unfortunately, he died in September 2016. The appellant is his surviving spouse, so widow. She appealed to the Board of Veterans' Appeals (Board/BVA) from January and May 2017 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO) denying service connection for the Veteran's cause of death and a petition to reopen a previously denied claim for service connection for narcolepsy. The Appellant-widow testified in support of these claims during a "virtual" teleconference hearing in July 2021 before the undersigned Veterans Law Judge of the Board. Her daughter and son also testified. She was granted an additional 90 days after the hearing to submit additional evidence in support of her claims; that grace period ended in October 2021, but no new documentary evidence of any kind was submitted by then, so the Board is proceeding with its adjudication of these claims. 1. Entitlement to service connection for narcolepsy The Appellant-widow contends that the Board erred in denying service connection for narcolepsy and cataplexy in its prior July 1958 decision because aggravation of this pre-existing condition was not properly considered. Generally, Board decisions are final on the date stamped on the face of the decision unless the Chairman of the Board orders reconsideration of the decision or some other exception applies. 38 U.S.C. §§ 7103(a), 7104(b); 38 C.F.R. § 20.1100. To reopen a finally adjudicated claim, there must either be a) new and material evidence since the prior final and binding decision or b) some exception to finality, such as a showing of clear and unmistakable error (CUE) in the earlier decision to vitiate its finality and, in turn, eradicate any need for new and material evidence to warrant readjudicating this claim on its underlying merits. An allegation of CUE must be pled with particularity (specificity), and the Board may only address CUE if this threshold requirement is met. See Phillips v. Brown, 10 Vet. App. 25 (1997) (distinguishing denial of CUE due to pleading deficiency and denial on merits). "Broad-brush" allegations, including general assertions of a failure to follow the regulations, accord the benefit of the doubt, or give reasons and bases, do not qualify as CUE. Fugo v. Brown, 6 Vet. App. 40, 44 (1993). Here, the Appellant-widow has alleged an error but has not also pled CUE with the required specificity. See Simmons v. Principi, 17 Vet. App. 104 (2003). As such, the Board will consider her pleading instead as a petition to reopen the claim based on new and material evidence since the July 1958 decision. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means evidence that relates to an unestablished fact necessary to substantiate the claim. New and material evidence cannot be cumulative or redundant of evidence of record at the time of the prior final denial of the claim and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). For purposes of reopening a claim, the credibility of newly submitted evidence is presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, the "credibility" of newly presented evidence is to be presumed unless the evidence is inherently incredible or beyond the competence of the witness). The language of 38 C.F.R. § 3.156(a) creates a "low" threshold for finding new and material evidence, and the higher U. S. Court of Appeals for Veterans Claims (Veterans Court/CAVC) views the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." Evidence raising "a reasonable possibility of substantiating the claim" would trigger VA's duty to provide an examination in adjudicating a non-final claim. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Board's prior July 1958 decision in question denied the Veteran's claim of entitlement to service connection for narcolepsy and cataplexy based on evidence then of record including his service treatment records (STRs), VA examination reports, two conflicting VA medical opinions, and medical notes from a treating provider prior to service. After considering this evidence, the Board determined the conditions clearly and unmistakably had preexisted the Veteran's service and did not worsen (increase) during his service, i.e., were not aggravated. The Veteran requested to reopen this claim in August 2016, just prior to his death. In May 2017, the RO (Agency of Original Jurisdiction (AOJ)) denied his petition due to a lack of new or material medical evidence. But the record on appeal now includes new evidence including VA and private treatment records, lay statements, and hearing testimony from the Appellant-widow, her daughter, and sone attesting that the Veteran's narcolepsy worsened during his service after his appendectomy. Although the Board's July 1958 decision conversely concluded there was no aggravation during service of the pre-existing conditions, the Board did not comprehensively address this notion. And, given the "low" threshold espoused in Shade v. Shinseki, 24 Vet. App. 110 (2010), the Board finds that new and material evidence has been received concerning this claim and, thus, it is reopened. As alluded, the prior denial of this claim was premised on the narcolepsy preexisting (pre-dating) the Veteran's military service. But, if a Veteran has no noted disability on admission to active-duty service, the presumption of soundness attaches on entry. 38 U.S.C. §§ 1111, 1132; 38 C.F.R. § 3.304(b). This means that it is presumed he was in sound health when entering service. 38 U.S.C. § 1132; 38 C.F.R. § 3.304(b); Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). If the presumption of soundness has attached, the burden then falls on VA to rebut this presumption of soundness with clear and unmistakable evidence showing both that there was a pre-existing condition and that it was not aggravated during or by the Veteran's service meaning not worsened at all or not beyond its natural progression. 38 C.F.R. § 3.304(b); Wagner, 370 F.3d at 1096. Here, the Veteran's disability was not noted on entry into service. His entry physical examination from August 1954 does not note any sleep, neurological, or other disorders. His STRs indicate an initial narcolepsy diagnosis in January 1955. Although he reported periods of falling asleep in high school 6 years prior to enlistment, the evidence, including his provider's notes, does not indicate any complaints or diagnosis prior to his service. While he competently reported his symptoms, the Board observes that he was not competent to diagnose narcolepsy, which the Appellant-widow testified required clinical testing before the diagnosis could be accepted by providers at the Mayo Clinic, even after decades of established treatment for the condition. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). In sum, although even at the time of the Board's July 1958 decision there was suggestion of the narcolepsy pre-dating the Veteran's service, it cannot also be said that his narcolepsy "clearly and unmistakably" did not worsen during his service, including beyond its natural progression, indeed, even accepting that in its July 1958 decision the Board concluded that the manifestations recorded during service were characteristic and repetitious of those present prior, thereto. This was not clearly and unmistakably shown, especially when realizing the Board's decision concedes there was a January 1955 reference to periods of falling asleep that had begun in 1949 (so prior to the Veteran's service), but, notably, "with increased frequency during [his] service", in fact, to the point that he fell asleep every time he relaxed and was having two or three spells daily. He resultantly was assigned to limited duty where sudden falling asleep would not endanger him or others. Thus, service connection for the narcolepsy is warranted because, even if he had it prior to his service, his service aggravated it, and this, too, is a viable basis for favorable disposition of this claim. See Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). 2. Entitlement to service connection for the cause of the Veteran's death The Veteran's death certificate indicates his primary cause of death was pneumonia with underlying dysphagia (difficulty swallowing). Other contributing conditions were CHF and renal insufficiency. The Veteran's service-connected disabilities were bilateral (left and right ear) sensorineural hearing loss and now, because of this decision, also narcolepsy. The Appellant-widow does not allege, and the record does not otherwise reflect, that the terminal pneumonia, dysphagia, or renal insufficiency were related to the Veteran's service or service-connected disabilities. She specifically contends, instead, that the CHF that contributed to his death was caused by the medication (Dexedrine) first prescribed by the Army to treat his what ultimately has been determined to be his service-connected narcolepsy. As already mentioned, the Board held the record open for an additional 90 days following the Appellant-widow's recent July 2021 hearing to allow her time to obtain and submit medical evidence from the Mayo Clinic tending to support this posited correlation between the medication the Veteran took for his narcolepsy and the CHF that contributed to his death. But, as also already mentioned, no such supporting medical evidence since has been submitted. To establish service connection for the cause of a Veteran's death, the evidence must show that a disability incurred in or aggravated by service was the principal or contributory cause of death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312(a). A principal cause of death refers to the immediate or underlying cause of death, or etiologically related to the cause of death. 38 C.F.R. § 3.312(b). A contributory cause of death exists when the debilitating effects of a service-connected disability made the Veteran materially less capable of resisting the effects of the fatal disease, or when a service-connected disability had a material influence in accelerating death, thereby contributing substantially or materially to the cause of death. Lathan v. Brown, 7 Vet. App. 359 (1995); 38 C.F.R. § 3.312(c)(1). It is not sufficient to show that a service-connected disability casually shared in producing death; rather, it must be shown there was a causal connection. 38 C.F.R. § 3.312(c)(1). However, if the service-connected disability affected a vital organ, consideration must be given to whether the debilitating effects of the service-connected disability rendered the Veteran less capable of resisting the effects of other diseases. 38 C.F.R. § 3.312(c)(3) Here, unfortunately, the record simply does not contain any credible finding of any competent medical authority establishing that any of the Veteran's heart conditions, including his CHF, were related or attributable to his narcolepsy medications. It also is not shown that his CHF originated during his service from August 1954 to August 1955, or within a year of his discharge from service so by August 1956, or that it was otherwise related or attributable to his service or service-connected disability including, again, any medication prescribed or taken for treatment of his narcolepsy. See 38 U.S.C. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.303, 3.307, 3.309(a), 3.310. The STRs confirm that Dexedrine was prescribed during the Veteran's service for treatment of his narcolepsy. Indeed, even the Board's July 1958 decision conceded that. He also was later taking it in November 1969 during evaluation after a motor vehicle accident (MVA). The next treatment notes on record, beginning in February 2009, indicate he was already taking Provigil, the brand name for Modafinil. A later VA treatment note indicates that Desoxyn (a brand name for Dexedrine) had been terminated to Modafinil permanently in December 2013, after sustained improvement in his alertness while on Modafinil, aka Provigil. As his private provider notes list Provigil as prescribed between February 2009 and May 2012, this likely occurred earlier. In any event, none of the treatment notes from February 2009 to the time of the Veteran's death in September 2016, including the intervening May 2012 notes establishing his CHF diagnosis and a February 2013 VA heart disease examination, identify his medications as relevant to inception of his heart conditions, either in the way of causation or aggravation. See Allen v. Brown, 7 Vet. App. 439 (1998). The February 2013 examiner opined, based on the record available at that time, that the Veteran's valvular heart disease and valvular replacement instead were due to congenital defects. There is no indication the Veteran mentioned his medications for his narcolepsy on examination, or that his providers considered his narcolepsy medications in any other light than their effectiveness in controlling his symptoms owing to that condition. During her recent July 2021 hearing before this Board, the Appellant-widow testified that providers treating the Veteran at the Mayo Clinic had alerted both of them that his heart conditions were caused by his medications. But, as previously alluded, the Board resultantly allowed her an additional 90 days after the July 2021 hearing to submit evidence of this treatment and to substantiate this posited correlation between the CHF and the narcolepsy medications, specifically. Moreover, VA already had sent requests in November 2016 and April 2017 for provider information, treatment records, and information that would allow VA to request confidential treatment records on her behalf. As discussed in Wood v. Derwinski, 1 Vet. App. 190, 193 (1991), "[t]he duty to assist is not always a one-way street." With the utmost respect for her efforts in this matter, VA is only able to assist her if she cooperates with those efforts. Further, since a layperson, she is not competent to establish a medical link between the Veteran's medications and his heart disease through unsupported testimony. Jandreau, 492 F.3d at 1377 n.4; Kahana, 24. Vet. App. 428. So, as the record stands, there remains no supporting medical evidence of any connection between the Veteran's heart conditions including his CHF, and his narcolepsy medication. The Board is certainly very grateful for the Veteran's honorable service. However, given the record before it, the Board finds that evidence in this case does not reach the level of equipoise meaning a level whether the evidence supporting the claim is as probative as the evidence against it. See 38 U.S.C. § 5107(a) ("[A] claimant has the responsibility to present and support a claim for benefits . . . ."); Fagan v. Shinseki, 573 F.3d 1282, 1286 (Fed. Cir. 2009) (stating that the claimant has the burden to "present and support a claim for benefits" and noting that the benefit of the doubt standard in section 5107(b) is not applicable based on pure speculation or remote possibility); Skoczen v. Shinseki, 564 F.3d 1319, 1323-29 (Fed. Cir. 2009) (interpreting section 5107(a) to obligate a claimant to provide an evidentiary basis for his or her benefits claim, consistent with VA's duty to assist, and recognizing that "[w]hether submitted by the claimant or VA . . . the evidence must rise to the requisite level set forth in section 5107(b)," requiring an approximate balance of positive and negative evidence regarding any issue material to the determination). Because a preponderance of the evidence is against the claim, the benefit of the doubt doctrine does not apply, and this claim must be denied. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102. KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board W. Stearns, 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.