Citation Nr: 21030279 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 18-11 698 DATE: May 18, 2021 REMANDED Entitlement to service connection for narcolepsy is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from September 1969 to June 1970. A memorandum from the Baltimore Regional Office (RO) in March 1982 noted that the Veteran's file was lost while on temporary transfer to the Western Field Office of Audit. The Veteran first applied for Compensation and Pension for his narcolepsy in August 1994. In a January 1995 rating decision by the Department of Veterans Affairs (VA) RO, the Veteran's claim for entitlement to service connection for narcolepsy was denied. The Veteran was provided notice of this decision and his appellate rights but did not appeal the decision or submit new and material evidence within one year of the decision. In November 2014, the Veteran filed a new Application for Disability Compensation for his narcolepsy. This was denied in a December 2015 rating decision because new and material evidence had not been submitted. The Veteran filed a Notice of Disagreement (NOD) in December 2016. The issue was again denied in a January 2018 Statement of the Case (SOC). The Veteran timely filed a VA Form 9 appealing this decision. At any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when the VA first decided the claim, VA will reconsider the claim, rather than requiring the submission of new and material evidence. 38 C.F.R. § 3.156(c). In the context of § 3.156(c)(1), "[i]n order to be 'relevant,' a record must speak to a matter in issue, in other words, a matter in dispute." Kisor v. Wilkie, 969 F.3d 1333, 1336 (Fed. Cir. 2020). In December 2020, the Veteran submitted what copies of his service treatment records (STRs) that he has. These included records from Walter Reed hospital from March 1970 relating to the Veteran's narcolepsy that were not previously of record. Therefore, the Board finds that the provisions of 38 C.F.R. § 3.156(c)(1)(i) apply to the facts of this case and new and material evidence is unnecessary. The Board will therefore proceed to the merits of the Veteran's service connection claim. The Veteran testified before the undersigned Veterans Law Judge (VLJ) in a November 2020 hearing. A transcript of the hearing is of record. 1. Service connection for narcolepsy is remanded. Every veteran is presumed to have been in sound condition at entry into service except as to defects, infirmities, or disabilities noted at the time of such entry, or where clear and unmistakable evidence demonstrates that the injury or disease existed before entry and was not aggravated by such service. 38 U.S.C. § 1111. Only such conditions as are recorded in examination reports are to be considered as "noted." 38 C.F.R. § 3.304. A history of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions but will be considered together with all other material evidence in determinations as to inception. 38 C.F.R. § 3.304(b)(1). The Veteran's STRs were lost, so his entrance examination is not available. Absent evidence to the contrary, it is presumed that an entrance examination is provided prior to all periods of active duty service. See Quirin v. Shinseki, 22 Vet. App. 390, n.5 (2009) (citing Lee v. Brown, 10 Vet. App. 336, 339 (1997) (holding that the presumption of soundness applies even when the record of a veteran's entrance examination has been lost or destroyed while in VA custody)). The presumption of soundness therefore attaches. At the November 2020 hearing, the Veteran testified that he was diagnosed with narcolepsy before entering service, but that he did not report this diagnosis during his entrance examination because he was not asked about any sleeping issues. The question before the Board, then, is whether clear and unmistakable evidence demonstrates that the Veteran's narcolepsy existed before entry into service and was clearly and unmistakably not aggravated by such service. VA must provide an examination with regard to a claim for disability compensation when there is competent evidence of a disability that may be associated with an in-service disease, injury, or event, but there is insufficient information to make a decision on the claim. See McClendon v. Nicholson, 20 Vet. App. 79 (2006). At the November 2020 hearing, the Veteran testified that his narcolepsy was exacerbated during his basic training and that they have continued and worsened since then. The threshold for determining whether the evidence "indicates" that there "may" be a nexus between a current disability and an in-service event, injury, or disease is a low one. Id. at 83. This evidence meets that threshold, and an examination is necessary. The matters are REMANDED for the following action: 1. Obtain any outstanding service treatment records from the Veteran's period of active service, including any records from Walter Reed General Hospital. Inpatient hospitalization records may be stored separately from STRs. Make as many requests as are necessary to obtain relevant records and only end efforts to do so if the records sought do not exist or further efforts to obtain those records would be futile. All negative responses must be documented. If no records are available, the claims folder must indicate this fact and the Veteran should be notified. 2. Schedule the Veteran for a physical or telehealth examination for an appropriate clinician for his narcolepsy. The entire claims file and a copy of this remand must be made available to the clinician for review. The clinician must provide opinions as to the following: a. Whether the Veteran's narcolepsy clearly and unmistakably existed prior to his active duty service. b. If the answer to (a) is yes, determine whether the Veteran's narcolepsy was clearly and unmistakably not aggravated (i.e., not permanently worsened beyond the natural progression) during as a result of service. c. If the answer to (a) or (b) is no, whether it is at least as likely as not (50 percent or greater probability) that the Veteran's narcolepsy began during active service or are related to an incident of service. Although an independent review of the claims file is required, the Board calls the clinician's attention to the following: a. The Veteran's testimony at the November 2020 hearing where he stated that he was deemed unfit to be deployed to Vietnam during service because of his sleep issues, and how his narcolepsy has continued and worsened since service, and b. The Veteran's medical records from Walter Reed hospital in March 1970, while the Veteran was in service, documenting treatment for his narcolepsy. The rationale for any opinion should be provided. If an opinion cannot be made without resort to speculation, the clinician should explain why. 3. Then, readjudicate the claim. If any decision is adverse to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response. Then, return the case to the Board. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. DeVerter, 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.