BVA9504017 DOCKET NO. 93-12 471 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a bilateral ankle disorder. 2. Entitlement to a rating in excess of 10 percent for narcolepsy. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. B. Weiss, Associate Counsel REMAND The veteran had active duty from April 1989 to March 1991, as well as prior active duty for training. The veteran initially disagreed with a noncompensable rating for narcolepsy assigned in a July 1991 rating decision. A November 1991 rating decision granted a 10 percent rating. However, the veteran continued the appeal, so this issue remains for appellate review. The regional office (RO) has provided the veteran, in the October 1992 supplemental statement of the case, the criteria for rating narcolepsy by analogy to Huntington's chorea. However, the Department of Veterans Affairs (VA) Schedule for Rating Disabilities states that narcolepsy should be evaluated by analogy to petit mal epilepsy. 38 C.F.R. § 4.124a, Diagnostic Code 8108 (1994). Further, as stated in 38 C.F.R. § 4.121 (1994), competent, consistent, lay statements or testimony emphasizing, for example, the frequency, manner, or extent of seizures may be accepted as part of the development of a claim regarding epilepsy. The veteran has asserted that he has been observed slipping uncontrollably into daytime sleep in his current life as a student, and that he has been involved in 2 automobile accidents due to narcolepsy. The Board finds that the provisions of § 4.121 are apposite to this case. To ensure that the VA has met its duty to assist the claimant in developing the facts pertinent to the claims and to ensure full compliance with due process requirements, the case is REMANDED to the RO for the following development: 1. The RO should obtain the names and addresses of all medical care providers who treated the veteran for narcolepsy or an ankle disorder since January 1992. After securing the necessary release, the RO should attempt to obtain these records. 2. The veteran should be advised that narcolepsy is rated by analogy to petit mal epilepsy and that, as such, competent, consistent, lay statements or testimony emphasizing the frequency, manner, and extent of narcoleptic sleep may be accepted as part of the development of his claim. He should be apprised of the type of evidence which would be deemed competent if submitted, and of the desirability of submitting such evidence, as well as any evidence, such as hospital, police, or accident reports, tending to demonstrate that his accidents were due to narcolepsy. 3. The veteran should be afforded a VA neurological examination to assess the current severity of any hypersomnolence or narcolepsy. The claims folder should be made available to the examiner for review before the examination. Any indicated diagnostic tests should be performed. 4. After the development requested above has been completed to the extent possible, the RO should again review the record. If any benefit sought on appeal, for which a notice of disagreement has been filed, remains denied, the appellant and representative should be furnished a supplemental statement of the case, which contains the criteria for rating narcolepsy by analogy to petit mal epilepsy, the provisions of 38 C.F.R. § 4.121, and given the opportunity to respond thereto. In the alternative, if the RO finds that the veteran's narcolepsy is better rated by analogy to another diagnosis, it should state its reasons for so finding, and rate narcolepsy by analogy to the more analogous diagnosis. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action until otherwise notified. ____________________________ WILLIAM J. REDDY Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1993).