BVA Case 19-8927: Back

Simpson ,through counsel, appeals an August 20,2019,Board of Veterans'Appeals (Board)decision in which the Board found no clear and unmistakable error (CUE)in an October 16,1995,VA regional office (RO)rating decision denying an increased disability rating � that is,in excess of 40% � for service-connected narcolepsy with hypersomnolence and disturbed nocturnal sleep (now service connected as narcolepsy with cataplexy).

After reviewing the evidence of record,the Board determined that the appellant's obstructive sleep apnea and narcolepsy should be separately evaluated.

In addition,the Board noted that because cataplexy is also rated under the same diagnostic code provision the appellant's disabilities are most appropriately separately rated as obstructive sleep apnea under Diagnostic Code 6847 and as narcolepsy with cataplexy under Diagnostic Code 8108.

In this decision,the Board determined that the criteria for a rating in excess of 50%for obstructive sleep apnea had not been met.

In the August 20,2019, decision we consider here on appeal,the Board determined that the October 16,1995,rating decision that denied any increased disability rating,i.

PARTIES'ARGUMENTS The appellant contends that the Board failed to provide an adequate statement of reasons and bases when failing to adjudicate [his]CUE claim that his narcolepsy with cataplexy should have been rated separately from his sleep apnea.

According to the appellant,even though he explicitly raised this theory of CUE,the Board failed to consider the argument.

In response,the Secretary concedes that the Board erred when it failed to consider the theory that the 1995 RO decision was the product of CUE because [a]ppellant's narcolepsy and cataplexy should have been rated separately from his sleep apnea.