Citation Nr: 1421997 Decision Date: 05/15/14 Archive Date: 05/29/14 DOCKET NO. 14-04 956 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of service connection for sleep apnea; and, if so, whether service connection for sleep apnea is warranted. 2. Entitlement to an increase disability rating for migraine headaches, currently evaluated as 50 percent disabling, to include the issue of entitlement to a rating in excess of 10 percent prior to July 21, 2011. REPRESENTATION Veteran represented by: Missouri Veterans Commission ATTORNEY FOR THE BOARD P. Childers, Counsel INTRODUCTION The Veteran served on active duty from March 1993 to December 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in June and August 2012 by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The June 2012 rating decision increased the rating for the Veteran's service-connected migraine headaches disability from 10 percent to 50 percent effective July 21, 2011; the August 2012 rating decision denied service connection for sleep apnea. FINDINGS OF FACT 1. In June 2004, the RO denied the issue of service connection for obstructive sleep apnea; after the Veteran was notified of the adverse decision and of his right to appeal, he did not appeal, and no new evidence pertinent to the basis of the denial of that claim was received by VA within one year from the date that the RO mailed notice of the determination to the Veteran. 2. Evidence compiled since the June 2004 rating decision denying service connection for obstructive sleep apnea relates to an unestablished fact necessary to substantiate the claim; is not cumulative or redundant of the evidence previously considered, and raises a reasonable possibility of substantiating the claim. 3. The weight of the evidence indicates that the Veteran's sleep apnea had its onset in service. 4. The preponderance of the lay and medical evidence supports a rating of 50 percent throughout the appeal period. 5. There is no evidence of any hospitalizations due to the Veteran's headaches during the appeal period. CONCLUSIONS OF LAW 1. The June 2004 rating decision denying service connection for obstructive sleep apnea is final. 38 U.S.C.A. § 7105(a) (West 2002); 38 C.F.R. §3.104 (2013). 2. Evidence relevant to the claim for service connection for obstructive sleep apnea received since the last final decision is new and material; thus, the claim is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2013). 3. The criteria for a grant of service connection for obstructive sleep apnea are met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2013). 4. The criteria for a schedular rating of 50 percent, but no higher, for migraine headaches are met throughout the appeal period. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 4.3, 4.124a, Diagnostic Code 8100 (2013). 5. The criteria for referral for extraschedular consideration regarding migraines are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.321, 4.3, 4.124a, Diagnostic Code 8100 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA has a duty to notify the Veteran of the information and evidence necessary to substantiate the claims submitted, the division of responsibilities in obtaining evidence, and assistance in developing evidence, pursuant to the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The notice requirements were accomplished in letters sent in April 2010; October 2011; and in April and July, 2012. Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006). All relevant facts have been properly developed for the issues resolved in this decision, and all evidence necessary for equitable resolution of the appeals has been obtained. The Veteran's service treatment records, together with VA, and private medical records have been obtained. In addition, he has been provided with multiple VA examinations and was afforded an opportunity to give testimony before the Board. He has not indicated there are any additional records that VA should seek to obtain on his behalf. Therefore, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the Veteran's claims, and no further assistance to develop evidence is required. II. New and material evidence In a rating decision dated in June 2004 the RO denied the issue of service connection for sleep apnea on the grounds that there was no diagnosis. After appropriate notice of this decision and of his appeal rights, the Veteran did not appeal, and no evidence pertaining to the issue was either physically or constructively received by VA within one year of the June 2004 rating decision. The June 2004 decision is therefore final. 38 U.S.C.A. § 7105(c); 38 C.F.R. § 3.104. In June 2011 the Veteran filed a claim to reopen. If new and material evidence is presented or secured with respect to a claim that has been disallowed, VA must reopen the claim and review its former disposition. 38 U.S.C.A. § 5108. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In determining whether evidence is "new and material," the credibility of the new evidence must be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The provisions of 38 U.S.C.A. § 5108 require a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. See Evans v. Brown, 9 Vet. App. 273 (1996). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110 (2010). Regardless of what the RO did, the Board has the jurisdictional responsibility to consider whether it is proper to reopen the claim. The Board will therefore determine whether new and material evidence has been received and, if so, consider entitlement to service connection on the merits. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). Evidence of record at the time of the June 2004 rating decision included service treatment records, which include the report of an overnight sleep study done in March 2003, during which the Veteran was observed snoring and having obstructive apneas, mixed apneas, central apneas, and hyponeas during REM and NREM. Clinical tests were interpreted and recommendations were made, but a diagnosis was not included. Evidence added to the record since the June 2004 rating decision includes the report of a June 2012 sleep study, which returned a diagnosis of obstructive sleep apnea/hypopnea syndrome. This evidence is new since it was not of record at the time of the June 2004 rating decision, and material as it raises a reasonable possibility of substantiating the claim for service connection for obstructive sleep apnea. New and material evidence having been presented, the claim is reopened. II. Service connection Having reopened the claim for service connection for sleep apnea based on new and material evidence, the Board has jurisdiction to review the underlying service connection claim, de novo, based on the whole record. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 C.F.R. § 3.303. Disorders diagnosed after discharge may also be service connected if all the evidence, including pertinent service records, establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d). For the reasons that follow the Board finds that service connection is established. Although a diagnosis was omitted, the active duty sleep study clearly shows that the Veteran was experiencing "loud snoring and apneic episodes" during service. In fact, the Veteran experienced more central apneas and obstructive hypopneas during the 2003 in-service study than he did during a post service overnight polysomnogram study in October 2011, which returned a diagnosis of mild obstructive sleep apnea/popnea syndrome, REM predominant. See also June and July studies (confirming diagnosis). The Board finds this to be highly compelling evidence in support of the Veteran's claim. Although a VA examiner opined that it is less likely than not that the Veteran's obstructive sleep apnea is related to service or a service-connected disability (including respective medication), significantly she did not opine as to whether the in-service findings supported a diagnosis of sleep apnea; and in this regard the Board again notes that the Veteran's apneic episodes during the in-service study parallel those experienced during recent studies. The Board accordingly finds that the weight of the evidence is in favor of the claim for service connection. Washington v. Nicholson, 19 Vet. App. 362, 369 (2005) (The Board, as fact finder, must determine the probative value or weight of the evidence). III. Higher Rating In a rating decision dated in June 2004 the RO granted service connection for migraine headaches with an evaluation of 10 percent effective December 11, 2003. In March 2010 the Veteran filed a claim for an increased rating, which was denied in a rating decision dated July 26, 2010. In July 2011 the Veteran filed a formal claim for increased compensation based on employability (IU). In a rating decision dated in June 2012 the RO increased the rating for the Veteran's service-connected migraine headaches disability from 10 percent to 50 percent effective July 21, 2011; the date of the Veteran's claim for IU. The Veteran continues to press for a higher rating for his service-connected migraine headaches disability. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C.A. § 1155. Separate diagnostic codes identify the various disabilities. Id. It is necessary to rate the disability from the point of view of the Veteran working or seeking work, 38 C.F.R. § 4.2, and to resolve any reasonable doubt regarding the extent of the disability in the Veteran's favor. 38 C.F.R. § 4.3. If there is a question as to which disability rating to apply to the Veteran's disability, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's service-connected migraine headaches disability has been rated under the provisions of Diagnostic Code 8100 at all times during the appeal period. Under Diagnostic Code 8100, a 10 percent rating is warranted for migraine headaches with characteristic prostrating attacks averaging one in 2 months over last several months. 38 C.F.R. § 4.124a, Diagnostic Code 8100. A 30 percent rating for migraine headaches is warranted where there are characteristic prostrating attacks occurring on an average once a month over last several months. Id. A maximum rating of 50 percent is warranted for headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. Id. The phrase "productive of economic inadaptability" does not require that a veteran be completely unable to work to qualify for a 50 percent rating. See Pierce v. Principi, 18 Vet. App. 440, 445-46 (2004). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3. But, where the law, and not the evidence, is dispositive of a claim, such claim should be denied because of the absence of legal merit or the lack of entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Facts and Analysis: As just noted, the Veteran has already been granted the maximum schedular rating of 50 percent beginning July 21, 2011 (the date of his claim for IU), so a schedular rating higher than 50 percent from that date is not possible. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (providing that where the law, and not the evidence, is dispositive of a claim, such claim should be denied because of the absence of legal merit or the lack of entitlement under the law). However, VA regulations provide that the effective date in a claim for increase shall be the earliest date as of which it is factually ascertainable that an increase in disability had occurred if the claim is received within 1 year from such date; otherwise, the date of receipt of claim. See 38 C.F.R. § 3.400(o)(2). See also Hart, 21 Vet. App. 505, providing for staged ratings. In this case a constructive claim for an increased rating was received by the RO via the Veteran's July 21, 2011, claim for IU; and it is upon this claim that the RO effectuated its rating increase for migraines to 50 percent. However, the Board notes that the one year appeal period following the July 2010 rating decision had not expired; and that decision was based on a March 19, 2010, formal claim for an increased rating for migraine headaches. The Board will construe the claim at issue to arise from the Veteran's March 2010 application for benefits. As for evidence in support of a rating higher than 10 percent prior to July 21, 2011, a VA neurological consult done on March 25, 2010, noted that the Veteran was having 2 to 3 migraine headaches lasting 6 to 8 hours each, per week, with photophobia and throbbing behind both eyes. Diagnosis was "uncontrolled migraines." In correspondence dated in June and September, 2010, the Veteran continued to complain about his migraine headaches; and medical records compiled by physicians at Whiteman Air Force Base, the Headaches and Pain Center, and Doctors Hospital also noted that the Veteran was having migraine headaches, described in May 2010 as "chronic headaches which are throbbing with nausea and photosensitivity." There is no pertinent lay or medical evidence regarding migraine headaches in the one year period prior to the Veteran's March 2010 claim. Therefore, and based on the evidence of record, the Board finds that the preponderance of the evidence supports the maximum scheduler rating of 50 percent throughout the appeal period; that is, from March 19, 2010; the date of the Veteran's claim. The Board notes that in his November 2012 notice of disagreement the Veteran requested a rating higher than 50 percent; however, as just explained, the maximum schedular rating for migraine headaches is 50 percent. As for an extraschedular rating, the threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular rating for the service- connected disability is inadequate. Although the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance, the Board is not precluded from considering whether the case should be referred to the Director of VA's Compensation and Pension Service. There must be a comparison between the level of severity and symptomatology of the service- connected disability with the established criteria. If the criteria reasonably describe the Veteran's disability level and symptomatology, then the disability picture is contemplated by the Rating Schedule, and the assigned schedular evaluation is, therefore, adequate, and no referral is required. Thun v. Peake, 22 Vet. App. 111 (2008). Here, the rating criteria reasonably describe the Veteran's disability level and symptomatology. The Veteran's headache disability is productive of prostrating attacks of pain, photophobia, sonophobia, and these symptoms are contemplated by the assigned rating criteria. There is also no evidence of any hospitalizations due to the Veteran's service-connected headaches. Consequently, referral for extraschedular consideration under 38 C.F.R. § 3.321(b)(1) is not required Finally, the Veteran does not allege, and the evidence does not show, that his service-connected headache disability alone is of sufficient severity to produce unemployability. See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993); Pratt v. Derwinski, 3 Vet. App. 269, 272 (1992). Indeed, according to the Veteran himself, he is not working because of his service-connected back disability. See, e.g., Veteran's Individual Unemployability claim submissions. The Board therefore finds that consideration of a separate claim of TDIU based on the Veteran's service-connected headaches is not warranted. ORDER New and material evidence having been submitted, the Veteran's claim for service connection for obstructive sleep apnea is reopened. Service connection for sleep apnea is granted. Subject to the laws and regulations governing the award of monetary benefits, the maximum schedular rating for migraine headaches of 50 percent from the March 2010 claim is granted. An extraschedular rating for migraine headaches is denied. ______________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs