Citation Nr: 1753024 Decision Date: 11/17/17 Archive Date: 11/22/17 DOCKET NO. 10-10 986 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to service connection for sleep apnea. 3. Entitlement to service connection for cervical spinal stenosis. 4. Entitlement to service connection for migraine headaches. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD L. Durham, Counsel INTRODUCTION The Veteran served on active duty from June 1964 to June 1984. This appeal is before the Board of Veterans' Appeals (Board) from a September 2008 rating decision of a VA RO. The Veteran had a hearing before the undersigned Veterans Law Judge on these claims in May 2013. These matters were then remanded for further development in November 2013, November 2014, and October 2016. All pertinent development has been conducted. In October 2016, the Board remanded the issues of entitlement to individual unemployability (TDIU) and entitlement to an evaluation in excess of 50 percent for service-connected posttraumatic stress disorder (PTSD) with depressive disorder and anxiety disorder in order to issue a statement of the case (SOC) on these matters. With regard to the PTSD issue, the Veteran had specifically indicated on his January 2016 notice of disagreement (NOD) that he was seeking a 70 percent evaluation. In a February 2017 rating decision, the RO increased the evaluation for his PTSD to 70 percent and noted that this was an award of all the benefits sought on appeal and the appeal was therefore considered satisfied in full. In light of the limitations of the Veteran's January 2016 NOD, and as the Veteran did not subsequently submit any indication of disagreement with the 70 percent evaluation assigned, the Board finds that this decision was a complete grant of benefits with respect to the PTSD issue. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). Therefore, this issue is not before the Board. With regard to the Veteran's TDIU issue, a pertinent SOC was issued in March 2017. In April 2017, the Veteran submitted a timely substantive appeal requesting a video conference hearing before a member of the Board. Therefore, as this issue is separately awaiting the scheduling of the Veteran's requested hearing, the Board will not address the TDIU issue at this time. The Board notes that additional VA medical records were associated with the claims file after the most recent supplemental statement of the case (SSOC) was issued in March 2017 without a waiver of review of this evidence by the Agency of Original (AOJ). However, as this evidence essentially duplicates evidence already of record or is not pertinent to the claims being addressed in this determination, the Board will proceed to adjudicate the claims as done below with no prejudice to the Veteran. FINDINGS OF FACT 1. The most probative evidence of record does not show tinnitus to be etiologically related to a disease, injury, or event in service. 2. The most probative evidence of record does not show sleep apnea to be etiologically related to a disease, injury, or event in service, or to a service-connected disability. 3. Arthritis of the cervical spine was not demonstrated to a compensable degree within one year of discharge from active duty, and the most probative evidence of record does not show cervical spine stenosis to be etiologically related to a disease, injury, or event in service. 4. The most probative evidence of record does not show migraine headaches to be etiologically related to a disease, injury, or event in service. CONCLUSIONS OF LAW 1. Tinnitus was not incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2017). 2. Sleep apnea was not incurred in or aggravated by active service, nor was it caused or aggravated by a service-connected disability. See 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310 (2017). 3. Cervical spine stenosis was not incurred in or aggravated by active service, nor may arthritis of the cervical spine be presumed to have been incurred therein. See 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2017). 4. Migraine headaches were not incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's VA files. In every decision, the Board must provide a statement of the reasons or bases for its determination, adequate to enable an appellant to understand the precise basis for the Board's decision, as well as to facilitate review by the United States Court of Appeals for Veterans Claims (Court). 38 U.S.C. § 7104(d)(1); see Allday v. Brown, 7 Vet.App. 517, 527 (1995). Although the entire record must be reviewed by the Board, the Court has repeatedly found that the Board is not required to discuss, in detail, every piece of evidence. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (rejecting the notion that the Veterans Claims Assistance Act mandates that the Board discuss all evidence). Rather, the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The points below focus on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake, infra. In October 2016, the Board remanded this case in part to request post-service medical treatment records from Altus Air Force Base for the period of July 1984 to June 1994. Such records have appropriately been requested, and the claims file contains a negative response. Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Thus, the Board need not discuss any potential issues in this regard. In May 2013, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). He has not alleged any deficiency with his hearing testimony with regard to the issues currently before the Board as to the duties discussed in Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). In this regard, the Federal Circuit ruled in Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016) that a Bryant hearing deficiency was subject to the doctrine of issue exhaustion as laid out in Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Thus, the Board need not discuss any potential Bryant problem because the Veteran has not raised that issue before the Board. In order to establish service connection for a claimed disability, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. See 38 C.F.R. § 3.303 (2016); see also Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Secondary service connection may be granted for a disability which is proximately due to, or the result of, a service-connected disorder. 38 C.F.R. § 3.310 (a). Secondary service connection may be found in certain instances in which a service-connected disability aggravates another condition. Further, where the Veteran asserts entitlement to service connection for a chronic disease but there is insufficient evidence of a diagnosis in service, service connection may be established under 38 C.F.R. § 3.303(b) by demonstrating a continuity of symptomatology since service or diagnosis within the presumptive period after service, but only if the chronic disease is listed under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. 2013); 38 C.F.R. § 3.307 (service connection authorized for chronic diseases diagnosed within the presumptive period). As arthritis is listed as a "chronic disease" under 38 C.F.R. § 3.309(a), the provisions of 38 C.F.R. § 3.303(b) pertaining to continuity of symptomatology and of 38 C.F.R. § 3.307 pertaining to presumptive service connection for chronic disease apply to the issue of arthritis. 1. Entitlement to service connection for tinnitus. The Veteran is seeking entitlement to service connection for tinnitus. Specifically, the Veteran testified that his tinnitus is due to in-service aircraft noise and air-based activity, as well as exposure to acoustic trauma as a personnel specialist. He also testified that he had to guard the perimeter of the flight line or guard the aircrafts. He reported that he did not have hearing protection. A review of his service treatment records reveals no complaints, treatment, or diagnoses of tinnitus. In December 2009, the Veteran underwent a VA audiological examination. The examiner reviewed the claims file and examined the Veteran before noting that the Veteran has constant tinnitus in both ears. At this examination, the Veteran reported that he was exposed to loud sounds while on active duty. His MOS was personnel technician. He reported noise exposure from 3 years spent on guard duty while deployed to Southeast Asia and 3 years spent on security duty on the flight line. He also reported noise exposure from yearly arms qualifications. The Veteran denied a history of occupational and recreational noise exposure. The Veteran reported constant tinnitus that first began in 1968 or 1969. The examiner found that, given that the Veteran did not report tinnitus until 25 years after separating from the military and given that there was no mention of tinnitus in his service treatment records, it is less likely as not that the Veteran's current tinnitus is related to his military service. The tinnitus is more likely secondary to hearing loss. Currently, there is no medical evidence of record indicating that the Veteran had tinnitus in service and no medical evidence of record relating a current diagnosis of tinnitus to service. Moreover, the December 2009 VA medical opinion specifically did not link the Veteran's current tinnitus to his service but instead linked the Veteran's tinnitus to his hearing loss. The Board notes that the Veteran was denied service connection for hearing loss in a September 2008 rating decision. The Board notes the Veteran's assertions that his tinnitus is due to his military service. While the Veteran's complaints as to duration of symptoms are certainly capable of lay observation, as are his assertions of being exposed to noise during service, the Board finds that the cause of his currently diagnosed tinnitus is not capable of lay observation, as the Veteran does not have training in audiological diseases. As such, the Veteran's opinion is afforded little weight in the analysis of whether a nexus between his current tinnitus and his service exists. By contrast, the medical professional who provided the December 2009 opinion reviewed the Veteran's claims file and offered opinions with supporting explanations as to why, in her medical judgment, the Veteran's tinnitus is not related to service. As such, the Board places the most significant weight on the December 2009 medical opinion, which finds against service connection. Thus, the Veteran's claim for service connection for tinnitus must fail on a direct basis. See Shedden, supra. In summary, for the reasons stated above, the Board finds that the preponderance of the evidence is against the claim for service connection for tinnitus, and the benefit-of-the-doubt rule is not for application. 2. Entitlement to service connection for sleep apnea. The Veteran is seeking service connection for sleep apnea as a result of hitting his head on the windshield of a car during an in-service motor vehicle accident. Additionally, the Veteran asserted in an April 2015 statement that his sleep apnea could be related to his service-connected deviated nasal septum, status post septoplasty. In a July 2014 statement, the Veteran asserted that he was exposed to diesel fumes during service, which he believes could be related to his sleep apnea. A review of his service treatment records reveals no complaints, treatment, or diagnoses of sleep apnea. His service treatment records reflect that he was in a car accident in 1968. In December 2009, the Veteran underwent a VA examination for his sleep apnea. The examiner reviewed the claims file and noted the Veteran's report of an onset date of obstructive sleep apnea in 1968. The Veteran reported that his sleep apnea started soon after a 1968 malar fracture surgery. He reported that he never snored prior to the 1968 motor vehicle accident and snored afterwards as well as had apnea noted by his wife and son. A sleep study in the 1990s showed positional sleep apnea. The examiner determined that the cause of the Veteran's sleep apnea is most likely a closing of the upper throat region (not near the facial fracture region) when he lays flat to sleep. This region relaxes and closes off causing the obstruction. The examiner noted that the basic science of obstructive sleep apnea is the rationale for this opinion. The fact that the uvulopalatopharyngoplasty (UP3) did not help and that the obstructive sleep apnea is positional speaks against the obstruction being near the facial fracture site. In a January 2017 VA opinion, a VA examiner determined that the Veteran's sleep apnea is less likely than not proximately due to or the result of the Veteran's service-connected septal deviation. The examiner noted that the Veteran was diagnosed with positional obstructive sleep apnea in 1998. There are no records in the service treatment records supporting the Veteran having symptoms consistent with obstructive sleep apnea while on active duty. He had normal nasal examinations when seen for periodic and expiration of term of service (ETS) examinations and he denied trouble sleeping on the ETS examination. Records from 1998 indicated that correction of the septal deviation did not help the obstructive sleep apnea and he continued to require continuous positive airway pressure (CPAP) or bi-level positive airways pressure (BiPAP) after the septoplasty. The examiner noted that the nasal region will not be changed anatomy wise with changes in position (positional obstructive sleep apnea). Taking all of this into consideration, the examiner found that the Veteran's septal deviation neither caused nor aggravated the obstructive sleep apnea. Therefore it is less likely as not that the obstructive sleep apnea is related to the septal deviation. Currently, there is no medical evidence of record indicating that the Veteran had sleep apnea in service and no medical evidence of record relating a current diagnosis of sleep apnea to service or to a service-connected disability. Moreover, the December 2009 medical opinion specifically did not link the Veteran's current sleep apnea to service, and the January 2017 VA opinion specifically did not link the Veteran's current sleep apnea to his service-connected septal deviation. The Board notes the Veteran's assertions that his sleep apnea resulted from a motor vehicle accident in which he was involved during his military service or, alternatively, could be related to his service-connected septal deviation. The Board also notes the July 2008 statement from the Veteran's son, in which he recalled the Veteran gasping for breath during his sleep for as long as he could remember. While the Veteran's and his son's complaints as to duration of symptoms are certainly capable of lay observation, as is the Veteran's description of the motor vehicle accident, the Board finds that the causes of his currently diagnosed sleep apnea are not capable of lay observation, and the Veteran and his son do not have training in neurological diseases. As such, the Veteran's and his son's opinions are afforded little weight in the analysis of whether a nexus between his current sleep apnea and his service or a service-connected disability exists. By contrast, the medical professional who provided the December 2009 and January 2017 opinions reviewed the Veteran's claims file and offered opinions with supporting explanations as to why, in her medical judgment, the Veteran's sleep apnea is not related to service or a service-connected disability. As such, the Board places the most significant weight on the December 2009 and January 2017 medical opinions, which finds against service connection. Thus, the Veteran's claim for service connection for sleep apnea must fail on a direct basis and a secondary basis. The Board has considered the medical literature submitted by the Veteran regarding sleep disorders in chronic traumatic brain injury. While the Board has considered this evidence, the Board ultimately finds it not probative, as generic texts, which do not address the facts of this particular Veteran's case, and with a sufficient degree of medical certainty, do not amount to competent medical evidence of causality. Sacks v. West, 11 Vet. App. 314 (1998); Libertine v. Brown, 9 Vet. App. 521 (1996); Beausoleil v. Brown, 8 Vet. App. 459 (1996). In summary, for the reasons stated above, the Board finds that the preponderance of the evidence is against the claim for service connection for sleep apnea, and the benefit-of-the-doubt rule is not for application. 3. Entitlement to service connection for cervical spinal stenosis. The Veteran is seeking service connection for cervical spinal stenosis as a result of an in-service motor vehicle accident. The Veteran's service treatment records reflect that he was involved in a motor vehicle accident in 1968. Clinical evaluation of the neck on October 1973 and February 1984 Reports of Medical Examination was normal. A review of his service treatment records reveals no complaints, treatment, or diagnoses of a cervical spine disability of any kind. In December 2009, the Veteran underwent a VA spine examination. The examiner reviewed the claims file and noted the Veteran's reports of an onset date for his neck condition of the 1970s. The Veteran reported that his neck did not start to bother him until a couple of years after his 1968 motor vehicle accident. He reported that he did not seek treatment because he did not want anything recorded in his medical records. Upon examination, he was diagnosed with cervical pain, degenerative disc disease due to the aging process, and cervical spine stenosis due to the aging process. The examiner determined that the Veteran's current cervical stenosis/degenerative disc disease lumbar region is not due to or the result of a motor vehicle accident. The examiner noted that there was no mention of any neck or back problems while in the service as related to the motor vehicle accident. The examiner noted that, for a motor vehicle accident to cause spinal difficulties, one would expect that the area be symptomatic close to the time of the motor vehicle accident and not 20-30 years later. His spinal condition can be explained by the aging process alone. Currently, there is no medical evidence of record indicating that the Veteran had cervical spine complaints in service and no medical evidence of record relating a current diagnosis of a cervical spine disability of any kind to service. Moreover, the December 2009 medical opinion specifically did not link the Veteran's current cervical spine condition to his service but instead determined that his spinal condition can be explained by his aging process alone. The Board notes the Veteran's assertions that his cervical spine stenosis resulted from a motor vehicle accident in which he was involved during his military service. Here, the Veteran's complaints as to duration of symptoms are certainly capable of lay observation, as is his description of the motor vehicle accident. However, the Board finds that the cause of his currently diagnosed cervical spine disability is not capable of lay observation, and the Veteran does not have training in orthopedic diseases. As such, the Veteran's opinion is afforded little weight in the analysis of whether a nexus between his current cervical spine disability and his service exists. By contrast, the medical professional who provided the December 2009 opinion reviewed the Veteran's claims file and offered opinions with supporting explanations as to why, in her medical judgment, the Veteran's cervical spine disability is not related to service. As such, the Board places the most significant weight on the December 2009 medical opinion, which finds against service connection. Thus, the Veteran's claim for service connection for cervical spine stenosis must fail on a direct basis. See Shedden, supra. Additionally, the Board notes that there is no competent or credible evidence of record reflecting that the Veteran demonstrated arthritis of the cervical spine to a compensable degree within one year of discharge from active duty. As such, service connection for cervical spine arthritis cannot be granted on a presumptive basis. With regard to the issue of continuity of symptomatology for arthritis of the cervical spine under 38 C.F.R. § 3.303(b), the Board finds that it is not clear from the Veteran's statements that he has consistently reported a continuity of symptomatology for his cervical spine disability since his active duty service. For example, on his February 2008 claim, he indicated that one or more of his cervical vertebrae was moved to such a position that, "over the course of many years", it has developed into spinal stenosis. Moreover, clinical evaluation of the neck recorded on October 1973 and February 1984 Reports of Medical Examination, after his motor vehicle accident, was normal. Further, the Veteran reported no complaints pertaining to his neck or cervical spine disability on his February 1984 Report of Medical History. In summary, for the reasons stated above, the Board finds that the preponderance of the evidence is against the claim for service connection for cervical spinal stenosis, and the benefit-of-the-doubt rule is not for application. 4. Entitlement to service connection for migraine headaches. The Veteran is seeking service connection for migraine headaches as a result of hitting his head on the windshield of a car during an in-service motor vehicle accident. In an October 1968 service treatment record, the Veteran reported a headache and was noted as having sinusitis. A February 1984 Report of Medical History noted a head injury, which referred to a fractured left cheek bones secondary to a 1968 auto accident. In December 2009, the Veteran underwent a VA neurological examination, at which he reported migraine headaches with an onset date in the 1980s. The Veteran reported that he would have an occasional headache in the 1980s, which worsened in the 1990s. Upon examination of the Veteran and review of the claims file, the examiner determined that the Veteran's current headaches are not caused by or the result of the motor vehicle accident. The examiner noted that the Veteran did not have complaints of headaches upon retirement in 1984. His headaches started over 10 years after the motor vehicle accident, which is not consisted with the usual onset of posttraumatic headaches. Currently, there is no medical evidence of record indicating that the Veteran had a migraine headache disability in service and no medical evidence of record relating a current diagnosis of migraine headaches to service. Moreover, the December 2009 medical opinion specifically did not link the Veteran's current migraine headaches to his service. The Board acknowledge that the Veteran complained of a headache in an October 1968 service treatment record. However, at that time, he was noted as having sinusitis and there is no evidence suggesting that this headache was anything more than an acute and transitory complaint. The Board notes the Veteran's assertions that his migraine headaches resulted from a motor vehicle accident in which he was involved during his military service. While the Veteran's complaints as to duration of symptoms are certainly capable of lay observation, as is his description of the motor vehicle accident, the Board finds that the cause of his currently diagnosed migraine headaches is not capable of lay observation, and the Veteran does not have training in neurological diseases. As such, the Veteran's opinion is afforded little weight in the analysis of whether a nexus between his current migraine headaches and his service exists By contrast, the medical professional who provided the December 2009 opinion reviewed the Veteran's claims file and offered opinions with supporting explanations as to why, in her medical judgment, the Veteran's migraine headaches are not related to service. As such, the Board places the most significant weight on the December 2009 medical opinion, which finds against service connection. Thus, the Veteran's claim for service connection for migraine headaches must fail on a direct basis. See Shedden, supra. The Board has considered the medical literature submitted by the Veteran regarding migraine causes and previous neck or head injury. While the Board has considered this evidence, the Board ultimately finds it not probative, as generic texts, which do not address the facts of this particular Veteran's case, and with a sufficient degree of medical certainty, do not amount to competent medical evidence of causality. Sacks, supra. In summary, for the reasons stated above, the Board finds that the preponderance of the evidence is against the claim for service connection for migraine headaches, and the benefit-of-the-doubt rule is not for application. ORDER Entitlement to service connection for tinnitus is denied. Entitlement to service connection for sleep apnea is denied. Entitlement to service connection for cervical spinal stenosis is denied. Entitlement to service connection for migraine headaches is denied. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs