Citation Nr: 1757083 Decision Date: 12/11/17 Archive Date: 12/20/17 DOCKET NO. 14-04 924 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to service connection for headaches. 2. Entitlement to service connection for obstructive sleep apnea. 3. Entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD) and depression. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD P. Childers, Counsel INTRODUCTION The Veteran served on active duty from September 1984 to September 2004. This matter is before the Board of Veterans' Appeals (Board) on appeal of rating decisions issued in May 2013 and November 2014 by a Department of Veterans Affairs (VA) Regional Office (RO). The 2013 rating decision denied service connection for sleep apnea; and the 2014 rating decision denied service connection for depression, PTSD, and anxiety. In May 2017, the Veteran testified before the undersigned Veterans Law Judge. The Board has combined the psychiatric claims as one issue on the title page of this decision. See Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009) (holding that a claimant without medical expertise cannot be expected to precisely delineate the diagnosis of his mental illness; he filed a claim for the affliction that his mental condition, whatever it is, causes him). The issues of service connection for headaches and sleep apnea are resolved in the below decision. The issue of service connection for a psychiatric disorder is addressed in the REMAND portion of this decision below and is REMANDED to the agency of original jurisdiction (AOJ) for further development. FINDING OF FACT The Veteran's headaches and post-service diagnosed obstructive sleep apnea had their onset during active duty service. CONCLUSIONS OF LAW 1. The criteria for service connection for headaches have been met. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2017). 2. The criteria for service connection for obstructive sleep apnea have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has limited its discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). I. Legal Criteria Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. "To establish a right to compensation for a present disability, a veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. II. Facts and Analysis Headaches The Veteran seeks service connection for headaches, which he contends began during active duty service and may be related to his exposure to hazardous chemicals in performance of his military occupational specialty. Board Hearing Transcript, pp. 6-7. He added that he still performs, in his present federal civilian employment, the type of work that he did during service. Transcript, pp. 7-8. Military records confirm that the Veteran worked as a Systems Organizational Maintenance Technician working on aircraft during service; and post-service employment records confirm that the Veteran worked for the Southwest Fleet Readiness Center from 2005 to 2014 as a Sheet Metal Worker. Service treatment records (STRs) dated throughout the Veteran's 20 year active duty service chronicle repeated complaints of headaches; and post-service medical records confirm that he still suffers from headaches. See, e.g., VA medical records dated in March 2015. Service records also confirm that the Veteran was exposed to multiple hazardous chemicals, including chromium, in the performance of his job (see August 10, 1993 Industrial Hygiene Report regarding chromium IV exposure). According to a private treating neurologist, the Veteran's headaches "are caused from the environment exposure at work." See April 2015 letter from private neurologist, who also stated that the Veteran's neck pain [which is service-connected] is "aggravating his severe daily headaches." This is highly persuasive and probative evidence in favor of the claim. Although a September 2014 VA examiner had previously opined that there was no nexus, that opinion was focused more on the possible relationship between the Veteran's sinuses and his headaches. The Board therefore finds the 2014 VA examiner's opinion to be less probative than that provided by the private neurologist, who gave the opinion that the Veteran's current headaches are directly related to his job related exposure to hazardous chemicals and are also aggravated by his service-connected neck disability. The preponderance of the evidence therefore favors the claim, including the nexus element. As the elements of the claim have been substantiated, service connection for headaches is therefore warranted. Sleep Apnea The Veteran also seeks service connection for a sleep disorder/sleep apnea, which he contends began during service. See Board Hearing Transcript, pp. 8-9. STRs confirm that he complained of trouble sleeping during service, with daytime drowsiness/lack of energy so apparent that he was told by medical providers to sleep whenever he had a chance and to talk to his LCPO about rotating to the day shift. See, e.g., STRs dated in April 1996 and October 2002. After service, the Veteran's sleep problem continued (see Board Hearing Transcript, p. 9), and in 2011 he was diagnosed with obstructive sleep apnea See July 28, 2011 VA Pulmonary Sleep Study report. According to a private pulmonary physician, the Veteran's sleep apnea began during active duty service. See November 2013 and February 2017 opinions from private pulmonary physician. The pulmonary physician explained that the Veteran's complaints during service of fatigue, feeling tired and sleepy, and lack of energy was in hindsight reflective of sleep apnea as "it is well known that untreated OSA can lead to fatigue due to intermittent arousals at night;" and reiterated that it was his opinion as a pulmonary specialist that the Veteran began suffering from sleep apnea while he was still on active duty in the Navy, which continues to the present day. This is highly probative evidence in favor of the claim. Although a January 2014 VA examiner opined that the Veteran's sleep apnea was not related to service because there was no record of arrested sleep or snoring in STRs, this evidence does not outweigh the opinion provided by the private pulmonary expert, who pointed out that obstructive sleep apnea "does not begin suddenly and is known as a chronic condition that takes place over the course of an individual's life." There consequently is an approximate balance of evidence for and against the claim as to the nexus element. Therefore, and according the Veteran all reasonable doubt, the Board finds that the Veteran's obstructive sleep apnea, which was diagnosed after service, had its onset during service. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Accordingly, service connection for obstructive sleep apnea is warranted. ORDER Service connection for headaches is granted. Service connection for obstructive sleep apnea is granted. REMAND In addition to the forgoing, the Veteran seeks service connection for a psychiatric disorder. On review of the record, there is evidence of psychiatric symptoms in STRs (see May 16, 1991 active duty recommendation for a psychiatric consult); and there is post-service evidence of a current psychiatric disorder. See, e.g., November 2014 VA examination report containing a diagnosis of "persistent depressive disorder (dysthymia)." See also VA medical records dated in 2015, and private medical records dated in February 2016, which reflect treatment for depression and indicate that the Veteran may have PTSD. However, a medical nexus opinion has not been obtained. Remand for a new VA examination is therefore warranted. On remand, the claims file should be updated to include VA medical records dated after July 2015. Accordingly, this issue is REMANDED for the following actions: 1. Associate the Veteran's medical records dated after July 2015 with the claims file. Any other pertinent records identified by the Veteran during the course of the remand should also be obtained and associated with the claims file, following the receipt of any necessary authorizations from the Veteran. 2. Schedule the Veteran for a VA psychiatric (including PTSD) examination with regard to his service connection claim. The record, to include a copy of this remand, must be reviewed by the examiner. The examiner must discuss the Veteran's military and medical history, and current complaints and symptoms, with the Veteran and document the Veteran's assertions in the examination report. First, the examiner should identify the Veteran's current psychiatric disorder(s), including whether he meets the criteria for PTSD. After clinical assessment, the examiner is requested to opine, for each psychiatric disorder found on examination or in prior medical records, as to whether it is at least as likely as not (50 percent or greater probability) that the disorder began during active duty service or is related to some incident of the Veteran's active duty service. If PTSD is present, the examiner is also requested to provide an opinion as to whether the Veteran's PTSD is related to his service, including in the Southwest Asia Theater of Operations or some other stressor during service. A rationale for all opinions reached must be provided. 3. Finally, readjudicate the claim remaining on appeal. If the benefit sought remains denied, issue a supplemental statement of the case and return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112. ______________________________________________ RYAN T. KESSEL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs