Citation Nr: 18141488 Decision Date: 10/10/18 Archive Date: 10/10/18 DOCKET NO. 16-02 437 DATE: October 10, 2018 ORDER Entitlement to service connection for headaches is granted. Entitlement to service connection for obstructive sleep apnea (OSA) is granted. REMANDED Entitlement to service connection for Bell’s palsy is remanded. Entitlement to an initial compensable rating for degenerative arthritis of the cervical spine is remanded. Entitlement to an initial rating in excess of 10 percent for a lumbar strain is remanded. Entitlement to an initial rating in excess of 20 percent for hypertension is remanded. Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder with major depressive episode (PTSD) is remanded. FINDINGS OF FACT 1. The Veteran’s headaches were incurred during active service. 2. Resolving reasonable doubt in the Veteran’s favor, his OSA was incurred during active service. CONCLUSIONS OF LAW 1. The criteria for service connection for headaches are met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 2. The criteria for service connection for OSA are met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from August 1985 to December 1992, March 2003 to March 2004, and November 2004 to July 2007. These matters are before the Board of Veterans’ Appeals (Board) on appeal from rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2018). Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b) (2018); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed.Cir.2013) (holding that only conditions listed as chronic diseases in § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b) (2018). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d) (2018). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). 1. Entitlement to service connection for headaches A September 2015 disability benefits questionnaire (DBQ) from Dr. Skaggs indicates that the Veteran is diagnosed with migraine headaches. Additionally, service treatment records from November 30, 2005, December 4, 2005, October 3, 2006, October 4, 2006, October 7, 2006, October 17, 2006, and July 25, 2007 note that the Veteran reported ongoing headaches. Service treatment records from October 3, 2006 and July 25, 2007 note “migraine headache” on the Veteran’s problem list. Additionally, on his July 24, 2007 report of medical history at separation the Veteran reported frequent headaches for the last 20 months. With regard to a nexus, in an attachment to his September 2015 DBQ, Dr. Skaggs opined that it was at least as likely as not that the Veteran’s current migraine headaches began during service in light of the Veteran’s documented in-service treatment for migraine headaches. As the medical evidence indicates that the Veteran’s headaches were incurred during service, the Board finds that service connection is warranted. See 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2018). 2. Entitlement to service connection for OSA The Veteran asserts that his sleep apnea was incurred during active service or, in the alternative, is caused or aggravated by his service-connected PTSD. An October 18, 2007 private treatment record notes that the Veteran reported snoring and insomnia. It also noted that he should be evaluated for OSA. A November 28, 2007 sleep study reported a diagnosis of mild obstructive sleep apnea. The Veteran’s service treatment records are silent for treatment, diagnosis, or findings specifically related to sleep apnea, but they do document the Veteran’s reports of “poor sleep.” At a November 2015 VA sleep apnea examination, the Veteran reported that around 2005 he noticed daytime fatigue, poorly rested sleep, and hypersomnolence. He also noted that his wife reported that she had observed apneic spells during his sleep. Regarding a nexus to service, there are conflicting nexus opinions. A November 2015 VA examiner opined that the Veteran’s sleep apnea was at least as likely as not incurred in service because it was diagnosed by a 2007 sleep study while the Veteran was in active service. The examiner also noted that risk factors for OSA included obesity, male gender, increasing neck circumference, aging with laxity of the oropharyngeal muscle, smoking, and family history. In December 2015, another VA clinician opined that the Veteran’s OSA was less likely than not incurred in or caused by service. The clinician noted that the Veteran’s service treatment records did not document chronic on-going treatment for a diagnosis of sleep apnea. The clinician acknowledged the service treatment records references to poor sleep, but stated that was a distinct and separate diagnosis. After reviewing the evidence of record, the Board concludes that the Veteran's current OSA cannot be reasonably disassociated from his active duty service. In making this determination, the Board finds the lay evidence regarding relevant symptoms during service provided by the Veteran to be competent and credible evidence. McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also Jandreau v. Nicholson, 492 F.3d. 1372, 1377 n.4 (Fed. Cir. 2007) (holding that a layperson is competent to identify observable symptoms). Regarding the medical opinions of record, the Board finds that neither VA opinion has significant probative weight. Specifically, while the November 2015 positive nexus opinion explained risk factors for OSA, it is based on the inaccurate premise that the Veteran was diagnosed with OSA during service. Likewise, the rationale in support of the December 2015 negative opinion is conclusory. While poor sleep may be a distinct and separate diagnosis, the clinician did not address the lay evidence regarding the Veteran’s in-service apneic spells, his risk factors for OSA, or the fact that the Veteran expressed concerns regarding sleep apnea and was diagnosed with OSA shortly after his discharge from service. Resolving all doubt in favor of the Veteran, service connection for OSA is warranted. See 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2018). As the Board has granted direct service connection it need not address the Veteran’s assertions regarding secondary service connection. REASONS FOR REMAND 1. Entitlement to service connection for Bell’s palsy is remanded. 2. Entitlement to an initial compensable rating for degenerative arthritis of the cervical spine is remanded. 3. Entitlement to an initial rating in excess of 10 percent for a lumbar strain is remanded. 4. Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder with major depressive episode (PTSD) is remanded. 5. Entitlement to an initial rating in excess of 20 percent for hypertension is remanded. The evidence indicates there may be outstanding relevant VA treatment records. A November 10, 2015 VA treatment record indicates that the Veteran was to return for a follow up appointment in February 2016. VA treatment records subsequent November 10, 2015 have not been associated with the claims file. Additionally, a May 29, 2009 VA treatment record indicates that a non-VA records were scanned into VistA Imaging. It does not appear that record has been associated with the claims file. A remand to obtain the records is required. VA opinions regarding the Veteran’s Bell’s palsy were obtained in May 2010 and November 2015. Nevertheless, as both those opinions were based on a factually inaccurate premise, an addendum opinion is warranted. The Veteran’s last VA examinations for his cervical spine disability, lumbar strain, and PTSD were in April 2010 and August 2010. Given the significant passage of time and the fact that the Board must remand the claims for other development on remand the Veteran should be provided VA examinations to assess the current nature and severity of the aforementioned disabilities. The matters are REMANDED for the following actions: 1. Ask the Veteran to provide the names and addresses of all medical care providers who have recently treated him for his claimed disabilities. After securing any necessary releases, request any relevant records identified. In addition, obtain updated VA treatment records as well as the VistA Imaging record referenced in the May 29, 2009 VA treatment record. If any requested records are unavailable, the Veteran should be notified of such. 2. After records development is completed, forward the claims file to a VA neurologist to obtain an addendum opinion regarding the Veteran's claim for a Bell’s palsy. The neurologist must review the Veteran's claims file. If a new examination is deemed necessary to respond to the questions presented, one should be scheduled. Following review of the claims file, the clinician should opine whether the Veteran's preexisting Bell’s palsy underwent a permanent worsening during active service (as opposed to temporary exacerbations of symptoms) and if so, whether that worsening was undebatably due to the natural progression of the disability (versus being due to events in service). A complete rationale should be provided for all opinions and conclusions expressed. 3. Schedule the Veteran for a VA cervical spine examination to determine the current severity of his degenerative arthritis of the cervical spine. The claims file should be reviewed by the examiner. All necessary tests should be performed and the results reported. All symptomatology associated with the Veteran’s degenerative arthritis of the cervical spine should be reported. 4. Schedule the Veteran for a VA thoracolumbar examination to determine the current severity of the lumbar strain. The claims file should be reviewed by the examiner. All necessary tests should be performed and the results reported. All symptomatology associated with the Veteran’s lumbar strain should be reported. 5. Schedule the Veteran for a VA PTSD examination to determine the current severity of the condition. The claims file should be reviewed by the examiner. All necessary tests should be performed and the results reported. All symptomatology associated with the Veteran’s PTSD should be reported. K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Anderson