Citation Nr: 18143140 Decision Date: 10/18/18 Archive Date: 10/17/18 DOCKET NO. 15-18 484A DATE: October 18, 2018 ORDER Entitlement to service connection for obstructive sleep apnea is granted. Entitlement to a 50 percent rating for headaches is granted. FINDINGS OF FACT 1. Resolving reasonable doubt in his favor, the Veteran’s obstructive sleep apnea was incurred during active service. 2. Resolving reasonable doubt in his favor, the Veteran’s headache disability more closely approximates very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. CONCLUSIONS OF LAW 1. The criteria for service connection for obstructive sleep apnea are met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). 2. The criteria for a 50 percent rating for headaches are met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code 8100 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1998 to November 2012 in the United States Marine Corps. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. In May 2017, the Veteran withdrew his request for a Board hearing. 1. Entitlement to service connection for obstructive sleep apnea The Veteran asserts that his obstructive sleep apnea began in or is etiologically related to his active service. The Veteran’s service treatment records indicate that he complained of frequent trouble sleeping in July 2012. He stated that he had “to be exhausted to sleep.” After service, an October 2013 VA treatment record indicated that the Veteran reported that his sleep problems began or got worse after deployment. In November 2013, it was noted that his wife witnessed choking and apnea episodes with excessive snoring. A December 2013 sleep study confirmed a diagnosis of mild obstructive sleep apnea. In an April 2014 written statement, the Veteran’s wife reported that the Veteran had not slept well since he returned from deployment. A VA examination was conducted in May 2014. The examiner opined that the Veteran’s sleep apnea was less likely than not incurred in or caused by service. She noted that the Veteran had gained weight between July 2012 and his December 2013 diagnosis. She also noted that he had a history of tobacco use and that being overweight and smoking tobacco were both risk factors for obstructive sleep apnea. The Board notes, however, that the examiner did not address the lay statements indicating that the Veteran had sleep problems since he returned from deployment and she did not indicate whether those same risk factors (weight and tobacco use) were present during active service. Therefore, her opinion has limited probative value. In September 2018, a private physician, Dr. F.N., opined that the Veteran’s sleep apnea was “due more likely than not” to his service-connected posttraumatic stress disorder (PTSD). The physician noted that there are scientific studies that have been used in Board decisions to support his conclusions and cited to those decisions. However, the physician did not provide any rationale as to why this particular Veteran’s sleep apnea was related to his PTSD. Therefore, his opinion has limited probative value. In this case, symptoms of sleep apnea were first documented in November 2013 ¬– approximately one year following separation from service. In addition, the Veteran and his wife both stated that he began having sleeping problems after he returned from deployment. Given the short period of time between separation from service and the diagnosis of sleep apnea, as well as credible lay statements regarding ongoing sleep problems, the Board finds that the evidence for and against the claim of entitlement to service connection for obstructive sleep apnea is at least in equipoise. Resolving reasonable doubt in the Veteran’s favor, the Board finds that service connection for obstructive sleep apnea is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 2. Entitlement to a compensable rating for headaches In March 2014, the Veteran filed a claim for an increased rating for his service-connected headache disability. In July 2014, the RO continued a noncompensable rating for headaches. The Veteran appealed and is seeking a higher rating. A November 2013 VA treatment record indicated that the Veteran reported experiencing chronic migraine-like headaches and that his symptoms were worsening. In January 2014, it was noted that he had headaches two to three times per week lasting two hours to two days, which were 10/10 in severity. He also stated that he had constant daily dull headaches, which were 3-4/10 in severity. He indicated that severe migraine headaches “takes him down” and that those headaches occurred two to three times per month. It was noted that he should increase his Nortriptyline to 20 mg at bedtime, and that he should take Sumatriptan for breakthrough headaches. In an April 2014 written statement, the Veteran’s wife indicated that the Veteran had migraines so bad that he could not get out of bed on some days. The Veteran’s son also stated that the Veteran “always had migraines and or is always tired and in a bad mood.” During a May 2014 VA examination, the Veteran reported that he had headaches on average two to three times per week that generally resolved within two to three hours. He stated that if he did not take medication promptly, his headaches would last an entire day. He also stated that severe and prolonged headaches were accompanied by sensitivity to light and nausea. It was noted that his headaches were not prostrating and that he had not missed work because of headaches. He stated that his headaches usually began in the evening. The report also indicated that the Veteran had constant head pain, pulsating or throbbing head pain, and pain on both sides of his head. It was noted that he experienced nausea and sensitivity to light. A May 2016 VA treatment record indicated that the Veteran stated that he was doing better after restarting Nortriptyline at 30 mg at night, but was still having migraines two to three times per week. Therefore, he was increased to 50 mg and was doing well until September/October, but had since had headaches two to three times per week, which were 8-10/10 in severity. He indicated that onset was too fast to take abortive measure and that prior prophylaxis was no longer working. In August 2016, he stated that his headaches were under fair control. He stated that he had migraines twice per week and took Sumatriptan three times per month. In December 2016, he stated that he had headaches once per week with exertion or strenuous exercise, that he was tolerating Topiramate, and took Sumatriptan three times per month. In May 2017, he stated that his headaches had significantly reduced in frequency to once per week, and that he was on a prophylactic regimen of Topiramate twice daily. In December 2017, the Veteran stated that he had migraines occurring one to two times per week. During a March 2018 VA examination, the Veteran reported that he had headaches a few times per week that lasted for eight hours on average and as long as two days. He stated that he had prostrating headaches twice a month and missed about two days of work per month due to headaches. It was noted that the Veteran experienced constant head pain, pain on both sides of his head, and that the pain worsened with physical activity. It was also noted that he experienced nausea, vomiting, sensitivity to light, changes in vision, sensory changes, and dizziness. The examiner indicated that that the Veteran had characteristic prostrating attacks of migraine/non-migraine attacks about once per month. The examiner also indicated that he had very prostrating and prolonged attacks of migraine/non-migraine pain productive of severe economic inadaptability. In this case, the Veteran has reported experiencing headaches approximately two to three times per week and more severe headaches several times per month. As to whether question of whether any of his headaches are prostrating, the Board notes that the rating criteria do not define the term “prostrating.” See 38 C.F.R § 4.124a, Diagnostic Code 8100. Clinically, “prostrating” is defined as “extreme exhaustion or powerlessness.” Dorland’s Illustrated Medical Dictionary 1554 (31st ed. 2007). In nonmedical terms, prostrating is defined as lying flat or at full length, to reduce to physical weakness or exhaustion, or to reduce to helplessness. The Board notes that the May 2014 VA examiner did not characterize the Veteran’s headaches as prostrating; however, in November 2013, the Veteran indicated that his more severe headaches would “take him down,” and, in 2014, his wife stated that his headaches were so severe that he could not get out of bed some days. Furthermore, the March 2018 VA examiner indicated that he had prostrating headaches, which required him to miss work twice per month. Resolving reasonable doubt in his favor, the Board finds that his more severe headaches are prostrating and occur two to three times per month, which is more frequent than contemplated in the criteria for a 30 percent rating. 38 C.F.R. § 4.124a, Diagnostic Code 8100. Regarding the question of economic inadaptability, the Board notes that the Veteran works full time. In 2014, he stated that he did not miss any work, and in 2018, he stated that he missed work twice per month due to headaches. Although the evidence has not shown “severe economic inadaptability,” the Board also points out that the rating criteria do not account for the ameliorating effects of medication. In Jones v. Shinseki, 26 Vet. App. 56 (2012), the United States Court of Appeals for Veterans’ Claims (Court) held that the ameliorating effects of medication may not be taken into account in determining a rating unless it is part of the applicable rating criteria. In this case, the Veteran takes medication daily to prevent headaches and also takes medication as needed (approximately three times per month) for the acute onset of severe headaches. Therefore, resolving the benefit of the doubt in his favor, the Board finds that his headache disability more closely approximates the criteria for the maximum, 50 percent rating. 38 C.F.R. § 4.124a, Diagnostic Code 8100 (2018). For those reasons, the Board finds that a 50 percent rating, but no higher, is warranted for the Veteran’s service-connected headaches. Kristin Haddock Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Mishalanie, Counsel