Citation Nr: 18145459 Decision Date: 10/29/18 Archive Date: 10/29/18 DOCKET NO. 14-23 883 DATE: October 29, 2018 ORDER Entitlement to service connection for headaches is granted. Entitlement to service connection for sleep apnea is granted. Entitlement to service connection for chronic fatigue syndrome (CFS), to include as due to exposure to environmental hazards in Southwest Asia, is denied. Entitlement to service connection for memory impairment, to include as due to exposure to environmental hazards in Southwest Asia and/or exposure to asbestos, is denied. REMANDED Entitlement to service connection for fibromyalgia, to include as due to exposure to environmental hazards in Southwest Asia, is remanded. Entitlement to service connection for a skin disability, to include as due to exposure to environmental hazards in Southwest Asia, is remanded. FINDINGS OF FACT 1. The Veteran’s headaches are etiologically related to his active service. 2. The Veteran’s sleep apnea is etiologically related to his active service. 3. The Veteran’s fatigue is a symptom of his service-connected posttraumatic stress disorder (PTSD) and sleep apnea, and is not a separate disability for compensation purposes. 4. The Veteran’s memory impairment is a symptom of his service-connected PTSD and is not a separate disability for compensation purposes. CONCLUSIONS OF LAW 1. The criteria for service connection for headaches have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). 2. The criteria for service connection for sleep apnea have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for CFS have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for memory impairment have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from August 1981 to July 2005, to include service in Southwest Asia. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from August 2010 and July 2011 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. Service Connection 1. Headaches and Sleep Apnea The Veteran asserts that his diagnosed headaches and sleep apnea disabilities are etiologically related to his active service. Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Service treatment records (STRs) are silent for complaints of, treatment for, or a diagnosis of headache pain or sleep apnea while the Veteran was in active service. However, the Veteran has reported that he first experienced headache pain and symptomatology of sleep apnea while in active service and that his symptoms have continued since that time. The Veteran is competent to report when he first experienced symptoms of headache pain and sleep apnea and that his symptoms have continued since service. Heuer v. Brown, 7 Vet. App. 379 (1995); Falzone v. Brown, 8 Vet. App. 398 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). Moreover, the Board finds the Veteran to be credible in that respect. In January 2014, the Veteran was afforded a VA examination for headaches. At that time, the Veteran reported that he experienced migraine type pain since he was 12 years of age, and that migraine headaches ran in his family. He also reported that he sustained a closed head injury while deployed in Iraq in 1990. He believed he may have lost consciousness for several seconds during this incident, but was uncertain. He reported experiencing daily headache pain for 2 months following the injury. The examiner diagnosed migraine headaches. The examiner did not provide an opinion as to the nature and etiology of the Veteran’s diagnosed migraine headaches. In September 2016, the Veteran was afforded another VA examination for headaches. At that time, the examiner diagnosed tension headaches from 2016. The Veteran reported he started to have headaches and that he had never had headaches before. After examination, the examiner opined that it was less likely as not that the Veteran’s headaches were incurred in or caused by exposures to Southwest Asia environmental hazards, and that medical literature did not provide evidence to support the claim. In September 2016, the Veteran was afforded a VA examination for sleep apnea. At that time, the examiner diagnosed sleep apnea from August 2011. The Veteran reported his wife told him he would stop breathing at night. After examination, the examiner opined that it was less likely as not that the Veteran’s sleep apnea was incurred in or caused by his active service. Moreover, the examiner opined that the Veteran’s sleep apnea was less likely caused by or aggravated by his service-connected maxillary sinusitis/allergic rhinitis. The examiner opined that the Veteran’s sleep apnea is more likely due to his obesity than to his military service. Further, the examiner stated that they “reviewed current medical literature and no causative link between chronic sinusitis and sleep apnea has been shown to date.” The Board finds the January 2014 and September 2016 VA examination opinions to be inadequate for adjudication purposes. In this regard, the examiner did not give appropriate consideration to the Veteran’s lay statements regarding the onset and continuity of his symptoms. Moreover, the January 2014 VA examination opinion failed to adequately address whether any pre-existing headache pain was permanently aggravated by his active service. Further, the January 2014 VA examination opinion failed to adequately address the Veteran’s reported in-service injury while deployed in Iraq. As the opinions are not adequate, they cannot serve as the basis of a denial of entitlement to service connection. Of record is an April 2018 letter from the Veteran’s private treatment provider, Dr. H.S. In that letter, Dr. H.S. stated that he interviewed the Veteran with regard to the Veteran’s headache pain, reviewed the medical record, and researched medical literature. Dr. H.S. then opined that “it is as likely as not the Veteran’s service-connected PTSD, maxillary sinusitis, seasonal allergic rhinitis, tinnitus, and hypertension have aided in the development of and have permanently aggravated his prostrating headaches.” Of record is an April 2018 letter from the Veteran’s private treatment provider, Dr. H.S. In that letter, Dr. H.S. stated he interviewed the Veteran with regard to the Veteran’s sleep apnea, reviewed the medical record, and researched medical literature. Dr. H.S. then opined that the Veteran’s sleep apnea development had been aided and permanently aggravated by the Veteran’s service connected posttraumatic stress disorder (PTSD), allergic rhinitis, maxillary sinusitis, and anti-depressants. Of record are March 2018 statements submitted by the Veteran’s wife, fellow servicemember, and friend. The statements indicate that the Veteran suffers from headaches that are aggravated by the Veteran’s anxiety, tinnitus, and mental health symptomatology. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Here, the Veteran is competent to identify headache pain and the onset of the headache pain, and his statements have been found credible. Moreover, the Veteran is competent to identify symptomatology of sleep apnea and the onset of the symptomatology, and his statements have been found credible. After review of the evidence, the Board concedes that the Veteran experienced headache pain and symptomatology of sleep apnea during and since active service. The Veteran has competently and credibly reported headache pain and symptomatology of sleep apnea during service and since. The Veteran has current diagnoses of headaches and obstructive sleep apnea. There is no competent VA medical opinion of record against the claim. Moreover, the Veteran has submitted private treatment records that indicate his headaches and sleep apnea are etiologically related to his active service. Accordingly, the Board finds that the evidence for and against the claims of entitlement to service connection for headaches and sleep apnea is at least in equipoise. Therefore, reasonable doubt must be resolved in favor of the Veteran and entitlement to service connection for headaches and sleep apnea is warranted. 38 U.S.C. § 5107 (b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. CFS and Memory Impairment The Veteran has asserted that he has disabilities manifested by fatigue and memory impairment. The term “disability” means impairment in earning capacity resulting from diseases and injuries and their residual conditions. 38 C.F.R. § 4.1; Allen v. Brown, 7 Vet. App. 439 (1995); Hunt v. Derwinski, 1 Vet. App. 292 (1991). With regard to fatigue, the evidence of record shows that the Veteran’s report of fatigue is merely a symptom of his already service-connected PTSD and sleep apnea, and not actually a separate disability resulting in impairment in earning capacity. In fact, the Veteran himself has reported that he believed his fatigue was due to his PTSD and sleep apnea. With regard to memory impairment, the evidence of record shows that the Veteran’s report of memory impairment is merely a symptom of his already service-connected PTSD, and not actually a separate disability resulting in impairment in earning capacity. In fact, the Veteran himself has reported that memory impairment was due to his PTSD. Therefore, the Veteran’s fatigue and memory problems with memory loss do not constitute disabilities for which service connection benefits may be granted. See Hunt v. Derwinski, 1 Vet. App. 292 (1991); see also Brammer v. Derwinski, 3 Vet. App. 223 (1992). Accordingly, the Board finds that the preponderance of the evidence is against the claims and entitlement to service connection for CFS and memory problems with memory loss is not warranted. 38 U.S.C. § 5107 (b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Service Connection - Fibromyalgia The Board finds that additional development is required before the claims on appeal are decided. A review of the record shows that a VA medical opinion was obtained in conjunction with the Veteran’s claim in September 2016. At that time, the examiner stated that the Veteran was currently being evaluated for metabolic myopathy. The examiner stated that a “formal diagnosis has not been given as the work-up is still underway. However, it is less likely as not that the claimed condition is a disability pattern that is associated with a specific exposure to Southwest Asia environmental hazards,” and medical literature does not provide evidence to support the claim. The Board finds the September 2016 VA examination inadequate to decide the claim. In this regard, the examiner failed to provide supporting rationale; the statement with regard to medical literature is too general and vague, and fails to identify considered environmental factors. Moreover, the examiner relied on unreliable and/or incomplete information given that the Veteran’s evaluation for metabolic myopathy was not completed or provided. Thus, the Board finds that the Veteran should be afforded another VA examination to determine the nature and etiology of any currently present fibromyalgia or metabolic myopathy disability. 2. Service Connection – Skin Disability A review of the record shows that a VA medical opinion was obtained in conjunction with the Veteran’s claim in September 2016. At that time, the examiner diagnosed acanthosis nigricana. The examiner opined that the condition was less likely as not associated with environmental hazards in Southwest Asia and that medical literature does not provide evidence to support the claim. The Board finds the September 2016 VA examination inadequate to decide the claim. In this regard, the examiner failed to provide supporting rationale; the statement with regard to medical literature is too general and vague, and fails to identify considered environmental factors. Thus, the Board finds that the Veteran should be afforded another VA examination to determine the nature and etiology of any currently present skin disability. Additionally, current treatment records should be identified and obtained before a decision is made in this case. The matters are REMANDED for the following action: 1. Identify and obtain any updated VA and private treatment records and associate them with the claims file. 2. Then, schedule the Veteran for a VA examination to determine the nature and etiology of any currently present fibromyalgia or metabolic myopathy. The claims file must be made available to, and reviewed by the examiner. Any indicated studies must be performed. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or better) that the currently present fibromyalgia or metabolic myopathy had its onset during active service, or is otherwise etiologically related to active service, to specifically include the Veteran’s service in Southwest Asia. The examiner should presume that the Veteran is a reliable historian with regard to his report of onset and continuity of his symptoms. The rationale for all opinions expressed must be provided 3. Then, schedule the Veteran for a VA examination to determine the nature and etiology of his skin disability. The claims file must be made available to, and reviewed by the examiner. Any indicated studies must be performed. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or better) that the Veteran’s skin disability had its onset during active service, or is otherwise etiologically related to active service, to specifically include the Veteran’s service in Southwest Asia. The examiner should presume that the Veteran is a reliable historian with regard to his report of onset and continuity of his symptoms. The rationale for all opinions expressed must be provided 4. Confirm that the VA examination report and any opinions provided comport with this remand, and undertake any other development found to be warranted. 5. Then, readjudicate the remaining issue on appeal. If the decision is adverse to the Veteran, issue a supplemental statement of the case and allow appropriate time for response. Then, return the case to the Board. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Mariah N. Sim, Associate Counsel