Citation Nr: 18147364 Decision Date: 11/05/18 Archive Date: 11/02/18 DOCKET NO. 16-20 056 DATE: November 5, 2018 ORDER New and material evidence having been received, reopening the claim for service connection for migraine headaches is granted. Entitlement to service connection for a cervical spine disability is granted. Entitlement to service connection for sleep apnea is granted. Entitlement to a rating in excess of 30 percent for posttraumatic stress disorder with sleep deprivation (PTSD) is denied. REMANDED Entitlement to service connection for migraine headaches is remanded. FINDINGS OF FACT 1. In an unappealed December 2012 rating decision, the Veteran was denied service connection for migraine headaches. 2. Evidence added to the record subsequent to the December 2012 rating decision is not cumulative or redundant of the evidence previously of record, and raises a reasonable possibility of substantiating the claim for service connection for migraine headaches. 3. A cervical spine disability had its onset during active service. 4. Sleep apnea had its onset during active service. 5. For the entire period on appeal, the occupational and social impairment resulting from the Veteran’s PTSD has been manifested by occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claim of entitlement to service connection for migraine headaches. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). 2. The criteria for service connection for a cervical spine disability have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2018). 3. The criteria for service connection for sleep apnea have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2018). 4. The criteria for a rating in excess of 30 percent for PTSD have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from June 2004 to December 2005, from March 2006 to August 2007, from March 2009 to December 2010, and from January 2011 to September 2011. The Veteran had additional service in the Army National Guard. This case comes before the Board of Veterans’ Appeals (Board) on appeal from November 2014, June 2015, and July 2017 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that the issue of entitlement to service connection for a cervical spine disability was adjudicated at the Agency of Original Jurisdiction (AOJ) as a claim to reopen. However, a review of the record shows that relevant service department records were added to the record following the initial December 2012 denial of entitlement to service connection for a cervical spine disability. Those records were in existence at the time of the original denial. As such, the claim is subject to reconsideration pursuant to 38 C.F.R. § 3.156(c) (2018). The Board has recharacterized the issue on appeal accordingly. 1. Claim to Reopen – Migraine Headaches In a December 2012 rating decision, the Veteran was denied entitlement to service connection for migraine headaches based on a finding that they preexisted his active service and were not aggravated by service. The Veteran did not appeal that decision. The evidence of record since the December 2012 rating decision include this Board decision, in which the Veteran has been granted entitlement to service connection for a cervical spine disability, and medical evidence indicating that the Veteran’s cervical spine disability impacts his migraines. Therefore, the evidence added to the record is not cumulative or redundant and raises a reasonable possibility of substantiating the Veteran’s claim of entitlement to service connection for migraine headaches. As such, reopening of the claim of entitlement to service connection for migraine headaches is warranted. To that extent only, the claim is granted. 2. Service Connection – Cervical Spine Disability The Veteran has asserted that he injured his neck while in active service. Specifically, he reported that in 2006, he was struck at the base of his neck with a rock. He also reported that on a separate occasion, he hit his helmeted head getting out of a Humvee and it caused his to experience neck pain. Service treatment records (STRs) show that the Veteran underwent a post-deployment health assessment in December 2010. At that time, it was noted that the Veteran had reported neck pain and a diagnosis of cervical spine DDD was noted by the examiner. At an October 2012 VA examination, the Veteran reported the injuries described above. Diagnostic imaging revealed degenerative joint disease (DJD) and DDD. In sum, the Veteran reported an injury to his neck during active service. STRs show reports of neck pain and a diagnosis of cervical spine DDD was noted in December 2010. The Veteran has a current diagnosis of cervical spine DJD and DDD. The Board acknowledges that there is other evidence of record against the claim, to include a VA medical opinion. However, in light of the in-service diagnosis and the presence of the current disability, that evidence is of very little probative value. Accordingly, the Board finds that the preponderance of the evidence is for the claim and entitlement to service connection for a cervical spine disability is warranted. 38 U.S.C. § 5107 (b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 3. Service Connection – Sleep Apnea The Veteran has asserted that he has sleep apnea that had its onset during active service. STRs show that in January 2005, the Veteran was seen for complaints of sleep impairment. At that time, a diagnosis of sleep apnea was noted. However, there is no sleep study report of record. The Veteran continued to experience sleep impairment during service, reporting insomnia and fatigue. At times, those symptoms were attributed to his anxiety. Post-service medical evidence of record shows that in October 2013, the Veteran was afforded a sleep study. At that time, the Veteran was diagnosed with sleep apnea. Of record are multiple statements from the Veteran, his spouse, and fellow service members. In those statements, it was reported that the Veteran did not experience sleep impairment prior to his active service, he started experiencing symptoms of loud snoring, gasping for breath, insomnia, and daytime sleepiness while he was in active service and that those symptoms have continued since that time. In October 2014, the Veteran was afforded a VA examination. At that time, the examiner noted that it was less likely as not that the Veteran’s sleep apnea was incurred in service or was caused by (related to) his in-service complaints of sleep problems beginning in 2005. In this regard, the examiner noted that while there is no doubt that the Veteran had sleep apnea at the time of his sleep study in January 2013, his daytime sleepiness could not be attributed completely to his sleep apnea due to his irregular sleep habits. Further, the examiner noted that sleep apnea was not diagnosed within one year of his separation. The examiner appeared to acknowledge the lay statements regarding onset and continuity of symptoms, but did not appeal to afford them any sort of weight. The Board finds that the October 2014 VA examination is inadequate. In this regard, the examiner did not give adequate consideration to the Veteran’s lay statements regarding the onset and continuity of his symptoms. Further, the examiner relied on the fact that the Veteran’s symptoms of sleep impairment cannot solely be contributed to his sleep apnea as he has a psychiatric disability which also causes sleep impairment. However, the fact that the Veteran’s symptoms of sleep impairment are not solely due to his sleep apnea is simply not relevant. As the opinion is inadequate, it cannot be used to support a denial of entitlement to service connection. The Board notes that 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). The Veteran, his former spouse, and his fellow service members are competent to identify the Veteran’s symptoms of sleep apnea. Furthermore, their statements have been found credible by the Board. Accordingly, the Board finds that the evidence for and against the claim of entitlement to service connection for sleep apnea is at least in equipoise. Therefore, reasonable doubt must be resolved in favor of the Veteran and entitlement to service connection for sleep apnea is warranted. 38 U.S.C. § 5107 (b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 4. Increased Rating – PTSD The Veteran has asserted that his PTSD is worse than contemplated by the currently assigned rating. At a July 2017 VA examination, the Veteran reported that he had remarried and was living with his new wife and two of her children. He described his marriage as pretty good. He reported that he had two biological children, a son and daughter, with whom he reported an “okay” relationship. He reported that two of his friends recently died in motorcycle accidents and did not report having other friends. The Veteran reported that he enjoyed going for drives, watching movies, listening to music, hiking, garage sale shopping, hunting, and golfing. He reported that he had lost his motivation to run and so, had decreased his time at the gym. The Veteran reported that he was taking online classes in personal training and hoped to be a personal trainer, but had been working for the American Red Cross as a traveling phlebotomist. He reported that he had experienced some difficulty in maintaining employment due to some interpersonal issues, but also as a result of performance issues, since his retirement from the Army National Guard. The Veteran reported that he received some mental health treatment and was currently taking Prozac and Wellbutrin. He denied experiencing suicidal or homicidal ideations, plan, or intent. He reported that he sometimes felt down and helpless, that he felt like a failure, and that he was misunderstood by others. He reported that he was distant and moody, that he experienced sleep impairment, and that he struggled with irritability. The Veteran reported intrusive memories, nightmares, worry, feeling unsafe, difficulties concentrating, physiological arousal when exposed to trauma reminders, avoidance of crowds and loud noises, and decreased activity level due to lack of motivation. Upon mental status examination, the Veteran was noted to be on time for his appointment, was appropriately dressed, and his hygiene was good. He was oriented to person, place, time, and situation. He was cooperative throughout the interview and maintained appropriate eye contact. Speech was within normal limits for rate, tone, volume, and prosody. His thought processes were linear, there was no evidence of hallucinations, judgment was good, mood was good, and affect was largely appropriate. The examiner noted that the Veteran was not a danger to himself. The examiner noted that there was insufficient information provided by the Veteran or contained in the treatment records to confirm the Veteran’s diagnosis, but noted that the Veteran appeared to be functioning fairly well and that his symptoms had not worsened since his last VA examination in October 2012. A review of VA treatment records show that the Veteran has received intermittent mental health treatment. However, there is no indication from the record that his symptoms were manifestly different than those reported at the July 2017 VA examination. The Board finds that the Veteran is not entitled to a rating in excess of 30 percent for PTSD. In this regard, the evidence of record does not show the Veteran to have social and occupational impairment with reduced reliability and productivity. The Veteran has typically reported symptoms of sleep impairment, irritability, depression, anxiety, concentration problems, intrusive recollections, lack of motivation, decreased interest, avoidance, and some difficulty in maintaining occupational relationships. However, those symptoms have not been shown to be significant, or even moderate in severity. The Veteran has not been shown to have impairment in judgement, thinking, speech, maintaining personal hygiene, maintaining social relationships, or taking online courses. He does not have obsessional rituals and there is no evidence that he experiences panic attacks. The Veteran is not a danger to himself or others. As such, the Board finds that when the Veteran’s disability picture is considered as a whole, his symptoms do not warrant a rating in excess of 30 percent. As such, an increased rating for PTSD is denied. 38 C.F.R. § 4.130, Diagnostic Code 9411 (2018). Consideration has been given to assigning staged ratings. However, at no time during the period in question has the disability warranted a higher schedular rating than that assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007). Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to a rating in excess of 30 percent for PTSD is not warranted. 38 U.S.C. § 5107 (b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND The Board finds that additional development is warranted before the remaining claims on appeal are decided. Service Connection – Migraine Headaches There is medical evidence of record indicating that the Veteran’s migraine headaches are impacted by his service-connected cervical spine disability. An opinion regarding the nature and etiology of the Veteran’s migraine headaches, to specifically include whether they are caused or chronically worsened by a service-connected disability has not been obtained. As such, the Veteran should be afforded a VA examination to determine the nature and etiology of his migraine headaches. The matter is REMANDED for the following action: 1. Identify and obtain any pertinent, outstanding 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 his migraine headaches. The claims file must be made available to, and reviewed by the examiner. Any indicated studies must be performed. Based on the examination results and review of the record, the examiner should provide an opinion as to whether the Veteran’s migraine headaches clearly and unmistakably existed prior to his active service, and if so, were clearly and unmistakable NOT aggravated by such service? Regardless of whether the Veteran’s migraine headaches existed prior to his active service, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that his migraine headaches were caused or chronically worsened a service-connected disability, to specifically include his service-connected cervical spine disability. If it is found that the Veteran’s migraine headaches did NOT exist prior to his active service, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that his migraine headaches had their onset during active service, or are otherwise etiology related to such service. In forming the opinion, the examiner should specifically address the Veteran’s reports or being struck in the head with a rock and striking his helmeted head on a Humvee while in active service. The examiner should also consider the Veteran’s reports regarding the onset and continuity of his symptoms. The rationale for all opinions expressed must be provided. 3. Confirm that the VA examination report and all medical opinions provided comport with this remand, and undertake any other development determined to be warranted. 4. 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. Kristin Haddock Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Christina Quant, Law Clerk