Citation Nr: 18150607 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 16-48 411 DATE: November 15, 2018 REMANDED Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for sleep apnea, to include as secondary to service connected allergic rhinitis, is remanded. Entitlement to service connection for migraine headaches, to include as secondary to service connected allergic rhinitis, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from July 1978 to July 1998. These matters come before the Board of Veterans’ Appeals (Board) on appeal from March 2014 and December 2014 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. 1. Entitlement to service connection for tinnitus is remanded. Upon review of the record, the Board finds remand is warranted for additional examination and opinion. In his substantive appeal to the Board, the Veteran wrote “Tinnitus – I have tinnitus in my right and left elbows, also in my calf muscles.” The Veteran went on to explain this was due to an in-service racquet ball injury. The Veteran’s service treatment records do support the Veteran sustained an in-service racquet ball injury. See September 14, 1994 service treatment record. This suggests the Veteran may have meant to file a claim for another disability, e.g. tendonitis, as tinnitus is typically associated with individuals hearing ringing in their ears. The issue of entitlement to service connection for tendonitis was raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b). The AOJ should determine if the Veteran seeks to claim entitlement to service connection for tendonitis or other disability of the elbows and calves. The Veteran was provided a VA hearing loss and tinnitus examination in February 2014. With regard to tinnitus, the examiner concluded “there is no diagnosis because the condition is not claimed.” It is not clear to the Board if the examiner meant the Veteran wasn’t claiming entitlement to service connection for tinnitus, which would be consistent with the Veteran’s substantive appeal, or wasn’t claiming he had tinnitus or symptoms thereof. The above supports the Veteran may not have tinnitus and may have never intended to make a claim of service connection for tinnitus. However, this is inconsistent with a VA Form 21-526b received in March 2014 in which the Veteran explicitly listed “Ringing ears” as one of his claims. This was received after the February 2014 VA examination. In light of the March 2014 VA Form 21-526b, the Board infers the Veteran contends he does have a current disability of tinnitus (“ringing ears”). Therefore, this claimed current disability needs to be considered by a VA examiner, including an inquiry into the history of the Veteran’s reported tinnitus. 2. Entitlement to service connection for sleep apnea, to include as secondary to service connected allergic rhinitis, is remanded. Upon review of the record, the Board finds remand is warranted for additional examination and opinion. The Veteran was provided a VA sleep apnea examination in November 2014. The examiner opined the Veteran’s sleep apnea is less likely than not proximately due to or the result of the Veteran’s service connected allergic rhinitis. However, the examiner did not provide an opinion on whether sleep apnea is directly related to service. The Veteran contends he had in-service sleep apnea, stating that his wife told him about things he experiences in his sleep, “mainly stop breathing periodically”, and that she says he didn’t have this prior to the military. See September 2016 substantive appeal. This is consistent with a letter from the Veteran’s wife received on June 24, 2016. “I noticed a change in his sleep pattern while in the military. John would either not sleep well, be agitated while he slept, talk in his sleep, snore extremely loud and he would literally stop breathing while he was sleeping.” In light of the Veteran’s contention and his wife’s observations, remand is warranted to obtain an opinion on whether sleep apnea is related to service. 3. Entitlement to service connection for migraine headaches, to include as secondary to service connected allergic rhinitis, is remanded. Upon review of the record, the Board finds remand is warranted for additional examination and opinion. The Veteran was provided a VA headaches examination in February 2014. The examiner opined the Veteran’s claimed condition was less likely than not incurred in or caused by in-service headaches. The examiner’s rationale was that the Veteran denied a current headache disability: “No diagnosis of Migraine Headaches. Denies Migraine HA issues”. However, the Veteran has expressed disagreement with this rationale. As part of his substantive appeal, the Veteran reported he told the VA examiner that he “didn’t currently have a migraine headache on that day. I also informed him that I suffered from the migraine headaches periodically.” The Veteran further reported, in his substantive appeal, that he has had these periodic migraines, accompanied by nosebleeds, since an in-service head injury that resulted in a knot on the back of his head. A review of the Veteran’s service treatment records reveal treatment for a headache and a knot on his head in February 1984. The Veteran has also contended that his headaches are due to his service connected allergic rhinitis. See June 2015 notice of disagreement. In light of the Veteran’s statements and his service treatment record, remand is warranted in order to obtain opinions on whether the Veteran’s reported migraine headaches are related to service or a service-connected disability. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of the Veteran’s claimed ringing ears. The electronic claims folder, including a copy of this remand, must be made available to the examiner for review in connection with the opinion. The examiner is requested to review the electronic claims file (and note such a review) and offer an opinion as to the following questions: a) When did the Veteran’s tinnitus symptoms begin and how often do they occur? b) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s “ringing ears” was incurred in or otherwise related to service. The examination report must include a complete rationale for all opinions expressed. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of the Veteran’s sleep apnea. The electronic claims folder, including a copy of this remand, must be made available to the examiner for review in connection with the opinion. The examiner is requested to review the electronic claims file (and note such a review) and offer an opinion as to the following question: a) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s sleep apnea was incurred in or otherwise related to service, to include whether sleep apnea had its onset in service. In providing this opinion, the examiner must address the statements of the Veteran’s spouse, provided in her June 2016 letter. The examination report must include a complete rationale for all opinions expressed. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of the Veteran’s reported headaches. The electronic claims folder, including a copy of this remand, must be made available to the examiner for review in connection with the opinion. The examiner is requested to review the electronic claims file (and note such a review) and offer an opinion as to the following questions: a) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s reported headaches were incurred in or otherwise related to service, to include the February 1984 injury that resulted in a knot on the Veteran’s head. b) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s reported headaches were caused or aggravated by his service-connected allergic rhinitis. In providing these opinions, the examiner must address the contentions provide by Veteran in his June 2015 notice of disagreement and September 2016 substantive appeal. The examination report must include a complete rationale for all opinions expressed. (Continued on the next page)   4. After undertaking any additional development deemed appropriate, adjudicate the claims in light of any additional evidence added to the record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a Supplemental Statement of the Case and be afforded the applicable opportunity to respond before the record is returned to the Board for further review. MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Gregory T. Shannon, Associate Counsel