Citation Nr: 18153842 Decision Date: 11/29/18 Archive Date: 11/28/18 DOCKET NO. 16-44 010 DATE: November 29, 2018 ORDER Entitlement to service connection for dizziness is granted. Entitlement to service connection for migraines is granted. Entitlement to service connection for major depressive disorder (MDD) is granted. Entitlement to service connection for sleep apnea is granted. FINDINGS OF FACT 1. The evidence is at least evenly balanced as to whether the Veteran’s dizziness began during service. 2. The evidence is at least evenly balanced as to whether the Veteran’s migraines began during service. 3. The Veteran’s MDD was caused by his service connected bilateral hearing loss. 4. The evidence is at least evenly balanced as to whether the Veteran’s sleep apnea had its onset in service. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in favor of the Veteran, the criteria for entitlement to service connection for dizziness have been met. 38 U.S.C. §§ 1101, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 2. Resolving reasonable doubt in favor of the Veteran, the criteria for entitlement to service connection for migraines have been met. 38 U.S.C. §§ 1101, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 3. The criteria for entitlement to service connection for MDD have been met. 38 U.S.C. §§ 1101, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 4. Resolving reasonable doubt in favor of the Veteran, the criteria for entitlement to service connection for sleep apnea have been met. 38 U.S.C. §§ 1101, 1131, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1981 to October 1985. This case comes before the Board of Veterans’ Appeals (Board) on appeal of a January 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma which, among other things, denied service connection for headaches, anxiety, dizziness, and a sleep disorder. In August 2015, the Veteran filed his notice of disagreement, was issued a statement of the case in July 2016, and in September 2016 perfected his appeal to the Board. Service Connection The Veteran contends that working on nuclear weapons with high and enriched uranium in service caused his headaches, anxiety, sleep disorder, and dizziness. He stated that one of the chemicals he used in cleaning weapons was Toluene, which, according to the Veteran, causes dizziness and frequent headaches when ingested or inhaled. The Veteran stated he has suffered from both conditions for years but did not go to sick call because of the isolated area where he was stationed. He stated he was not provided proper protective equipment while working with these chemicals and that ventilation was sub-par. The Veteran also stated that the suffers from anxiety and sleep disorder, but was not able to see someone for these conditions during service as there was no medical help readily available. He stated his anxiety was caused by working with weapons of mass destruction and understanding that he could be responsible for killing thousands of people, and by drills which he thought were real where he prepared to launch weapons. He contends that these events have caused anxiety, nightmares, and sleep disorders for years since service. The Veteran’s DD Form 214 indicates that he worked as a nuclear weapons maintenance specialist while in service. Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, symptoms such as pain need not be diagnosed as connected to a current underlying disorder to function as an impairment and symptoms such as pain alone can be considered a disability under 38 U.S.C. § 1110. Saunders, 886 F.3d at 1364-65. Pursuant to 38 C.F.R. § 3.303(b), where a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected. If a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101(3) or 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Migraine headaches are organic diseases of the nervous system and therefore chronic. Service connection is also warranted for disability proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). The Veteran’s February 1984 medical examination report, almost 2 years prior to discharge, is normal with no indication of any disabilities, injuries or disease. His February 1984 medical history report notes that he is in “good health”, but the Veteran indicated that he is unsure if he has a history of frequent trouble sleeping, car, train, sea or air sickness, and depression or excessive worry. The Veteran submitted a buddy statement which noted the Veteran handled numerous chemicals in service and that the paint bay where they did most of the painting did not work properly as the ventilation was almost non-existent. The Veteran’s fellow servicemember also stated that the respirators used in the paint bay were inadequate and that he remembers being in the paint bay for about 30 minutes and coming out of the bay feeling light headed and dizzy. The fellow servicemember indicated that he and the Veteran were exposed to beryllium, cadmium and tritium as well as high explosives. 1. Dizziness and Migraines A September 2014 disability benefits questionnaire (DBQ) contains diagnoses of migraines and chronic tension headaches. The Veteran stated his headaches had their onset in the mid-1980s while stationed in Germany where he was exposed to chemicals and paints as he helped maintain and decommission nuclear weapons. He stated he now suffers from headaches, one each morning in the side of the head/temple area. The Veteran stated he treats his headaches with aspirin or acetaminophen 1 to 2 times a week. He also indicated that he experiences nausea, and sensitivity to light and sound, symptoms which are associated with his headaches. The examiner opined that the Veteran’s headaches are less likely than not incurred in or caused by the claimed in-service injury, event or illness stating that the symptoms are subjective, the objective examination is normal, and there is no objective evidence of a chronic condition, thus no nexus has been established. May 2015 VA treatment notes indicate a review of systems noted the Veteran’s symptoms were negative for headaches and dizziness among other symptoms. Statements from the Veteran and a fellow servicemember indicate that the Veteran was exposed to chemicals with inadequate ventilation and has suffered from headaches and dizziness since service due to this exposure. The Veteran is competently to say that he has experienced headaches and dizziness since service and the Board finds his testimony credible. While the September 2014 examiner opined that the Veteran’s headaches are less likely than not incurred in or caused by the claimed in-service injury, event or illness, the examiner based his opinion on the lack of “objective evidence” of a chronic disease, without considering the Veteran’s statements that he experienced headaches since service. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (examination inadequate where the examiner did not comment on the Veteran’s report of in-service injury and relied on lack of evidence in service medical records to provide negative opinion). Therefore, the opinion is afforded little probative value. The evidence is thus at least evenly balanced as to whether the Veteran’s current migraines and dizziness had their onset during service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for migraines and service connection for dizziness is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006) (“[N]othing in the regulatory or statutory provisions [relating to evidence to be considered] require both medical and competent lay evidence; rather, they make clear that competent lay evidence can be sufficient in and of itself”). 2. MDD and sleep apnea An August 2018 DBQ noted a diagnosis of MDD. The Veteran stated that he suffered from anxiety and sleep deprivation in service, noting that the nuclear weapons he was working on scared him, but he did not seek treatment. The examination report noted the Veteran first sought treatment in 1986 for depression and sleep difficulties. The examiner opined that the Veteran is suffering from depression which is at least as likely as not related to his difficulties with hearing, but possibly also related to other perceived possible damage sustained in service. The examiner noted the Veteran’s use of caffeine may have contributed to his anxiety and sleep difficulties. Based on a preponderance of the evidence, the Board finds that service connection for the Veteran’s MDD is warranted. The Veteran has provided competent and credible evidence of treatment for depression in 1986, approximately a year after he was discharged from service, and the August 2018 examiner opined that the Veteran’s depression was at least as likely as not related to his service connected hearing loss. As previously noted, service connection is warranted for disability proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). The Veteran has been awarded service connection for bilateral hearing loss from February 28, 2013 and the August 2018 examiner has provided a positive nexus opinion establishing that the Veteran’s MDD was at least as likely as not proximately caused by his service connected bilateral hearing loss. There is no negative nexus opinion of record regarding whether the Veteran’s MDD was caused by service or a service connected disease or injury. Therefore, service connection for MDD is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102. Whether or not the depression manifested prior to the hearing loss is not dispositive of the issue. See Frost v. Shulkin, 29 Vet. App. 131, 133 (2017) (for a veteran to be service connected on a secondary basis under a causation theory, the primary disability need not be service connected, or even diagnosed, at the time the secondary condition is incurred: “There is no such temporal requirement inherent in § 3.310(a)”). Regarding the Veteran’s service connection claim for sleep apnea, the evidence is at least evenly balanced as to whether the Veteran’s sleep apnea had its onset during service. The Veteran stated that he had symptoms causing difficulty sleeping in and since service and is competent to do so. The Board also finds this testimony credible and consistent with the circumstances of the Veteran’s service. See 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a) (each disabling condition for which a veteran seeks service connection must be considered based on factors including the basis of places, types, and circumstances of service as shown by service records). The same symptoms formed the basis for the diagnosis of sleep apnea including on the July 2014 sleep study. Thus, this evidence supports the onset of sleep apnea in service. The August 2018 examiner opined that the Veteran’s sleep disorder may have been related to the Veteran’s use of caffeine. However, this opinion is afforded little probative value as it is speculative and not accompanied by any explanation or rationale. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). (Continued on the next page)   The evidence is thus at least evenly balanced as to whether the Veteran’s sleep apnea had its onset in service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for sleep apnea is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Maddox, Associate Counsel