Citation Nr: 18160224 Decision Date: 12/26/18 Archive Date: 12/26/18 DOCKET NO. 17-03 956 DATE: December 26, 2018 ORDER Service connection for sleep apnea is granted. A 30 percent rating for migraine headaches is granted beginning June 15, 2015. A rating of 50 percent from November 15, 2016 onward for migraine headaches is granted. A rating in excess of 10 percent prior to June 15, 2015 and in excess of 50 percent after November 15, 2016, for migraine headaches is denied. A rating in excess of 10 percent for recurrent sinusitis is denied. FINDINGS OF FACT 1. The Veteran’s sleep apnea was as likely as not incurred in service. 2. For the rating period prior to June 15, 2015, the Veteran’s service-connected migraine headaches were not manifested by the requirement of characteristic prostrating attacks occurring on an average once a month over last several months. 3. Beginning June 15, 2015, the Veteran’s service-connected migraine headaches were manifested by the requirement of characteristic prostrating attacks occurring on an average once a month over last several months. 4. For the rating period from November 15, 2016 onward, the Veteran’s service-connected migraine headaches was manifested by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 5. Since November 15, 2016, the Veteran’s service-connected migraine headaches has been assigned at 50 percent, the maximum rating authorized, under Diagnostic Code 8100. 6. For the entire rating period, the Veteran’s service-connected recurrent sinusitis has not been manifested by three or more incapacitating episodes per year requiring prolonged (lasting four to six weeks) antibiotic treatment, or; more than six non-incapacitating episodes per year characterized by headaches, pain, and purulent discharge or crusting. CONCLUSIONS OF LAW 1. With resolution of reasonable doubt in the Veteran’s favor, the criteria for entitlement to service connection for sleep apnea have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303. 2. Prior to June 15, 2015, the criteria for entitlement to a rating in excess of 10 percent for migraine headaches have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.124a, Diagnostic Code 8100 (2018). 3. Beginning June 15, 2015, the criteria for entitlement to a 30 percent rating for migraine headaches have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.124a, Diagnostic Code 8100 (2018). 4. From November 15, 2016 onward, the criteria for entitlement to a rating of 50 percent for migraine headaches have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.124a, Diagnostic Code 8100. 5. Since November 15, 2016, there is no legal basis for the assignment of a schedular rating in excess of 50 percent for migraine headaches. 38 C.F.R. § 4.124a, Diagnostic Code 8100. 6. The criteria for entitlement to a rating in excess of 10 percent for recurrent sinusitis have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.21, 4.97, Diagnostic Code 6513 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from March 1976 to June 2004. Neither the Veteran nor his representative have raised any other issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Finally, a total disability rating based on individual unemployability (TDIU) is not for consideration because the Veteran does not contend, and the evidence does not show, that his service-connected disabilities on appeal render him unemployable. Rice v. Shinseki, 22 Vet. App. 447 (2009); see also Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009). In fact, the Veteran has demonstrated current employment during the appeal period. 1. Entitlement to service connection for sleep apnea Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. Service connection may be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). The Veteran has a current diagnosis of obstructive sleep apnea (OSA) during the appeal period, as noted in a May 2017 VA sleep study report and August 2017 VA Disability Benefits Questionnaire (DBQ) examination report for sleep apnea. As a result, the Board finds the element of a current disability has been met in this case. Throughout the course of the appeal, the Veteran reported the onset of symptomatology for sleep apnea while on active duty. He also explained that he thought snoring was normal and was unaware that it was treatable nor could be recognized as a disability and therefore did not seek treatment. Such assertions are noted in an August 2017 VA Form 21-4138 (Statement in Support of Claims) and the September 2017 VA Form 21-0958 (Notice of Disagreement (NOD)). Review of service treatment records shows that at the time of the Veteran’s examination, acceptance, and enrollment for military service, the October 1975 examination report documented clinical evaluation of his nose, mouth and throat, lungs and chest, and neurologic systems were normal. On Reports of Medical History, the Veteran marked “no” for having or ever having had a history of shortness of breath or frequent trouble sleeping, as noted in January 1980, November 1983, November 1986, October 1992, and October 1997. Treatment records during service are silent for any reported complaints or symptoms related to sleep apnea, and periodic examination reports documented clinical evaluation of his nose, mouth and throat, lungs and chest, and neurologic systems were normal, as noted in January 1980, November 1983, November 1986, October 1992, and October 1997. At the time of separation from service, the June 2004 examination report documented clinical evaluation of his nose, mouth and throat, lungs and chest, and neurologic systems were normal, and on the June 2004 Report of Medical History the Veteran marked “no” for having or ever having had a history of shortness of breath or frequent trouble sleeping. Nevertheless, the Veteran reported in the August 2017 VA Form 21-4138 that he had a history of loud snoring, frequent sleep talking, morning headaches, always tired, difficulty concentrating, unexplained irritability, and ongoing struggle with severe sleepiness during active service. He further noted that, at time, he would wake up in the middle of deep sleep gasping for air. In a July 2017 private statement, Dr. J. L. documented the Veteran reported snoring and fatigue during his time of active duty service. Additionally, lay statements from the Veteran’s wife and former shipmate documented their observations of the Veteran snoring and apneas during active service. As a result, the Board finds the element of an in-service occurrence has been met in this case. As noted above, the Veteran was afforded a VA DBQ examination for sleep apnea in August 2017. Following a review of the claims file and in-person examination, the VA examiner concluded the Veteran’s OSA apnea less likely than not incurred in or caused by service due to insufficient evidence that would suggest OSA onset in service. The VA examiner also explained, in part, the following: [The Veteran] separated from active duty service in 2004. He was diagnosed with sleep apnea 13 years later in 2017. Review of [service treatment records] reveal no documented evidence that would suggest sleep apnea such as persistent daytime fatigue or frequent morning headaches. On his retirement exam[ination] in 2004 he checked the box ‘no’ to question ‘frequent trouble sleeping.’ His OSA onset therefore was most likely sometime post-service due to insufficient objective evidence that would suggest onset during service and in light of significant time lapse (of 13 years) of diagnosis post-service. Most recently 2 buddy statements dated [in] August 2017 reported that the [Veteran] had frequent snoring in the service and was tire. Snoring does not necessarily indicate sleep apnea since snoring can be present in individuals without sleep apnea. On the other hand, review of the record shows that in the July 2017 private statement Dr. J. L. concluded the Veteran more likely than not had symptoms and complications of OSA during the period of his active military service. Dr. J. L. explained, in part, the following: At the time [during service], [the Veteran’s] symptoms of OSA, including fatigue and poor sleep quality were attributed to being overworked by his duty schedule. It is well known that untreated OSA can lead to fatigue due to intermittent arousals at night. . . . [A]lthough [the Veteran’s] OSA was not diagnosed until after his active military duty has ended, he began suffering from that disorder while he was still on active duty in the U.S. Navy, and that disorder continued to the present day. . . . [The Veteran’s] clinical history, which is highly characteristic of those with OSA, was not recognized during his active duty service. In an April 2018 private DBQ for sleep apnea, Dr. J. L. confirmed the Veteran’s diagnosis of OSA and concluded “[o]nset and progression of OSA and associated excessive daytime somnolence, more likely than not, occurred during his active duty service.” The Board finds that these August 2017 VA and July 2017 private medical opinions are competent and probative medical evidence as it appears that both physicians relied on accurate facts and medical history and gave fully articulated opinions supported by sound reasoning. As such, there is both favorable and unfavorable evidence of record that bears on the question of a nexus regarding the Veteran’s sleep apnea. Resolving reasonable doubt in favor of the Veteran, the Board finds that service connection for sleep apnea on a direct basis is warranted. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.303. Increased Ratings Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the veteran’s favor. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, such as for the service-connected recurrent sinusitis and migraine headaches in this case, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. 38 C.F.R. § 4.2; Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran’s disability should be viewed in relation to its history. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). 2. Migraine headaches In a February 2005 VA rating decision, service connection for migraine headaches was granted because was incurred during service. The Veteran was assigned a 10 percent disability rating effective for the entire rating period from July 1, 2004. See 38 C.F.R. § 4.124a, Diagnostic Code 8100. On June 15, 2015, the Veteran’s request for a higher rating for the issue on appeal was obtained and associated with the record. In a May 2017 VA rating decision, a 50 percent disability rating was assigned effective from May 17, 2017. As such, the Board considers whether a rating in excess of 10 percent prior to May 17, 2017 and in excess of 50 percent thereafter for migraine headaches is warranted in this case. Relevant to this appeal, the criteria for rating migraines are “successive.” Johnson v. Wilkie, No. 16-3808, 2018 U.S. App. Vet. Claims LEXIS 1253. “Successive” criteria exist where the evaluation for each higher disability rating includes the criteria of each lower disability rating, such that if a component is not met at any one level, the Veteran can only be rated at the level that does not require the missing component. Tatum v. Shinseki, 23 Vet. App. 152, 156 (2008). Under Diagnostic Code 8100, the next-higher evaluation of 30 percent requires characteristic prostrating attacks occurring on an average once a month over last several months. 38 C.F.R. § 4.124a. A 50 percent rating, the maximum available, requires very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. Id. The phrase “characteristic prostrating attacks” plainly describes migraine attacks that typically produce powerlessness or a lack of vitality. Johnson, No. 16-3808. “Completely prostrating” means that “…the headaches must render the veteran entirely powerless.” Id. at *18. The term “productive of severe economic inadaptability” means either producing or capable of producing. Pierce v. Principi, 18 Vet. App. 440, 445 (2004). Although VA regulations under 38 C.F.R. §§ 4.7, 4.21 generally provide that symptoms need only more nearly approximate the criteria for a higher rating in order to warrant such a rating, those regulations do not apply where the rating schedule establishes successive criteria. A. Rating greater than 10 percent rating prior to May 17, 2017 Review of the evidentiary record from June 14, 2014 to May 16, 2017 documents the following symptomatology of migraine headaches. In a June 2015 VA Form 21-4138 and January 2016 NOD, the Veteran reported having headaches almost every day, especially when his sinusitis occurs with characteristic prostrating attacks seriously impairing his functionality on an average twice a month over the last several months. He explained that he absolutely cannot perform adequately during the intense phase of the headaches. His headaches usually occur upon awakening and the pain comes and goes over a prolonged period of time. The Veteran also reported difficulty falling and staying asleep and sometimes develops intermittent non-exertional chest pressure with numbness on the left side of his neck for seconds at a time. In July 2015, the Veteran underwent a VA DBQ examination for headaches (including migraine headaches). The Veteran reported having migraines almost every day and sometimes sees skies underneath his eyes, has problem concentrating and tunnel vision, pukes, and trouble remembering names of his friends. He also reported missing some days of work for migraines. Clinical findings revealed the Veteran demonstrated symptoms of headache pain (pulsating or throbbing and on both sides of the head) for less than one day and vomiting. The VA examiner documented there were no clinical findings of characteristic prostrating attacks of migraine or non-migraine headache pain. On November 15, 2016, the Veteran underwent an additional VA DBQ examination for headaches (including migraine headaches). The Veteran reported having headache episodes approximately two times per month with pain that starts in the right temple that radiates to the top of the head with bilateral eye pain with visual disturbances. He reported difficulty concentrating with forgetfulness and generalized fatigue, associated photophobia, phonophobia, nausea, vomiting with numbness and tingling of arms and feet, and these episodes can last up to six hours. He also reported missing approximately 10 days of work over the prior year due to his migraine condition. Clinical findings revealed the Veteran demonstrated symptoms of headache pain (pulsating or throbbing and on both sides of the head) for less than one day, vomiting, nausea, sensitivity to light and sound, changes in vision, and sensory changes. The VA examiner documented there were no clinical findings of characteristic prostrating attacks of migraine or non-migraine headache pain. Review of private treatment records during the appeal period shows ongoing treatment for headaches. Specifically, an October 2015 private consultation summary report documented the Veteran’s chief complaint of headaches and possible chronic sinusitis. He asserted pain in the back of the head, moderate severity of pain, and sometimes decreased sense of smell, and no associated signs and symptoms of flashing lights, epistaxis, or altered sense of smell. A November 7, 2016 record noted headaches with no dizziness, fainting, or limb weakness. While a January 2017 record documents the Veteran denied any overt headaches, his use of medication for migraines was noted. Review of VA treatment records during the appeal period further shows ongoing complaints and treatment for headache pain, as noted in April 2017. The most probative evidence of record shows that on June 15, 2015, the date that the RO received the Veteran’s statement about having characteristic prostrating attacks on average twice a month, the 30 percent criteria were met. However, the 50 percent rating criteria were not met prior to November 15, 2016 because he did not have (1) very frequent (2) completely prostrating and prolonged attacks that were (3) productive of or capable of producing severe economic inadaptability. With regard to the appeal period prior to November 15, 2016, the Board considers the Veteran’s reported history of symptomatology related to the service-connected migraine headaches. He is competent to report such symptoms and observations because this requires only personal knowledge as it comes through one’s senses. Layno v. Brown, 6 Vet. App. 465, 470 (1994). In this case, although the descriptions of his symptoms are competent and credible, they do not show that the criteria for a 50 percent rating for his migraine headaches have been met at any time during the appeal period prior to November 15, 2016. Kahana v. Shinseki, 24 Vet. App. 428 (2011). “Completely prostrating” means that “…the headaches must render the veteran entirely powerless.” Johnson, 2018 U.S. App. Vet. Claims LEXIS 1253 at *18. Prior to November 25, 2016, the record does not show that the Veteran’s headaches rendered him entirely powerless. He is able to attend work. Even though he stated to the July 2015 VA examiner he missed “some days” of work, this statement is not supportive of a finding that he was rendered “entirely” powerless. The VA Adjudication Procedures Manual (M21-1) is not binding on the Board. However, relevant provisions must be discussed. Overton v. Wilkie, No. 17-0125, 2018 U.S. App. Vet. Claims 1251. M21-1 III.iv.4.N.7.e. notes that evidence of work impairment can include use of sick leave or unpaid absence. Although the Veteran has some level of work impairment, the fact that he is able to attend work shows that he is not rendered powerless. Because one of the three criteria for a 50 percent rating are not met, a 50 percent rating is not warranted. From November 15, 2016 onward, the Board finds that the most probative evidence of record includes evidence of very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. Such symptomatology during this period includes headache pain, vomiting, nausea, sensitivity to light and sound, changes in vision, sensory changes, numbness and tingling of limbs, and increased time missed from work. As a result, the 50 percent criteria are met during the appeal period from November 15, 2016 onward. Id. B. 50 percent rating since November 15, 2016 Since the Veteran’s service-connected migraine headaches has been assigned the maximum schedular rating available for migraines since November 15, 2016, the Board finds there is no legal basis upon which to award a higher schedular evaluation for migraine headaches during the appeal period since November 15, 2016. As such, entitlement to a rating in excess of 50 percent for migraine headaches is not warranted on a schedular basis since November 15, 2016. See Sabonis v. Brown, 6 Vet. App. 426 (1994). 3. Recurrent sinusitis In a February 2005 VA rating decision, service connection for recurrent sinusitis was granted. The Veteran was assigned a 10 percent disability rating effective for the entire rating period from July 1, 2004. See 38 C.F.R. § 4.97, Diagnostic Code 6513. On June 15, 2015, the Veteran’s request for a higher rating for the issue on appeal was obtained and associated with the record. The Board considers whether a rating in excess of 10 percent is warranted at any time since or within one year prior to the date of claim on June 15, 2015. Under the General Rating Formula for Sinusitis (Diagnostic Codes 6510-6517), the next-higher 30 percent rating is warranted for three or more incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or; more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. 38 C.F.R. § 4.97. A 50 percent rating, the maximum available, is warranted when following radical surgery with chronic osteomyelitis, or; near constant sinusitis characterized by headaches, pain and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries. Id. For VA compensation purposes, an incapacitating episode of sinusitis means one that requires bed rest and treatment by a physician. Id. at Note. Review of the evidentiary record since June 15, 2015, to include within one year prior, documents the following symptomatology of recurrent sinusitis. In the June 2015 VA Form 21-4138 and January 2016 NOD, the Veteran reported having a history of recurrent runny nose, itchy blockage of drainage ducts, and watery or swollen eyes. He noted the condition of his sinusitis develops at any given time and often lasts more than six non-incapacitating episodes per year for five to eight weeks. He also reported associated symptoms of headache, pain, purulent discharge, nasal congestion, sneezing, sinus pressure/inflammation, postnasal drop, pressure in the ear or difficulty hearing, and problems with sinuses and the back of the throat. In July 2015, the Veteran underwent a VA DBQ examination for sinusitis, rhinitis, and other conditions of the nose, throat, larynx, and pharynx. The Veteran reported having discomfort around the eyes and was on antibiotics six months prior to his sinuses. Upon clinical evaluation, the VA examiner affirmed the Veteran’s diagnosis of maxillary sinusitis but also documented the Veteran was not currently affected by sinusitis with no non-incapacitating or incapacitating episodes of sinusitis in the prior 12 months. In November 2016, the Veteran underwent an additional VA DBQ examination for sinusitis, rhinitis, and other conditions of the nose, throat, larynx, and pharynx. The Veteran reported having annual episodes of sinusitis requiring antibiotic therapy with last fill of medication in September 2015, and chronic sinus congestion with sinus pressure above and below the eyes with headaches. Upon clinical evaluation, the VA examiner affirmed the Veteran’s diagnosis of maxillary sinusitis and documented the Veteran did not have any findings, signs, or symptoms attributable to chronic sinusitis, nor any non-incapacitating or incapacitating episodes of sinusitis in the prior 12 months. In May 2017, the Veteran underwent his most recent VA DBQ examination for sinusitis, rhinitis, and other conditions of the nose, throat, larynx, and pharynx. The Veteran reported having a lot of sneezing and sinus pressure since his last evaluation. Upon clinical evaluation, the VA examiner rendered a diagnosis of history of maxillary sinusitis and documented the Veteran was not currently affected by sinusitis with no non-incapacitating or incapacitating episodes of sinusitis in the prior 12 months. Review of private and VA treatment records shows no indications of worsening or episodes of sinusitis. Specifically, in the October 2015 private consultation summary report, the Veteran presented with complaints of headaches possible chronic sinusitis and was assessed with chronic sinusitis. In December 2015 the Veteran underwent a private laryngoscopy and results revealed a normal larynx. A November 2016 private treatment record noted clinical evaluation of the Veteran’s ear, nose, and throat revealed no sinus tenderness. After review of the pertinent evidence of record discussed above, the Board finds the most probative evidence of record shows the Veteran’s service-connected recurrent sinusitis has not been manifested by at least three or more incapacitating episodes per year requiring prolonged (lasting four to six weeks) antibiotic treatment, or; more than six non-incapacitating episodes per year characterized by headaches, pain, and purulent discharge or crusting. While symptomatology during the appeal period includes headaches, pain, discomfort around the eyes, congestion, sinus pressure, and treatment with antibiotics, there were no findings of required bed rest and treatment by a physician to show any incapacitating episodes nor at least six non-incapacitating episodes manifested by symptoms to include purulent discharge or crusting. As such, a rating in excess of 10 percent is not warranted at any time during the appeal period. See 38 C.F.R. § 4.97, Diagnostic Code 6513. The Board considers the Veteran’s reported history of symptomatology related to the service-connected recurrent sinusitis. See Layno, 6 Vet. App. at 470. In this case, although the descriptions of his symptoms of runny nose, itchy blockage of drainage ducts, watery or swollen eyes, congestion, sinus pressure, sneezing, and headaches are competent and credible, they do not show that the criteria for a higher rating for his recurrent sinusitis have been met. See Kahana, 24 Vet. App. at 428. In this case, competent evidence concerning the nature and extent of the Veteran’s disability has been provided in the medical evidence of record. As such, the Board finds these records to be more probative than the Veteran’s subjective reported worsened symptomatology. (Continued on the next page)   The Board has considered the possibility of staged ratings and finds that the proper rating for recurrent sinusitis has been in effect for the period on appeal. Accordingly, staged ratings are inapplicable. See Hart, 21 Vet. App. at 505. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Carter, Counsel