Citation Nr: 1806500 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 14-11 565 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to service connection for headaches. 2. Entitlement to service connection for obstructive sleep apnea. REPRESENTATION Veteran represented by: Margaret A. Matthews, Agent WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Shana Z. Siesser, Counsel INTRODUCTION The Veteran served on active duty in the United States Marines Corps from February 1999 to August 2003. These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. A Board hearing was conducted in April 2017 via videoconference. A transcript of this hearing is contained within the electronic claims file. The Board notes that in the Veteran's April 2014 Substantive appeal (VA Form 9), he indicated that he only intended to pursue an appeal for headaches. However, the issue of service connection for sleep apnea was certified in the February 2015 Form 8 and testimony was taken on the issue at the April 2017 Board hearing. Therefore, the Board finds it has jurisdiction of this issue. This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA (VVA) electronic claims processing systems. Any future consideration of this claim should take into consideration the existence of the electronic record. The issue of entitlement to service connection for sleep apnea is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT It is at least as likely as not that the Veteran's headaches are due to an in-service event or to a service-connected disorder. CONCLUSION OF LAW With resolution of reasonable doubt in the Veteran's favor, the criteria for service connection for headaches are met. 38 U.S.C.A. §§ 1110, 5103, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2017). In light of the Board's favorable decision, however, any deficiencies in VA's duties to notify and assist the Veteran with his claim of entitlement to service connection are moot. Law and analysis In this case the Veteran is seeking service connection for headaches, which he asserts had its onset during his period of active service. Generally, service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303(a)(2017). To establish service connection, the following must be shown: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any disease initially 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) (2017). 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 Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Equal weight is not accorded to each piece of evidence of the record. When there is an approximate balance of evidence for and against the issue, reasonable doubt will be resolved in the Veteran's favor. 38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. § 3.102 (2016); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran testified that he began experiencing cluster headaches during service following being in close proximity to rocket blasts. Post-service treatment records from 2012 related the Veteran's cluster headaches to service, including related to blasts as a demolition and rockets expert. His headaches were also related to his service-connected cervical spine disorder. Specifically, the record noted "complex, intermittent headaches may have a migrainous feature versus some elements of cervicogenic headache." Based on the foregoing, with resolution of reasonable doubt in his favor, the Board finds that entitlement to service connection for headaches is warranted. First, the Veteran has a current diagnosis of headaches. Second, there are in-service incidents of proximity to explosions and a cervical spine disorder incurred as a result of service. Finally, the Veteran's post-service treatment records relate his headaches to those in-service incidents and the Veteran is competent to testify that he has experienced headaches since that time. See Jandreau, supra; Buchanan, supra. The Board finds his lay statements are credible. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (noting that the credibility of a witness may be impeached by a showing of interest, bias, inconsistent statements, consistency with other evidence), aff'd, 78 F.3d 604 (Fed. Cir. 1996).Therefore, with resolution of the doubt in favor of the Veteran, the criteria for service connection for headaches have been met. ORDER Service connection for headaches is granted. REMAND Regarding the Veteran's claim of service connection for sleep apnea, a VA examination is necessary prior to adjudication. The Veteran has testified that he has apnea while he is asleep and that he snored during service. Post-service treatment records indicate that a sleep study was warranted but no study is contained within the claims file. To date, the Veteran has not been afforded a VA examination to determine if he has sleep apnea that was incurred during or as a result of service. Therefore, remand for a VA examination is necessary prior to adjudication. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Accordingly, the case is REMANDED for the following action: 1. Obtain any outstanding relevant treatment records. Request that the Veteran provide sufficient information, and, if necessary, authorization, to obtain any additional evidence, not already of record, which pertains to his claims for service connection. Any records of treatment since separation from service should be identified by the Veteran, and should be obtained to the extent possible. Document all attempts to obtain such records. 2. The Veteran is hereby notified that he may submit lay statements from himself, as well as from individuals such as friends and/or family members, who have first-hand knowledge of the nature and etiology of any sleep apnea disorder. He should be provided an appropriate amount of time to submit this lay evidence. 3. Schedule the Veteran for an appropriate VA examination with an examiner qualified to provide an opinion regarding the Veteran's claim. The claims folder should be made available to and reviewed by the examiner. The examiner must perform any necessary testing, including a sleep study if warranted, and provide all relevant diagnoses. If the Veteran has a diagnosis of sleep apnea, the examiner must opine whether it is as least as likely as not (50 percent probability or higher) that his sleep apnea began during or is otherwise related to service. It should be noted that the Veteran is competent to attest to observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. A comprehensive medical rationale is requested in response to all opinions and findings entered. 4. Then readjudicate the appeal. If the claim remains denied, the RO should furnish to the Veteran and his representative an appropriate supplemental statement of the case (SSOC) and afforded the appropriate time period to respond. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs