Citation Nr: 20006980 Decision Date: 01/28/20 Archive Date: 01/28/20 DOCKET NO. 19-11 204 DATE: January 28, 2020 ORDER The claim of entitlement to service connection for a traumatic brain injury is granted. The claim of entitlement to service connection for a headache disorder is granted. REMANDED The claim of entitlement to service connection for sleep apnea is remanded. The claim of entitlement to service connection for right foot pes planus is remanded. FINDINGS OF FACT 1. The probative, competent evidence is at least in relative equipoise as to whether the Veteran’s TBI is etiologically related to his active duty service. 2. The probative, competent evidence is at least in relative equipoise as to whether the Veteran’s headache disorder is etiologically related to his active duty service and is caused or aggravated by his service-connected TBI. CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to service connection for a TBI have been met. 38 U.S.C. §§ 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). 2. The criteria for establishing entitlement to service connection for a headache disorder have been met. 38 U.S.C. §§ 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active duty service with the United States Air Force from June 2004 to June 2008. The Board notes that the issue of entitlement to service connection for right foot pes planus was previously characterized as whether new and material evidence has been received in order to reopen such claim. In this regard, an October 2015 rating decision denied service connection for such disorder on the basis that there was no current diagnosis. The Veteran was notified of the decision and in a December 2015 statement, the Veteran described his in-service treatment for bilateral pes planus. The denial was confirmed and continued in a February 2016 rating decision that determined that there was no confirmed diagnosis. An August 2016 VA treatment record included a diagnosis of bilateral pes planus. Consequently, as such evidence is new and material as to the issue addressed in the October 2015 rating decision and was received within one year of the Veteran receiving notice of the October 2015 rating decision, the decision is not final. 38 C.F.R. § 3.156 (b); see Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010) (holding that 38 C.F.R. § 3.156 (b) requires that VA evaluate submissions received during the year following notice of a rating decision to determine whether they contain new and material evidence, even if the new submission may support a new claim). Consequently, such issue has been recharacterized to reflect initial review of the matter. Duties to Notify and Assist Neither the Veteran nor his representative has raised any 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). Burden of Proof Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Service Connection Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303 (d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. See 38 C.F.R. § 3.310 (a); Harder v. Brown, 5 Vet. App. 183, 187 (1993). Additional disability resulting from the aggravation of a nonservice-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310 (b). See Allen v. Brown, 7 Vet. App. 439, 448 (1995). When an injury is incurred in combat, satisfactory lay or other evidence will be accepted as sufficient proof of service connection if the evidence is consistent with the circumstances, conditions or hardships of such service even though there is no official record of such incurrence or aggravation. 38 U.S.C. § 1154 (b); 38 C.F.R. § 3.304 (d). Service connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary. 38 U.S.C. § 1154 (b); Collette v. Brown, 82 F.3d 389, 393 (Fed.Cir.1996). While service connection for a combat-related injury may be based on lay statements alone, the competent and credible evidence must still show a current disability and a nexus to service. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Huston v. Principi, 18 Vet. App. 395, 402 (2004); Clyburn v. West, 12 Vet. App. 296, 303 (1999); Beausoleil v. Brown, 8 Vet. App. 459, 464 (1996); Libertine v. Brown, 9 Vet. App. 521, 522-23 (1996) (holding that U.S.C.A. § 1154(b) can be used only to provide a factual basis upon which a determination could be made that a particular disease or injury was incurred or aggravated in service, not to link the claimed disorder etiologically to a current disorder). 1. Entitlement to service connection for TBI. Please see discussion in paragraph 2. 2. Entitlement to service connection for headaches. The Veteran asserts that his TBI and headaches are related to service. The service treatment records do not document the Veteran’s claimed TBIs. On a November 2006 post-deployment health assessment, the Veteran reported headaches. He reported headaches again in June 2008. A July 2016 VA TBI entry note indicated that the Veteran experienced three TBIs during service caused by IEDs and mortars. He reported blunt trauma to the head multiple times from fights with prisoners, blunt trauma when a vehicle in front of him was hit by an IED, and blunt trauma to the head when his head hit concrete. He reported that he lost consciousness for less than five minutes during the three separate incidents. The Veteran described symptoms of loss of balance, dizziness, poor coordination, headaches, sensitivity to light, hearing difficulty, sensitivity to noise, numbness/tingling, poor concentration, forgetfulness, and fatigue. The physician determined that the Veteran had a combination of OEF/OIF deployment related TBIs. A July 2016 VA treatment record documented the Veteran’s report of headaches since 2006. An October 2016 VA treatment record noted that the Veteran had a history of multiple mild TBIs with full symptom recovery. In November 2016, the Veteran underwent a VA examination for his headache disorder. The diagnosis was migraine including migraine variants. The Veteran reported that he hit his head when an IED hit his convoy during his deployment in Iraq. He stated that he experienced headaches since the incident. The examiner opined that the Veteran’s headache disorder was less likely than not due to his in-service injury. The rationale was that although the Veteran sustained headaches during service, there was no record of continued care or treatment of the initial headache injury. The examiner noted that there was an eight-year gap since the injury. Therefore, the examiner was unable to provide an opinion as to whether the headache disorder is related to headaches that occurred during service without resorting to mere speculation. The Veteran submitted an August 2019 private psychological evaluation completed by K.B, Psy.D. Dr. B. opined that it was at least as likely as not that the Veteran sustained multiple mild TBIs during service. The opinion was based on the Veteran’s report of multiple TBIs during service from 2005 to 2006. It was noted that the Veteran injured his head multiple times when he sustained blows to the head, was injured in a mortar attack, and when he was involved in an IED explosion. Dr. B. noted symptoms such as memory problems, dizziness, balance problems, headaches, and irritability due to his in-service TBIs. Dr. B. disagreed with the November 2016 VA medical opinion as well as the October 2016 VA treatment record noting multiple TBIs during service with full symptom recovery. It was noted that the Veteran remained symptomatic since his initial TBI. Dr. B. referenced medical literature that showed the onset and persistence and headaches following a TBI. With respect to the headaches, Dr. B. opined that it was at least as likely as not that the Veteran’s headaches developed secondary to his in-service TBIs. It was noted that they initially occurred after a September 2005 TBI. Dr. B. pointed to the November 2016 statement from the Veteran’s wife that his headaches started after his first deployment with worsening symptoms following his second deployment. It was noted that his headaches changed around 2006, which is not uncommon. Upon review of the record, the Board finds that service connection is warranted for a TBI and a headache disorder. In this regard, the Veteran was given a diagnosis of a TBI in July 2016, October 2016, and August 2019. The November 2016 VA examination report includes a diagnosis of migraines. In addition, the evidence shows that the Veteran sustained multiple head injuries during service. The Board notes that the Veteran served two tours in Southwest Asia between 2005 and 2006. His personnel records note that he received the Army Commendation Medal for his “outstanding dedication to combat operations in Iraq.” He was also granted service connection for PTSD based on a combat stressor. Therefore, the Board finds that his claimed head injuries are consistent with the circumstance of his combat service notwithstanding the fact that there is no official record of such incurrence. 38 U.S.C. § 1154 (b). Finally, after reviewing the conflicting medical opinions of record, the Board finds that the evidence is at least in relative equipoise as to whether the Veteran’s TBI and headache disorder are related to his in-service head injuries. The August 2019 private medical opinions are probative as they were based on a review of the Veteran’s medical records, including VA examinations, and they were supported by well-reasoned rationale. Accordingly, resolving the benefit of the doubt in the Veteran’s favor, the Board finds that the Veteran’s TBI and headache disorder were caused by service. Therefore, service connection for a TBI and a headache disorder is warranted. Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). REASONS FOR REMAND 1. The claim of entitlement to service connection for sleep apnea is remanded. The Veteran asserts that his sleep apnea is related to service. Alternatively, he contends that his sleep apnea is related to his service-connection PTSD. Service treatment records include a November 2006 post-deployment health assessment on which the Veteran reported still being tired after sleeping. In a November 2016 statement, the Veteran’s wife wrote that she noticed increased snoring, as well as trouble falling and staying asleep since the Veteran returned from his deployment in 2006. In November 2016, the Veteran underwent a VA examination for his obstructive sleep apnea. The Veteran reported that he developed poor quality of sleep since his 2005 deployment in Iraq. The examiner opined that the Veteran’s sleep apnea was less likely than not incurred in or caused by service. The rationale was that the in-service condition was acute only and there was no evidence of chronicity of care. In January 2017, the RO obtained a VA medical opinion to determine whether PTSD can cause sleep apnea. The examiner provided the following opinion: It is etiologically impossible for PTSD to cause sleep apnea. Literature only supports sleep apnea worsening mental health problems because, of course poor sleep does that. If one read only the title to several of these studies it would appear otherwise but the conclusion and findings of the studies show the opposite aforementioned. Sleep apnea is a physical problem typically of the upper airway-PTSD cannot affect the soft tissue of the upper airway. PTSD has no etiological nexus to cause or affect sleep apnea. The evidence of record includes a June 2018 buddy statement from T.K., the Veteran’s squad leader while in Iraq from 2005 to 2006. T.K. stated that the Veteran’s duties required him to escort individuals to a large burn pit two to three times per week. T.K. stated that he and the Veteran shared a tent and that the Veteran began to snore more frequently than when he first arrived. The Board finds that the November 2016 and January 2017 VA medical opinions are inadequate for adjudication purposes. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). The November 2016 VA medical opinion found that sleep apnea was not related to service based on the lack of chronicity of care. However, when considering the lay statements of record noting the Veteran’s sleep problems since service, the Board finds that the November 2016 VA examiner’s rationale that there was no chronicity of care is insufficient rationale to support the negative opinion. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (finding an examination inadequate where the examiner did not comment on veteran’s report of an in-service injury and relied on lack of evidence in service medical records to provide negative opinion); see also Buchanon v. Nicholson, 451 F.3d 1331, 1336, 1337 (Fed. Cir. 2006) (holding that the Board may not rely on a medical opinion in which it is determined that a Veteran’s lay statements lack credibility solely because they are not corroborated by contemporaneous medical records). In addition, while the January 2017 VA medical opinion addressed whether the Veteran’s PTSD caused his sleep apnea, it does not appear that the examiner sufficiently addressed whether his PTSD aggravated his sleep apnea. See El-Amin v. Shinseki, 26 Vet. App. 136 (2013). Finally, the VA medical opinions of record did not address whether the Veteran’s sleep apnea was related to his environmental exposures in Southwest Asia. The Board notes that on post-deployment health assessments dated in October 2006, November 2006, and March 2007, the Veteran reported exposure to JP8 or other fuels, sand/dust, vehicle or truck exhaust fumes, smoke from burning trash or feces, pesticide strips, and excessive vibrations. Accordingly, a remand is required to obtain another VA medical opinion. 2. The claim of entitlement to service connection for right foot pes planus is remanded. The Veteran asserts that his right foot pes planus was incurred during service. A February 2008 service treatment record noted that the Veteran had flatfeet with instructions to treat the Veteran for his flatfeet. Additional symptoms related to the left foot were noted, such as decreased sensation of the left foot. However, the diagnosis was mild pes planus, as well as left foot paresthesias. The physician recommended that the Veteran be casted for customs. In a December 2015 statement, he reported that his feet were evaluated during service and that he was given shoe inserts to correct his arches. He explained that he visited a military foot doctor where he had to step on an image scale that took readings of his feet. He also had to step in a plaster mold for his feet. A week later, he was issued insoles for his feet. During an August 2016 VA examination, the Veteran reported that he had problems with flat feet during service and was treated with orthotics at that time. The examiner did not provide an opinion as to the etiology of pes planus. In light of the above, the Board finds that a remand is warranted to obtain a VA medical opinion. The matters are REMANDED for the following action: 1. The RO or the AMC should undertake appropriate development to obtain any outstanding records pertinent to the Veteran’s claims, to include updated VA treatment records. If any requested records are not available, the record should be annotated to reflect such and the Veteran notified in accordance with 38 C.F.R. § 3.159 (e). 2. Then, the RO or the AMC should afford the Veteran a VA examination by an examiner with sufficient expertise, to determine the nature and etiology of his claimed sleep apnea. All pertinent evidence of record must be made available to and reviewed by the examiner. All necessary tests and studies should be performed. Following an examination of the Veteran, and a thorough review of the record, the appropriate examiner is requested to: (a) Identify all sleep disorders that have been present during the period of the claim. (b) With respect to each such disorder the examiner should state an opinion as to whether there is a 50 percent probability that the disorder began in or is otherwise related to the Veteran’s active duty service, to include as due to environmental hazards in the Persian Gulf. (c) With respect to each such disorder the examiner should state an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that the disorder was caused or aggravated by his service-connected disorder, to include his PTSD and TBI residuals. (d) If there are objective manifestations of a disorder manifested by sleep symptoms that are not due to a known clinical diagnosis, the examiner should identify those manifestations and state an opinion as to whether there is a 50 percent probability or higher that the manifestations are due to an undiagnosed illness or chronic multisymptom disability of unknown etiology. Have the examining physician/specialist provide information to demonstrate that they are qualified to offer the above requested opinion (such as a curriculum vitae or similar demonstrable documentation). This information is to be associated with the Veteran’s claims file The rationale for all opinions expressed must also be provided. If the examiner is unable to provide any required opinion, he or she should explain why. If an opinion cannot be provided without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, examiner should identify the additional information that is needed. 3. Then, the RO or the AMC should afford the Veteran a VA examination by an examiner with sufficient expertise, to determine the nature and etiology of the Veteran’s right foot pes planus. All pertinent evidence of record must be made available to and reviewed by the examiner. All necessary tests and studies should be performed. Following an examination of the Veteran, and a thorough review of the record, the appropriate examiner is requested to address the following: (a) Whether the right foot pes planus constitutes a congenital defect or disease. To assist the examiner, for VA adjudication purposes, “disease” generally refers to a condition considered capable of improving or deteriorating, whereas “defect” generally refers to a condition not considered capable of improving or deteriorating. (As an example, VA considers sickle cell anemia as congenital “disease” for VA purposes, whereas refractive error is considered a congenital “defect.”) (b) If the disorder is found to be a congenital defect, the examiner should state whether there is any evidence of superimposed disease or injury during or resulting from the Veteran’s active duty service. (c) If the disorder is found to be a congenital disease, the examiner should state whether the disorder clearly and unmistakably preexisted the Veteran’s active duty service. (The term “clear and unmistakable” means that the evidence is undebatable.) If so, the examiner should state whether there was an increase in the severity of the disorder during the Veteran’s active duty service. If the evidence reflects such an increase, the examiner should indicate whether the increase was due to the natural progression of the disorder or whether it represented a chronic worsening of the underlying pathology. (d) If the examiner determines that the disorder is not a congenital defect and did not clearly and unmistakably preexist the Veteran’s active duty service, he or she should state whether it is at least as likely as not (50 percent or greater probability) that the disorder began in or is otherwise related to the Veteran’s active duty service, to include his treatment for flatfeet/pes planus during service. Have the examining physician/specialist provide information to demonstrate that they are qualified to offer the above requested opinion (such as a curriculum vitae or similar demonstrable documentation). This information is to be associated with the Veteran’s claims file. The rationale for all opinions expressed must also be provided. If the examiner is unable to provide any required opinion, he or she should explain why. If an opinion cannot be provided without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, examiner should identify the additional information that is needed. 4. Then, the RO or the AMC should readjudicate the issues on appeal. If the benefit sought on appeal is not granted to the Veteran’s satisfaction, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded the requisite opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. N. Nolley, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.