Citation Nr: 20054077 Decision Date: 08/14/20 Archive Date: 08/14/20 DOCKET NO. 19-26 235 DATE: August 14, 2020 ORDER Entitlement to a rating in excess of 50 percent for tension headaches is denied. REMANDED Entitlement to service connection for obstructive sleep apnea, to include secondary to service-connected PTSD and/or headaches is remanded. Entitlement to total disability for individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT The Veteran has been awarded a 50 percent disability evaluation for his service- connected headaches, the maximum schedular rating allowed under the applicable VA rating criteria. CONCLUSIONS OF LAW The criteria for a rating in excess of 50 percent for a migraine have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.124a, Diagnostic Code 8100 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served from January 1970 until March 1974. This matter originally came to the Board of Veterans’ Appeals (Board) on appeal from an April 2018 rating decision of a Department of Veteran’s Affairs (VA) Regional Office (RO). In a February 2020 decision, the Board remanded the issue for additional development, including the adjudication of entitlement to service connection for sleep apnea and a higher rating for headaches. In his June 2020, the Veteran’s representative has contended that his service connected headaches may have caused or aggravated his sleep apnea. The Board has recharacterized the issue above to show this new theory of entitlement. Entitlement to an evaluation in excess of 50 percent for tension headaches By way of history, the Board notes that the Veteran filed a claim for an increased rating for the service connected headaches in August 2015. At the time, the headaches were rated as 0 percent disabling, or noncompensable. In an October 2015 rating decision the claim for an increased disability rating for tension headaches was denied. The Veteran appealed the decision and in a Supplemental Statement of the Case of April 2020, a 50 percent disability rating was granted effective August 12, 2015, the date of the claim. Under Diagnostic Code 8100, 50 percent is the highest available rating for migraine headaches, and it is warranted for very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. See 38 C.F.R. § 4.124a, Diagnostic Code 8100 (2019). The highest disability rating has been awarded for the Veteran's post traumatic headaches. As noted, 50 percent rating is the maximum schedular rating for migraine headaches under Diagnostic Code 8100. There are no other Diagnostic Codes that are applicable. See Butts v. Brown, 5 Vet. App. 532, 538 (1993). Because the Veteran is at the maximum schedular rating for headaches (50 percent), there is no legal basis upon which to award a higher schedular rating. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). In Yancy v. McDonald, 27 Vet. App. 484, 494 (2017), the Court of Appeals for Veterans Claims held that an extraschedular analysis is not warranted where it is not "specifically sought by the claimant nor reasonably raised by the facts found by the Board." Here, the Board finds that an extraschedular rating was not specifically sought by the Veteran and it is not reasonably raised by the facts found by the Board. Indeed, at no point has the Veteran or his attorney used the word "extraschedular" or phrases interpretable as a belief that the rating schedule does not cover his symptoms or that he believes that his case is exceptional or outside the norm. Moreover, in the most recent correspondence submitted by the Veteran’s attorney in June 2020, following the grant of the 50 percent rating, the attorney listed the issue but did not address it in the correspondence. For the reasons noted above, the claim must be denied. REASONS FOR REMAND Entitlement to service connection for obstructive sleep apnea, to include secondary to service-connected PTSD and/or headaches is remanded. The Veteran was afforded a VA examination in October 2015. The October 2015 examiner opined that the claimed condition is less likely than not proximately due to or the result of the Veteran’s service-connected condition. In the rationale, the VA examiner stated that PTSD has not been identified as a condition that causes sleep apnea. However, the examiner failed to address whether the service connected PTSD has aggravated the Veteran’s sleep apnea. At the October 2015 VA examination, the Veteran stated he believes his obstructive sleep apnea was present during service, despite not being diagnosed until April 2015. Since the time of the examination, the Veteran has submitted additional evidence and arguments. In his October 2018 response to the Statement of the Case, the Veteran cited “Depression and Obstructive Sleep Apnea.” Schroeder, C., O’Hara, R. Annals of Gen. Psych. 4:13 (June 27, 2005) as support of his claim. Additionally, in support of his claim, the Veteran’s wife submitted a statement stating he has exhibited sleep apnea symptoms since they met in 1974. Finally, in his June 2020 brief, the Veteran contends that his sleep apnea may be related to his service-connected PTSD and his service-connected headaches. The Veteran also cites to several pieces of scientific literature to support his contention that there is a connection between PTSD and sleep apnea. The Board finds the October 2015 VA examination inadequate for appellate consideration. Although the examiner’s opinion addressed whether sleep apnea was caused by PTSD, there was no discussion as to whether sleep apnea was aggravated by PTSD or directly related to his military service. Further, the opinion does not address the new contention raised by the Veteran that his service connected headaches may have caused or aggravated his sleep apnea. The examiner also did not address all the evidence of record available at the time of the examination. Service treatment records indicate that the Veteran had ear, nose, or throat trouble; the examiner made no mention of this record in his opinion. Additionally, in an October 2013 statement, the Veteran indicated that his sleep apnea symptoms began following an incident during service and have continued ever since. As the October 2015 medical opinion is inadequate for the reasons stated above, a new medical opinion must be obtained. Entitlement to individual unemployability The issue of individual unemployability is deferred pending the adjudication of the Veteran’s obstructive sleep apnea claim. As noted in the February 2020 Board of Veteran Appeals decision, the issue of entitlement to service connection for obstructive sleep apnea is inextricably intertwined with the Veteran’s claim for TDIU. The matters are REMANDED for the following action: 1. Contact the Veteran and request that he submit a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability. The Veteran is hereby advised that failure to cooperate in the development of his claim, such as by not completing this form, may have adverse consequences on his pending claim. 2. After the above development is completed, the AOJ should arrange for a VA medical opinion, to determine the nature and likely cause of the Veteran's obstructive sleep apnea, with examination of the Veteran only if deemed necessary by an examiner. The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record, the examiner should provide an opinion with detailed rationale that responds to the following: Is it at least as likely as not (50% or greater probability) that the Veteran's obstructive sleep apnea was either caused or aggravated by his service-connected headaches or his service-connected PTSD? Please explain why. The opinion must address whether the disability increased in severity beyond its natural progression (i.e., was aggravated). The examiner must consider the lay statements of record including statements made by the Veteran and his wife. Additionally, the examiner must review and specifically address the statements and articles cited by the Veteran to include, “Depression and Obstructive Sleep Apnea.” Schroeder, C., O’Hara, R. Annals of Gen. Psych. 4:13 (June 27, 2005) and the articles noted in the June 2020 appellate brief. 3. If upon completion of the above action the issue remains denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board EJ Richardson 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.