Citation Nr: 20056596 Decision Date: 08/26/20 Archive Date: 08/26/20 DOCKET NO. 15-40 970 DATE: August 26, 2020 ORDER New and material evidence having been received, reopening of the previously denied claim of service connection for headaches, diagnosed as migraines, is granted. New and material evidence having been received, reopening of the previously denied claim of service connection for sleep apnea is granted. Service connection for headaches, diagnosed as migraines, is granted. Service connection for sleep apnea is granted. FINDINGS OF FACT 1. A March 2012 rating decision denied service connection for headaches and sleep apnea on the grounds that no diagnoses for these disabilities were shown; that decision became final in March 2013. 2. Evidence received since March 2012 is not cumulative or redundant of the evidence previously of record, relates to an unestablished fact necessary to substantiate the claims of service connection for headaches and sleep apnea, and raises a reasonable possibility of substantiating these claims. 3. The Veteran's migraine headaches had their onset in service. 4. The Veteran's sleep apnea had its onset in service. CONCLUSIONS OF LAW 1. The March 2012 rating decision that denied service connection for headaches is final. 38 U.S.C. § 7105 (2018); 38 C.F.R. § 20.1103 (2020). 2. New and material evidence has been received to reopen the previously denied claim of service connection for headaches. 38 U.S.C. § 5108 (2018); 38 C.F.R. § 3.156 (a) (2020). 3. The criteria for service connection for migraine headaches are met. 38 U.S.C. § 1110, 5107(b) (2018); 38 C.F.R. §§ 3.102, 3.303 (2020). 4. The March 2012 rating decision that denied service connection for sleep apnea is final. 38 U.S.C. § 7105 (2018); 38 C.F.R. § 20.1103 (2020). 5. New and material evidence has been received to reopen the previously denied claim of service connection for sleep apnea. 38 U.S.C. § 5108 (2018); 38 C.F.R. § 3.156 (a) (2020). 6. The criteria for service connection for sleep apnea are met. 38 U.S.C. § 1110, 5107(b) (2018); 38 C.F.R. §§ 3.102, 3.303 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS From July 2007 through October 2007 and August 2008 through April 2010, the Veteran served in the Army on active duty. The Veteran also served in the Army Reserve from April 2010 through at least January 2018. This matter is before the Board of Veterans’ Appeals on appeal from a September 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In November 2018, the Board remanded the appeal for further evidentiary development and subsequent readjudication of the appeal. The case now returns to the Board after satisfactory completion of the ordered development; therefore, there has been compliance with the Board’s prior remand directives. Stegall v. West, 11 Vet. App. 268 (1998); D’Aries v. Peake, 22 Vet. App. 97 (2008). New and Material Evidence Rating actions from which an appeal is not timely perfected become final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. A final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). 1. Headaches In the March 2012 rating decision, the RO denied the Veteran's claim of service connection for headaches on the basis that there was no objective evidence of a diagnosed headache condition. The March 2012 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. Since the March 2012 rating decision, the Veteran has been diagnosed with migraine headaches. Specifically, in April 2014, a VA examiner diagnosed the Veteran with migraine headaches. This previously unconsidered evidence raises the reasonable possibility of substantiating the claim and addresses the unestablished fact of a current disability. Therefore, new and material evidence has been received and the claim for service connection for headaches is reopened. 2. Sleep Apnea In the March 2012 ratings decision, the RO denied the Veteran’s claim of service connection for sleep apnea on the basis that there was no objective evidence of a diagnosis of sleep apnea. The March 2012 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. A sleep study in May 2015 diagnosed the Veteran with severe obstructive sleep apnea. This previously unconsidered evidence raises the reasonable possibility of substantiating the claim and addresses the unestablished fact of a current disability. Therefore, new and material evidence has been received and the claim for service connection for sleep apnea is reopened. Service Connection Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C. §§ 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In order to establish service connection on a direct basis, the record must contain competent evidence of: (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). Some chronic diseases may be presumed to have been incurred in service if they become manifest to a degree of ten percent or more within the applicable presumptive period. 38 U.S.C. §§ 1101 (3), 1112(a); 38 C.F.R. §§ 3.307 (a), 3.309(a). For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection. 38 C.F.R. § 3.303 (b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). A migraine disorder (organic disease of the nervous system) is considered a “chronic disease” that is among the listed conditions. When assessing the probative value of a medical opinion, the thoroughness and detail of the opinion must be considered. The opinion is considered probative if it is definitive and supported by detailed rationale. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). In adjudicating a claim, the competence and credibility of the Veteran must be considered. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). Competent lay evidence is any evidence not requiring that the person giving the evidence have specialized education, training or experience. 38 C.F.R. § 3.159(a)(2). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 1. Headaches The Veteran seeks service connection for migraine headaches which he reports began when he was deployed to Iraq in 2008. The record shows that the Veteran was diagnosed with migraines by at least April 2014, satisfying the requirement of a current disability. The Veteran's service treatment records document that as early as January 2010, he reported suffering daily headaches that affected his vision. The Veteran regularly complained of these severe daily headaches. However, the service treatment records do not contain a diagnosis for these headaches, although the April 2014 VA examination notes that the Veteran was diagnosed with migraine headaches in 2009. In April 2014, the Veteran described having headaches three to four times a month that were triggered by sunlight and lasted approximately one day. The Board recognizes that there is a negative medical opinion from a VA examiner. However, this opinion is inadequate; the examiner failed to account for the Veteran's statements regarding the onset, nature, frequency and duration of his headaches, instead concluding that the Veteran's current headaches were not related to his in-service headaches because the Veteran's treatment providers did not conduct ongoing evaluations. In contrast, the Veteran's contemporaneous reports of his headache symptoms are competent and credible; his descriptions of his symptoms are not the type of statements that would require specialized knowledge to perceive or understand. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Moreover, these reports to treatment providers predated his claim. Consequently, the Board finds the Veteran's statements persuasive and highly probative. The Board also notes the record contains an addendum VA opinion from September 2014 that the Veteran’s migraines were not related to his service in Southwest Asia. As the record supports presumptive service connection for the Veteran's migraine headaches, this opinion is irrelevant to the determination of this claim. Therefore, based on the service treatment records, the findings on the VA examination and the competent and credible statements from the Veteran concerning the onset and continuity of his headaches, the Board finds that service connection is warranted for the Veteran's severe (migraine) headaches. 2. Sleep Apnea The Veteran was diagnosed with severe obstructive sleep apnea in March 2015, establishing a present disability. The Veteran contends that his disease began while he was in service. He related lay statements from his mother and roommates regarding the early manifestations of his disease while in service, described as snoring, choking, and struggling to breathe. He also reports that he was tired during the day. In July 2014, the Veteran’s doctor recommended that he be evaluated for obstructive sleep apnea based on his reports of snoring, ceasing to breathe during sleep, frequent awakenings and fatigue on awakening. Ultimately, this evaluation was delayed until March 2015 because the diagnostic testing required travel to Honolulu and the VA could not pay for the Veteran’s travel. When the Veteran was ultimately evaluated in March 2015, he was diagnosed with severe obstructive sleep apnea. The record contains two negative VA opinions on the issue of direct service connection: one from April 2014, where the examiner based his negative opinion on the lack of a formal diagnosis of sleep apnea and the second from September 2015, after the Veteran's formal diagnosis. The 2014 examiner’s opinion is given no weight, as the Veteran was subsequently diagnosed with severe obstructive sleep apnea. The 2015 examiner concluded that the Veteran's sleep apnea was less likely than not related to his service because he was not diagnosed until after his active duty service, no testing was conducted during service and the Veteran reported a good response to Ambien. However, this opinion does not adequately account for the Veteran's reports of sleep disturbances while on active duty, or the reports of his mother and roommates, who he states described disruptively loud snoring. Accordingly, this opinion is accorded little probative weight. On the other hand, the Veteran has consistently reported sleep disturbances since at least 2009. Roommates, fellow servicemembers and at least one relative have told him that his snoring is extremely loud, and his mother told the Veteran that she noticed the increased snoring after he returned from deployment. These symptoms of sleep apnea, including snoring and tiredness during the day are observable symptoms which are capable of being identified by the Veteran and his mother and roommates as lay witnesses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Doctors have associated the symptoms reported by the Veteran, fellow servicemembers and his mother with the diagnosis of sleep apnea. Specifically, in July 2014, his doctor concluded that his report of these symptoms warranted formal diagnostic testing for sleep apnea. Therefore, the Board finds these lay statements are sufficient to establish a nexus between the Veteran’s obstructive sleep apnea and his time in service. The Board also notes that the record contains an addendum opinion from that the Veteran's sleep apnea was not secondary to his service-connected PTSD. Since the evidence directs a finding of direct service connection, this opinion is irrelevant to this determination. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Megan-Brady Viccellio 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.