Citation Nr: 20049540 Decision Date: 07/24/20 Archive Date: 07/24/20 DOCKET NO. 16-26 528 DATE: July 24, 2020 ORDER Service connection for migraine, secondary to service-connected post-traumatic stress disorder (PTSD), is granted. REMANDED Entitlement to service connection for sleep disturbances encompassing insomnia and obstructive sleep apnea, to include as secondary to PTSD, is remanded. FINDING OF FACT Resolving reasonable doubt in the Veteran’s favor, his diagnosed migraine headaches are at least as likely as not aggravated by his service-connected PTSD. CONCLUSION OF LAW The criteria for entitlement to disability benefits for service connection for migraines, secondary to service-connected PTSD, have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 2004 to April 2005 and December 2005 to January 2010, with service in Iraq from September 2006 to September 2007 and in Afghanistan from October 2008 to February 2009. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an October 2014 rating decision issued by the Department of Veterans’ Affairs (VA) Regional Office in Chicago, Illinois. In November 2019, the Board remanded in-part for a VA examination and opinion. The examination was to ascertain whether the Veteran’s claimed conditions were caused or aggravated by his service-connected PTSD. The Board finds there has been substantial compliance with the prior remand directives regarding migraines only. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (a remand order by the Board confers on a claimant the right to compliance with that order); see also D’Aires v. Peake, 22 Vet. App. 97, 105 (2008) (holding it is “substantial compliance,” and not “strict” compliance that is the standard). As will be discussed below, substantial compliance with the remand directives has not been satisfied regarding the VA examination and report for sleep disturbances. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Service connection for migraine headaches, secondary to service-connected PTSD, is granted. The Veteran contends that his migraine headaches are proximately due to or aggravated by his service-connected PTSD. The Board finds secondary service connection is warranted. Service connection may be granted for a disability resulting from personal injury suffered or disease contracted in the line of duty, or for the aggravation of a pre-existing injury or disease in the line of duty. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. When presumptive service connection is not applicable, direct and secondary service connection may be considered. See Combee v. Brown, 34 F.3d 1039, 1043-44 (1994). In the event a Veteran has at least one service-connected disability, he or she may be entitled to benefits based on a secondary service connection. In order to establish a secondary service connection, the Veteran must show: (1) a current disability that is not already service-connected; (2) at least one service-connected disability; and, (3) evidence that the non-service-connected disability is either proximately due to or aggravated beyond its natural progression by a service-connected disability. 38 C.F.R. § 3.310(a); 38 C.F.R. § 3.310(b); Allen v. Brown, 7 Vet. App. 439, 444 (1995). Secondary service connection cannot be found “unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury.” 38 C.F.R. § 3.310(b). The Veteran has a current diagnosis of migraine headaches as found in the headache questionnaire and VA examination report. See 2019 VA Examination Opinion. Post-separation, the Veteran was diagnosed with migraines in 2013. See Veteran’s 2016 Disability Benefits Questionnaire. It is also undisputed that the Veteran is currently service-connected for PTSD. Thus, the pertinent inquiry here is whether the Veteran’s migraine headaches were caused or are aggravated by his PTSD. The Board previously remanded this issue to obtain a VA examination to address this question. Such an examination was obtained in December 2019 where the examiner concluded that the Veteran’s migraines are “at least as likely as not aggravated beyond its natural progression” by his service-connected PTSD. The examiner reasoned that one of the Veteran’s migraine triggers is increased emotional stress which “is one of the most frequently reporting triggers.” The examiner went on to explain that the Veteran’s PTSD causes increased stress through the symptoms of nightmares, anxiety, and paranoia. The Board finds the medical examination and report regarding the Veteran’s migraines to be adequate. The examiner considered the Veteran’s prior medical history and examinations while providing reasons and bases for the conclusions reached. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The VA examiner noted that he was unable to determine a baseline level of severity regarding the Veteran’s migraines for aggravation purpose. Based on the available evidence of record, the Board is unable to determine a clear baseline level of severity. Therefore, the Board will afford the Veteran the benefit of the doubt in determining the evidence is at least in equipoise to establish the Veteran’s migraines are aggravated by his service-connected PTSD. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Secondary service connection for migraines has been established. REASONS FOR REMAND Entitlement to service connection for sleep disturbances encompassing insomnia and obstructive sleep apnea, to include as secondary to PTSD, is remanded. The Veteran contends he suffers from sleep disturbances including insomnia and obstructive sleep apnea, both of which he states are caused by or aggravated by service-connected PTSD. The Board finds the VA examination report not adequate and remands this matter for another VA examination and an addendum opinion in relation to the Veteran’s sleep disturbances. In 2019, the Board remanded the issue of the Veteran’s sleep disturbances, including insomnia and obstructive sleep apnea, for additional records as well as a VA examination. When the Board issues a remand, it confers on a Veteran the right to compliance with that order. Stegall v. West, 11 Vet. App. 268, 271 (1998). But it is substantial compliance, not strict or absolute compliance, that is the standard. D’Aires v. Peake, 22 Vet. App. 97, 105 (2008). The Board finds there has not been substantial compliance with the remand order regarding the Veteran’s sleep disturbances because the medical opinion obtained is not adequate. Under the duty to assist a claimant, when a medical examination or opinion is provided, it must be adequate. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes to provide a medical examination or opinion, it must ensure that the examination or opinion is adequate); Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board’s duty to return an inadequate examination report “if further evidence or clarification of the evidence... is essential for a proper appellate decision”). An adequate medical opinion must be based upon a consideration of the Veteran’s prior medical history and must describe the Veteran’s condition in sufficient detail so as to allow the Board to make a fully informed evaluation. Ardison v. Brown, 6 Vet. App. 405, 407 (1994). In short, an adequate medical opinion should contain sufficient information such that the Board is not required to rely on its own independent medical judgment. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The opinion must “contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two.” Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). Insomnia First, the Veteran’s insomnia symptoms were noted in his service treatment records beginning in 2009 with medication being prescribed. The Veteran continued to report insomnia over the years with medication changes in 2012 and 2013 as treatment. A VA examination was ordered to assist in the resolution of the Veteran’s claim. Specifically, the remand directed “an examination by an appropriate clinician to determine the nature and etiology of any disability manifest by sleep disturbance.” Additionally, the examination was to include an opinion as to “whether it is as least as likely as not that any sleep disturbance disability found is due to an undiagnosed illness or to a medically unexplained chronic multisymptom illness.” The VA examination was completed in 2019. The examiner failed to address the Veteran’s insomnia. Instead, the opinion only discussed obstructive sleep apnea. The examiner also failed to address whether any sleep disturbance disability found was at least as likely as not due to an undiagnosed illness or to a medically unexplained chronic multisymptom illness. Unfortunately, there has not been substantial compliance with the Board’s previous remand directives regarding sleep disturbances, including specifically insomnia. Another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board recognizes the delay this causes in the resolution of the Veteran’s claim. It is necessary, however, to ensure the Veteran receives any and all benefits to which he is entitled. Obstructive Sleep Apnea The Veteran was diagnosed with obstructive sleep apnea in 2014. See 2014 CPAP Interpretation. Thus, the presumptions related to undiagnosed illnesses and MUCMIs in 38 C.F.R. § 3.317 are not applicable. During the 2019 VA examination, the VA examiner opined that the Veteran’s obstructive sleep apnea was not as least as likely as not aggravated by his PTSD. The examiner provided, “While there is a noted correlation between those persons with OSA [obstructive sleep apnea] and PTSD it is not evidence that the Veteran’s OSA is aggravated due to his service-connected diagnosis of PTSD.” A link to a journal article from the Journal of Clinical Sleep Medicine was provided which references a correlation between individuals suffering from obstruction sleep apnea while carrying a diagnosis of PTSD. The examiner’s opinion is not adequate. The examiner failed to provide a rationale connecting his conclusion regarding aggravation to the data referenced. Merely providing a conclusion is inadequate for the purpose of a medical opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). In consideration of the inadequacy of the examiner’s opinion, this issue must be remanded for an addendum opinion regarding whether the Veteran’s obstructive sleep apnea is aggravated by his service-connected PTSD. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from February 2019 to the present. 2. Schedule the Veteran for an examination by an appropriate examiner to determine the nature and etiology of any disability manifested by sleep disturbance, specifically including insomnia. After thorough examination and review of the claims file, the VA examiner should provide opinions, with complete rationales, to the following questions: (a) Is the disability pattern consistent with (i) an undiagnosed illness; (ii) a diagnosable but medically unexplained chronic multisymptom illness (MUCMI; (iii) a diagnosable chronic multisymptom illness with a partially explained etiology and pathophysiology; or (iv) a disease with a clear and specific diagnosis, etiology, and pathophysiology. The term medically unexplained chronic multisymptom illness (MUCMI) means a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. Examples include, but are not limited to, the following: chronic fatigue syndrome; fibromyalgia; and functional gastrointestinal disorders. The response to this question should include a discussion of the pathophysiology and etiology of the Veteran’s claimed disability and/or reported symptomology. Pathophysiology is defined as the physiology of abnormal states; specifically, the functional changes that accompany a particular syndrome or disease. Whereas, etiology, in the context of illnesses, is defined as all of the factors that contribute to the occurrence of a disease or abnormal condition. Consideration of pathophysiology and etiology is a veteran-specific inquiry, as opposed to an inquiry regarding the general knowledge of the medical community. (b) If the Veteran’s disability pattern is consistent with either (iii) a diagnosable chronic multisymptom illness with a partially explained etiology and pathophysiology, or (iv) a disease with a clear and specific diagnosis, etiology, and pathophysiology, opine as to whether it is at least as likely as not (a 50 percent or greater probability) that said disability incurred in, or is otherwise related to service. The examiner is directed to consider in-service symptoms and complaints of insomnia, to include medications prescribed, as well as the Veteran’s described symptoms since service. (c) For any known diagnosis, to include the Veteran’s obstructive sleep apnea, the examiner must opine as to whether his sleep apnea is “at least as likely as not” caused or aggravated by his service-connected PTSD. The VA examiner is cautioned that the term “aggravated,” as used in 38 C.F.R. § 3.310 (b), does not require that there be “permanent worsening” of the nonservice-connected disability. Instead, secondary service connection is warranted for “any incremental increase in disability and any additional impairment of earning capacity in nonservice-connected disabilities resulting from service-connected conditions, above the degree of disability existing before the increase regardless of its permanence.” See Ward v. Wilkie, 31 Vet. App. 233, 239 (2019). The examiner must provide a complete rationale for any opinion expressed, based on the examiner’s clinical and medical expertise; established medical principles; and references to the evidence of record, as appropriate. If any opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 3. After the above development, and any additionally indicated development, has been completed, readjudicate the issue on appeal. SHEREEN M. MARCUS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A.C. Allen, 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.