Citation Nr: 21000166 Decision Date: 01/04/21 Archive Date: 01/04/21 DOCKET NO. 16-11 342A DATE: January 4, 2021 REMANDED Entitlement to service connection for a sleep disorder, claimed as obstructive sleep apnea (OSA), to include as due to service-connected disabilities, is remanded. Entitlement to service connection for chronic headaches, to include as due to service-connected disabilities, is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include as due to service-connected disabilities, is remanded. Entitlement to a rating in excess of 10 percent for service-connected chronic conjunctivitis is remanded. Entitlement to total disability based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from in the U.S. Navy from 1983 to 1987. These matters come the Board of Veterans’ Appeals (Board) on appeal from a July 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a personal hearing in August 2019 before the undersigned Veterans Law Judge. A transcript of the hearing is contained in the record. These issues were previously before the Board in December 2019. The claims were remanded so that additional development, including VA examinations, could be completed. The Board notes that on January 8, 2020 the Veteran submitted a statement that he lost eyesight in his left eye following eye surgery at a VA facility. The Veteran has not yet filed a claim of entitlement to 1151 benefits. See 38 U.S.C. § 1151. The Veteran should discuss this with his representative; all claims must be filed on specific forms. 1. Entitlement to service connection for a sleep disorder, claimed as obstructive sleep apnea (OSA), to include as due to service-connected disabilities is remanded. 2. Entitlement to service connection for chronic headaches, to include as due to service-connected disabilities is remanded. 3. Entitlement to service connection for an acquired psychiatric disorder, to include as due to service-connected disabilities is remanded. The Veteran’s claims of entitlement to service connection for a sleep disorder, chronic headaches, and a psychiatric disorder are all intertwined. Indeed, all of his claims are currently intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). Initially, the Board notes that the electronic record includes Social Security Administration (SSA) disability claims forms, determinations, and some medical records received in May 2014. At that time, SSA had found that the Veteran did not meet their standards for disability benefits. An October 2019 VA treatment record includes the Veteran’s statement that he “has Social Security now.” It is unclear if the Veteran is stating he is now in receipt of Social Security Disability Income (SSDI) or Social Security retirement benefits. On remand, the AOJ should attempt to obtain any SSDI claims and medical records that are not duplicative of what was obtained in May 2014. The Veteran has testified that he has a sleep disorder that is impacted by his headaches and his anxiety. In October 2017, VA clinical psychologist diagnosed insomnia under the DSM-V and noted that the Veteran had some anxious symptoms and “racing thoughts” that impacted his sleep. He has also reported that his headaches wake him up each night. A January 2020 sleep study diagnosed REM-related OSA. The Veteran participated in a VA OSA examination in January 2020. He reported problems sleeping starting after glaucoma surgery and associate with his headaches. The examiner provided a negative direct nexus opinion, noting that the Veteran’s OSA was not present during a March 2015 sleep study. The examiner additional provided a negative secondary opinion, finding that the Veteran’s OSA could not have been caused by his conjunctivitis or headaches as OSA was due to upper airway obstruction due to obesity or other anatomical means of obstruction, while conjunctivitis is an inflammation of the outer membrane of the eye and neither conjunctivitis nor headaches result in airway obstruction. Although the OSA nexus opinions include a review of the record and appropriate rationale, they do not address the Veteran’s claim for a “sleep disorder” as he has also been diagnosed with insomnia. As such, the Board is remanding the sleep disorder claim are relates to how the Veteran’s insomnia interacts with his other claimed disorders that are being remanded. Regarding the Veteran’s claim of entitlement to service connection for headaches, during his August 2019 Board hearing, the Veteran stated his belief that his headaches were caused by the pressure in his eyes (glaucoma). During his hearing he described an acceleration/g-force experiment he participated in as a test subject. He noted that he was strapped to a “sled” with various “bite” materials and other monitoring equipment and had certain accelerations testing upon him, other human test subjects, and monkeys. When asked if his headaches were related to these tests, he stated that it was possible they were due to the “sled” and his eyes. In-service treatment records included complaints of headaches in February 1985, February 1986, and March 1987. In 1985 and 1986 his headaches were noted in concert with complaints of sore throat and cough, and he was diagnosed with flu syndrome and strep throat (culture grew staph). In March 1987, the Veteran was seen for a laceration to the back of his head after being “mugged” and struck in the head “with a stick a couple of times.” He had a 1 cm superficial scalp laceration and otherwise a negative work-up. There was “no evidence of a concussion.” A skull x-ray was negative. He was also diagnosed with an upper respiratory infection and mechanical neck pain. On March 25, 1987 he was seen for neck pain, nasal congestion, and ear congestion. He noted he had been struck in the head with a “pistol” on March 16, 1987, but he “no longer has [a] headache.” However, a March 26, 1987 record noted that the Veteran’s neck was better, but he still had “bad headaches and [his] sinuses are really clogged.” His ears also felt “stopped up.” He denied eye problems. He did not have photophobia. The other half of this treatment record is missing. Following service, the earliest treatment record for headaches is from May 23, 2002, when the Veteran reported headaches behind his eyes associated with forehead and neck pain. He was referred to neurology. June 2002 neurology records noted that the Veteran was assessed with glaucoma in both eyes in October 1996. He was assessed with glaucoma and headaches. In January 2012, the Veteran reported having a “dull headache” behind his eyes after using his glaucoma medications. A May 25, 2012 primary care physician record noted that the Veteran had a history of migraine initially relieved with Valium in 2002, but that “now headaches recurred across the forehead and behind the eyes. A June 2012 neurology record noted that the Veteran had returned after 10 years for “basically the same problem of headache confused by glaucoma.” “However, given that the glaucoma is not under control and the pain [was] strictly in the area of the orbits,” and as such the neurologist “[came] out exactly where [he] did ten years ago, glaucoma first.” However, a June 2013 nursing note [Urgent Care] included that his chronic headaches were not “felt to be due to glaucoma, due to vital signs normal.” An August 2019 Tulane Medical record included the Veteran’s report of headaches after using his glaucoma eye drops every day. However, the ophthalmologist noted that “headaches should be unrelated to the drops.” He stated he had the headaches behind his eyes for more than 18 years (2001 or earlier), but that they were “back and forth.” In January 2020, the Veteran participated in a VA headache examination. The Veteran reported the onset of headaches in 2003 following eye surgery. The examiner noted that treatment records indicated the Veteran was diagnosed with glaucoma in 2002 and he developed headaches shortly thereafter. The Board notes that VA treatment records indicated he was diagnosed with glaucoma in 1996. The examiner noted that headaches diagnosed as due to glaucoma in 2011 and 2014. “it appears that the veteran’s headaches are due to glaucoma, which was diagnosed 6 years after separation. The current headaches are less likely than not due to [service]. The VA headache examination does not include a direct service-connection nexus opinion given the Veteran’s hearing testimony that he was unsure of when his headaches began but that he felt his participation in the “sled” experiments may have caused all of his claimed disorders. Additionally, the Veteran’s headache claim is intertwined with his anxiety claim and with whether his glaucoma is related to service (also remanded for opinion). On remand, addendum nexus opinions (direct and secondary) must be obtained. Regarding the Veteran’s psychiatric claim, he has reported that he has anxiety due to both the in-service experiments and as a result of his limitations due to his glaucoma. The Veteran is service-connected for chronic conjunctivitis. His glaucoma, which is the cause of his visual impairment and decreased visual acuity, is not currently service-connected. The Veteran’s service records include a January 1984 Naval Biodynamic Laboratory voluntary consent to participate in impact and vibration acceleration experiments. The projects were titled “Determination of Human Dynamic Response to Impact Acceleration,” “Effects of Ship Motion Environments on Personnel Performance, Safety and Well-Being: Vibration Program,” “Ship Stability, Motion Sickness Prevention and Mission Performance Enhancement,” and “Development of a Performance Evaluation Test for Environmental Research.” During his Board hearing, he testified that he participated in 3 or 4 “sled” G-force/acceleration experiments. According to “Impact Acceleration and the Human Response: A History of the Naval Biodynamic Laboratory,” in May 1966 Dr. Channing L. Ewing submitted his proposal, entitled “Determination of Human Dynamic Response to Impact Acceleration,” to the U.S. Army Medical Research and Development Command. Among other things, it promised to study the displacements of the human head and neck during impact and to collect precise quantitative data that could be used in development of helmets and restraints for Army aviators. See https://impactaccelerationexperiments.org/ImpactAccelerationHumanResponse.pdf(accessed January 3, 2021). Includes photographs of the acceleration sled. Available records include that the Veteran was seen by VA mental health in June 2013 with complaints of depressed mood, stress, and headaches. He had significant stress since his wife had an aneurysm in December 2011 and he had stopped working to care for her. His major stressors were listed as potential homelessness, unemployment, financial stress, caregiving for wife, and coping with multiple medical issues (glaucoma, blindness in left eye, migraine headaches, low back pain). He was started on Diazepam with a diagnosis of anxiety disorder, not otherwise specified. He was seen 3 times by VA mental health in June 2013. He noted he was waking up at 3am since his wife’s aneurysm and had little sleep (3-4 hours) a night. He had similar reported symptoms to his primary care physician in November and December 2013. The Veteran was next seen by VA mental health in October 2017, when he was referred due to anxiety. He reported a sleep disorder and noted he had previously been on anxiety medication. Described feeling depressed about his wife’s health and described that he wished he could help her more. The mental health provider noted this was more anxiety than depression. Reported high levels of energy. He reported 15 years of poor sleep wherein he will wake up at 2 or 3 am and be unable to go back to sleep due to headache or because his “mind is racing, thinking about whatever.” His current “significant problems” were that he was blind in his left eye following surgery, and had intense pressure behind his left eye “that frequently causes headaches.” He received hazardous duty pay “right out of boot camp” for his assignment to some sort of testing project, which he reported was “top secret.” He stated he “rode a sled” in G-force testing and was hooked up to recording instruments while on the sled. He noted an honorable discharge. He “denied any traumatic events in the military.” After service he worked in construction. He had been unable to work due to lost sight for 4 years. He stated he “lost everything” during the housing crisis in 2009. His current stress was financial as he was only working part-time. He was diagnosed with an insomnia disorder. He was noted to have “some anxiety, especially anxious and racing thoughts” which were the key contributor to his sleep issues. In January 2020, the Veteran participated in a VA mental health examination. He reported his anxiety symptoms began during service, and had continued to present. During service the Veteran worked as a storekeeper in the Navy at NASA in Michaud, LA. He was in research programs at NASA, specifically in one which tested the use of G-force. The Veteran reported he was strapped down during these exercises and monitored by wires and electrodes which was difficult for him as he felt “claustrophobic” and that he could not move. Veteran said he was “pretty shook up” by the G-force experiments. He stated he developed headaches and neck strain during this time. he also stated he began having sleep problems and anxiety related to the experiments. He “described excessive worry about being called in for the experiment which he dreaded. He also experienced anxiety during the experiment in which he was strapped down and could not move.” He did not speak about experiencing these feelings to anyone. He stated when he was transferred to the ship, where he was given medications for headaches and sleep problems. The examiner noted that there were “no records of this.” The Veteran also stated he first received mental health treatment in the “1990s” and was diagnosed with generalized anxiety disorder. Based on the Veteran’s statements during the 2020 examination, the examiner found that the Veteran’s anxiety disorder began during service with his G-force experiments as he experienced anxiety during the experiments and anticipatory anxiety in being called for the experiments. However, the examiner noted that there were no medical records documenting anxiety symptoms prior to 2013 and that his 2013 records documented anxiety related to “service-connected eye conditions.” The examiner also found that the Veteran experienced excessive worry and anxiety directly related to worry about his eye condition and potentially losing his vision. Additionally, the Veteran reported increased anxiety with deterioration of vision. Given the somewhat conflicting opinions, and that the Veteran is not currently service-connected for glaucoma, the Board will remand the Veteran’s anxiety claim for addendum opinion with additional review of the record. 4. Entitlement to a rating in excess of 10 percent for service-connected chronic conjunctivitis is remanded. The Veteran is currently service-connected for chronic conjunctivitis. He also has bilateral glaucoma, cataracts, and dry eye syndrome. The January 2020 VA eye examination included that the Veteran’s visual field impairment and decreased visual acuity were due to his glaucoma. The examiner opined that the Veteran’s glaucoma, dry eye syndrome, and cataracts were not related to service as his glaucoma “had onset after eye examination that resulted in initial diagnosis.” As a condition may be directly service-connected even with onset after service, this rationale is inadequate. On remand, addendum opinions must be sought. Additionally, a direct service-connection opinion must be made which addresses the Veteran’s in-service acceleration experiments. 5. Entitlement to total disability based on individual unemployability (TDIU) is remanded. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a claim for a TDIU is part of an increased or initial rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. Here, the Veteran is seeking an increased rating for his eye disability and has noted his periods of unemployment and limited employment during the period on appeal. As such, a claim of TDIU is reasonably raised by the record. The claim of TDIU is intertwined with the determination made regarding his increased eye disability claim (and service-connection claims). The matters are REMANDED for the following action: 1. Attempt to obtain any SSDI claims and associated medical records that are not duplicative of what was obtained in May 2014. 2. Return the claims file to the 2020 VA eye examiner for addendum opinions. Following a review of the record, the examiner must provide the following: (a.) Is it at least as likely as not (50/50 probability or greater) that the Veteran’s glaucoma began during or is otherwise related to his service? The examiner should address whether his glaucoma is due to his in-service participation in impact acceleration testing. (b.) Is it at least as likely as not (50/50 probability or greater) that the Veteran’s cataracts are due to his service-connected conjunctivitis? (c.) Is it at least as likely as not (50/50 probability or greater) that the Veteran’s dry eye syndrome is due to his service-connected conjunctivitis? A complete explanation must accompany each opinion expressed. 3. After the glaucoma opinion above is provided, return the claims file to the 2020 VA headache examiner for addendum opinions. After a review of the record, the examiner must be asked to provide the following: (a.) Is it at least as likely as not (50/50 probability or greater) the Veteran’s headaches began during or are related to service? 1. Is it at least as likely as not the Veteran’s headaches are due to his in-service head injury in March 1987? 2. Is it at least as likely as not the Veteran’s headaches are due to his in-service participation in Naval Biodynamic Laboratory experiments? To include the “Human Dynamic Response to Impact Acceleration” testing which involved testing on an acceleration sled. (b.) Is it at least as likely as not (50/50 probability or greater) that the Veteran’s headaches are due to his chronic conjunctivitis, anxiety, insomnia, OSA, and/or glaucoma? The examiner should address the likely cause of the Veteran’s headaches, to include any combination of disabilities, or if they are a stand-alone condition. A complete explanation must accompany each opinion expressed. 4. After the glaucoma opinion above is provided, return the claims file to the 2020 VA mental health examiner for addendum opinions. After a review of the record, the examiner must be asked to provide the following: (a.) The examiner should address the October 25, 2017 VA diagnosis of “insomnia disorder” with some symptoms of anxiety but without “a clinical issue” outside of sleep. (b.) Is it at least as likely as not (50/50 probability or greater) the Veteran’s anxiety began during or are related to service? To include the Veteran’s participating in impact acceleration testing. The examiner must address the 2013 and 2017 mental health treatment records. (c.) Is it at least as likely as not (50/50 probability or greater) the Veteran’s anxiety is due to his service-connected conjunctivitis? [If his glaucoma remains not service-connected following the eye examination addendum opinion]. A complete explanation must accompany each opinion expressed. 5. After completing the development requested above, readjudicate the Veteran’s claims. If any of the benefits sought are not granted in full, the Veteran and his representative should be furnished a Supplemental Statement of the Case and given the opportunity to respond thereto. The case should then be returned to the Board, if otherwise in order. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. H. Stubbs, 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.