Citation Nr: 21000991 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 14-29 103A DATE: January 6, 2021 REMANDED Entitlement to service connection for chronic headaches is remanded. Entitlement to service connection for sleep apnea is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1981 to December 2001. These matters are on appeal to the Board of Veterans’ Appeals (Board) from March 2011 and January 2013 rating decisions. A hearing was held by the undersigned Veterans Law Judge in October 2017; a transcript has been associated with the claims file. The Board remanded the claims in April 2018, May 2019, and October 2020. For reasons explained below, the Board finds that the most recent October 2020 remand directives have not been substantially complied with. Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to service connection for chronic headaches The Veteran contends he began experiencing headaches in the early 1980’s and that they have been chronic and continuous since. In February 2014, several buddy statements were submitted to the claims file. The Veteran’s fellow service-member recalled the Veteran complaining of chronic headaches and having to wear dark goggles because the sunlight bothered him. His wife stated that he has had chronic headaches for years, but he was reluctant to seek treatment despite his wife’s encouragement. In his hearing, he recalled onset of headaches in the early 1980’s and began experiencing them 3-4 times weekly. He took over-the-counter medication for relief while in service. In a November 2010 general VA examination, the Veteran complained of headaches beginning in 1984, but stated that he did not receive treatment while in service. He was diagnosed with tension headaches. However, no nexus opinion was provided. In his March 2019 examination, tension headaches were listed as the diagnosis as of 2009. The Veteran reported using powder to treat his headaches for many years. The examiner found that the Veteran’s headaches were less likely than not related to service. The examiner reasoned that the Veteran checked “no” for chronic headaches during his July 2001 retirement physical. There is no record of complaints or treatment for headaches until 2009. Finally, the examiner explained that tension headaches are the most common type of headaches in the general population, and that stress, lack of sleep, and caffeine, are some of many triggers that could be causing the headaches. An addendum opinion was obtained following the May 2019 Board decision that found the March 2019 examiner failed to consider the lay statements of record and relied heavily on the absence of documentation of symptoms since service. In that report, the February 2014 statements were listed as evidence reviewed, but were not expressly addressed in the rationale. The report reflected that the Veteran endorsed headaches since the 1980s, and that he went to several sick calls for his headaches (which is inconsistent with other evidence of record). The examiner stated that “per literature, there is no specific diagnostic test for headaches, but history from the patient is important for treatment.” Confusingly, she then goes on to state “formal diagnosis of headaches not warranted due to a lack of objective evidence confirming chronicity of the condition. Headache frequency, intensity, and duration are self-report only and not confirmed in the claims file.” This opinion is deficient. First, the examiner purports to underscore the importance of history from the patient as there is no specific diagnostic test. Then, she appears to discount his history, as she finds there is no objective evidence and only a self-report. Her statement that a formal diagnosis is not warranted is similarly confusing, as he already has a previous diagnosis in the record. Finally, the examiner makes no mention of the other lay statements of record confirming his chronic headaches other than the Veteran’s “self-report.” Given the deficiencies, the October 2020 Board decision found the opinion inadequate and remanded for a new examination. In an October 2020 VA examination, a diagnosis of migraines was noted with onset in 1991. The report reflects that according to the Veteran, he began having headaches in 1991 that have progressed or worsened since onset. The opinion on etiology is unclear. The report states that an opinion has been requested for both chronic headaches and sleep apnea, yet there is only one etiology opinion provided. The examiner cites lay statements in the record regarding only sleep apnea, then notes that an April 1999 physical examination and July 2001 retirement examination do not identify a history of chronic headaches or sleep apnea. Therefore, she concludes that the “claimed condition” is less likely than not related to service. It is unclear whether the examiner is referring only to the Veteran’s sleep apnea claim or also his headache claim in her opinion. Regardless, the opinion is inadequate as it fails to give a rationale regarding headaches and appears to rely solely on the lack of complaints in service. While she states that all lay statements were reviewed, she does not expressly address them, nor does she reconcile her opinion with her documentation that the onset of headaches was in 1991 – while the Veteran was in service. The Court of Appeals for Veterans Claims (Court) has held that a “medical examiner cannot rely on the absence of medical record corroborating [an] injury to conclude that there is no relationship between the appellant’s current disability and [her] military service.” Dalton v. Nicholson, 21 Vet. App. 23, 40 (2007). A medical opinion must consider whether the lay statements present sufficient evidence of the etiology of the disability such that service connection could be proven without medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336 n.1 (2006). Given these deficiencies, the Board regrettably must again remand the claim. 2. Entitlement to service connection for sleep apnea The Veteran contends he began experiencing sleep difficulties in service, although he was not officially diagnosed with sleep apnea until 2012. In a statement submitted by the Veteran’s fellow service-member, he recalled the Veteran waking up often saying he had trouble breathing while asleep. He described the Veteran’s snoring as “ferocious” and that his breathing was “horrible.” He recalled the Veteran used to wake up often either snoring or coughing. In a statement submitted by his wife, she stated his sleep problems have been ongoing for 20 years, and that he often cannot sleep at night and is tired during the day. In a statement submitted by his former supervisor from 2001–2009, she recalled the Veteran’s constant fatigue during the day. He would take naps on his lunch break and snore very loudly and appear to stop breathing at times. In his hearing, the Veteran stated his sleep issues started in the early 1990s. He recalled his fellow service-members telling him he snored loudly. In his March 2019 examination, the examiner found a negative nexus to service, stating that he finds no evidence that the Veteran’s sleep apnea began any time before April 2012. He reasoned this lacks the chronicity/continuity one would expect from a service-connected condition. The examiner also noted the lack of treatment in service, to include the Veteran indicating no sleep conditions in his retirement examination. An addendum opinion was obtained in October 2019 following the May 2019 Board decision that found the March 2019 examiner failed to consider the lay statements of record and relied heavily on the absence of documentation of symptoms since service. The report reflects that the Veteran is unable to state when he noticed disturbance in sleep, but that his sleep pattern was off during active duty. He would wake up randomly from dreams and had difficulty sleeping more than four hours as a time. He reported daytime sleepiness. The examiner opined that the Veteran’s sleep apnea is less likely than not related to service. Although she cites that snoring and daytime sleepiness are symptoms of sleep apnea, she provides no further explanation or rationale for her conclusion. This opinion is deficient as it fails to consider the multiple lay statements that endorse several abnormal sleeping behaviors in service or shortly after, such as snoring, daytime sleepiness, disrupted sleep, and trouble breathing during sleep. Moreover, the examiner failed to explain the reasoning behind her conclusion. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (“[A]medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions”). Given the deficiencies, the October 2020 Board decision found the opinion inadequate and remanded for a new examination. In the October 2020 VA examination, the examiner stated she reviewed all lay statements. While she acknowledges these statements, she states that “[u]nfortunately, the report of medical exam dated 7 APR 1999, and the retirement exam dated 19 JUL 2001 did not identify a history of chronic headaches or sleep apnea. Service treatment records were silent as well. Therefore, the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness.” While the examiner referenced lay statements, she does not explain the significance of their endorsements of in-service abnormal sleep behaviors. Nor does she reconcile her opinion with her documentation of onset in 1991 with progressive worsening. Rather, in reaching her conclusion she appears to rely on the fact that service records consist of no complaints or treatment for sleep apnea. As mentioned above, such reasoning renders the opinion inadequate. Dalton, 21 Vet. App. at 40 (2007); see also Stefl, 21 Vet. App. at 124 (2007). Given these deficiencies, the Board regrettably must again remand the claim. The matters are REMANDED for the following action: Obtain new opinions for the Veteran’s chronic headaches and sleep apnea claims. All relevant evidence, to include a copy of this remand, must be provided to the examiner for review. The opining examiner must opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s claims are related to service. The examiner MUST specifically address the Veteran’s lay statements throughout the record, as well as lay statements submitted on behalf of the Veteran by friends and family. The examiner must provide a full, detailed rationale for each conclusion. It is also emphasized that a “medical examiner cannot rely on the absence of medical record corroborating [an] injury to conclude that there is no relationship between the appellant’s current disability and [her] military service.” Dalton, 21 Vet. App. at 40 (2007). A medical opinion must consider whether the lay statements present sufficient evidence of the etiology of the disability such that service connection could be proven without contemporaneous medical evidence. Buchanan, 451 F.3d at 1336 n.1 (2006). L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Carroll, 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.