Citation Nr: 21001835 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 16-53 045 DATE: January 12, 2021 ORDER Entitlement to service connection for headaches is denied. REMAND Entitlement to service connection for sleep apnea is remanded. FINDING OF FACT The Veteran’s headache disability was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; the disability is not otherwise causally related to an in-service injury or disease; nor is it causally related to or aggravated by the Veteran’s service-connected major depressive disorder (MDD) or tinnitus, or his sleep apnea. CONCLUSION OF LAW The criteria for entitlement to service connection for a headache disability have not been met. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Navy from April 1963 to May 1965. This matter comes before the Board of Veterans’ Appeals (Board) from a June 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which, in pertinent part, denied service connection for sleep apnea, headaches, and an acquired psychiatric disability. The Veteran filed a timely notice of disagreement, received by VA in July 2016. In October 2016, the RO issued a statement of the case. The Veteran’s substantive appeal was received by VA in October 2016. In January 2019 and July 2020, the Board remanded the matter for further development. While the matter was in remand status, in an October 2020 rating decision, the RO granted service connection for major depressive disorder (MDD), recurrent, moderate, and assigned an initial 100 percent rating, effective March 28, 2016. The Board finds that the grant of service connection for MDD constitutes a full award of the benefits sought on appeal with respect to the claim of service connection for an acquired psychiatric disability. Absent disagreement with the initial rating or effective date assigned, those matters are not in appellate status. See Grantham v. Brown, 114 F.3d 1156, 1158–59 (Fed. Cir. 1997) (holding that a separate notice of disagreement must be filed to initiate appellate review of downstream elements such as the disability rating or effective date assigned). Entitlement to service connection for headaches. The Veteran seeks service connection for headaches. In pertinent part, he argues that his current headache disability is caused and/or aggravated by his service-connected MDD and tinnitus, as well as his sleep apnea. See, e.g., August 2018 Appellate Brief. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166–67 (Fed. Cir. 2004). Certain chronic diseases, including an organic disease of the nervous system such as migraine headaches, will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Service connection may also be granted for disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 446–48 (1995). VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury 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). Whether the disability was permanently worsened is not a part of the necessary analysis of these claims and should not be included. Ward v. Wilkie, 31 Vet. App. 233, 234–35 (2019). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39–40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). “When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter,” the benefit of the doubt shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. Gilbert, 1 Vet. App. at 54. The Veteran’s service treatment records are negative for complaints or findings of headaches, a head injury, or a headache disability. At the Veteran’s April 1965 separation examination, his head and neurological system were examined and determined to be normal. In the notes section, the Veteran endorsed the following statement: “I certify I have been informed of and understand the BUMED INSTRUCTION 6120.6.” Thus, the appellant indicated he was informed he had been found to be fit, and if he felt he had any serious medical problems, he should so inform the examining physician. See Real v. United States, 906 F.2d 1557, 1559 (Fed. Cir. 1990) (describing the meaning of BUMED INST. 6120.6). In pertinent part, the post-service record on appeal shows that in July 2013, the Veteran submitted an original application for VA compensation benefits, seeking service connection for multiple disabilities. His application, however, is silent for any mention of a headache disability. Records assembled in connection with the application include VA treatment records dated from August 2004. In pertinent part, these records reveal a history of a post-service closed head trauma with mild concussion in October 2005. Records prior to that time are negative for complaints or findings of headaches. During a November 2007 VA neuropsychology consultation, the Veteran reported that after his separation from service, he worked as an electronics technician and auto mechanic, with most recent employment as a truck driver. He reported that he had stopped working in July 2006 due to symptoms he developed following his 2005 head injury, including headaches, sleep problems, and memory impairment. In May 2016, the Veteran submitted a claim of service connection for multiple disabilities, including headaches. Records assembled in connection with the claim include additional VA treatment records showing that during an April 2015 behavioral health assessment, the Veteran denied having headaches. In addition, the records show that during April 2016 and September 2016 primary care visits, the Veteran denied headaches. In support of his claim, the Veteran submitted July 2018 headaches and sleep apnea disability benefits questionnaires (DBQs) completed by Homer Skaggs, M.D. Dr. Skaggs indicated that the Veteran reported that he had had headaches for a long time, since hitting his head during active service. The Veteran also told Dr. Skaggs that symptoms from his depression and anxiety bring on a headache and significantly worsen headaches after onset. He also stated that headaches caused him to become more depressed and anxious. Dr. Skaggs also noted that medical research discussed comorbid relationships between headaches and sleep apnea and that “damage to the auditory system resulting in tinnitus can also cause headaches.” He cited a textbook discussing that “headaches are a very common comorbid complaint in tinnitus patients.” Dr. Skaggs indicated that it was his opinion that the Veteran’s headaches “are more likely than not caused and permanently aggravated by a combination of substantial contributing factors including depression, tinnitus, and sleep apnea.” Dr. Skaggs indicated that the Veteran’s headaches had undoubtedly been present since at least March 2016, when he filed his current claim for benefits. In August 2019 the Veteran was afforded a VA examination. The VA examiner diagnosed the Veteran as having migraine headaches. The Veteran told the examiner that his headaches began in the 1960s, when he had worked around loud noises during service. The VA examiner noted that the Veteran’s service records did not show his headaches were at least as likely as not incurred in or caused by a specific in-service illness, event, or injury. The examiner also stated that medical records were insufficient to establish a baseline for the Veteran’s headaches. In its July 2020 remand, the Board found that the August 2019 VA examination was inadequate because the examiner conflated secondary and direct service connection and the opinion was conclusory. The Veteran was afforded a new VA examination in September 2020. The VA examiner diagnosed the Veteran as having headaches. The Veteran reported that he had headaches since about 1990. The Veteran and his spouse stated that in 1963 the Veteran hit his head on a Navy ship hatch. The Veteran denied having sustained a laceration or loss of consciousness as a result of this reported injury. The VA examiner found that the Veteran did not have characteristic prostrating attacks of migraine or non-migraine pain. The examiner stated that the Veteran’s headaches were a separate condition and not related to the Veteran’s tinnitus, sleep apnea, or mental disorder, and the conditions were not medically related. The examiner explained that he had reviewed the medical literature submitted and, although it discussed an association between tinnitus, sleep apnea, mental disorders, and headaches, there was no causal relationship noted in the literature. In an October 2020 medical opinion, the VA clinician explained that after examining the Veteran and reviewing the claims file, he had concluded that it was less likely than not that the Veteran’s headaches were incurred in or caused by an in-service injury, event or illness. The examiner explained that the service treatment records did not show a chronic headache condition while in service and there was no chronicity of care for decades regarding a headache condition related to service. With respect to the question of aggravation, the examiner indicated that he was unable to determine a baseline of severity based on evidence prior to the claimed aggravation or the earliest medical evidence following claimed aggravation. Regardless, the examiner further explained that there was no evidence that the Veteran’s headaches were aggravated by his psychiatric disability, his sleep apnea or his tinnitus. Applying the facts in this case to the legal criteria set forth above, the Board finds that the preponderance of evidence is against granting service connection for a headache disability. As a preliminary matter, the Board finds that a headache was not present during active service nor was it manifest to a compensable degree within one year of separation. As detailed above, the Veteran’s service treatment records are negative for any complaints of head injury or headaches, and upon examination at the Veteran’s separation in April 1965, his head and neurologic system were examined and affirmatively found to be normal. The Board finds that if chronic headaches had been present at that time, including as a residual of an in-service head injury, they would have been noted at that time. The post-service clinical evidence is also silent for any findings, treatment, or diagnosis of headaches in the first year following service. The Board has carefully considered the Veteran’s statements, including as captured in Dr. Skagg’s DBQ and the April 2019 VA examination report, that his headaches began during active service. But the Board finds that although the Veteran is competent to report headache symptoms, these statements are not credible. First, the Veteran’s various statements regarding the onset of headaches have been internally inconsistent. As detailed above, the Veteran has reported that his headaches began after an in-service head injury, that they began after in-service noise exposure, and that they began around 1990, and that they began after his post-service head injury. These inconsistencies significantly reduce the probative value of his statements that the headaches began in service. Moreover, the Board finds that the Veteran’s contentions of in-service onset are contradicted by the contemporaneous medical evidence of record. As noted, clinical evaluation upon separation found no head or neurologic abnormalities and by certifying that he was informed of and understood BUMED INSTRUCTION 6120.6, the Veteran indicated that he knew he should inform the clinician of any serious medical problems. In addition, the Veteran has contended—as recorded by Dr. Skagg’s July 2018 DBQ and the September 2020 VA examination report—that he suffered a head injury during active service. The Board finds that this assertion is not credible. As noted above, the Veteran’s post-service treatment records include documentation of a 2005 head injury and subsequent symptoms including headache. The Board finds that the Veteran reasonably would have also reported the alleged in-service head injury at that time; had the Veteran suffered from headaches since an in-service injury as he contends, this information would have been relevant to the diagnosis and treatment of his subsequent headaches and post-service head injury in 2005. Therefore, because the in-service injury and claimed headaches would have naturally been included in the 2005 treatment notes, and they were absent, the Board finds that the Veteran’s assertions of an in-service injury and headaches since that time are not credible and entitled to no probative weight. Cf. Fountain v. McDonald, 27 Vet. App. 258, 272–74 (2015) (setting forth necessary foundational findings for determination that uncorroborated lay statements lack credibility); Kahana v. Shinseki, 24 Vet. App. 428, 439–440 (2011) (discussing propriety of use of absence of evidence in service treatment records to discount lay statements of an in-service injury, disease, or related symptoms); Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011) (discussing relevance of absence of evidence where silence in regard to a condition can be taken as proof of nonexistence of the condition). For these reasons, the preponderance of the evidence is against finding that the Veteran’s current headache disability had its inception during active duty, was manifest to a compensable degree within one year of separation, or that headaches were present on a continuous basis since service. The Board also finds that the preponderance of the evidence shows that the Veteran’s current headaches are not otherwise causally related to active service. as noted, in October 2020, the VA clinician concluded that it is less likely than not that the current headaches are causally related to service. The Board finds the opinion probative, given the examiner’s medical expertise and reasoned rationale which is consistent with the credible evidence of record. Further, the Board notes that although Dr. Skagg’s noted the Veteran reported in-service onset of his headaches and an in-service head injury, he did not conclude that the current headache disability was related to service. Rather, Dr. Skagg’s positive nexus opinion relied instead on secondary service connection based on a causative relationship between the Veteran’s headaches and sleep apnea, tinnitus, and psychiatric disability. Thus, there is no probative evidence of record to support the existence of a causative nexus between service and the Veteran’s current headache disability. The Board also finds that the preponderance of the evidence is against the Veteran’s contentions that his current headache disability is caused or aggravated by his service-connected MDD and tinnitus, or by his sleep apnea. The Board finds the September 2020 examiner’s opinion more probative on this question. The examiner opined that the Veteran’s headache disability was not causally related to or aggravated by the Veteran’s service-connected tinnitus or mental disorder, by his sleep apnea, explaining that the medical literature did not support causation and there was no evidence upon which to find aggravation. Dr. Skagg’s opinion, on the other hand, is less probative on this question. As detailed above, Dr. Skagg opined that the Veteran’s headaches were more likely than not caused and permanently aggravated by a combination of substantial contributing factors including depression, tinnitus, and sleep apnea, which affected headaches both independently and in tandem. The cited medical literature, however, support only an association between depression, tinnitus, sleep apnea, and headaches. Further, although Dr. Skagg indicated that the headaches were both caused and aggravated by “a combination of substantial contributing factors” which included depression, tinnitus, and sleep apnea, he did not provide any indication of a baseline level or an extent of aggravation. As such, the opinion provides an insufficient basis upon which to award service connection based on aggravation under 38 C.F.R. § 3.310(b). For the foregoing reasons and bases, the Board concludes that the preponderance of the evidence is against the claim of service connection for a headache disability. Under these circumstances, the benefit-of-the-doubt rule does not apply. REASONS FOR REMAND Entitlement to service connection for sleep apnea. The Veteran contends that his current sleep apnea disability is caused by his service-connected MDD or medications taken to treat MDD. See, e.g., August 2018 Appellate Brief. The Veteran is in receipt of service connection for MDD from March 2014. November 2007 VA treatment records show that the Veteran had difficulties sleeping, including waking up two to three times per night to use the bathroom. Treatment notes indicate that the Veteran discontinued working in July 2006 because of symptoms following a post-service 2005 head injury including headaches, pain, sleep difficulties, and memory problems. A November 2013 VA neuropsychological evaluation shows that the Veteran and his spouse reported the Veteran had sleep problems that were persistent since he was in the military. The Veteran reported feeling tired midday and sleeping a maximum of four to six hours per night. The Veteran’s spouse indicated that the Veteran often “ran” in his sleep, noted by leg movement. The treatment notes indicate a history of other or unspecified sleep apnea. VA treatment records from January 2014 indicate the Veteran was being treated for obstructive sleep apnea (OSA) and prescribed continuous positive airway pressure (CPAP) therapy by a non-VA physician. The Veteran was told he needed a new sleep study, but said that he did not want to do one again. VA treatment records from April 2015 show the Veteran complained of sleep disturbances, loss of sleep, and daytime sleepiness among other symptoms, but these sleep symptoms were noted as associated with depressive, manic, anxiety, and posttraumatic stress disorder symptoms. April 2016 VA treatment records show the Veteran established care with a new primary physician. The physician noted a history of OSA, with symptoms controlled, though the Veteran’s CPAP machine was leaking and needed a new mask. The VA physician encouraged routine use of CPAP while sleeping and weight loss. VA treatment records show the Veteran was issued a new CPAP machine and instructed on its use and care later that month. The same month, the Veteran reported having had sleep trouble for four years. VA treatment records from June 2016 show the Veteran reported CPAP had helped his sleep. Records from later that month show the Veteran complained of having trouble sleeping almost every day, but nonetheless reported a positive experience using CPAP. Also of record are private headaches and OSA DBQs, and a letter dated in July 2018 from Dr. H.S., M.D. In pertinent part, Dr. H.S. diagnosed the Veteran as having OSA. He noted that substantial literature in the medical community supported a positive relationship of sleep apnea with psychological distress such as depression, and cited a study indicating association of OSA with psychotropic medications. Dr. H.S. wrote that one cited study showed that psychotropic medications such as sertraline—which VA treatment records indicate the Veteran was prescribed—contribute to lower percentages of sleep-efficiency values. Dr. H.S.’s letter further indicated that the Veteran was experiencing considerable sleeping complications related to his now-service-connected psychological concerns. The Veteran reported problems using a CPAP machine because of significant claustrophobia and anxiety, but that a new device better allowed nightly use. Despite reporting using the device all the time, the Veteran continued to complain of significant daytime hypersomnolence with irritability, headaches, and diminished concentration each day. Dr. H.S. opined that it was more likely than not that the Veteran’s OSA was caused and permanently aggravated by the Veteran’s psychological distress including anxiety and depression, as well as his psychotropic medications taken in association with the Veteran’s mental-health maladies. The Veteran was afforded a VA examination in September 2020. In an October 2020 opinion, the VA examiner concluded that although current medical literature discussed the benefit of screening for sleep apnea in veterans who suffer from acquired psychiatric disorders, the literature did not show a causal relationship or aggravation between the disabilities. The clinician noted that sleep apnea is an ongoing functional collapse of the velopharyngeal or oropharyngeal airway causing an airway obstruction and is a physical anatomical complication and separate medical condition. The clinician opined that the Veteran’s OSA was less likely than not proximately due to or the result of or aggravated beyond its natural progression by the Veteran’s service-connected acquired psychiatric disorder. The clinician cited a number of medical journal articles to support this conclusion. Although the Board regrets further delay, it finds that the September 2020 VA examination and October 2020 opinion are incomplete and a remand is therefore necessary. The October 2020 VA opinion adequately explains why the Veteran’s current sleep apnea is not causally related to or aggravated by his acquired psychiatric disability but fails to address whether the Veteran’s sleep apnea is caused or aggravated by medications used to treat the Veteran’s service-connected MDD. As stated above, Dr. H.S. opined that medical literature reported that the use of medications such as sertraline result in lower sleep-efficiency values. A remand is necessary to obtain an addendum opinion as to this contention. The matter is REMANDED for the following action: Provide access to the Veteran’s claims folder to an appropriate clinician for the purposes of obtaining an addendum medical opinion, with supporting rationale, as to the following: (a) is it at least as likely as not (50 percent or greater probability) that the Veteran’s sleep apnea is proximately due medications prescribed to treat his service-connected major depressive disorder? (b) if not, is it at least as likely as not (50 percent or greater probability) that the Veteran’s sleep apnea is aggravated beyond its natural progression by medication prescribed to treat his service-connected major depressive disorder? If aggravation is found, the examiner must attempt to establish a baseline level of severity of the disability, prior to aggravation. In providing the requested opinions, the clinician should consider the relevant evidence of record, to include Dr. Skagg’s July 2018 opinion that medical literature indicates that the use of SSRI medications “contribute to lower percentages of sleep-efficiency values including levels of REM sleep…, giving rise to increased probability of sleep-disordered breathing.” K. Conner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Hillan Sosa, 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.