Citation Nr: 21004186 Decision Date: 01/26/21 Archive Date: 01/26/21 DOCKET NO. 17-51 793 DATE: January 26, 2021 ORDER Entitlement to service connection for headaches, to include as secondary to service-connected tinnitus, is granted. Entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to service-connected posttraumatic stress disorder (PTSD) with alcohol use disorder (AUD), is granted. FINDINGS OF FACT 1. The evidence of record is in relative equipoise concerning whether the Veteran’s headaches are aggravated by his service-connected tinnitus. 2. The evidence of record also is in relative equipoise concerning whether his OSA is aggravated by his service-connected PTSD.   CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in the Veteran’s favor, the criteria are met for entitlement to service connection for headaches as secondary to his service-connected tinnitus. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. Resolving all reasonable doubt in the Veteran’s favor, the criteria also are met for entitlement to service connection for OSA as secondary to his service-connected PTSD. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1977 to February 1980. The Board remanded these claims in October 2020 to provide the Veteran a VA examination for needed medical nexus opinions concerning the etiology of his headaches and OSA – especially in terms of their posited relationship or correlation with his military service, including whether secondary to his already service-connected tinnitus and/or PTSD. To this end, he underwent this needed VA examination in October 2020, and the report of the evaluation provides the necessary information to address this determinative issue of causation, so the additional development directed to occur on remand has been accomplished. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In a December 2020 rating decision, on remand, the local Regional Office (RO) granted service connection for PTSD with AUD and assigned an initial 70 percent rating for this mental disability effective November 8, 2020. If the Veteran disagrees with that initial rating and/or effective date, he must separately appeal these “downstream” issues. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). Service Connection 1. Entitlement to service connection for headaches 2. Entitlement to service connection for OSA Establishing service connection requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or an injury; and (3) evidence of a correlation (“nexus”) between the disease or injury in service and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). See also 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a).  Service connection may be granted for any disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d).  Service connection may be established, as well, on a secondary basis for disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310(a) and (b). 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) proximately caused by or (b) is proximately aggravated by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). At the outset, the Board notes that it is not in dispute that the Veteran has current diagnoses of headaches and OSA. What therefore must be resolved, instead, is whether these disabilities are the result of his military service, including, as he is specifically alleging, secondary to his service-connected tinnitus and/or PTSD. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) (“A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service.”).   The Board finds that the evidence is in relative equipoise (meaning about evenly balanced for versus against the claims) concerning whether the Veteran’s headaches and OSA are related to or the result of his service, including especially secondary to his service-connected tinnitus and/or PTSD. In this circumstance, this reasonable doubt is resolved in his favor and the claims granted rather than denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Notably, in support of these claims, the Veteran’s attorney submitted Disability Benefits Questionnaires (DBQs) from Dr. M.B. in January 2017. Dr. M.B. opined that the Veteran’s psychiatric disability at least as likely as not aided in the development of his OSA and permanently aggravated it. In support of this conclusion, Dr. M.B. submitted medical literature showing that a then recent study had found that subjects with depression have a higher prevalence of an OSA diagnosis than non-depressed individuals. Another study found that OSA and psychiatric symptoms both decreased with continuous positive airway pressure (CPAP) treatment, providing further evidence of the comorbidity of the conditions. Regarding the Veteran’s headaches, Dr. M.B. concluded they are caused and aggravated by the Veteran’s service-connected tinnitus. On examination, the Veteran reported that his headaches are triggered by tinnitus flare-ups. Dr. M.B. explained that it is known that damage to the auditory system resulting in tinnitus can also cause headaches. Following and directly as a result of the Board remanding these claims in October 2020, the Veteran underwent a VA examination that same month for more medical comment concerning the etiology of his headaches and OSA. The VA examiner opined that the Veteran’s migraine headaches were less likely than not incurred during his active duty service because there is no documented evidence of a diagnosis, symptoms, or treatment in his service treatment records (STRs). However, the mere absence of evidence of treatment for the now claimed disability in the Veteran’s STRs cannot, alone, be sufficient rationale for providing an unfavorable opinion – especially when, as here, the claim is predicated primarily, instead, on the notion that a service-connected disability has caused or aggravated the condition being additionally claimed. See Dalton v. Nicholson, 12 Vet. App. 23 (2007); Fountain v. McDonald, 27 Vet. App. 258, 272-75 (2015) (indicating that a VA examiner may not generally rely on the absence of evidence as negative evidence). In other words, secondary service connection is not necessarily premised on the notion of initial manifestation of the condition additionally being claimed during the Veteran’s service, instead, usually predicated on it being caused or aggravated since service by a service-connected disability. Moreover, although the examiner did in fact address both the causation and aggravation aspects of the theory of secondary service connection, he used the same rationale. Specifically, he concluded that migraines and tinnitus OSA and PTSD are comorbid conditions, meaning they can occur at the same time but they do not share similar pathophysiologic mechanisms. Therefore, there is no inference of a causal relationship between the conditions, nor an expectation that tinnitus would cause a progression of migraines or that PTSD would cause a progression of OSA. The U. S. Court of Appeals for Veterans Claims (CAVC) has held that a VA medical opinion should not combine causation and aggravation when addressing secondary service connection, as they are independent concepts requiring separate findings and rationale. Atencio v. O’Rourke, 30 Vet. App. 74, 90-91 (2018). Consequently, the Board finds the October 2020 examination report and opinion inadequate as it does not comport with the holdings in Dalton and Atencio and certainly is no more probative than Dr. M.B.’s January 2017 medical opinion conversely supporting the claims. Normally, according to the holding in Barr v. Nicholson, 21 Vet. App. 303 (2007), the deficiencies in the October 2020 VA examination report and opinion would require remanding the claims to obtain clarification or all necessary additional information or comment. However, since the January 2017 opinions from Dr. M.B. are as probative (again, meaning as competent and credible), if not more so, than the October 2020 VA opinion against the claims, the Board is going ahead and granting these claims for service connection for headaches and OSA because the evidence, at the very least, is in relative equipoise as to whether these additionally claimed conditions are secondary to the service-connected tinnitus and PTSD. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. To reiterate, in this circumstance of relative balance of the evidence for versus against the claims, the claims are granted rather than denied. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990) (“a [V]eteran need only demonstrate that there is an ‘approximate balance of positive and negative evidence’ in order to prevail.”). KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Mukherjee 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.