Citation Nr: 21005011 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 15-44 131 DATE: January 28, 2021 ORDER Entitlement to service connection for obstructive sleep apnea is granted. Entitlement to an initial rating of 30 percent disabling, but no higher, for tension headaches, is granted. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The probative evidence of record is at least in relative equipoise that the Veteran’s sleep apnea is related to active duty service. 2. The probative evidence of record demonstrates the Veteran’s headaches more closely resemble characteristic prostrating headaches occurring on average once a month over the last several months. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for obstructive sleep apnea have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to an initial rating of 30 percent disabling, but no higher, for tension headaches have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.6, 4.7, 4.124a, Diagnostic Code (DC) 8100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Navy on active duty from June 1978 to July 1998. The issues come before the Board of Veterans’ Appeals (Board) on appeal from November 2013 and November 2017 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). A September 2018 Board decision remanded the Veteran’s claim for entitlement for service connection for sleep apnea to provide a VA medical opinion as to the nature and etiology of the Veteran’s condition. The Board remanded the Veteran’s claim for an initial compensable rating for his service-connected tension headaches in October 2019 to provide a current VA examination. 1. Entitlement to service connection for obstructive sleep apnea The Veteran contends his currently diagnosed obstructive sleep apnea began during his active duty service. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be warranted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). The Veteran reported in the December 2015 substantive appeal that his sleep apnea condition began while on active duty. The Veteran noted struggling with the condition for many years. The record also contains lay statements from November 2017 documenting the Veteran’s sleep problems observed in service. The Veteran’s wife stated that she observed the Veteran’s snoring and problems sleeping a few years into their marriage in 1982. The Veteran’s wife noted the Veteran would stop breathing while asleep on multiple occasions. The Veteran’s wife reported that the Veteran had difficulty concentrating during the day. She stated the Veteran did not display these symptoms of sleep apnea prior to his time in the military. The Veteran underwent a private sleep apnea examination in February 2018. The private examiner noted the Veteran was diagnosed with severe obstructive sleep apnea and prescribed a CPAP device following a sleep study in October 2010. The private examination noted the Veteran displayed persistent daytime hypersomnolence. The private examiner provided the medical opinion that it is as likely as not that the Veteran’s obstructive sleep apnea began in service. The examiner identified the lay statements from the Veteran and his wife regarding the onset of the Veteran’s snoring and apneas in service. The examination noted the Veteran’s symptoms continued to worsen since service. The private examiner opined that the Veteran’s sleep apnea did not begin the day he was diagnosed. Pursuant to the Board remand, the Veteran underwent a VA sleep apnea examination in October 2019. The VA examiner confirmed the Veteran’s diagnosis of obstructive sleep apnea. The examiner noted the Veteran’s diagnosis was made in 2011, but the Veteran reported he had symptoms long before that. The VA examination noted the Veteran’s wife’s lay statement of symptoms in service, but noted the Veteran’s service treatment records are absent of complaints of symptoms of sleep apnea. The VA examiner opined that the Veteran’s obstructive sleep apnea was less likely than not incurred in or caused by the in-service injury, event, or disease, including the Veteran’s report of in-service symptoms of snoring and not breathing while sleeping. Resolving all reasonable doubt in favor of the Veteran, the Board finds that the criteria for service connection for sleep apnea have been met. The Veteran has a current diagnosis of sleep apnea, and there is competent evidence of a nexus to active duty service. Here, the Board finds the Veteran’s February 2018 private medical opinion to be probative evidence of record that the Veteran’s obstructive sleep apnea onset began in service. The private examiner provided an opinion supported by a fully articulated rationale with citations to medical literature based on a thorough review of the Veteran’s competent lay evidence. See Prejean v. West, 13 Vet. App. 444 (2000); see also Guerrieri v. Brown, 4 Vet. App. 467 (1993). While the October 2019 examination provided a negative nexus opinion regarding the onset of the Veteran’s sleep apnea in service, the Board finds that, given the Veteran’s competent lay evidence of the in-service onset of sleep apnea, to include the statement submitted from the Veteran’s wife, when applied with the February 2018 private positive nexus opinion, the evidence is at least in relative equipoise on this matter. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Thus, the Board concludes the evidence of record supports a finding of service connection for obstructive sleep apnea. 2. Entitlement to an initial rating of 30 percent disabling, but no higher, for tension headaches The Veteran contends he suffers from tension headaches with symptoms in excess of the severity compensated by his current initial disability rating. VA has adopted a Schedule for Rating Disabilities to evaluate service-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 3.321; see generally 38 C.F.R. § Part IV. The Board determines the extent to which a veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 C.F.R. § 4.10. The degrees of disabilities are based on the average impairment of earning capacity and individual disabilities are assigned diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various percentage ratings for each disability and the criteria for specific ratings. Where there is a question of which of two ratings should be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Additionally, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In a claim for a greater original rating after an initial award of service connection, all evidence submitted in support of the veteran’s claim is to be considered. See Fenderson v. West, 12 Vet. App. 119 (1999); 38 C.F.R. § 4.2. However, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. See Fenderson v. West, 12 Vet. App. 119 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's headaches are rated as noncompensable under DC 8100 for Migraines. Under DC 8100, a noncompensable rating is given for less frequent attacks. A 10 percent rating for is assigned for headaches with characteristic prostrating attacks averaging one in 2 months over the last several months. A 30 percent disability rating is assigned for headaches with characteristics of prostrating attacks occurring, on average, once a month. A 50 percent disability rating is provided for very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124(a), DC 8100. In October 2017, the Veteran received a VA examination. The Veteran was noted as having tension headaches described as aching pains starting from the jaw to the top of the Veteran’s head bilaterally. The Veteran reported experiencing headaches six to seven hours at a time twice a week. The VA examination noted the Veteran took over the counter pain medication and sought relief by relaxing in a chair or bed. The VA examination reported the Veteran did not display characteristic prostrating attacks of migraine or non-migraine headache pain. Additionally, non-headache symptoms associated with headaches were not recorded. Pursuant to the October 2019 Board remand, the RO provided the Veteran a VA examination in January 2020. The VA examination noted the Veteran suffered tension headaches since his jaw surgery in 1984. The examination noted the Veteran’s headaches were symptomatic of pulsating or throbbing head pain on both sides of the head. The VA examination noted the Veteran’s headaches occurred at least twice weekly, affecting both sides and in the front of the head radiating to the back of the head and shoulders. The VA examiner reported the Veteran did not have non-headache symptoms associated with his headaches. The examination noted the Veteran did not have characteristic prostrating attacks of migraine headache pain or non-migraine headache symptoms. The Board notes that while the Veteran’s VA examinations reported more mild symptoms, the Veteran submitted lay evidence, which shows consistent complaints of headache pain during the period on appeal. In the June 2018 substantive appeal, the Veteran stated his headaches were so severe that he would avoid talking, and the headaches forced him to stop doing “anything and everything.” The Veteran submitted a lay statement from August 2020, noting he suffered from headaches a couple days a week, forcing him to go lie down in a quiet room. He noted feeling lightheaded during his headaches. Additionally, he stated the headaches affected his mood. The Veteran’s wife submitted lay testimony in July 2019 that she witnessed the symptoms of the Veteran’s headaches for the duration of the period on appeal. The Veteran’s wife reported the Veteran suffered from headaches at least twice a week where the Veteran needs to lay down in a dark quiet room for a couple of hours. She noted the Veteran gets dizzy and lightheaded. Additionally, the Veteran’s wife stated the Veteran does not want to eat when his head feels bad. The Veteran’s wife noted that the Veteran’s severe headaches involve blurred vision. She stated that the Veteran is sensitive to light and cannot concentrate. Finally, the Veteran’s wife noted that the Veteran would miss work due to his headaches, requiring a ride home from work. The Board acknowledges that as lay persons, the Veteran and his wife are competent to provide probative opinions on certain subjective medical issues and of observable symptomatology. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Accordingly, the evidence of record supports a finding that an initial rating of 30 percent, but no higher, is warranted for the period on appeal. Although the Veteran’s VA examinations noted his headaches did not have characteristic prostrating attacks, the Board notes that the lay evidence of record shows the Veteran’s headache pain regularly was such that the Veteran needed to lay down. Additionally, the competent lay evidence noted the Veteran’s severe headaches involved non-headache symptoms, such as loss of appetite, blurred vision and light sensitivity. Thus, due to the frequency and moderate severity of the Veteran’s tension headaches, the Board finds that an initial rating of 30 percent, but no higher, is warranted. The Board notes that an initial rating in excess of 30 percent is not warranted. The Veteran’s headaches at no time during this period were noted as being completely prostrating. While the Veteran reported missing work due to severe headaches, the evidence of record does not show these severe headaches reached the level of prolonged attacks productive of severe economic inadaptability. See 38 C.F.R. § 4.124(a), DC 8100. Thus, a 50 percent initial rating since November 4, 2016 is not warranted. REASONS FOR REMAND Entitlement to a TDIU is remanded. When a veteran files a claim for an increased rating, the veteran is presumed to be seeking the maximum benefit under any applicable theory, to include the entire period on appeal for a claim of TDIU. See generally Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). When evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for entitlement to TDIU will be considered to have been raised by the record as “part and parcel” of the underlying claim. Rice v. Shinseki, 22 Vet. App. 447 453-54 (2009). The evidence of record has reasonably raised the issue that the Veteran would miss work due to his headaches. In an April 2018 brief, the Veteran’s representative expressly raised the issue of compensation based on the Veteran’s individual unemployability. The Veteran submitted private opinions addressing the effect of the Veteran’s physical and psychiatric disorders on his ability to secure and follow gainful employment. The Board notes the RO’s assignment of a disability rating in the first instance for the Veteran’s now service-connected obstructive sleep apnea may affect the merits of the claim for a TDIU during the period on appeal. Therefore, as the issues are inextricably intertwined, the Board will defer decision on the issue of TDIU, and the issue must be remanded pending assignment of an initial rating for obstructive sleep apnea. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that where a claim is inextricably intertwined with another claim, the claims must be adjudicated together in order to enter a final decision on the matter). The matters are REMANDED for the following action: Send the Veteran proper VCAA notice under 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159 informing him of what is needed to substantiate a claim for TDIU. Send the Veteran VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, and request the Veteran provide employment and education history. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A.V. Bona, 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.