Citation Nr: 21061923 Decision Date: 10/05/21 Archive Date: 10/05/21 DOCKET NO. 17-33 455 DATE: October 5, 2021 ORDER Entitlement to service connection for migraine headaches is granted. REMANDED Entitlement to service connection for obstructive sleep apnea is remanded. FINDING OF FACT The preponderance of the evidence supports that the Veteran's migraine headaches are etiologically linked to his active duty service. CONCLUSION OF LAW The criteria for entitlement to service connection for migraine headaches have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from September 1979 to September 1988. This matter comes before the Board of Veterans' Appeals (Board) on an appeal from an August 2015 rating decision issued by the Agency of Original Jurisdiction (AOJ). The appeal was remanded in March 2019 to obtain medical opinions as to the nature and etiology of the Veteran's migraine headaches and obstructive sleep apnea. The Veteran was afforded VA examinations for the claimed disabilities in September 2019, and medical opinions were associated with the file in October 2019. The Board find the examiner's opinions inadequate. However, in light of the full grant of benefits awarded herein, further remand of the Veteran's claim for service connection for migraine headaches is not required. To the extent that the requested development was not substantially complied with regarding the claim for service connection for sleep apnea, that claim is not ready for appellate review and is addressed in the Remand portion of this decision. See Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to service connection for migraine headaches Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). "To establish a right to compensation for a present disability, a veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service'-the so-called 'nexus' requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). For veterans with 90 days or more of active service during a war period or after December 31, 1946, certain chronic diseases, including organic diseases of the nervous system, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Pursuant to 38 C.F.R. § 3.303(b), where a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected. If a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101 (3) or 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board finds that service connection for migraine headaches is warranted. The record reflects a current diagnosis for migraine headaches. Certain chronic disabilities, including some types of headaches (as organic disease of the nervous system), are subject to presumptive service connection under 38 C.F.R. § 3.309(a). The Board notes that service connection for migraine headaches is not warranted on a presumptive basis as the condition was not diagnosed during service or within a year of discharge from service. However, when the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). A demonstration of continuity of symptomatology is an alternative method of demonstrating the second and/or third elements of service connection. See Savage v. Gober, 10 Vet. App. 488, 495-496 (1997). Here, the Board finds that service connection for migraine headaches is warranted based on the continuity of the Veteran's symptoms since service. The Veteran competently and credibly reported that he began experiencing headaches during service. See September 2019 C&P Exam. The Veteran's service treatment records (STRs) are silent for any treatment for or complaints of migraine headaches. However, it is worth noting that the only STRs available from the Veteran's nearly 10 years of service include his enlistment examination, one periodic examination, and his separation examination. Private treatment records from 1989 reveal the Veteran began experiencing headaches in 1988. The Veteran's private and VA treatment records are replete with documentation of severe headache symptoms from 1989 through the present. He was prescribed medication for migraines as early as 1994 and his VA treatment records confirm a diagnosis of cluster/migraine headaches in January 1995. The Board acknowledges that a VA examiner provided a negative nexus opinion in October 2019. The examiner opined that the Veteran's headache condition was less likely than not related to service. The examiner reasoned that there are no medical records showing diagnosis or treatment for the migraine condition during active-duty service. The Board finds this opinion lacks probative value as it is based solely on the lack of medical evaluation, management, or treatment for headaches during service. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). While there was no documentation of migraine headaches during active service, the lay and medical evidence reveals onset of headache symptoms during service. The record reflects complaints and treatment for similar symptoms since service. 38 C.F.R. § 3.303(a). Consequently, the Board finds the preponderance of the evidence to be favor of finding continuity of the Veteran's headache symptoms since service. As such, the second and third elements of service connection have been met, and the appeal for service connection for migraine headaches is granted. REASONS FOR REMAND Entitlement to service connection for obstructive sleep apnea is remanded. The Board finds that a new VA examination is necessary for the remaining issue on appeal as the previous VA examination is inadequate. Once VA undertakes the effort to provide an examination when developing a claim, even if not statutorily obligated to do so, it must provide an adequate exam. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The December 2019 VA examiner based his negative nexus opinion solely on the lack of documented treatment during and after service. The examiner failed to adequately address the Veteran's contentions that he was exposed to various chemicals that damaged his respiratory system. Additionally, the examiner did not address the Veteran's lay complaints of continued symptoms during and after service. Therefore, while the Board regrets the additional delay, a remand is necessary to obtain another opinion regarding the nature and etiology of the Veteran's obstructive sleep apnea. The matters are REMANDED for the following action: 1. Give the Veteran an opportunity to identify any outstanding pertinent treatment records, VA or private, that have not already been associated with the claims file that are relevant to the issues on appeal. The AOJ should then attempt to obtain those records if the appellant provides the appropriate authorization. 2. Forward the claims folder to an appropriate clinician for review and for an addendum opinion addressing the nature and etiology of the Veteran's obstructive sleep apnea (OSA). If the examiner determines that another examination is necessary, one should be scheduled. The examiner is asked to provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's OSA is related to his active-duty military service include hazardous environmental exposures during his service. For each opinion requested in this remand, the claims file and a copy of this remand must be made available to the reviewing examiner, and the examiner should indicate in the report that the claims file was reviewed. The examiner is advised that the Veteran is competent to attest to observable symptoms. If there is a medical basis to support or doubt the Veteran's reports of symptomatology, the examiner should provide a fully reasoned explanation. The examiner should provide a complete rationale for all opinions, whether favorable or unfavorable, and cite to specific evidence of the record, as necessary. 3. After ensuring compliance with these objectives, the AOJ should readjudicate the claim. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Sherman 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.