Citation Nr: 21063794 Decision Date: 10/15/21 Archive Date: 10/15/21 DOCKET NO. 19-21 993 DATE: October 15, 2021 ORDER As new and material evidence has been received, the claim for service connection for migraine headaches is reopened; to this extent only, the appeal is granted. REMANDED Entitlement to service connection for migraine headaches, to include as secondary to a service-connected disability, is remanded. Entitlement to service connection for obstructive sleep apnea, to include as secondary to a service-connected disability, is remanded. Entitlement to service connection for left ankle condition, to include as secondary to a service-connected disability, is remanded. Entitlement to service connection for right ankle condition, to include as secondary to a service-connected disability, is remanded. Entitlement to service connection for myoclonic jerks, to include as secondary to a service-connected disability, is remanded. Entitlement to a rating in excess of 20 percent for left lower extremity radiculopathy of the sciatic nerve is remanded. Entitlement to a rating in excess of 20 percent for left lower extremity radiculopathy of the tibial, peroneal, and cutaneous nerves is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran's claim for migraine headaches was previously denied in a September 2015 Board decision. The Veteran timely appealed the decision to the United States Court of Appeals for Veterans Claims (Court). The Court affirmed the decision in a November 2016 Memorandum decision; therefore, the September 2015 Board decision is final. 2. Additional evidence received since the September 2015 Board decision is not cumulative or redundant of the evidence of record at the time of that decision, relates to an unestablished fact necessary to substantiate the claim for service connection for migraine headaches, and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The September 2015 Board decision denying service connection for migraine headaches is final. 38 U.S.C. § 7104 (2012); 38 C.F.R. § 20.1100 (2020). 2. New and material evidence has been received to reopen the Veteran's claim for service connection for migraine headaches. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from May 1984 to November 1987. These matters are before the Board of Veterans' Appeals (Board) on appeal from May 2016 and April 2017 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In June 2020, the Board granted the Veteran's petition to reopen his claim of entitlement to service connection for right ear hearing loss and denied the Veteran's petitions to reopen his claims of entitlement to service connection for migraine headaches and left ear hearing loss. The Board also denied the Veteran's claims of entitlement to service connection for obstructive sleep apnea, bilateral ankle condition, myoclonic jerks, right shoulder condition, right ear hearing loss, bilateral hip condition, and gastrointestinal disorder. In addition, the Board denied a rating in excess of 20 percent for left lower extremity radiculopathy of the sciatic nerve and assigned a 20 percent rating for left lower extremity radiculopathy of the tibial, peroneal, and cutaneous nerves. Lastly, in the June 2020 decision, the Board remanded the Veteran's claim of entitlement to service connection for erectile dysfunction. The Veteran appealed the part of the Board's June 2020 decision that denied the migraine headaches, obstructive sleep apnea, bilateral ankle condition, myoclonic jerks, and left lower extremity radiculopathy ratings in excess of 20 percent to the Court. In a May 2021 Order, the Court granted a Joint Motion for Partial Remand (JMPR) vacating the part of the Board's June 2020 decision that denied the claims appealed to the Court and remanded the matters for action consistent with the terms of the joint motion. The claims remanded in the May 2021 JMPR are now back before the Board and are ready for adjudication. In a December 2020 rating decision, the Agency of Original Jurisdiction (AOJ) awarded entitlement to service connection for erectile dysfunction. As such, the claim is no longer before the Board. Lastly, the Veteran has not filed an application for TDIU. However, in a July 2018 Notice of Disagreement, the Veteran's attorney raised the issue of entitlement to TDIU due to service-connected disabilities. Thus, the issue of entitlement to TDIU is currently before the Board. Rice v. Shinseki, 22 Vet. App. 447, 453 (2009) (holding that a claim for TDIU, either expressly raised by the appellant or reasonably raised by the record, is part of the claim for an increased rating). New and Material Evidence Migraine Headaches A claim for service connection for migraine headaches was denied in a September 2015 Board decision on the basis that the Veteran's migraine headaches were not related to his service or secondary to a service-connected disability. The Board notified the Veteran of its decision and of his appellate rights. The Veteran appealed the decision to the Court. The Court affirmed the Board's September 2015 decision in a November 2016 Memorandum decision. The Veteran did not appeal the Court's decision; therefore, the September 2015 Board decision is final. 38 U.S.C. §§ 7291, 7292. The Veteran's petition currently before the Board to reopen his claim for service connection for migraine headaches was received by the AOJ in December 2016. The AOJ granted the petition to reopen the claim and denied the claim on the merits in an April 2017 rating decision. Although the AOJ reopened the claim in the April 2017 rating decision, the Board must independently consider the question of whether new and material evidence has been received because it goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim de novo. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380, 1384 (Fed. Cir. 1996). Generally, a claim which has been denied may not thereafter be reopened and allowed based on the same record. 38 U.S.C. §§ 7104, 7105. However, pursuant to 38 U.S.C. § 5108, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the VA Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. Id. In determining whether evidence is "new and material," the credibility of the new evidence must be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003); Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly received evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA Secretary's duty to assist or through consideration of an alternative theory of entitlement. Shade, 24 Vet. App. at 118. If the Board determines that the evidence submitted is both new and material, it must reopen the case and evaluate the claim in light of all the evidence. Justus, 3 Vet. App. at 512. Such evidence is presumed to be credible for the purpose of determining whether the case should be reopened; once the case is reopened, the presumption as to the credibility no longer applies. Id. at 513. The Board finds the Veteran has submitted new and material evidence since the September 2015 Board decision denying service connection for migraine headaches. In a September 2018 private medical record, the provider diagnosed the Veteran with chronic migraine headaches without aura and medication overuse headache. Furthermore, the record reflects "medication overuse headache secondary to daily use of ibuprofen and frequent use of sumatriptan/tramadol." The September 2018 medical nexus statement relating the Veteran's migraine headaches to medication overuse was not before adjudicators when the Veteran's claim was last denied in September 2015, and the evidence is not cumulative or redundant of the evidence of record at the time of that decision. The evidence also relates to an unestablished fact necessary to substantiate the claim for service connection for migraine headaches and raises a reasonable possibility of substantiating the claim. Accordingly, the claim is reopened. REASONS FOR REMAND 1. Migraine Headaches A remand is required of the newly reopened claim for service connection for migraine headaches to obtain a VA opinion as whether the Veteran's migraine headaches have been aggravated by a service-connected disability. The Board notes that there are multiple VA opinions in the record as to whether the Veteran's headaches are due to a service-connected disability. September 2008 and May 2009 VA opinions address aggravation; however, the September 2008 and May 2009 opinions reflect that the Veteran's headaches are not "permanently" aggravated by a service-connected disability. The Court has held that aggravation under 38 C.F.R. § 3.310(b) does not require there be a "permanent" worsening of the nonservice-connected disability. See Ward v. Wilkie, 31 Vet. App. 233, 239 (2019). Thus, an opinion as to whether the Veteran's migraine headaches have been aggravated by a service-connected disability is necessary. The Board notes that a September 2018 private medical record reflects "medication overuse headache secondary to daily use of ibuprofen and frequent use of sumatriptan/tramadol." However, the rationale provided in support of this opinion is inadequate as the opinion does not include a discussion of evidence in the record that illustrates the Veteran's migraine headaches existed prior to the Veteran's use of medication for his service-connected disabilities. 2. Obstructive Sleep Apnea As part of a March 2016 VA opinion, the VA examiner opined that "[t]here is no evidence a mental health condition has permanently aggravated [obstructive sleep apnea] beyond its natural progression." The Court has held aggravation under 38 C.F.R. § 3.310(b) does not require there be a "permanent" worsening of the nonservice-connected disability. See Ward, 31 Vet. App. at 239. Thus, an opinion as to whether the Veteran's obstructive sleep apnea has been aggravated by his service-connected acquired psychiatric disorder is necessary as the March 2016 opinion focuses on permanent aggravation. In addition, the Veteran's attorney contended in a June 2021 written statement that his obesity has served as an intermediate step to his obstructive sleep apnea. Obesity can be considered "an intermediate step" for service-connection if the evidence shows that a service-connected disability "caused the veteran to become obese" and the obesity caused by the service-connected disability "was a substantial factor in causing" the current disability, and that the current disability "would not have occurred but for" the obesity caused by the service-connected disability." VA Off. Gen. Couns. Prec. Op. 1-2017. In Walsh v. Wilkie, moreover, the Court further held that the Board needs to consider the obesity-intermediate step theorem predicated on aggravation where appropriate. 32 Vet. App. 300 (2020). Thus, the Court held that proper interpretation of G.C. Prec. Op. 1-2017 requires consideration of both proximate causation and aggravation in its analytical framework: (1) whether the service-connected disability (caused the veteran to become obese/aggravated the veteran's obesity); (2) if so, whether the (obesity/aggravation of obesity) as a result of the service-connected disability was a substantial factor in causing the current disability; and (3) whether the current disability would not have occurred but for (obesity caused/obesity aggravated) by the service-connected disability. If these questions are answered in the affirmative, then the current disability may be service connected on a secondary basis. Walsh, 32 Vet. App. 300. As such, an opinion is necessary as to whether the Veteran's obesity is an intermediate step between his service-connected acquired psychiatric disorder and his obstructive sleep apnea and/or between his service-connected lumbar spine disability and his obstructive sleep apnea. 3. Left Ankle 4. Right Ankle The Veteran attended a VA examination in April 2016 for an evaluation of his ankles. The examination report reflects a diagnosis of a resolved right ankle sprain with no current residuals. However, an April 2018 VA treatment record reflects that the Veteran reported bilateral ankle swelling that resolves overnight. Furthermore, in November 2020, the Veteran reported pain in his lower extremities into his knees and feet. In addition, the April 2016 VA examination report reflects that the Veteran uses a cane for balance issues and because his right ankle rolls. Therefore, as it is unclear from the record whether the Veteran has a bilateral ankle condition, the claims are remanded to afford a VA examiner the opportunity to clarify any diagnosis of the Veteran's bilateral ankles, and if diagnoses are not identified, then to determine if pain alone results in functional impairment of earning capacity. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (if pain alone results in functional impairment of earning capacity, even if there is no identified underlying diagnosis, such pain can constitute a disability); see also Wait v. Wilkie, 33 Vet. App. 8 (2020) (to establish the presence of a disability pursuant to Saunders, there must be competent evidence specific to the claimant tending to show that his or her impairment rises to a level to affect earning capacity). 5. Myoclonic Jerks The Veteran contends his myoclonic jerks are secondary to his service-connected lumbar spine disability and bilateral lower extremity radiculopathy disabilities, including the medications taken for any service-connected disability. In May 2016, a VA examiner opined that it is less likely than not that the Veteran's myoclonic jerks are due to or aggravated by his service-connected lumbar spine and bilateral lower extremity radiculopathy disabilities or the medications taken for his lumbar spine, bilateral lower extremity radiculopathy, and/or acquired psychiatric disorder disabilities. In support of the opinions, the examiner stated that the etiology of the Veteran's myoclonic jerks is multifactorial and does not include the Veteran's lumbar spine and bilateral lower extremity radiculopathy and the medications taken for those disabilities or acquired psychiatric disorder disability. However, the examiner did not provide any rationale as to whether the Veteran's myoclonic jerks have been aggravated by his lumbar spine and bilateral lower extremity radiculopathy and the medications taken for those disabilities or acquired psychiatric disorder disability. Thus, a remand is required to obtain an additional opinion. 6. Left Lower Extremity Radiculopathy of the Sciatic Nerve 7. Left Lower Extremity Radiculopathy of the Tibial, Peroneal, and Cutaneous Nerves The Veteran most recently underwent a VA examination where his service-connected left lower extremity radiculopathy was evaluated in February 2017. A November 2020 VA treatment record reflects that the Veteran reported the pain in his left lower extremity was gradually becoming more constant. Such evidence illustrates that the Veteran's left lower extremity radiculopathy may have worsened since the February 2017 VA examination. Given the evidence of potential worsening of the Veteran's service-connected left lower extremity radiculopathy since the February 2017 VA examination and the need for more current findings necessary to rate his left lower extremity radiculopathy, a new examination is needed. 38 C.F.R. § 3.327(a); Palczewski v. Nicholson, 21 Vet. App. 174, 182 (2007). Furthermore, in the May 2021 JMPR, the Court remanded these claims in part for the Board to explain whether the evidence supports a separate rating for left lower extremity radiculopathy of the sciatic, tibial, peroneal, or cutaneous nerves. The February 2017 VA examination report reflects that the Veteran's sciatic, tibial, peroneal, and cutaneous nerves are involved; however, the examination report is unclear as to the severity of the radiculopathy for each specific nerve root. Thus, a remand is necessary to obtain an additional VA examination to determine the nature and severity of the Veteran's left lower extremity radiculopathy. 8. TDIU Because a decision on the remanded claims could significantly impact a decision on the issue of entitlement to TDIU, the issues are inextricably intertwined. Thus, a remand of the claim of entitlement to TDIU is required. The matters are REMANDED for the following actions: 1. Obtain and associate with the Veteran's electronic record any VA treatment records that are not already of record. Contact the Veteran and afford him the opportunity to identify or submit any pertinent evidence in support of his claims, to include records of any private treatment. Based on his response, attempt to procure copies of all records which have not been obtained from identified treatment sources. If any of the records requested are unavailable, clearly document the claims file to that effect and notify the Veteran of any inability to obtain these records, in accordance with 38 C.F.R. § 3.159(e). 2. After completing the development requested in item 1, obtain a medical opinion from a qualified clinician for the Veteran's migraine headaches, obstructive sleep apnea, and myoclonic jerks claims. The electronic claims file must be made available to the clinician for review in connection with the request for an opinion. If the reviewing clinician determines that an in-person examination (including via telehealth interview) is needed in order to answer the questions posed, then such should be scheduled. After reviewing the claims file, the reviewing clinician should address the following: (a.) Migraine Headaches i) Is it at least as likely as not (50 percent or greater probability) that the Veteran's migraine headaches are caused by his service-connected lumbar spine disability and/or acquired psychiatric disorder, to include any medications taken for the disabilities? ii) Is it at least as likely as not (50 percent or greater probability) that the Veteran's migraine headaches are aggravated (i.e., any increase in the severity beyond its natural progression) by his service-connected lumbar spine disability and/or acquired psychiatric disorder, to include any medications taken for the disabilities? If the Veteran's migraine headaches have been aggravated by his service-connected lumbar spine disability, acquired psychiatric disorder, and/or the medications taken for the disabilities, the reviewing clinician should also indicate the extent of such aggravation by identifying the baseline level of disability. This may be ascertained by the medical evidence of record and also by the Veteran's statements as to the nature, severity, and frequency of his observable symptoms over time. In addressing these questions, the reviewing clinician is asked to consider the medical literature in the record regarding the relationship between acquired psychiatric disorders and migraine headaches and the relationship between the medications taken for acquired psychiatric disorders/lumbar spine disabilities and migraine headaches. (b.) Obstructive Sleep Apnea i) Is it at least as likely as not (50 percent or greater probability) that the Veteran's obstructive sleep apnea is caused by his service-connected lumbar spine disability and/or acquired psychiatric disorder, to include any medications taken for the disabilities? ii) Is it at least as likely as not (50 percent or greater probability) that the Veteran's sleep apnea is aggravated (i.e., any increase in the severity beyond its natural progression) by his service-connected lumbar spine disability and/or acquired psychiatric disorder, to include any medications taken for the disabilities? If the Veteran's obstructive sleep apnea has been aggravated by his service-connected lumbar spine disability, acquired psychiatric disorder, and/or the medications taken for the disabilities, the reviewing clinician should also indicate the extent of such aggravation by identifying the baseline level of disability. This may be ascertained by the medical evidence of record and also by the Veteran's statements as to the nature, severity, and frequency of his observable symptoms over time. In addressing these questions, the reviewing clinician is asked to consider the medical literature in the record regarding the relationship between acquired psychiatric disorders and obstructive sleep apnea. iii) In addressing whether the Veteran's service-connected lumbar spine disability and/or acquired psychiatric disorder has caused or aggravated his obstructive sleep apnea, is it at least as likely as not that the Veteran's service-connected lumbar spine disability and/or acquired psychiatric disorder caused or aggravated the Veteran's obesity? iv) If the answer to (iii) is yes, is it at least as likely as not that the Veteran's obesity was a substantial factor in causing or aggravating his obstructive sleep apnea? v) If the answer to (iii) is yes, is it at least as likely as not that the Veteran's obstructive sleep apnea would not have occurred but for the Veteran's obesity? (c.) Myoclonic Jerks i) Is it at least as likely as not (50 percent or greater probability) that the Veteran's myoclonic jerks are caused by his service-connected lumbar spine and/or bilateral lower extremity radiculopathy disabilities or the medications taken for his lumbar spine, bilateral lower extremity radiculopathy, and/or acquired psychiatric disorder disabilities? ii) Is it at least as likely as not (50 percent or greater probability) that the Veteran's myoclonic jerks are aggravated (i.e., any increase in the severity beyond its natural progression) by his service-connected lumbar spine and/or bilateral lower extremity radiculopathy disabilities or the medications taken for his lumbar spine, bilateral lower extremity radiculopathy, and/or acquired psychiatric disorder disabilities? In addressing these questions, the reviewing clinician is asked to consider the contention in the December 2016 Notice of Disagreement that the fact sheet from the National Institute of Neurological Disorders and Stroke reflects that myoclonus may develop in response to spinal cord injury. If the Veteran's myoclonic jerks have been aggravated by his service-connected lumbar spine and/or bilateral lower extremity radiculopathy disabilities or the medications taken for his lumbar spine, bilateral lower extremity radiculopathy, and/or acquired psychiatric disorder disabilities, the reviewing clinician should also indicate the extent of such aggravation by identifying the baseline level of disability. This may be ascertained by the medical evidence of record and also by the Veteran's statements as to the nature, severity, and frequency of his observable symptoms over time. In rendering the opinions requested in (a.) through (c.), the reviewing clinician is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the reviewing clinician rejects the Veteran's reports, he or she must provide an explanation for such rejection. The examiner is not to improperly discount the Veteran's lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. A complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be provided without resorting to mere speculation, the reviewing clinician must provide a complete explanation for why an opinion cannot be rendered. In so doing, the reviewing clinician must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 3. After completing the development requested in item 1, provide the Veteran an appropriate VA examination (or telehealth interview, if an in-person examination is not feasible) to determine the nature, extent, and etiology of any bilateral ankle condition. The electronic claims file must be made available to the examiner for review in connection with the examination. All indicated tests should be conducted, and the reports of any such studies incorporated into the examination reports to be associated with the claims file. After reviewing the claims file, the examiner should address the following: (a.) Does the Veteran have a diagnosis of any left and/or right ankle condition or any symptoms that cause functional impairment of earning capacity? (b.) For any left and/or right ankle condition/functional loss, is it at least as likely as not (50 percent or greater probability) that such is related or attributable to his military service? (c.) For any left and/or right ankle condition/functional loss, is it at least as likely as not (50 percent or greater probability) that such is caused by the Veteran's service-connected bilateral lower extremity radiculopathy? (d.) For any left and/or right ankle condition/functional loss, is it at least as likely as not (50 percent or greater probability) that such is aggravated (i.e., any increase in the severity beyond its natural progression) by the Veteran's service-connected bilateral lower extremity radiculopathy? If the Veteran's left and/or right ankle condition/functional loss has been aggravated by his bilateral lower extremity radiculopathy, the examiner should also indicate the extent of such aggravation by identifying the baseline level of disability. This may be ascertained by the medical evidence of record and also by the Veteran's statements as to the nature, severity, and frequency of his observable symptoms over time. In rendering these opinions, the examiner is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, he or she must provide an explanation for such rejection. The examiner is not to improperly discount the Veteran's lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. A complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be provided without resorting to mere speculation, the examiner must provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 4. After completing the development requested in item 1, schedule the Veteran for an appropriate VA examination (or telehealth interview, if an in-person examination is not feasible) to evaluate the severity of the Veteran's left lower extremity radiculopathy claims. The entire claims file should be made available to the examiner in conjunction with this request. All testing deemed necessary to rate peripheral nerve disabilities under the criteria of the rating schedule must be conducted and the results reported in detail. As part of the examination, the examiner is requested to specifically address the following inquiries: (a.) Indicate the severity of the Veteran's left lower extremity radiculopathy involving the sciatic nerve. (b.) Does the Veteran's left lower extremity radiculopathy involve the tibial nerve? If the answer is yes, indicate the severity of the tibial nerve radiculopathy. (c.) Does the Veteran's left lower extremity radiculopathy involve the peroneal nerve? If the answer is yes, indicate the severity of the peroneal nerve radiculopathy. (d.) Does the Veteran's left lower extremity radiculopathy involve the cutaneous nerve? If the answer is yes, indicate the severity of the cutaneous nerve radiculopathy. 5. After completing the development above, undertake any development necessary to adjudicate the claim for TDIU. M. SORISIO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Breitbach, 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.