Citation Nr: 21064221 Decision Date: 10/19/21 Archive Date: 10/19/21 DOCKET NO. 17-30 674 DATE: October 19, 2021 REMANDED Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. Entitlement to service connection for migraine headaches is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from July 1989 to December 2001. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The Board issued an April 2019 decision denying claims for service connection for obstructive sleep apnea (OSA) and migraine headaches. In January 2020, the U.S. Court of Appeals for Veterans Claims (CAVC) granted a joint motion for partial remand (JMPR) and remanded the case on the issue of service connection for OSA and migraines. The JMPR did not disturb the remaining issues in the April 2019 Board decision. The Board remanded the case in April 2020 for new VA addendum medical opinions. The case was remanded again in February 2021 after the Board found the addendum opinions inadequate. The RO issued an April 2021 supplemental statement of case (SSOC) and the case was returned to the Board. 1. Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. 2. Entitlement to service connection for migraine headaches is remanded. Although the Board is aware this case has been on appeal since October 2015 and additional delay is regrettable, a remand is necessary to allow the Board to make a fully informed decision regarding the Veteran's claims. In their April 2021 VA opinion for OSA, the examiner opined the Veteran's OSA was not due to service. In support of their opinion, they stated there was no evidence of OSA or any other sleep disorder during service, that the Veteran reported the onset of her symptoms in 2007, and that she was not diagnosed with OSA until 2015. The mere absence of treatment records should not be the sole basis for a negative opinion. See Dalton v. Nicholson, 21 Vet. App. 23, 40 (2007). In addition, the examiner failed to discuss the Veteran's statements regarding her service-connected conditions causing her obesity, and that her obesity caused or aggravated her OSA, although they do state that obesity is a risk factor for OSA. The examiner stated that the Veteran was obese for 14 years prior to the diagnosis of her OSA and therefore her obesity did not cause her OSA. Further, while the examiner stated the cause of her obesity was unclear but multifactorial, they then failed to provide rationale in support of their statement that there was no indication that her obesity was caused by her other conditions. Lastly, in support of her contentions, the Veteran submitted an October 2020 private medical opinion linking her OSA to her asthma, however, the examiner did not discuss this evidence. Therefore, the Board finds the medical opinion is inadequate. See Dalton, 21 Vet. App. 23, 40, Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (holding that a medical report cannot merely draw conclusions from data; it should include "a reasoned medical explanation connecting the two"), see also Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). In their April 2021 VA opinion for migraines, the examiner opined the Veteran's migraines were not due to service. In support of their opinion, they stated there was no evidence of a headache condition outside reports of headaches related to pregnancy in 1998. Further, that the Veteran was not diagnosed with a headache condition until 2007 and therefore it was unlikely that headaches arising nine years after pregnancy were related to her initial condition. Again, the mere absence of treatment records should not be the sole basis for a negative opinion. See Dalton, 21 Vet. App. 23. In addition, there are several inaccuracies in the examiner's opinion. First, the examiner failed to discuss the Veteran's service treatment records that included the reports of severe headaches in November 1992 and November 2001. See June 2015 Service Treatment Records (STRs). The headaches were attributed to muscle tension, with the Veteran reporting 1-2 episodes a year and that sleep relieved the headaches. Id. Second, the examiner failed to discuss the Veteran's statements regarding the onset of her migraines in service, or her report that she was prescribed medication in 2000 to treat her migraines that she has refilled monthly since that time. See September 2020 Correspondence. Lastly, in support of her contentions, the Veteran submitted an October 2020 private medical opinion linking her migraine headaches to her asthma, however the examiner did not discuss this evidence. Therefore, the Board finds the medical opinion is inadequate. See Dalton, 21 Vet. App. 23, Nieves-Rodriguez v. Peake, 22 Vet. App. 295, see also Stefl v. Nicholson, 21 Vet. App. 120. The matters are REMANDED for the following action: 1. Obtain an addendum medical opinion from a medical professional that specializes in respiratory illnesses to determine the nature, etiology, and severity of the Veteran's obstructive sleep apnea. The claims file must be made available for review, and the examination report should reflect that such review occurred. After reviewing the claims file the examiner must: a. Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that her obstructive sleep apnea 1) began during active duty service; or, 2) are related to any incident/event of the Veteran's active duty service. b. Provide an opinion whether it is at least as likely as not (50 percent or greater probability) that the Veteran's sleep apnea was (A) caused or (B) aggravated beyond its normal progression by 1) the Veteran's other service-connected conditions, including her asthma, or 2) the Veteran's reported obesity. Aggravation means an increase in disability any additional impairment of earning capacity - of the nonservice-connected disability. The examiner must consider the Veteran's statements in addition to the October 2020 private medical opinion. c. If the examiner opines the Veteran's obesity caused or aggravated her obstructive sleep apnea, the examiner is then asked to provide an opinion whether it is at least as likely as not (50 percent or greater probability) that the Veteran's obesity was (A) caused or (B) aggravated beyond its normal progression by the Veteran's other service-connected conditions. Aggravation means an increase in disability any additional impairment of earning capacity - of the nonservice-connected disability. If aggravation is found, the examiner must attempt to establish a baseline level of severity of the diagnosed disability prior to aggravation by the service-connected disability. The examiner is reminded that a medical opinion based solely on the absence of documentation in the record or that does not address the Veteran's reports of symptoms and history is inadequate. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. A rationale for all opinions expressed should be provided as the Board is precluded from making medical findings. A discussion of the facts and the medical principles involved will be of considerable assistance to the Board, including citation to any supporting medical treatises. 2. Obtain an addendum medical opinion from a medical professional that specializes in neurology to determine the nature, etiology, and severity of the Veteran's migraine headaches. The claims file must be made available for review, and the examination report should reflect that such review occurred. After reviewing the claims file the examiner must: a. Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that her migraine headaches 1) began during active duty service; or, 2) are related to any incident/event of the Veteran's active duty service. b. Provide an opinion whether it is at least as likely as not (50 percent or greater probability) that the Veteran's migraine headaches were (A) caused or (B) aggravated beyond its normal progression by 1) the Veteran's other service-connected conditions, including her asthma, or 2) the Veteran's reported obesity. Aggravation means an increase in disability any additional impairment of earning capacity - of the nonservice-connected disability. The examiner must consider the Veteran's statements in addition to the October 2020 private medical opinion. c. If the examiner opines the Veteran's obesity caused or aggravated her migraine headaches, the examiner is then asked to provide an opinion whether it is at least as likely as not (50 percent or greater probability) that the Veteran's obesity was (A) caused or (B) aggravated beyond its normal progression by the Veteran's other service-connected conditions. Aggravation means an increase in disability any additional impairment of earning capacity - of the nonservice-connected disability. If aggravation is found, the examiner must attempt to establish a baseline level of severity of the diagnosed disability prior to aggravation by the service-connected disability. The examiner is reminded that a medical opinion based solely on the absence of documentation in the record or that does not address the Veteran's reports of symptoms and history is inadequate. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. A rationale for all opinions expressed should be provided as the Board is precluded from making medical findings. A discussion of the facts and the medical principles (Continued on the next page) involved will be of considerable assistance to the Board, including citation to any supporting medical treatises. J. B. FREEMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Aubee, 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.