Citation Nr: 21066928 Decision Date: 11/02/21 Archive Date: 11/02/21 DOCKET NO. 18-37 279 DATE: November 2, 2021 REMANDED Entitlement to service connection for a back disability is remanded. Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for migraine headaches, to include as secondary to sleep apnea, is remanded. Entitlement to service connection for hypertension, to include as secondary to sleep apnea, is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1986 to May 1991 with subsequent service in the United States Navy Reserve. 1. Service connection for a back disability is remanded. The Veteran contends that he has had back pain since active duty. During his July 2021 Board hearing, the Veteran stated that he noticed back pain during active duty after climbing stairs, ducking pipes, bending, and standing for many hours at a time. The Veteran reported that he went to sick call for back pain; however, service treatment records (STRs) do not note complaints, treatment for, nor a diagnosis of a back condition. However, the Board notes that lay testimony is competent as to matters capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Therefore, the AOJ should obtain a medical opinion to address whether the Veteran's claimed back disability was caused by active duty service. 2. Service connection for sleep apnea is remanded. The Veteran contends that his obstructive sleep apnea (OSA), which was diagnosed in November 2009, is related to his military service. During his July 2021 Board hearing, the Veteran noted that he was told he snored during active service by shipmates and his wife. Also, his wife told him that he stopped breathing while sleeping on two occasions during active service. The Veteran did not seek treatment during active service. The Board cannot make a fully-informed decision on the issue of service connection for sleep apnea because no VA examiner has addressed the Veteran's statements. In light of the foregoing, a VA medical opinion is necessary. 3. Service connection for headaches is remanded The Veteran contends that his headaches are due to his active service. Also, the Veteran asserts that his headaches are secondary to his sleep apnea. During his July 2021 Board hearing, the Veteran stated that his headaches began during active duty and have continued since. The Veteran noted that his headaches worsened after being diagnosed with sleep apnea. He reported going to sick call for headaches. STRs noted that the Veteran had frequent headaches in April 1986, prior to entering active service. Reports of Medical History from July 1986, October 1988, and March 1991 noted that the Veteran did not have frequent or severe headaches, nor dizziness or fainting spells. Further, Reports of Medical History for the Veteran's reserve service indicated that he did not have frequent or severe headaches, dizziness, or fainting spells. See January 1997 Report of Medical History, November 2017 Report of Medical History. However, in December 2011, the Veteran reported waking with headaches during a treatment session for sleep apnea. The Board notes that lay testimony is competent as to matters capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). The Veteran is competent to report that he had headaches during active service and symptoms continued since his active service. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). See Baldwin v. West, 13 Vet. App. 1 (1999). Therefore, an opinion is required. 4. Service connection for hypertension is remanded. Veteran asserts that his hypertension is secondary to his sleep apnea. Private treatment records show that the Veteran was diagnosed with essential hypertension in September 2011, after his November 2009 sleep apnea diagnosis. During his July 2021 Board hearing, the Veteran stated that he felt his heart racing during active service and that he would have elevated blood pressure readings, so the physician would have him wait, come back, and the reading would be within normal limits. The Veteran noted that his primary physician, Dr. R., stated that his hypertension was secondary to sleep apnea. STRs do not note multiple blood pressure reading being taken. Still, the Veteran had the following blood pressure readings: 120/82 (November 2017), 138/80 (January 1997), 136/80 (March 1991), and 126/72 (October 1988). However, these readings did not fall within the VA regulations which require that hypertension or isolated systolic hypertension be confirmed by readings taken two or more times on at least three different days. For compensation purposes, hypertension means that the diastolic blood pressure is predominantly 90mm or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160mm or greater with a diastolic blood pressure of less than 90mm. 38 C.F.R. § 4.104, Diagnostic Code 7101. Nonetheless, as the Veteran may be service connected for sleep apnea, a VA examiner should opine whether the Veteran's hypertension is secondary to sleep apnea. The matters are REMANDED for the following action: 1. Request authorization from the Veteran to associate with the claims file all of his treatment records from Dr. R. related to his treatment for back pain, high blood pressure, headaches, and sleep apnea. If the authorization cannot be obtained or the records cannot be located and/or no such records exist, the record should be annotated to reflect this. 2. Verify through the appropriate agencies the specific dates of ACDUTRA or INACDUTRA by requesting all Naval Reserve service treatment records and service personnel records and associate them with the claims file. The AOJ should prepare a summary of such dates, or document for the record why the production of a summary of service dates is not possible. All efforts to obtain these records should be fully documented. If records do not exist or further efforts to obtain the records would be futile, notify the Veteran. 3. Obtain an opinion from a qualified clinician, to determine the nature and etiology of any current back disability. The examiner should opine whether it is at least as likely as not that the Veteran's back disability is etiologically related to an in-service injury, event, or disease, to include climbing stairs, ducking pipes, and standing for many hours at a time. The examiner is notified that a lack of documented continuity of care from the time of service does not necessarily preclude service connection, and therefore the examiner should specifically address the Veteran's competent statements and testimony that he has had back pain since his injury during active service. A complete rationale should be provided for all opinions expressed and conclusions reached. 4. Obtain a VA medical opinion to determine the etiology of the Veteran's sleep apnea. The examiner should review the record prior to providing an opinion. The examiner should provide an opinion as to whether it is more likely than not, less likely than not, or at least as likely as not, that sleep apnea is related to any in-service disease, event, or injury. The examiner must consider the lay evidence of reports of purported obstructive sleep apnea symptoms since service, and specifically, the examiner must address the significance of the Veteran's report of snoring and breathing stoppages during sleep during active service. The examiner should provide a complete rationale for all opinions expressed and conclusions reached. If it is not possible to provide an opinion without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 5. Schedule the Veteran for an examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) to determine the nature and etiology of his headaches. The electronic claims folder must be available for review. The examination report should indicate that the claims file was reviewed. The examiner should provide an opinion as to the following: (a.) Did the Veteran's headaches clearly and unmistakably (undebatable) preexist the Veteran's active service? (b.) If the examiner finds it did clearly and unmistakably preexist service, was it clearly and unmistakably not aggravated by service? (c.) If the examiner finds that it either did not clearly and unmistakably preexist active service, or was not clearly and unmistakably aggravated by service, the examiner must opine whether it is at least as likely as not related to service. (d.) Are headaches at least as likely as not proximately due to sleep apnea? (e.) Are headaches at least as likely as not aggravated, i.e., worsened beyond its natural progression, by the Veteran's sleep apnea? The examiner should note that an in-service diagnosis is not required. The examiner should address the Veteran's contention that he has had continuous headache symptoms since active service. The examiner should provide a complete rationale for all opinions expressed and conclusions reached. If it is not possible to provide an opinion without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 6. Obtain an opinion by an appropriate clinician to determine the nature and etiology of the Veteran's hypertension. Based on a review of the record, and any examination/medical findings, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that hypertension is aggravated beyond the natural progress of the disease by the Veteran's sleep apnea. Also, provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that hypertension is at least as likely as not proximately due to sleep apnea. The examiner should provide a complete rationale for all opinions expressed and conclusions reached. Further, the examiner should address any etiology statements that may have been obtained from Dr. R. noting that the veteran's hypertension is secondary to sleep apnea. If it is not possible to provide an opinion without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). S. L. Kennedy Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Costello, 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.