Citation Nr: 21067467 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 18-20 865 DATE: November 4, 2021 ORDER Entitlement to a 30 percent disability rating but no higher, for headaches from May 26, 2016 is granted. Entitlement to a 30 percent initial disability rating but no higher, for hypertension from April 25, 2013 is granted. REMANDED Entitlement to service connection for sleep apnea including as secondary to post-traumatic stress disorder (PTSD) is remanded. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran's favor, the Veteran's headaches manifested as characteristic prostrating attacks occurring on average once a month over the last several months. 2. Throughout the entire appeal period, the Veteran has had renal dysfunction and has had hypertension with at least a 10 percent disability rating under Diagnostic Code 7101. CONCLUSIONS OF LAW 1. The criteria for entitlement to a 30 percent disability rating but no higher, for headaches from May 26, 2016 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.96, 4.97, Diagnostic Code 8100. 2. The criteria for entitlement to a 30 percent initial disability rating but no higher, for hypertension from April 25, 2013 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.96, 4.97, Diagnostic Code 7101, 7530. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from November 1989 to September 1992. This matter is before the Board of Veterans' Appeals (Board) on appeal of a September 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In August 2018, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. In May 2019, the Board remanded this matter for further development. As the Agency of Original Jurisdiction (AOJ) did not substantially comply with the remand, another remand regrettably is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). Neither the Veteran nor his representative has raised any issues with regard to the duty to notify or duty to assist as they pertain to the issues considered in this decision. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The analysis in this decision focuses on the most relevant evidence and on what the evidence shows or does not show with respect to the issues denied in this decision. The Veteran should not assume that evidence that is not explicitly discussed in this decision has been overlooked. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). Increased Rating Disability ratings are determined by the application of VA's Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and, above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two ratings shall 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. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," in all claims for increased ratings. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999). 1. Entitlement to a 30 percent disability rating but no higher, for headaches from May 26, 2016 is granted. The Veteran seeks a higher disability rating for his headache disability. The Veteran contends that his claim was decided incorrectly. He stated that he suffered with post traumatic headaches for years since being hit in the head by a closed hatch, aboard the USS Manitowoc LST 1180. See March 2015 Notice of Disagreement. The applicable rating period is from April 25, 2013, the effective date for the award of service connection for headaches, through the present. See 38 C.F.R. § 3.400. The July 2020 rating decision increased the Veteran's headache disability from a noncompensable rating to 30 percent, effective February 18, 2020. The Veteran's headaches are rated under 38 C.F.R. § 4.124a, Diagnostic Code 8100, which pertains to migraine headaches and is most analogous to his service-connected headaches. See 38 C.F.R. § 4.20. Under Diagnostic Code 8100, a noncompensable rating is assigned for headaches with characteristic prostrating attacks averaging less than one in two months over the last several months. A 10 percent rating is assigned for headaches with characteristic prostrating attacks averaging one in two months over the last several months. A 30 percent rating is assigned for headaches with characteristic prostrating attacks occurring on average once a month over the last several months. A maximum schedular 50 percent rating is assigned for headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. The rating criteria do not define "prostrating." By way of reference, the Board notes that Dorland's Illustrated Medical Dictionary 1531 (32nd Ed. 2012), defines "prostration" as "extreme exhaustion or powerlessness." In September 2014, the Veteran was afforded a VA examination for headaches. The examiner indicated that the Veteran was diagnosed with post-traumatic headaches in 1992. The Veteran reported that he was hit on the head when someone closed a hatch. The Veteran reported that he experienced headaches at least every other day and they can last all day. He takes either Tylenol, Excedrin or Advil for symptoms to ease the pain, but the pain does not completely go away. The Veteran had a CT that revealed no brain abnormalities. The Veteran experiences headache pain that pulsates or throbs, and the pain is localized most to the right side of his head. The Veteran reported sensitivity to light and blurry vision. The typical head pain lasts 1-2 days and is on the right side of the Veteran's head. The examiner noted that the Veteran has characteristic prostrating attacks of migraine/non-migraine headache pain, with less frequent attacks over the last several months. The examiner noted that the functional impact would be that the Veteran may have difficulty focusing when he has headaches. In May 2016, the Veteran was afforded a VA examination for headaches. The Veteran reported daily headaches that were localized to the posterior left side of his head, radiating to the left temporal/parietal and frontal regions. The examiner noted that the Veteran's treatment plan included taking medication, specifically over the counter NSAID's. The Veteran reported that he had sensitivity to sound and changes in vision. The duration of typical head pain lasts less than one day. The examiner noted that the Veteran does not have any characteristic prostrating attacks of migraine or non-migraine pain. However, the Veteran reported that he has to leave work approximately two times per month due to headaches. The Veteran's private treatment records show that the Veteran has reported at times that he has had no headaches and other times his headaches have been occasional from 2010-2016. In August 2018, the Veteran testified at a Board hearing. The Veteran testified that, When I'm experiencing the migraines, I really can't stand to be around no sound. I'm really concerned because it's causing problems with my vision. I can actually remember walking into my job and then actually losing my sight. I didn't share that with my wife because I didn't want her to be worried, but sometimes it's just real hard to deal with two and three times a week the headaches trying to self-medicate with the Tylenol and trying to just be by myself. Sometimes it can be rough dealing with those migraines. The Veteran testified that he is on three different medications for his headaches, but they do not seem to work. The Veteran also testified that he has sensitivity to light and blurred vision. He testified that when they are at the worst he shuts down and has to get away from his family. He goes to his room and shuts the lights off. The Veteran testified that these headaches occur two to three times a week if not more, and he "shuts down" for two to three days at a time where he just wants to be by himself. The Veteran's employer accommodates him by sending the Veteran to his office and letting him turn out the lights to get away from everyone. In March 2020, the Veteran was afforded a VA examination for his headaches. The examiner indicated that the Veteran had a diagnosis of post-traumatic headaches in 1992. The Veteran's condition has been progressing. The Veteran's current symptoms include headaches weekly on the right side of the head. The Veteran treats his condition with over-the-counter drugs to help ease the symptoms, but the medications do not relieve the pain 100 percent. The Veteran's treatment plan includes taking over the counter medication. The Veteran's headache symptoms include constant head pain; pulsating or throbbing head pain; and pain localized to one side of the head. The Veteran's non-headache symptoms include sensitivity to light, and changes in vision. The duration of typical head pain lasts less than a day and is located on the right side of the head. The examiner noted that the Veteran has characteristic prostrating attacks of migraine/ non-migraine headache pain once every month. The examiner indicated that the Veteran does not have prostrating and prolonged attacks of migraines/non-migraine pain productive of severe economic inadaptability. However, the examiner indicated that the Veteran misses work monthly secondary to headaches. The Board considered the Veteran's lay statements that his disabilities are worse than currently evaluated. He is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465 (1994). He is not, however, competent to identify a specific level of disability according to the appropriate diagnostic codes or determine if his condition meets specific diagnostic criteria. However, the Board finds that after reviewing the evidence, that the Veteran's headache condition warrants a 30 percent rating since the August 2018 Board hearing. The Board acknowledges that the Veteran's headache symptoms have worsened since he received his initial noncompensable rating. The Board considered awarding the Veteran only a 10 percent rating for the time period prior to the August 2018 Board hearing but finds that the 10 percent rating does not accurately capture the Veteran's symptoms. Instead, the Board finds that resolving reasonable doubt in the Veteran's favor that his symptoms are closer to a 30 percent rating. The Board finds that while the May 2016 VA examiner did not note that the Veteran had prostrating headaches, he had to miss work on two or more occasions during a month, which demonstrates that the Veteran's headache symptoms most closely manifest as with characteristic prostrating attacks occurring on an average once a month over last several months. The Board acknowledges that the Veteran has denied headaches from time to time, and that the Veteran has indicated that his headaches sometimes occur occasionally, but the Board finds that it is at least equipoise that the Veteran's symptoms are closer to a 30 percent rating at the time of the May 2016 VA examination, but no earlier. Prior to the May 2016 VA examination the Board finds that the Veteran's symptoms manifested as less frequent attacks, as noted in the September 2014 VA examination, and the Veteran's treatment records. The Board finds that there is no evidence at any time during the appeal period that the Veteran's headaches manifested as with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. Thus, a rating higher than 30 percent is not warranted, at any time during the appeal period. In summary, the Board finds that the Veteran's headache disability warrants a 30 percent rating as of the May 2016 VA examination because it is the earliest date, within the appeal period that demonstrates that the Veteran's headaches manifested as with characteristic prostrating attacks occurring on an average once a month over last several months. The Board reiterates that the Veteran reported that either he did not have headaches or that they were occasional prior to that time, and the Board is resolving reasonable doubt in the Veteran's favor. To the extent the Veteran seeks ratings higher than those assigned herein, the preponderance of the evidence is against the appeal, the doctrine of reasonable doubt is not for application, and the appeal must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Entitlement to a 30 percent initial disability rating but no higher for hypertension from April 25, 2013 is granted. The Veteran seeks a higher rating for his hypertension disability. The Veteran stated that he is on three different hypertension medications. See March 2015 Notice of Disagreement. The applicable rating period is from April 25, 2013, the effective date for the award of service connection for hypertension, through the present. See 38 C.F.R. § 3.400. The February 2018 rating decision awarded the Veteran with an increased rating of 10 percent, effective April 25, 2013. In the July 2020 rating decision, the RO recharacterized the Veteran's service-connected disability from hypertension, to renal dysfunction due to hypertension, with a 30 percent rating, effective February 18, 2020. Under Diagnostic Code 7101, a 10 percent rating is assigned for hypertension when diastolic pressure is predominantly 100 or more, or when systolic pressure is predominantly 160 or more, or as a minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. A 20 percent rating is provided if diastolic pressure is predominantly 110 or more, or if systolic pressure is predominantly 200 or more. A 40 percent rating is provided if diastolic pressure is predominantly 120 or more. A 60 percent rating is provided if diastolic pressure is predominantly 130 or more. 38 C.F.R. § 4.104, Diagnostic Code 7101. Diagnostic Code 7530 evaluates chronic renal disease requiring regular dialysis and instructs the disability be evaluated under the criteria for renal dysfunction. See 38 C.F.R. § 4.115a, Diagnostic Code 7530. Under renal dysfunction, a noncompensable rating is warranted for albumin and casts with history of acute nephritis; or, hypertension non-compensable under diagnostic code 7101; a 30 percent rating is warranted for albumin constant or recurring with hyaline and granular casts or red blood cells; or, transient or slight edema or hypertension at least 10 percent disabling under diagnostic code 7101; a 60 percent rating is warranted for constant albuminuria with some edema; or definite decrease in kidney function; or hypertension at least 40 percent disabling under Diagnostic Code 7101. Id. An 80 percent rating is warranted for (1) persistent edema and albuminuria with BUN 40 to 80mg %; or (2) creatinine 4 to 8mg %; or (3) generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion. Id. Additionally, a 100 percent rating is warranted for (1) requiring regular dialysis, or (2) precluding more than sedentary activity from one of the following: persistent edema and albuminuria; or BUN more than 80mg %; or, creatinine more than 8mg %; or, markedly decreased function of kidney or other organ systems, especially cardiovascular. Id. Turning to the evidence, the Veteran's treatment records indicate that he has received ongoing treatment for his hypertension condition, and his condition requires continuous medication. The Veteran's private treatment records reflect that the Veteran's blood pressure had the following readings, 128/80, 130/90, 180/100 between March 2012 and June 2013. Then, 172/100, and 140/100 from July 2013 to January 2016. In September 2014, the Veteran was afforded a VA examination for his hypertension. The examiner noted that the Veteran was diagnosed with hypertension in 1989 or 1990. The Veteran's treatment plan requires continuous medication. The Veteran's blood pressure readings were 166/99, 150/90, and 154/95, with an average blood pressure reading of 156/94. The Veteran's blood pressure readings result in a 10 percent rating due to the requirement of continuous medication to treat the Veteran's hypertension. In May 2016, the Veteran was afforded a VA examination for his hypertension. The examiner noted that the Veteran's blood pressure is not responding to the previous regimen and his Amlodipine was increased to 25mg from 10mg. He also takes Norvasc. The Veteran reported that he checks his blood pressure on a daily basis and his diastolic readings are in the 100's. The Veteran has a history of a diastolic blood pressure elevation to predominately 100 or more. The examiner noted that the Veteran's blood pressure readings on the day of examination were 160/100, 154/107, and 151/101, with an average blood pressure of 155/106. The Veteran's blood pressure readings result in a 10 percent rating due to the requirement of continuous medication to treat the Veteran's hypertension, and the Veteran's diastolic readings are in the 100's, but below 110 on average. In August 2018, the Veteran testified at a Board hearing. The Veteran testified that he was prescribed three medications from his doctor for his hypertension. Even with these medications he testified that the average reading is "152/27." The Veteran testified that his blood pressure is consistently reading higher. The Veteran testified that the condition is causing him to be impotent. The Veteran has chest pains and night sweats that occur pretty frequently. The Veteran testified that when his blood pressure is higher, he gets blurry vision. In February/March 2020, the Veteran was afforded a VA examination for his hypertension. The examiner noted that the Veteran was diagnosed with hypertension renal disease in 2012. The examiner noted that the onset was found in hospital and routine labs and has progressed and worsened. The Veteran treats his hypertension/renal disease with Toprol 25 mg every day, Amlodipine 20mg day, Aldactone 25mg every day. Thus, the Veteran's treatment plan requires continuous medication. The examiner noted that the Veteran's blood pressure readings on the day of examination were 146/100, 142/98, and 144/96, with an average blood pressure reading of 144/98. The Veteran's blood pressure readings result in a 10 percent rating due to the requirement of continuous medication to treat the Veteran's hypertension. The Veteran's renal dysfunction does not require regular dialysis. The symptoms of the Veteran's renal dysfunction include recurring proteinuria. Diagnostic testing revealed normal BUN, creatinine, EGFR, Proteinuria (albumin), and albumin and casts with history of acute nephritis. The Board finds that under Diagnostic Code 7101, that the evidence does not support a rating higher than 10 percent for the Veteran's hypertension during the entire appeal period. The Veteran's systolic pressure readings do not reach 200, and the Veteran's diastolic pressure readings are not consistently over 100. However, resolving reasonable doubt in favor of the Veteran, the Board finds that the Veteran has had renal dysfunction since 2012. See March 2012 Private hospital discharge note, February/March 2020 VA examination. The February/March 2020 VA examiner noted that the Veteran has recurring proteinuria (albuminuria), but the current tests indicated that the proteinuria (albumin) and albumin and casts with history of acute nephritis were normal. The Veteran has had a 10 percent rating for hypertension throughout the appeal period. Thus, the Board finds that a 30 percent rating for the Veteran's hypertension with renal dysfunction disability is warranted under Diagnostic Code 7530 for the entire appeal period. There is no evidence in the record of constant albuminuria with some edema; or definite decrease in kidney function; or hypertension at least 40 percent disabling under Diagnostic Code 7101, thus a 60 percent rating is not warranted under Diagnostic Code 7530. The Board also notes that a separate rating for hypertension for this period is not warranted, as the Veteran's symptoms from hypertension are specifically included with the rating criteria for renal dysfunction, and to assign a separate rating would be impermissible pyramiding. See 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994) (VA may not assign multiple ratings for duplicative or overlapping symptomatology). In summary, the Board finds that an initial rating of 30 percent is warranted, but no higher is warranted throughout the appeal period. To the extent the Veteran seeks ratings higher than those assigned herein, the preponderance of the evidence is against the appeal, the doctrine of reasonable doubt is not for application, and the appeal must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND Entitlement to service connection for sleep apnea including secondary to post-traumatic stress disorder (PTSD) is remanded. The Veteran contends that his sleep apnea or sleep difficulties began during service following a crankshaft explosion. He has described his sleep difficulties as nightmares, night sweats, and difficulty breathing and/or gasping for air during sleep. The record contains an October 2018 diagnosis of obstructive sleep apnea and the private medical professional indicated that the onset of sleep apnea was following an explosion during the Veteran's active service. However, the examiner did not provide a rationale for that opinion, and therefore, it is not probative evidence in support of the Veteran's claim. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (holding that a medical opinion "must support its conclusion with an analysis that the Board can consider and weigh against contrary medical opinions.") At his hearing the Veteran and his representative also raised the issue of secondary service connection for sleep apnea relating to the Veteran's now service-connected PTSD. In February 2020, the Veteran was afforded a VA examination for his sleep apnea. The examiner noted that the Veteran had moderate obstructive sleep apnea. The Veteran reported that his sleep apnea condition had a date onset in 1991. His bunkmates told him that he snored. The examiner indicated that the Veteran's condition requires the use of a breathing assistance device such as a CPAP. The Veteran's symptoms include persistent daytime hypersomnolence. A sleep study was performed in November 2018. The examiner's impression was that the events were associated with significant oxygen desaturations, obesity, excessive daytime sleepiness, poor sleep efficiency, and needs to be titrated for a CPAP. The examiner provided medical opinions indicating that the Veteran was noted to have sleep apnea in the records that suggested that the Veteran had sleep apnea prior to service. However, the examiner did not state what evidence was relied upon to suggest that the Veteran's sleep apnea clearly and unmistakably pre-existed his active military service. The Veteran contends that his sleep apnea condition began after an explosion during service. The Board finds that the examiner's opinions are not probative because they are relying upon the premise that the Veteran's sleep apnea was a pre-existing condition. However, the rating decisions throughout the Veteran's file indicate that the Veteran did not have a diagnosis of sleep apnea, so it is unclear how the Veteran's condition could be pre-existing if he does not have a diagnosis for it until 2018. In addition, the secondary service connection opinions are inadequate because they rely upon the notion that the Veteran's sleep apnea is pre-existing condition and the examiner only discusses the Veteran's active service. Thus, a remand is necessary to secure adequate medical opinions to determine the nature and etiology of the Veteran's sleep apnea disability. The matter is REMANDED for the following action: 1. If possible, return the Veteran's complete record, to include a copy of this remand, and the claims folder, to the examiner who reviewed the file and provided the February 2020 medical opinion hereinafter "examiner," for an addendum opinion. If it is not possible to obtain clarification from the examiner, then forward the Veteran's claim file to another appropriate medical professional who has the requisite experience to render the requested medical opinions. No examination of the Veteran is necessary unless the examiner deems otherwise. Following a complete review of the evidence of record, and with consideration of the Veteran's lay statements, the examiner should provide the following opinions: (a.) Determine whether the Veteran's sleep apnea clearly and unmistakably pre-existed active service and if the Veteran's sleep apnea clearly and unmistakably pre-existed active service whether the Veteran's sleep apnea clearly and unmistakably was NOT aggravated beyond its normal progression by active service. Any such evidence should be identified with specificity. The term "clear and unmistakable means "obvious or manifest," "cannot be misinterpreted and misunderstood," or "undebatable." See 38 C.F.R. § 3.304(b); see also Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009). (b.) Determine whether it is at least as likely as not (50 percent probability or higher) that the Veteran's sleep apnea began during or is etiologically related to his active-duty service, to include as the result of a fire or explosion during active-duty service. Why or why not? (c.) Determine whether it is at least as likely as not (50 percent probability or higher) that the Veteran's sleep apnea is caused by his service-connected PTSD. Why or why not? (d.) Determine whether it is at least as likely as not (50 percent probability or higher) that the Veteran's sleep apnea is aggravated by his service-connected PTSD. Why or why not? A complete rationale must be provided for all opinions offered. If the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, i.e., no one could respond given medical science and the known facts, or by a deficiency in the record or the examiner, i.e., additional facts are required, or the examiner does not have the needed knowledge or training. 2. If the examiner finds that he/she cannot provide an opinion without resorting to speculation, he/she should explain the inability to provide an opinion and identify precisely what facts could not be determined. He/she should comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). The AOJ should ensure that any additional evidentiary development suggested by the examiner be undertaken so that a definite opinion can be obtained. 3. When the above development has been completed, readjudicate the issues on appeal. If any benefit sought on appeal remains denied, issue an additional supplemental statement of the case to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, return the appeal to the Board for appellate review. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Quist 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.