Citation Nr: 21069597 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 14-08 742 DATE: November 18, 2021 ORDER Entitlement to service connection for a headache disorder, diagnosed as migraine headaches, claimed as an undiagnosed illness, to include as secondary to service-connected joint pain is denied. Entitlement to service connection for sleep disturbance, diagnosed as sleep apnea and periodic limb movement disorder, claimed as an undiagnosed illness, to include as secondary to service-connected joint pain and major depressive disorder and anxiety disorder is denied. REMANDED Entitlement to service connection for fatigue, claimed as an undiagnosed illness, to include as secondary to service-connected joint pain is remanded. FINDINGS OF FACT 1. The Veteran served in the Southwest Asia theater of operations during the Persian Gulf War. 2. The Veteran's headache disability was not related to service, was not caused or aggravated by a service-connected disability and was not the result of an unexplained chronic multi symptom illness. 3. The Veteran's sleep disturbance, diagnosed as sleep apnea and periodic limb movement disorder was not related to service, was not caused or aggravated by a service-connected disability and was not the result of an unexplained chronic multi symptom illness. CONCLUSIONS OF LAW 1. The criteria for service connection for a headache disability, to include as secondary to service-connected disability and as due to an undiagnosed illness, is not warranted. 38 U.S.C. §§ 1110, 1131 (2012) 38 C.F.R. §§ 3.303, 3.304, 3.310, 3.317 (2020). 2. The criteria for service connection for sleep disturbance, diagnosed as sleep apnea and periodic limb movement disorder, to include as secondary to service-connected disability and as due to an undiagnosed illness, is not warranted. 38 U.S.C. §§ 1110, 1131 (2012) 38 C.F.R. §§ 3.303, 3.304, 3.310, 3.317 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1988 to July 1991, to include active service in in Southwest Asia during the Persian Gulf War. This matter comes to the Board of Veterans' Appeals (Board) from a December 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at videoconference hearing held in August 2014 before the undersigned Veterans Law Judge. A transcript has been associated with the electronic record. In July 2015 and August 2018, the Board remanded these issues and the issues of entitlement to service connection for a kidney disability and entitlement to service connection for a respiratory disorder, diagnosed as chronic sinusitis and environmental allergies for additional development. In an August 2021 rating decision, the RO granted service connection for kidney stones. Additionally, in a September 2021 rating decision, the RO granted service connection for allergic rhinitis. As a result, the issues of entitlement to service connection for a kidney disability and entitlement to service connection for a respiratory disorder are no longer before the Board. Service Connection Laws and Regulations Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1131; 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." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In relevant part, 38 U.S.C. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability or death benefits. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir.2007). In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed.Cir.2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). Under 38 C.F.R. § 3.310(a), service connection may be granted for disability that is proximately due to or the result of a service- connected disease or injury. Such permits a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation to a nonservice- connected disability by a service- connected disability. Id. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995); 38 C.F.R. § 3.310(b). In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Under 38 C.F.R. § 3.310(a), service connection may be granted for disability that is proximately due to or the result of a service- connected disease or injury. Such permits a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation to a nonservice- connected disability by a service- connected disability. Id. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995); 38 C.F.R. § 3.310(b). In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). As a threshold matter, the Board notes that military records reflect that the Veteran had active military service in the Southwest Asia Theater of Operations during the Persian Gulf War. See 38 U.S.C. § 1117; 38 C.F.R. § 3.317. The law and regulations pertaining to undiagnosed illness incurred due to Persian Gulf service, discussed below, thus are applicable in this case. Under 38 C.F.R. § 3.317, service connection may be warranted for a Persian Gulf Veteran who exhibits objective indications of a qualifying chronic disability that became manifest during active military, naval or air service in the Southwest Asia Theater of operations during the Persian Gulf War. For disability due to undiagnosed illness and medically unexplained chronic multi symptom illness, the disability must have been manifest either during active military service in the Southwest Asia Theater of operations or to a degree of 10 percent or more not later than December 31, 2016. See 38 C.F.R. § 3.317(a)(1) (2019). For purposes of 38 C.F.R. § 3.317, there are three types of qualifying chronic disabilities: (1) an undiagnosed illness; (2) a medically unexplained chronic multi symptom illness; and (3) a diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C. § 1117(d) warrants a presumption of service connection. Headaches The Veteran's service treatment records are negative for complaints or treatments of a headache disability. The Veteran underwent a VA examination in December 2013. The examiner noted that the Veteran had a diagnosis of migraine headaches with an onset of 1997. The Veteran underwent a VA examination in January 2014. The examiner noted that migraine headaches had been diagnosed. The examiner indicated that there were no undiagnosed, multisymptom or medically unexplained chronic multisymptom illnesses. The Veteran underwent a VA examination in November 2015. The examiner opined that the Veteran's migraine headaches did not have their onset in military service and it was less likely than not that the Veteran's headaches were related to exposures to environmental toxins in the Persian Gulf. Per the August 2018 Board remand instruction, the Veteran underwent a VA examination in December 2020. The examiner opined that it was less likely than not that the Veteran's headache disability was incurred in or caused by the claimed in-service event, injury or illness. The examiner noted that there were no headache complaints in service and documentation related to migraines first occurred in 2013. The VA examiner also opined that it was less likely than not that the Veteran's headache disability was caused or aggravated by the Veteran's service-connected joint pain disability. The examiner noted that although there was documentation of joint pain in 2009, there was no documentation related to the migraines until 2013. In a May 2021 addendum opinion, the December 2021 VA examiner noted that although the Veteran was service connected for joint pain and had migraine headaches, there was no medical literature in support of joint pain aggravating migraine headaches. As a result, one could not with a greater than 50 percent probability make an association between joint pain and migraine headaches and a nexus could not be established. When considering the pertinent evidence of record in light of the above-noted legal authority, the Board finds that service connection for a headache disability is not warranted. As reflected above, it has been determined that the Veteran had active military service in the Southwest Asia Theater of Operations. Accordingly, the law and regulations pertaining to undiagnosed illness incurred due to Persian Gulf service, discussed above, thus are applicable in this case. In this regard, the Board first observes that the Veteran's headache disability, which is diagnosed as migraine headaches, is not related to an undiagnosed illness, as the disorder does, in fact, carry a diagnosis. For the Veteran's headache disability to be due to an undiagnosed illness, the symptoms would have to be not attributable to another, specific cause. The diagnosed headache disability is a known diagnosis attributable to a specific cause, and not a medically unexplained chronic multi symptom illnesses, as explained by the January 2014 VA examiner. For these reasons, the Board concludes that the special provisions pertaining to undiagnosed illnesses are not applicable, and service connection for a headache disability for substitution purposes cannot be granted under the presumptive provisions of 38 U.S.C. § 1117 and 38 C.F.R. § 3.317. In cases where a Veteran applies for service connection under 38 C.F.R. § 3.317 but is found to have a disability attributable to a known diagnosis, further consideration under the direct service connection provisions of 38 U.S.C. §§ 1110 and 1131 are warranted. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Thus, the presumption is not the sole method for showing causation. However, where the issue involves a question of medical diagnosis or causation, as presented here, a claimant must establish the existence of a disability and a connection between the Veteran's service and the disability. Regarding service connection on a direct basis, the Board again notes that the Veteran's service treatment records are negative for complaints or treatments of a headache disability and his separation examination was also negative for headache complaints or treatments. Furthermore, the only medical opinions addressing the etiology of the headache disability weigh against the claim. As noted above, the November 2015 VA examiner opined that the Veteran's migraine headaches did not have their onset in military service and it was less likely than not that the Veteran's headaches were related to exposures to environmental toxins in the Persian Gulf. Further, there is no competent evidence or opinion even suggesting that there exists a medical nexus between a current headache disability and the Veteran's service and neither the Veteran nor his representative have presented or identified any such existing medical evidence or opinion. The Board finds that the competent evidence of record, while showing the currently diagnosed headache disability, does not demonstrate that the Veteran's headache disability is related to the Veteran's service. Finally, the Veteran is also claiming service connection for a headache disability as secondary to his service-connected joint pain disability. As noted above, service connection may be granted for a disability that is proximately due to or the result of an established service-connected disability. 38 C.F.R. § 3.310 (2020). However, the Board finds that the weight of the evidence is against a finding that a current headache disability was related to service or caused or aggravated by a service-connected disability. Again, the only medical opinions addressing the etiology of the sleep disability on a secondary basis weigh against the claim as the December 2020 VA examiner in a December 2020 examination report and May 2021 addendum opinion indicated that the Veteran's headache disability was less likely than not caused or aggravated by his service-connected joint pain disability. None of the competent medical evidence currently of record refutes these conclusions, and the Veteran has not presented or identified any such existing medical evidence or opinion. Consequently, entitlement to service connection for a headache disability is not warranted on a direct or secondary basis. In sum, the Board finds that service connection for a headache disability must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Sleep Disability The Veteran's service treatment records are negative for complaints or treatments of a sleep disability. The Veteran underwent a VA examination in January 2014. The examiner noted that the Veteran had a diagnosis of sleep apnea that had a clear etiology. The examiner indicated that there were no undiagnosed, multisymptom or medically unexplained chronic multisymptom illnesses. The Veteran underwent a VA examination in November 2015. The examiner opined that the Veteran's sleep apnea was not due to service to include service in the Persian Gulf and was not caused by service-connected joint pain. The examiner's rationale for his conclusion was based on his finding that the Veteran's sleep apnea was due to obesity and structure of his upper airway as well as his finding that joint pain did not cause sleep apnea. Per the August 2018 Board remand directives, the Veteran underwent a VA examination in December 2020. The VA examiner opined that it was less likely than not that the Veteran's sleep apnea disability was caused or aggravated by the Veteran's service-connected joint pain disability or the service-connected major depressive disorder and anxiety disorder disability. In a May 2021 addendum opinion, the December 2021 VA examiner noted that there was no medical literature in support of known permanent worsening to the mechanical causes of sleep apnea by psychological influences or subjective pain (service-connected joint pain). As a result, a nexus could not be established. When considering the pertinent evidence of record in light of the above-noted legal authority, the Board finds that service connection for a sleep disability is not warranted. As reflected above, it has been determined that the Veteran had active military service in the Southwest Asia Theater of Operations. Accordingly, the law and regulations pertaining to undiagnosed illness incurred due to Persian Gulf service, discussed above, thus are applicable in this case. In this regard, the Board first observes that the Veteran's sleep disability, which was diagnosed as sleep apnea, is not related to an undiagnosed illness, as the disorder does, in fact, carry a diagnosis. For the Veteran's sleep disability to be due to an undiagnosed illness, the symptoms would have to be not attributable to another, specific cause. The diagnosed sleep apnea is a known diagnosis attributable to a specific cause, and not a medically unexplained chronic multi symptom illnesses, as explained by the January 2014 VA examiner. For these reasons, the Board concludes that the special provisions pertaining to undiagnosed illnesses are not applicable, and service connection for a sleep disability cannot be granted under the presumptive provisions of 38 U.S.C. § 1117 and 38 C.F.R. § 3.317. In cases where a Veteran applies for service connection under 38 C.F.R. § 3.317 but is found to have a disability attributable to a known diagnosis, further consideration under the direct service connection provisions of 38 U.S.C. §§ 1110 and 1131 are warranted. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Thus, the presumption is not the sole method for showing causation. However, where the issue involves a question of medical diagnosis or causation, as presented here, a claimant must establish the existence of a disability and a connection between the Veteran's service and the disability. Regarding service connection on a direct basis, the Board again notes that the Veteran's service treatment records are negative for complaints or treatments of a sleep disability and his separation examination was also negative for sleep complaints or treatments. Furthermore, the only medical opinions addressing the etiology of the sleep disability weigh against the claim. As noted above, the November 2015 VA examiner indicated that the Veteran's sleep apnea was not due to service to include service in the Persian Gulf as the Veteran's sleep apnea was due to obesity and structure of his upper airway. Further, there is no competent evidence or opinion even suggesting that there exists a medical nexus between current sleep disability and the Veteran's service and neither the Veteran nor his representative have presented or identified any such existing medical evidence or opinion. The Board finds that the competent evidence of record, while showing the currently diagnosed sleep apnea disability, does not demonstrate that the Veteran's sleep disability is related to the Veteran's service. Finally, the Veteran is also claiming service connection for a sleep disability as secondary to his service-connected joint pain and major depressive disorder and anxiety disorder disabilities. As noted above, service connection may be granted for a disability that is proximately due to or the result of an established service-connected disability. 38 C.F.R. § 3.310 (2020). However, the Board finds that the weight of the evidence is against a finding that a current sleep disability was related to service or caused or aggravated by a service-connected disability. Again, the only medical opinions addressing the etiology of the sleep disability on a secondary basis weigh against the claim as the December 2020 VA examiner in a December 2020 examination report and May 2021 addendum opinion indicated that the Veteran's sleep apnea disability was less likely than not as due to or aggravated by his service-connected joint pain or psychiatric disabilities. None of the competent medical evidence currently of record refutes these conclusions, and the Veteran has not presented or identified any such existing medical evidence or opinion. Consequently, entitlement to service connection for a sleep disability is not warranted on a direct or secondary basis. In sum, the Board finds that service connection for a sleep disability must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). All Disabilities The Board notes the Veteran's contentions regarding the etiology of his claimed headache and sleep disabilities. To the extent that the Veteran himself contends that a medical relationship exists between his claimed headache and sleep disabilities and service, the Board acknowledges that the Veteran is competent to testify as to his observations. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Furthermore, lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (finding that the Board's categorical statement that "a valid medical opinion" was required to establish nexus, and that a layperson was "not competent" to provide testimony as to nexus because she was a layperson, conflicts with Jandreau). In the instant case, however, the Board finds that headache and sleep disabilities are not disabilities subject to lay diagnosis as these diagnoses require medical training. More significantly, the Veteran and his representative do not have the medical expertise to provide an opinion regarding the claimed headache and sleep disability etiologies. Specifically, where the determinative issue is one of medical causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. See Jones v. West, 12 Vet. App. 460, 465 (1999). Additionally, the VA examiner provided detailed rationale in support of their opinions and cited to the relevant evidence. For this reason, the VA examiner's opinions are the most probative evidence of record. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (noting that a factor for assessing the probative value of a medical opinion includes the thoroughness and detail of the opinion). In sum, for the reasons and bases expressed above the Board finds that the preponderance of the evidence is against the Veteran's claims of entitlement to service connection for headache and sleep disabilities. The benefit-of-the-doubt rule does not apply, and the claims must be denied. 38 U.S.C. § 5107(b). REASONS FOR REMAND The Board finds that more development is necessary prior to final adjudication of the claim remaining on appeal. Regarding the Veteran's service connection claim for fatigue, the Veteran previously underwent a VA examination in December 2020. The examiner indicated that the Veteran did not have a diagnosis of chronic fatigue syndrome. The examiner also opined that it was less likely than not that the Veteran's fatigue was incurred in or caused by an in-service injury, event or illness as she was unable to confirm a current or chronic diagnosis. However, the Board noted that the Veteran has verified service in the Southwest Asia Theater of operations during the Persian Gulf War and fatigue is recognized as an objective sign or symptom of an undiagnosed illness. Notably, the December 2020 VA examiner did not provide an opinion as to whether the Veteran's claimed fatigue disability is due to an undiagnosed illness. Accordingly, in order to afford the Veteran all consideration with respect to his claim, the Board finds that another examination is necessary to address the possibility that his fatigue complaints are due to an undiagnosed illness. See generally 38 C.F.R. § 3.317. Thus, the Board finds that the evidence currently of record is insufficient to resolve the claim for entitlement to service connection for a fatigue disability, and that further opinions in connection with this claim are necessary for a fully informed evaluation of the claim on appeal. Green v. Derwinski, 1 Vet. App. 121, 124 (1991); 38 C.F.R. § 3.159(c) (4). The matters are REMANDED for the following action: 1. The Veteran should be requested to provide the names, addresses and approximate dates of treatment of all medical care providers, VA and non-VA, who have treated him for the disability on appeal. After the Veteran has signed the appropriate releases, those records should be obtained and associated with the claims folder. 2. After the development requested above has been completed to the extent possible, the Veteran should also be scheduled for a VA examination before appropriate physicians to determine the etiology of the claimed fatigue disability. Based on a review of the record and an examination of the Veteran, the examiner should: a) Identify any current fatigue disability and fully describe the extent and severity of those symptoms. b) Provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that such fatigue disability arose during service or are otherwise related to any incident of service. c) The examiner should also provide an opinion as to whether if it is at least as likely as not (at least a 50 percent probability) that any such current low fatigue disability is caused or aggravated by his service-connected joint pain disability. If the examiner finds that the Veteran has a current fatigue disability that has been permanently aggravated/worsened by his service-connected joint pain disability, to the extent feasible, the degree of worsening should be identified. d) If the examiner finds no clinical diagnosis of any fatigue disability on examination that was incurred in, caused by, or otherwise related to the Veteran's active military service, he/she should provide an opinion as to whether the Veteran exhibits objective indications of an unexplained, chronic multisymptom illness due to an undiagnosed illness as defined under 38 C.F.R. § 3.317. For purposes of 38 C.F.R. § 3. 317 "objective indications of chronic disability" include both "signs," in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. All opinions expressed by the examiner must be accompanied by a complete rationale. Adequate reasons and bases for any opinion rendered must be provided. All studies deemed appropriate in the medical opinion of the examiner should be performed, and all the findings should be set forth in detail. The claims file should be made available to the examiner, who should review the entire claims folder in conjunction with this examination. 3. After completion of the above and any additional development deemed necessary, the issue on appeal should be reviewed with consideration of all applicable laws and regulations. If any benefit sought remains denied, the Veteran should be furnished a supplemental statement of the case and be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review, if in order. MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board James A. DeFrank, 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.