Citation Nr: 21069851 Decision Date: 11/22/21 Archive Date: 11/22/21 DOCKET NO. 11-16 452 DATE: November 22, 2021 REMANDED Entitlement to service connection for migraine headaches, to include as due to an undiagnosed illness is remanded. Entitlement to service connection for sleep apnea, to include as due to an undiagnosed illness is remanded. Entitlement to service connection for endometriosis, to include as due to an undiagnosed illness is remanded. Entitlement to service connection for a thyroid condition, to include as due to an undiagnosed illness is remanded. Entitlement to a total disability rating based on individual unemployability due to the Veteran's service-connected disabilities prior to August 18, 2010, is remanded. REASONS FOR REMAND The Veteran had honorable active-duty service with the United States Air Force from June 1985 to March 1989 and November 1990 to March 1991, including service in the Southwest Asia (SWA) Theatre of Operations during the Persian Gulf War. The instant matter is on appeal from May 2009, January 2011, April 2011, and October 2011 rating decisions. In August 2017, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the claims file. This matter has been remanded on multiple occasions, to include most recently in May 2021. At that time, the rating office was directed to complete additional development regarding the issues listed above. Although additional development was conducted, regrettably, an additional remand is required as there has not been substantial compliance with the Board's previous remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to service connection for migraine headaches, to include as due to an undiagnosed illness is remanded. As noted in the Board's May 2021 Remand decision, a remand is required to obtain an adequate VA etiological opinion regarding the Veteran's migraine headaches. Review of the record indicates that a previous VA opinion, dated June 2011, considered the possibility of a secondary causal linkage between the Veteran's migraine headaches and exposure to toxins during her period of service in Southwest Asia. On subsequent examination, in May 2019, the VA examiner was requested to provide an opinion regarding service connection on a direct basis. Regrettably, the opinion provided failed to fully consider the Veteran's lay assertions regarding an onset of symptoms following her deployment to the Persian Gulf. Further, the opinion appeared conclusory in nature and lacked adequate rationale. On subsequent examination in August 2021, the examiner indicated that there is insufficient evidence to establish any continuity of symptoms or chronic condition related to active military service. In so finding, the examiner indicated that the Veteran separated from active service in March 1991. Service treatment records were silent for a report, complaint, diagnosis, or treatment for chronic migraine headaches. Post-service treatment records show complaints of chronic migraine headaches in November 2014. Therefore, the examiner indicated that there is insufficient evidence to establish a nexus, with greater than 50 percent probability, that the Veteran's migraine headaches had an onset during active service, within one year of separation, or otherwise resulted from active service. On review of the record, the Board finds the August 2021 VA opinion inadequate. In multiple lay statements, the Veteran reported an onset of migraine headaches in 1990 or 1991 following her return from a deployment to the Persian Gulf. Post-service treatment records document complaints of intermittent headaches in October 2002, May 2006, May 2007, and July 2009. An increase in frequency to 3 or 4 times per week was reported in May 2009. Also, in May 2007, a women's health record listed a prior medical history including vertigo, migraine headaches and a possible seizure disorder. The Board also observes that service treatment records indicated that the Veteran was hospitalized for symptoms including extreme dizziness, a non-productive cough, right ear pain, nasal congestion, and rhinorrhea in January 1988. On physical examination, flexion and rotation of the head exacerbated her symptoms. Considering the above, the Board finds that an addendum opinion is required. In particular, the Board notes that service treatment records reflect an in-patient hospitalization for symptoms including vertigo and ringing in the ear. Post-service treatment records suggest a possible correlation between these symptoms and the Veteran's migraine headaches. Moreover, the record confirms that the Veteran has been granted service connection for labyrinthitis with vertigo and otitis media. Accordingly, a remand is required to obtain an addendum opinion regarding a direct basis for service connection. Any opinion offered must also consider a possible correlation between the Veteran's complaints of headaches and in-service treatment for vertigo and ringing in the ears for purposes of establishing "chronicity." 2. Entitlement to service connection for sleep apnea, to include as due to an undiagnosed illness is remanded. As previously indicated, a remand is necessary to obtain an adequate VA etiological opinion regarding the Veteran's sleep apnea. Review of service treatment records show complaints of sleep trouble, insomnia, and a possible sleep disorder. Personal observations regarding the Veteran's loud snoring were reported by a fellow servicemember who roomed with her during a deployment to Germany. Despite the above, the VA examiner failed to address the noted lay assertions in providing the November 2020 medical opinion. On subsequent examination in August 2021, the examiner indicated that there is insufficient evidence to establish continuity of symptoms or chronicity of the Veteran's condition as causally related to active service. A formal diagnosis of obstructive sleep apnea was reported in November 2020, almost 30 years after separation. Post-service treatment records confirm a history of weight issues. A medical notation referred to her current weight as morbidly obese. Obesity is commonly associated with the development of obstructive sleep apnea. Based on the evidence of record, there is insufficient evidence to establish a nexus, with greater than 50 percent probability, that this Veteran's obstructive sleep apnea had its onset during active service or within one year of separation from service, or, otherwise resulted from active military service. Regrettably, the Board finds the above referenced opinion inadequate. In offering an opinion, the VA examiner indicated that there was insufficient evidence to establish chronicity of symptoms or a chronic condition. In support of this finding, it was noted that an initial diagnosis of obstructive sleep apnea was rendered in November 2020, decades after separation. Alternatively, the Veteran's sleep impairment was associated with her struggles with weight. However, the Board observes that post-service treatment records show complaints of fatigue, snoring, and sleep disturbance in July 2005. During a sleep clinic consultation in May 2015, the Veteran reported that continuous positive airway pressure (CPAP) therapy was prescribed in 2008. Oral medications, to include Trazodone were prescribed in 2014. Accordingly, remand is necessary in order to obtain an adequate etiological opinion. 3. Entitlement to service connection for endometriosis, to include as due to an undiagnosed illness is remanded. A remand is also necessary regarding the Veteran's endometriosis. In a June 2019 VA medical opinion, the VA examiner failed to adequately address the Veteran's lay assertions regarding severe pain, nausea and vomiting with her menstrual cycle dating back to active service. On subsequent examination in August 2021, the examiner indicated that there was insufficient evidence to establish continuity of symptoms or a chronic condition. In support of the stated conclusion, the examiner noted that the Veteran separated from active service in March 1991. Almost 3 years after separation, the Veteran was evaluated for abnormal bleeding. However, a pap smear revealed normal findings, to include a normal cervical appearance in September 1993. A diagnosis of severe endometriosis was noted in 2000, almost a decade after separation. Therefore, the examiner concluded that there is insufficient evidence to establish a nexus, with greater than 50 percent probability, that the Veteran's endometriosis had its onset during, within one year of separation, or is otherwise causally related to active service. On review of the record, the Board finds the above referenced opinion inadequate. In reaching the stated conclusion, the Board notes that while the VA examiner's concluded that the evidence was insufficient to establish continuity of symptoms or a chronic condition, the examiner failed to adequately address the Veteran's lay assertions regarding painful periods in-service or offer an opinion regarding whether the noted symptoms were manifestations endometriosis, which was diagnosed several years later. In fact, service treatment records document numerous reports painful periods with nausea and vomiting. Prescribed treatments included oral prescription contraceptives. No symptoms remission was reported. Post-service treatment records also document complaints of painful periods. In August 2000, the Veteran underwent right salpingo-oophorectomy to treat severe endometriosis. Post-surgical treatments include Lupron Injections. Other treatment records indicate that a large ovarian mass was observed during a transvaginal ultrasound in May 2000. In May 2003, she underwent a total hysterectomy. Two previous surgeries to treat uterine fibroids were also reported. Considering the above, the Board finds that a remand is necessary to obtain a VA medical opinion which adequately considers the entirety of the record, to include lay statements. 4. Entitlement to service connection for a thyroid condition, to include as due to an undiagnosed illness is remanded. As to Veteran's thyroid condition, a remand is also necessary to obtain an etiology opinion. In November 2010, a VA medical opinion was obtained with respect to direct service connection. Although a negative nexus was indicated, the examiner also stated that it was "not possible" to establish the onset of her multinodular goiter (MNG) occurred during military service, and it was "unclear" if abnormal thyroid lab results during active duty were only transient in nature. As this opinion provides an incomplete rationale in support of its findings, a remand is necessary to obtain an etiological opinion which addresses the possibility of service connection on a direct basis. On subsequent examination in August 2021, the examiner essentially reached the same conclusion noted in November 2010. Specifically, the examiner there is insufficient evidence to establish any continuity of symptoms or chronicity of condition with military service. In support of the stated conclusion, the examiner noted the that the Veteran separated from active service in March 1991. At that time, she was diagnosed with multinodular goiter (MNG). Post-service treatment records show that the Veteran was evaluated within one year of separation and a mass was observed on the neck in July 1992. Laboratory findings revealed normal thyroid functioning. A fine needle aspiration (FNA) biopsy of the mass showed only a few inflammatory cells. An ultrasound report documented "normal left and right thyroid lobes." Based upon the above, the examiner suggested that there was insufficient evidence to establish a nexus or opine with a greater than 50 percent probability that her follicular thyroid neoplasm/MNG with central isthmus adenoma and status post-surgery is causally related to a disease process that started during active service. However, review of the record indicates that the Veteran underwent a subtotal thyroidectomy in 2003. In June 2015, X-rays revealed a slight deviation trachea. It was deemed suggestive of possible thyroid gland enlargement. One month later, a computerized tomography (CT) scan of the neck revealed heterogeneous enlargement of the left thyroid lobe, secondary to thyroid goiter in July 2015. Considering the above, the Board finds that a remand is necessary to obtain a VA medical opinion which adequately considers the entirety of the record. 5. Entitlement to a total disability rating based on individual unemployability due to the Veteran's service-connected disabilities prior to August 18, 2010 is remanded As the Veteran is asserting entitlement to TDIU, the Board finds that this issue is inextricably intertwined with the resolution of the remanded issues. The appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to defer the claim on appeal pending the adjudication of the inextricably intertwined claim. See Harris v. Derwinski, 1 Vet. App. 180 (1991). Accordingly, this issue is remanded for readjudication following evidentiary development. The matters are REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination to determine the nature and etiology of the Veteran's migraine headaches. The entire claims file and a copy of this remand should be made available to the examiner for review, and such review should be noted in the examination report. All necessary tests and studies should be conducted. 2. In offering an opinion, the examiner is specifically requested to fully consider and comment on the Veteran's lay assertions of record. Attention is called to in-service treatment for vertigo, strained head movement, and ringing in the right ear. For purposes of establishing "chronicity," the examiner should also consider the suggestion of a possible correlation between the Veteran's vertigo and otitis media, and her migraine headaches. After a thorough review of the record, the examiner should opine as to the following: (a.) Then, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability), that the Veteran's migraine headaches were incurred in, caused by or is otherwise related to any in-service disease, event, or injury. As a part of the examination and/or opinion, the examiner must consider all prior diagnoses in the record and nexus opinions and explain or distinguish any variations in findings and conclusions. The examining physician/specialist should provide information to demonstrate that he or she is qualified to offer the above requested opinion (such as a curriculum vitae or similar demonstrable documentation). This information is to be associated with the Veteran's claims file. See Francway v. Wilkie, 940 F.3d 1304 (Fed. Cir. 2019). Any opinion offered must be accompanied by a complete rationale, which should reflect consideration of the STRs, medical evidence of record, and lay statements. If any requested opinion cannot be offered without resorting to speculation, the examiner should indicate such in the examination report and explain why a non-speculative opinion cannot be offered. The examiner should also identify what, if any, additional information or evidence would allow for a more definitive opinion. 3. Schedule the Veteran for an appropriate VA examination to determine the nature and etiology of the Veteran's sleep apnea. The entire claims file and a copy of this remand should be made available to the examiner for review, and such review should be noted in the examination report. All necessary tests and studies should be conducted. In offering an opinion, the examiner is specifically requested to fully consider and comment on the Veteran's lay assertions of record. After a thorough review of the record, the examiner should opine as to the following: (a.) Then, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability), that the Veteran's sleep apnea disability was incurred in, caused by or is otherwise related to any in-service disease, event, or injury. As a part of the examination and/or opinion, the examiner must consider all prior diagnoses in the record and nexus opinions and explain or distinguish any variations in findings and conclusions. The examining physician/specialist should provide information to demonstrate that he or she is qualified to offer the above requested opinion (such as a curriculum vitae or similar demonstrable documentation). This information is to be associated with the Veteran's claims file. See Francway v. Wilkie, 940 F.3d 1304 (Fed. Cir. 2019). Any opinion offered must be accompanied by a complete rationale, which should reflect consideration of the STRs, medical evidence of record, and lay statements. If any requested opinion cannot be offered without resorting to speculation, the examiner should indicate such in the examination report and explain why a non-speculative opinion cannot be offered. The examiner should also identify what, if any, additional information or evidence would allow for a more definitive opinion. 4. Schedule the Veteran for an appropriate VA examination to determine the nature and etiology of the Veteran's endometriosis. The entire claims file and a copy of this remand should be made available to the examiner for review, and such review should be noted in the examination report. All necessary tests and studies should be conducted. In offering an opinion, the examiner is specifically requested to fully consider and comment on the Veteran's lay assertions of record. After a thorough review of the record, the examiner should opine as to the following: (a.) Then, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability), that the Veteran's endometriosis was incurred in, caused by or is otherwise related to any in-service disease, event, or injury. As a part of the examination and/or opinion, the examiner must consider all prior diagnoses in the record and nexus opinions and explain or distinguish any variations in findings and conclusions. The examining physician/specialist should provide information to demonstrate that he or she is qualified to offer the above requested opinion (such as a curriculum vitae or similar demonstrable documentation). This information is to be associated with the Veteran's claims file. See Francway v. Wilkie, 940 F.3d 1304 (Fed. Cir. 2019). Any opinion offered must be accompanied by a complete rationale, which should reflect consideration of the STRs, medical evidence of record, and lay statements. If any requested opinion cannot be offered without resorting to speculation, the examiner should indicate such in the examination report and explain why a non-speculative opinion cannot be offered. The examiner should also identify what, if any, additional information or evidence would allow for a more definitive opinion. 5. Schedule the Veteran for an appropriate VA examination to determine the nature and etiology of the Veteran's thyroid condition. The entire claims file and a copy of this remand should be made available to the examiner for review, and such review should be noted in the examination report. All necessary tests and studies should be conducted. In offering an opinion, the examiner is specifically requested to fully consider and comment on the Veteran's lay assertions of record. After a thorough review of the record, the examiner should opine as to the following: (a.) Then, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability), that the Veteran's thyroid condition was incurred in, caused by or is otherwise related to any in-service disease, event, or injury. As a part of the examination and/or opinion, the examiner must consider all prior diagnoses in the record and nexus opinions and explain or distinguish any variations in findings and conclusions. The examining physician/specialist should provide information to demonstrate that he or she is qualified to offer the above requested opinion (such as a curriculum vitae or similar demonstrable documentation). This information is to be associated with the Veteran's claims file. See Francway v. Wilkie, 940 F.3d 1304 (Fed. Cir. 2019). Any opinion offered must be accompanied by a complete rationale, which should reflect consideration of the STRs, medical evidence of record, and lay statements. If any requested opinion cannot be offered without resorting to speculation, the examiner should indicate such in the examination report and explain why a non-speculative opinion cannot be offered. The examiner should also identify what, if any, additional information or evidence would allow for a more definitive opinion. 6. Following completion of the foregoing, the AOJ should review the record and readjudicate the claims on appeal. If any remain denied, the AOJ should issue an appropriate supplemental SOC, afford the Veteran and her representative an opportunity to respond, and return the case to the Board. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Whitaker, 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.