Citation Nr: 21076162 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 15-41 068 DATE: December 22, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder as secondary to service connected service-connected left inguinal hernia surgery, left inguinal hernia, and tinnitus is granted. Entitlement to service connection for migraine headaches as secondary to service connected acquired psychiatric disorder is granted. Entitlement to service connection for hypertension as secondary to service connected acquired psychiatric disorder is granted. Entitlement to service connection for obstructive sleep apnea as secondary to service connected acquired psychiatric disorder is granted. FINDINGS OF FACT 1. Resolving doubt in favor of the Veteran, his acquired psychiatric disorder was caused or aggravated by his service-connected left inguinal hernia surgery, left inguinal hernia, left groin scar, and/or tinnitus. 2. Resolving all doubt in favor of the Veteran, his migraine headaches was caused or aggravated by his service-connected acquired psychiatric disorder 3. Resolving all doubt in favor of the Veteran, his hypertension was caused or aggravated by his service-connected acquired psychiatric disorder. 4. Resolving all doubt in favor of the Veteran, his obstructive sleep apnea was caused or aggravated by his service-connected acquired psychiatric disorder. CONCLUSIONS OF LAW 1. The criteria for service connection for an acquired psychiatric disorder as secondary to service connected left inguinal hernia surgery, left inguinal hernia, left groin scar, and/or tinnitus have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for entitlement to service connection for migraine headaches as secondary to service connected acquired psychiatric disorder have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 3. The criteria for entitlement to service connection for hypertension as secondary to service connected acquired psychiatric disorder have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 4. The criteria for entitlement to service connection for obstructive sleep apnea as secondary to service connected acquired psychiatric disorder have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1985 to April 1985, and from June 2000 to June 2000. These matters come to the Board of Veterans' Appeals (Board) on appeal from a September 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). This case was most recently before the Board in February 2021, at which time the appeal was remanded to the Agency of Original Jurisdiction (AOJ) for further development. The case has now been returned to the Board for appellate action. In addition, in a June 2021 rating decision, the AOJ granted service connection for bilateral hearing loss and assigned an initial rating. To date, the Veteran has not submitted a notice of disagreement with this decision. As this decision represents a full grant of the benefits sought with respect to this claim for service connection, such issue is no longer before the Board for consideration. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1977). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection requires: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995). VA has amended 38 C.F.R. § 3.310 to explicitly incorporate the holding in Allen, except that it will not concede aggravation unless a baseline for the claimed disability can be established with evidence created prior to any aggravation. 38 C.F.R. § 3.310(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Acquired Psychiatric Disorder The Veteran seeks service connection for an acquired psychiatric disorder as a result of his active service. Specifically, the Veteran's attorney argued that his depression was caused or aggravated by his service-connected left inguinal hernia and scar, left groin, and status post left inguinal hernia surgery. See e.g. Correspondence, September 21, 2017. Additionally, the Veteran and his attorney assert that his psychiatric symptoms had their onset during active service and have continued since and was caused by the traumatic death of a fellow servicemember during active service. See e.g. Third Party Correspondence, November 16, 2020. Turning to the evidence, service treatment records are unremarkable for complaints of, treatment for, or diagnoses of any acquired psychiatric disorder. The Board notes that service connection is currently in effect for left inguinal hernia, left groin scar status post left inguinal hernia scar, tinnitus, and hearing loss. Additionally, post-service treatment records document diagnoses for posttraumatic stress disorder (PTSD), adjustive disorder, other specified trauma disorder, and depression. Turning to the question of whether there is an etiological relationship between the Veteran's acquired psychiatric disorder and his service, the Board notes that the record contains several contradicting opinions which must be considered and weighed. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). See also Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993) (stating that the probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board). When faced with conflicting medical opinions, the Board may favor one medical opinion over the other. See Evans v. West, 12 Vet. App. 22, 30 (1998), citing Owens v. Brown, 7 Vet. App. 429, 433 (1995). The Board will consider each of these opinions below. Of record is a November 2016 private psychiatric evaluation completed by Dr. H.H-G. At that time, Dr. H.H-G. diagnosed depressive disorder due to another mental condition with depressed features and opined that the Veteran's depressive disorder was more likely than not caused by left inguinal hernia and left groin scar. In this regard, Dr. H.H-G. noted the Veteran's psychiatric symptoms were not present prior to his military service, conducted an interview of the Veteran, reviewed him treatment records and claims file, and referenced medical literature. In support of her conclusion, Dr. H.H-G. noted that research showed that medical issues and psychiatric difficulty had a causal relationship. The Board finds this opinion highly probative as Dr. H.H-G. reviewed the claims file, interviewed the Veteran, and provided an opinion supported by a clear rationale. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). This opinion is therefore afforded great probative weight. The Veteran was afforded a VA examination in July 2019. At that time, the examiner did not render a psychiatric diagnosis and opined that there was no psychiatric disorder that was at least as likely as not incurred in or caused by service. In this regard, the examiner noted that a mental disorder was not found based on examination. The Board finds the July 2019 VA opinion inadequate to decide the claim. The July 2019 VA examiner found that a psychiatric diagnosis could not be rendered based on the symptoms presented but did not address the current psychiatric disorders of record. This opinion is therefore afforded little, if any, probative weight. The Veteran was afforded a VA examination in June 2021. At that time, the examiner diagnosed unspecified depressive disorder in remission, and indicated that the Veteran had episodic depressed mood with content ranging from regrets about his life, sadness on holidays, and ruminations about a military accident. The Veteran reported that while he was in the Reserves, he was a driver of a tank and accidentally ran over a soldier laying asleep on the ground. The June 2021 VA examiner opined that a baseline level of severity of his unspecified depressive disorder could not be determined. In this regard, the examiner noted that the Veteran had entered and concluded psychiatric treatment a number of times since at least 2008 and was not currently in behavioral health treatment as of the date of the examination, nor was he on prescription medication to treat his psychiatric condition. Moreover, the Veteran denied that he had any mental health symptoms or treatment during service. The June 2021 VA examiner opined that there was no evidence to support an incremental increase in the disability or additional impairment of earning capacity due to a service-connected disability. In this regard, the examiner noted the Veteran worked for 20 years in stable employment with a car company, had a fair and stable relationship with his living fiancée for three years, and noted that his psychiatrist agreed with the Veteran to discontinue medication management because his mental health symptoms were relatively stable other than some ruminations of the past. Therefore, the examiner opined that it was less likely as not that his psychiatric disorder was aggravated beyond its natural progression by a service-connected disability because the Veteran reported ruminations about many different things when having a depressive episode, not just the accident which occurred during his military service. The June 2021 VA examiner also opined that the Veteran's acquired psychiatric disorder was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In this regard, the VA examiner noted a review of the medical record and found the psychiatric symptoms shown on examination did not support a diagnosis of PTSD. Additionally, the VA examiner noted the Veteran had been treated on many occasions for his unspecified depressive disorder. In addition, the examiner noted that the Veteran had a high level of daily functioning, such as maintaining a work history of over 20 years at a single employer, had a fiancée, and his symptoms did not support a diagnosis of PTSD. The examiner further noted that the depressive disorder caused by migraines and sleep apnea is speculative as there are no studies which show people who have obstructive sleep apnea are more likely to have a depressive disorder than those who do not have obstructive sleep apnea. Therefore, the examiner concluded that his acquired psychiatric disorder was less likely than not incurred in or caused by the claimed in-service events. The Board finds the June 2021 VA opinions inadequate to decide the claim. In this regard, the examiner failed to provide adequate rationale for the conclusions reached. Notably, the examiner opined that the Veteran's claimed acquired psychiatric disorder was not related to his active service because the Veteran experienced depressive periods that were unrelated to his service, such as work or regrets about life choices. However, the examiner failed to address the Veteran's contentions that his psychiatric symptoms were caused by, had its onset during, or were worsened by his active service. Moreover, the June 2021 VA opinions relied solely on the absence of diagnosis and treatment for an acquired psychiatric disorder during service. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). These opinions are therefore afforded little, if any, probative weight. Of record is a November 2021 private psychiatric evaluation completed by Dr. H.H-G. In her opinion, Dr. H.H-G. concluded that the Veteran had depression that was caused by his time in service, continued uninterrupted, and was aggravated by his service-connected left groin inguinal hernia surgery, left inguinal hernia, and tinnitus. In this regard, Dr. H.H-G. noted statements indicating behavioral changes during service, interview with the Veteran, and acknowledged the Veteran seemed to minimize his symptoms. Specifically, Dr. H.H-G. noted the behavioral changes described in the Veteran's fiancée's statement were consistent with depressive disorder and depressive symptoms, were the same as that of the symptoms described by the Veteran, and that her interview findings were consistent with that of her original findings in November 2016. Thus, Dr. H.H-G. again concluded that the Veteran's acquired psychiatric disorder was secondary to his left groin inguinal hernia surgery, left inguinal hernia, and tinnitus. The Board finds this opinion highly probative as Dr. H.H-G. reviewed the claims file, interviewed the Veteran, and provided an opinion supported by a clear rationale. Nieves-Rodriguez v. Peake, supra. This opinion is therefore afforded great probative weight. In sum, the Veteran has competently reported symptoms of an acquired psychiatric disorder that began during active service and have continued since. The Veteran has current diagnoses of an acquired psychiatric disorder and probative private opinions from November 2016 and November 2021 indicating the Veteran's acquired psychiatric disorder is at least as likely as not related to his service-connected left inguinal hernia surgery, left inguinal hernia, and tinnitus. Moreover, there is no sufficient basis for the Board to reject these supportive opinions and to further develop the claim. Cf. Mariano v. Principi, 17 Vet. App. 305, 312 (2003) (holding that, because it is not permissible for VA to undertake additional development to obtain evidence against an appellant's case, VA must provide an adequate statement of reasons or bases for its decision to pursue such development where such development could be reasonably construed as obtaining additional evidence for that purpose). Accordingly, the Board finds that the preponderance of the evidence is for the claim and entitlement to service connection for an acquired psychiatric disorder as secondary to service-connected left inguinal hernia surgery, left inguinal hernia, and tinnitus is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. 2. Migraine Headaches, Hypertension, and Obstructive Sleep Apnea The Veteran seeks service connection for migraine headaches, hypertension, and obstructive sleep apnea as a result of his active service and/or his now service connected acquired psychiatric disorder. Specifically, the Veteran's attorney asserts that his migraine headaches, hypertension, and obstructive sleep apnea were caused or aggravated by his service-connected acquired psychiatric disorder. See e.g. Correspondence, September 27, 2017; see also Third Party Correspondence, November 16, 2020. Turning to the evidence, service treatment records are unremarkable for complaints of, treatment for, or diagnoses of migraine headaches, hypertension, and obstructive sleep apnea. As of the date of this decision, the Board notes that service connection is now in effect for an acquired psychiatric disorder. Additionally, post-service treatment records document diagnoses for migraine headaches, hypertension, and obstructive sleep apnea. Turning to the question of whether there is an etiological relationship between the Veteran's migraine headaches, hypertension, and obstructive sleep apnea and his service, the Board notes that the record contains several contradicting opinions which must be considered and weighed. See Hayes v. Brown, supra (citing Wood v. Derwinski, supra). See also Guerrieri v. Brown, supra. When faced with conflicting medical opinions, the Board may favor one medical opinion over the other. See Evans v. West, supra, citing Owens v. Brown, supra. The Board will consider each of these opinions below. Of record is a February 2017 private sleep apnea disability benefits questionnaire (DBQ) by Dr. H.S. At that time, Dr. H.S. diagnosed obstructive sleep apnea, and opined that it was at least as likely as not that the Veteran's depressive disorder aided in the development of obstructive sleep apnea and has permanently aggravated his obstructive sleep apnea. In this regard, Dr. H.S. noted that research has shown psychiatric disorders were commonly associated with obstructive sleep apnea. The Board finds this opinion highly probative as Dr. H.S. reviewed the claims file, interviewed the Veteran, and provided an opinion supported by a clear rationale. Nieves-Rodriguez v. Peake, supra. This opinion is therefore afforded great probative weight. Of record is a February 2017 private migraine headache DBQ by Dr. H.S. At that time, Dr. H.S. diagnosed migraine headaches and opined that the Veteran's migraine headaches were as likely as not caused by his depressive disorder. In this regard, Dr. H.S. noted that medical research showed patients with mental health conditions were more likely to develop headaches because pain and mood are regulated by the same part of the brain. Additionally, the Veteran reported to Dr. H.S. that headaches had their onset when his depression and stress would become bothersome. The Board finds this opinion highly probative as Dr. H.S. reviewed the claims file, interviewed the Veteran, and provided an opinion supported by a clear rationale. Nieves-Rodriguez v. Peake, supra. This opinion is therefore afforded great probative weight. The Veteran was afforded a VA examination for his migraine headaches, hypertension, and obstructive sleep apnea in June 2019. With regard to migraine headaches, the June 2019 VA examiner opined that it was less likely than not incurred in or caused by the claimed in-service injury, event or illness. In this regard, the examiner noted that there was no evidence of headaches in active service, namely the enlistment and separation examinations were silent for migraine headache diagnoses, and that the Veteran reported the onset of headaches that began sometime in 2005 or 2006, several years after separation from as. Therefore, the June 2019 VA examiner opined that a nexus for migraine headaches and service was not established. With regard to hypertension, the June 2019 VA examiner opined that the Veteran did not have a diagnosis of hypertension, never had been diagnosed with hypertension, and that his blood pressure readings during active service were normal. Therefore, the examiner found that hypertension was less likely than not incurred in or caused by active service. With regard to obstructive sleep apnea, the June 2019 VA examiner opined that it was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In this regard, the examiner noted the Veteran did not have evidence of obstructive sleep apnea during active service, namely the enlistment and separation examinations were silent for obstructive sleep apnea, and that the Veteran's sleep study was performed in 2018. Therefore, the June 2019 VA examiner opined that a nexus for obstructive sleep apnea and service was not established. The Board finds the June 2019 VA opinions inadequate to decide the claims. In this regard, the examiner failed to provide adequate rationale for the conclusions reached and failed to reconcile the conflicting medical evidence. Namely, the June 2019 VA examiner found that the Veteran did not have a current diagnosis of hypertension but did not address the current diagnosis of hypertension of record. In addition, the examiner failed to address the Veteran's statements and contentions that his migraine headaches, hypertension, and obstructive sleep apnea were caused or aggravated by an acquired psychiatric disorder. These opinions are therefore afforded little, if any, probative weight. The Veteran was afforded VA examination for his migraine headaches, hypertension, and obstructive sleep apnea in June 2021. With regard to migraine headaches, the June 2021 examiner opined they were less likely than not related to his military service because there were no medical records showing diagnosis or treatment for migraine headaches during active service. With regard to obstructive sleep apnea, the June 2021 examiner opined it less likely than not related to his military service because there were no medical records showing diagnosis or treatment for sleep apnea during active service. Moreover, the examiner noted that the Veteran was not diagnosed with sleep apnea via a sleep study until many years after separation. With regard to hypertension, the June 2021 examiner opined it was less likely than not that the Veteran's hypertension was related to military service as there were no medical records showing diagnosis or treatment for hypertension during active service. Additionally, with regard to migraine headaches, and obstructive sleep apnea, the June 2021 VA examiner opined that there was no medical relationship found to exist between migraine headaches and obstructive sleep apnea and a depressive disorder. In this regard, the examiner noted that migraine headaches do not always have a cause that can be physically examined. However, there is also no medical literature to support that migraines are a symptom of obstructive sleep apnea as the causes of obstructive sleep apnea are enlarged tongue, obesity, collapsing airways while sleeping and with the use of continuous airway pressure (CPAP) machine, patients are able to obtain adequate REM sleep. Therefore, the examiner opined that there is no pathophysiological relationship between the three conditions to support that either one of them are the cause or the result of the other. The Board finds the June 2021 VA opinions incomplete to decide the claims. In this regard, the examiner failed to provide adequate rationale for the conclusions reached. Notably, the examiner opined that the Veteran's claimed migraine headaches, hypertension, and obstructive sleep apnea were not related to his active service and relied solely on the absence of diagnosis and treatment for migraine headaches, hypertension, or obstructive sleep apnea during service. See Dalton v. Nicholson, supra. In addition, the June 2021 VA examiner indicated that the conditions were less likely than not caused or aggravated by an acquired psychiatric disorder because migraine headaches could not always be physical examined, sleep apnea had physical causes and symptoms, and did not provide further explanation nor did the examiner relate such factors to the specifics as they related to the Veteran. These opinions are therefore afforded little, if any, probative weight. In sum, the Veteran has current diagnoses of migraine headaches, hypertension, and obstructive sleep apnea and probative February 2017 probative private opinions indicating that such disorders were caused or aggravated by his now service-connected acquired psychiatric disorder. As noted above, as of the date of this decision, service connection is in effect for an acquired psychiatric disorder. Moreover, there is no sufficient basis for the Board to reject these supportive opinions and to further develop the claims. Cf. Mariano v. Principi, supra. Accordingly, the Board finds that the preponderance of the evidence is for the claims and entitlement to service connection for migraine headaches, hypertension, and obstructive sleep apnea as secondary to service connected acquired psychiatric disorder is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mariah N. Sim, 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.