Citation Nr: 21076575 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 17-51 802 DATE: December 27, 2021 ORDER Service connection for sleep apnea is granted. Service connection for migraines is granted. Service connection for insomnia is denied. REMANDED Service connection for a left hand disability is remanded. FINDINGS OF FACT 1. The probative evidence of record is at least in equipoise as to whether the Veteran's sleep apnea is etiologically related to his service-connected post traumatic stress disorder (PTSD). 2. The probative evidence of record is at least in equipoise as to whether the Veteran's migraines are etiologically related to his service-connected PTSD. 3. The preponderance of the evidence is against finding that the Veteran has insomnia that is related to active military service or events therein, other than as a symptom of his service-connected PTSD or sleep apnea. CONCLUSIONS OF LAW 1. With resolution of reasonable doubt in the Veteran's favor, the criteria for a grant of service connection for sleep apnea have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2021). 2. With resolution of reasonable doubt in the Veteran's favor, the criteria for a grant of service connection for migraines have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310. 3. The criteria for establishing service connection for insomnia have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Air Force from October 2002 to October 2010, including service in Iraq. The Veteran testified before the undersigned Veterans Law Judge during an August 2021 hearing. These matters are on appeal from an April 2016 rating decision. In his October 2017 substantive appeal (VA Form 9), the Veteran contended that the March 2016 VA examination for headaches was inadequate. Because the Board is granting service connection for the Veteran's migraines, this contention is moot. Neither the Veteran nor his representative have raised any other issue with the duty to notify or duty to assist with regard to the claims being decided below. 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). Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Service connection may also be granted for a disability that is proximately due to, the result of, or aggravated by a service-connected disability. 38 C.F.R. § 3.310. In such an instance, the Veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310 (b); see Allen v. Brown, 7 Vet. App. 439, 448 (1995). The benefit of the doubt rule provides that a veteran will prevail in a case where the positive evidence is in a relative balance with the negative evidence. Therefore, the Veteran prevails in a claim when (1) the weight of the evidence supports the claim or (2) when the evidence is in equipoise. It is only when the weight of the evidence is against the claim that the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Sleep Apnea The Veteran contends that his sleep apnea was caused or aggravated by his service-connected PTSD. He has also raised other theories of service connection, such as service connection on a presumptive basis due to service in Southwest Asia but, because this theory is dispositive, the Board will not address the Veteran's other contentions. The Veteran's treatment records note a diagnosis of obstructive sleep apnea. The Veteran has submitted an October 2021 medical opinion by a private psychologist, who opined that the Veteran's sleep apnea is at least as likely as not secondary to his PTSD. Specifically, the psychologist opined that the Veteran's PTSD "has likely had a profound impact on the development and subsequent substantial aggravation of his sleep apnea." The psychologist provided a thorough rationale for this opinion, including that hyperarousal is both a symptom of PTSD and "an underlying mechanism of" obstructive sleep apnea. The private psychologist's opinion is favorable to the Veteran's claim, is supported by a thorough and persuasive rationale, and is the only medical opinion of record with regard to this claim. In light of the totality of the circumstances, and after resolving all reasonable doubt in the Veteran's favor, the evidence of record supports a finding that it is at least as likely as not that the Veteran's sleep apnea was caused and aggravated by his service-connected PTSD. Accordingly, the Board finds that granting service connection for sleep apnea is the decision that is the most consistent with VA's policy to administer the law under a broad and liberal interpretation consistent with the facts of the case. 38 C.F.R. §§ 3.303 (a), 3.310. 2. Migraines The Veteran contends that his migraines were caused or aggravated by his service-connected PTSD. He has also raised other theories of service connection, such as service connection on a presumptive basis due to service in Southwest Asia but, because this theory is dispositive, the Board will not address the Veteran's other contentions. The Veteran was afforded a VA examination for headaches in March 2016. The clinician diagnosed migraines, but the only opinion the clinician provided was with regard to direct service connection. The Veteran has submitted an October 2021 medical opinion by a private psychologist, who opined that it is at least as likely as not that the Veteran's migraines "are due to his service connected psychiatric difficulties and are also substantially aggravated by his psychiatric difficulties." The psychologist provided a thorough rationale for this opinion, with citations to multiple medical sources in support. The private psychologist's opinion is favorable to the Veteran's claim, is supported by a thorough and persuasive rationale, and is the only medical opinion of record with regard to this theory of service connection. In light of the totality of the circumstances, and after resolving all reasonable doubt in the Veteran's favor, the evidence of record supports a finding that it is at least as likely as not that the Veteran's migraines were caused by his service-connected PTSD. Accordingly, the Board finds that granting service connection for migraines is the decision that is the most consistent with VA's policy to administer the law under a broad and liberal interpretation consistent with the facts of the case. 38 C.F.R. §§ 3.303 (a), 3.310. 3. Insomnia The Veteran contends that he has insomnia due to service in Southwest Asia or that was caused or aggravated by his service-connected PTSD. The Veteran was afforded a VA examination for his service-connected PTSD in February 2016 by a psychiatrist who listed the Veteran's symptoms for rating purposes as including chronic sleep impairment. In its April 2016 rating decision granting service connection for the Veteran's PTSD with a 70 percent rating, VA specifically noted chronic sleep impairment among the symptoms forming the basis for that rating. The evaluation of the same disability under various diagnoses is to be avoided, as is the evaluation of the same manifestation under different diagnoses. 38 C.F.R. § 4.14 (2021); Amberman v. Shinseki, 570 F.3d 1377 (Fed. Cir. 2009). Therefore, to the extent that the Veteran's claim includes service connection for insomnia that was caused or aggravated by the Veteran's service-connected PTSD, that claim is moot. As granted above, the Veteran's sleep apnea is now service-connected. The record contains no medical evidence of any other distinct sleep-related disability during the period on appeal. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). The Board must determine on a case-by-case basis whether a particular medical issue is within the competence of a lay person. Kahana v. Shinseki, 24 Vet. App. 428 (2011). The Veteran in this case is not shown to possess any pertinent medical training or expertise that would make him competent to diagnose himself with a sleep disability, other than to report the symptom of chronic sleep impairment that is already a rated symptom of his service-connected mood disorder. Thus, to the extent that the Veteran has expressed an opinion that he has a distinct sleep disability, it is not a competent medical opinion and it cannot be assigned any probative weight. The record does not contain any competent, probative evidence that the Veteran has been diagnosed with or treated for a distinct sleep disability, other than sleep apnea, by any examiner or treatment provider during the period on appeal. The Veteran's PTSD has been service-connected throughout the period on appeal. As the evidence does not establish that the Veteran had a diagnosis of a distinct sleep disability, other than sleep apnea, during the period on appeal, service connection is not warranted. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (holding that current disability requirement is satisfied when a claimant "has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim,"); see also Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013) (holding that the Board must address recent pre-claim evidence in assessing whether a current disability exists, for purposes of service connection, at the time the claim was filed or during its pendency). REASONS FOR REMAND 4. Service connection for a left hand disability is remanded. VA must provide an examination with regard to a claim for disability compensation when there is competent evidence of a disability that may be associated with an in-service disease, injury or event, but there is insufficient information to make a decision on the claim. See McClendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran has reported left hand weakness that he attributes to his service in Iraq. Congress has created special rules with regard to Persian Gulf veterans establishing entitlement to service connection. Service connection may be granted to a Persian Gulf veteran who exhibits objective indications of a "qualifying chronic disability." 38 U.S.C. § 1117 (a)(1)(2012). A qualifying chronic disability is currently defined as either an undiagnosed illness or a medically unexplained chronic multisymptom illness defined by a cluster of signs or symptoms. 38 C.F.R. § 3.317 (a)(2)(2021). The signs and symptoms which may be manifestations of undiagnosed illness or a chronic multisymptom illness include, but are not limited to, muscle pain, joint pain, and neurological signs or symptoms. 38 C.F.R. § 3.317(b). The threshold for determining whether the evidence "indicates" that there "may" be a nexus between a current disability and an in-service event, injury, or disease is a low one. McClendon, 20 Vet. App. at 83. This evidence meets that threshold, and an examination is necessary. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records for the Veteran. All negative responses must be documented. 2. Schedule the Veteran for an examination with an appropriate clinician for his left hand disability. The entire claims file and a copy of this remand must be made available to the clinician for review. The clinician must provide an opinion as to whether it is as likely as not (a probability of 50 percent or greater) that any current left hand disability had its origin in service or is related to the Veteran's active service, including as a manifestation of an undiagnosed illness or medically unexplained chronic multi symptom illness. Although an independent review of the claims file is required, the Board calls the clinician's attention to the following: a. The Veteran's report in an April 2008 post-deployment health assessment of swollen, stiff or painful joints and muscle aches after one of his deployments to Iraq. b. A November 2015 VA treatment record finding the Veteran's left grip strength weakness to be "of unclear etiology." c. A March 2016 VA neurological consultation that found no neurological basis for the Veteran's symptoms. d. The Veteran's testimony during the August 2021 hearing regarding the onset, continuity, and nature of his symptoms. The rationale for any opinion expressed should be provided. Note that a lack of documented treatment in service, while probative, cannot serve as the sole basis for a negative finding. If an opinion cannot be made without resort to speculation, the examiner should so state and provide reasoning as to why this is so. 3. Ensure that the directives specified in this remand have been implemented. If they have not, appropriate corrective action must be undertaken before readjudication. Stegall v. West, 11 Vet. App. 268 (1998). 4. Then, readjudicate the claim. If any decision is unfavorable to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response. Then, return the case to the Board. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Ryan Frank, 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.