Citation Nr: 21077310 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 15-40 689 DATE: December 29, 2021 ORDER Service connection for sleep apnea is denied. Service connection for a right knee disability is denied. Service connection for a left knee disability is denied. Service connection for carpal tunnel syndrome of the right upper extremity is denied. Service connection for carpal tunnel syndrome of the left upper extremity is denied. Service connection for a right shoulder disorder is denied. Service connection for acne/pseudofolliculitis is denied. Service connection for facial scars is denied. Service connection for flatfeet is denied. Service connection for a disability manifested by memory loss, to include as secondary to service-connected migraine headaches, is denied. Service connection for an acquired psychiatric disorder other than post-traumatic stress disorder (PTSD) is denied. Entitlement to a rating in excess of 30 percent for migraine headaches for the period from September 2, 2012, to July 5, 2016, is denied. Entitlement to a 50 percent rating for migraine headaches for the period beginning July 6, 2016, is granted. Entitlement to a rating in excess of 50 percent for migraine headaches for the period beginning July 6, 2016, is denied. REMANDED The claim for a disability manifested by chest pain is remanded. The claim for service connection for hypertension is remanded. FINDINGS OF FACT 1. The most probative evidence of record weighs against a conclusion that the Veteran has sleep apnea, a right or left knee disability, carpal tunnel syndrome of the right or left upper extremity, a right shoulder disorder, acne/pseudofolliculitis, facial scars, flat feet, a disability manifested by memory loss, or an acquired psychiatric disorder not related to PTSD due to service; arthritis of the right or left knee was not demonstrated within one year of separation from service. 2. The most probative evidence of record weighs against a conclusion that the Veteran has a disability manifested by memory loss that is proximately due to or a result of service-connected migraine headaches, to include with consideration of aggravation. 3. For the period beginning July 6, 2016, but no earlier, migraine headaches resulted in very frequent completely prostrating and prolonged attacks that were productive of severe economic inadaptability. 4. The VA Schedule for Rating Disabilities, 38 C.F.R. Part 4 (Ratings Schedule) does not provide for a rating in excess of 50 percent for migraine headaches. CONCLUSIONS OF LAW 1. The criteria for service connection for sleep apnea, a right or left knee disability, carpal tunnel syndrome of the right or left upper extremity, a right shoulder disorder, acne/pseudofolliculitis, facial scars, flat feet, a disability manifested by memory loss, or an acquired psychiatric disorder other than PTSD are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2021). 2. The criteria for service connection for a disability manifested by memory loss, to include as secondary to service-connected migraine headaches, are not met. 38 U.S.C. §§ 1110, 1113, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2021). 3. The criteria for a rating in excess of 30 percent for migraine headaches for the period from September 2, 2012, to July 5, 2020, are not met. 38 U.S.C. § 1155, 5103, 5103A, 5107, 5110(a) (2012); 38 C.F.R. §§ 3.102, 3.159, 3.400, 4.1, 4.2, 4.3, 4.7, 4.124a, Diagnostic Code DC 8100 (2021). 4. The criteria for a 50 percent rating for migraine headaches for the period beginning July 6, 2016, are met. 38 U.S.C. § 1155, 5103, 5103A, 5107, 5110(a) (2012); 38 C.F.R. §§ 3.102, 3.159, 3.400, 4.1, 4.2, 4.3, 4.7, 4.124a, DC 8100 (2021). 5. A rating in excess of 50 percent for migraine headaches for the period beginning July 6, 2016, cannot be assigned as a matter of law. 38 U.S.C. § 1155, 5103, 5103A, 5107, 5110(a) (2012); 38 C.F.R. §§ 3.102, 3.159, 3.400, 4.1, 4.2, 4.3, 4.7, 4.124a, DC 8100 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 2000 to September 2012. This appeal was remanded by the Board of Veterans' Appeals (Board) in June 2020 and is now ready for appellate review of the claims adjudicated below. I. Service Connection Claims A. Legal Criteria It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104(a). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the U.S. Court of Appeals for Veterans Claims (Court) held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. Service connection will be granted for disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. §§ 3.303(d). Where a Veteran manifests certain chronic diseases, including arthritis, to a degree of 10 percent within one year from the date of termination of service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. § §§ 3.307, 3.309. Alternatively, service connection may be established under 38 C.F.R. § § 3.303 (b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. The United States Court of Appeals for the Federal Circuit clarified that the law providing for awards of service connection on the basis of continuity of symptomatology is limited to "chronic" diseases listed under 38 C.F.R. § 3.309(a), such as arthritis. A disability which is proximately due to or the result of a service-connected disease shall be service connected. 38 C.F.R. § 3.310(a). A claimant is also entitled to service connection on a secondary basis when it is shown that a service-connected disability has aggravated a nonservice-connected disability. 38 C.F.R. § 3.310(b). B. Analysis The service treatment reports (STRs) reflect complaints of left wrist pain in April 2005 after the Veteran played volleyball. X-rays of the left wrist conducted at that time were negative. The remaining STRs, to include the reports from the July 2012 separation examination, are silent for any of the conditions for which service connection is claimed, or any conditions related thereto, addressed in the adjudication that follows. A May 2012 medical history did reference "sleep sickness" and "worry/anxiety," but both conditions were said not be currently disabling at that time. After service, a series of VA examinations were conducted in January 2014 to address the Veteran's claims for service connection. Significantly, the VA clinician who conducted these examinations noted that there were no records provided for review. As such, the references in these examinations to a diagnosis of osteoarthritis in both knees in 2002 and bilateral carpal tunnel syndrome from 2003 are based entirely on a history provided by the Veteran, a history directly contradicted by the STRs which do not reflect osteoarthritis in either knee in 2002 or carpal tunnel syndrome in either extremity in 2003 or at any other time during service. The examination of the feet conducted in February 2014 did not reveal flatfeet or any other foot disorder. With respect to sleep apnea, a March 2014 clinician found that it was less likely as not that the Veteran had such due to service. The rationale for the opinion was as follows: After reviewing [the] STRs [to include the] Veteran's separation examination . . . [such] do[] not note a diagnosed sleep apnea condition or a history of a sleep study being performed[.] There is a note in comment section "#17d [on the medical history collected proximate to separation] upon sleep sickness non service disability/ncd." Whether this is sleep apnea, that is not mentioned. In addition, the Veteran[']s general medical compensation examination dated January 25, 2014 . . . cites a respiratory and sleep apnea condition but the DBQ [Disability Benefits Questionnaire] does not dx [diagnose] any sleep disorder such as sleep apnea and it does not cite a dx resp[iratory] condition, the only testing done was cxr [chest X-ray] which was found to be normal. [A] sleep apnea diagnosis requires a[n] official sleep study to confirm the diagnosis, the [complains of] "trouble sleeping, gasps for air every so often, and the snores loudly" claimed that occurred during active duty, can be symptoms of [] sleep apnea, but today a[n] opinion cannot be rendered without resorting to mere speculation[] regarding these symptoms being directly caused from sleep apnea without having the gold standard sleep apnea study being performed. Therefore, the [complaints of] trouble sleeping, gasps for air every so often and snor[ing] loudly, are symptoms claimed and not correlated to [] a sleep study diagnosed sleep apnea. The June 2020 Board remand directed that the Veteran be afforded VA examinations and opinions to address the claims for service connection adjudicated herein, and such were accomplished in April 2021. These examinations again revealed no presence of flat feet but did reveal mild sleep apnea. While acne was not demonstrated, pseudofolliculitis barbae was shown upon examination April 2021; as such, the appeal with respect to the claim for service connection for acne has been expanded to include one for pseudofolliculitis barbae as well. Opinions were rendered following the April 2021 VA examinations finding that it was less as likely as not that the Veteran had pseudofolliculitis barbae, right or left carpal tunnel syndrome, right shoulder strain, sleep apnea, a facial scar, flatfeet, or a right or left knee disorder that was incurred in service. With respect to the rationale for these opinions, the examiner noted that as there was no objective evidence of a flatfeet, "an opinion is not warranted for a condition that does not exist." As for pseudofolliculitis barbae, right or left carpal tunnel syndrome, right shoulder strain, sleep apnea, a facial scar, and a right or left knee disorder, the rationale for the negative opinions with respect to each of these disabilities was there being "[n]o record of any treatment or evaluation during the service for this condition and [no] record of treatment after the service to suggest a long-term deficit". Another opinion rendered in April 2021 found that it was less likely as not that a disability manifested by memory loss was proximately due to or the result of service-connected migraine headaches. The rationale for these opinions was as follows: The Veteran expressed mild issues with memory, and it was not enough to warrant cognitive related diagnosis. It is most likely that his memory issues are attributed to his PTSD diagnosis. Finally, an April 2021 opinion also found that it was less as likely as not that the Veteran had a disability manifested by memory loss or an acquired psychiatric disorder not encompassed by his PTSD that was incurred in service. The rationale for these opinions was as follows: Medical records indicated that in 2014 [the Veteran] was approved for service connection for panic disorder and persistent depressive disorder [sic]. An initial PTSD DBQ dated 12/30/15 provided a diagnosis of PTSD. Multiple medical records from 2019 and 2020 provided diagnoses and treatment for PTSD, Panic Disorder, Depression, and Anxiety. Given the medical records and clinical interview[, the Veteran's] depression, panic disorder, and anxiety are all symptoms and expressions of his PTSD diagnosis. For example, he reported that he experienced panic attacks triggered by heights, random loud noises (e.g. Sirens, he heard them after his friend fell), and being around a lot of people; these are all elements of the traumatic event of seeing his friend fall off of a building. As a result, it is at least likely as not that his current PTSD syndrome []include[s] Panic Disorder with Agoraphobia and Depressive Disorder. As a result there is no separate diagnoses of Panic Disorder with Agoraphobia and Depressive Disorder. Medical records, along with the clinical interview, did not suggest any diagnosable memory condition. While [the Veteran] did complain of mild issues with memory, it was not enough to warrant cognitive related diagnosis. It is most likely that his memory issues are attributed to his PTSD diagnosis as well as struggles with managing his migraine headaches. As a result it is less likely than not that he developed a memory related condition outside of residual effects while in service. Medical Records and the clinical interview do not support a diagnosis of Bipolar Disorder and as a result does not meet diagnostic criteria for Bipolar Disorder. Therefore, it is less likely than not that his mental health issues were the result of bipolar disorder during service. The claimed condition of Acquired Psychiatric Disorder, To Include Panic Disorder with Agoraphobia And Depressive Disorder are subsumed under the service connected diagnosis of PTSD. Furthermore, medical records and the clinical interview do not support a diagnosis of Bipolar Disorder and as a result does not meet diagnostic criteria for Bipolar Disorder. An initial PTSD DBQ dated 12/30/15 provided a diagnosis of PTSD. It is at least likely as not that his current PTSD, which includes Panic Disorder with Agoraphobia and Depressive Disorder were caused during service . . . There is no positive opinion of record that contradicts the negative opinions set forth above, and the Board finds these opinions to be definitive as to the claims for service connection for sleep apnea, a right or left knee disability, carpal tunnel syndrome of the right or left upper extremity, a right shoulder disorder, acne/pseudofolliculitis, facial scars, flat feet, a disability manifested by memory loss, or an acquired psychiatric disorder other than PTSD as they are based on a thorough review of the clinical record, reflect consideration of the Veteran's lay assertions, and are supported by adequate rationale. To the extent the assertions of the Veteran and his representative are advanced in an attempt to establish that the Veteran has sleep apnea, a right or left knee disability, carpal tunnel syndrome of the right or left upper extremity, a right shoulder disorder, acne/pseudofolliculitis, facial scars, flat feet, a disability manifested by memory loss, or an acquired psychiatric disorder not encompassed by PTSD as a result of serviceor sleep apnea as a result of migraine headaches to include with consideration of aggravationsuch complex medical matters are within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). As neither the Veteran nor his representative are shown to have the appropriate training and expertise, they are not competent to render a persuasive opinion as to such matters. Finally, as arthritis of the right or left knee was not shown to a compensable degree within one year of separation from service, service connection for such on the basis of chronic disease, to include by way of continuity of symptomatology, is not warranted. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Given all of the above, the Board finds that the preponderance of the evidence is against the claims for service connection for sleep apnea, a right or left knee disability, carpal tunnel syndrome of the right or left upper extremity, a right shoulder disorder, acne/pseudofolliculitis, facial scars, flat feet, a disability manifested by memory loss, or an acquired psychiatric disorder other than PTSD. As such, these claims must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. II. Increased Rating for Migraine Headaches A. Legal Criteria Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. While the Veteran's entire history is reviewed when assigning a disability evaluation, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, the Court has since held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All benefit of the doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. The effective date of an increased rating will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. Migraine headaches resulting in characteristic prostrating attacks averaging one in 2 months over a period of several months warrant a 10 percent rating. 38 C.F.R. § 4.124a, DC 8100. Migraine headaches manifested by characteristic prostrating attacks occurring on an average once a month warrant a 30 percent disability. Id. The maximum 50 percent disability rating is warranted under DC 8100 when migraine headaches are very frequently completely prostrating and prolonged with attacks productive of severe economic inadaptability. Id. The rating criteria do not define "prostrating;" nor has the Court. See Fenderson v. West, 12 Vet. App. 119 (1999) (in which the Court quotes DC 8100 verbatim but does not specifically address the matter of what is a prostrating attack.) By way of reference, the Board notes that according to WEBSTER'S NEW WORLD DICTIONARY OF AMERICAN ENGLISH, THIRD COLLEGE EDITION (1986), p.1080, "prostration" is defined as "utter physical exhaustion or helplessness." A very similar definition is found in DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1367 (28th Ed. 1994), in which "prostration" is defined as "extreme exhaustion or powerlessness." B. Analysis Service connection has been granted for migraine headaches at disability ratings of 30 percent from September 2, 2012, and 50 percent from July 6, 2020. As such, the matters now for appellate consideration with respect to the compensation to be assigned for migraine headaches are whether a rating in excess of 30 percent for such may be as assigned for the period from September 2, 2012, to July 5, 2020, and whether a rating in excess of 50 percent for this disability may be assigned for the period beginning July 6, 2020. AB v. Brown, 6 Vet. App. 35 (1993). A rating in excess of 30 percent for migraine headaches for the period from September 2, 2012, to July 5, 2020 would require evidence during this period of migraine headaches that were very frequently completely prostrating and prolonged with attacks productive of severe economic inadaptability. 38 U.S.C. § 5110(a); 38 C.F.R. §§ 3.400, 4.124a, DC 8100. In this regard, a July 6, 2016, VA examination to assess the severity of the Veteran's migraine headaches, noted that the Veteran had "very frequently completely prostrating and prolonged" attacks of migraine headache pain. As this examination also noted that the Veteran had to miss work due to such headaches, thereby indicating economic inadaptability to at least some degree, the undersigned finds sufficient evidence to warrant a 50 percent rating for the Veteran' migraine headaches effective from July 6, 2016, but no earlier. Id. In this regard, the VA clinician who conducted a VA examination to assess the severity of the Veteran's headaches in January 2014, checked "No" with respect to whether the Veteran had "very frequent prostrating and prolonged attacks of migraine headache pain[.]" Review of the remaining clinical evidence for the period from September 2, 2012 to July 5, 2016, also does not reflect any evidence that the Veteran's headaches were very frequently completely prostrating and prolonged with attacks productive of severe economic inadaptability. As such, a rating in excess of 30 percent for migraine headaches for the period from September 2, 2012 to July 5, 2016, is not warranted. Id. With respect to a rating in excess of 50 percent for migraine headaches for the beginning July 6, 2016, as a rating in excess of 50 percent is not available under the rating criteria codified at 38 C.F.R. § 4.124a, DC 8100, a rating in excess of 50 percent for migraine headaches for the period beginning July 6, 2016, cannot be assigned as a matter of law. In making the above rating determinations, the undersigned observes that she has carefully considered the Veteran's contentions with respect to the nature of the service-connected migraine headaches and notes that his lay testimony is competent to describe certain symptoms associated with these manifestations. However, the competent medical evidence offering detailed specific findings pertinent to the rating criteria is the most probative evidence with regard to evaluating the pertinent symptoms of the service-connected manifestations at issue. As such, while the undersigned accepts the Veteran's testimony with regard to the matters, he is competent to address, she places more probative weight upon the competent medical evidence with regard to the specialized evaluation of functional impairment; namely, the assessments of the severity of disability due to the service migraine headaches. Finally, and noting again that the finding that a rating in excess of 50 percent rating for migraine headaches cannot be assigned for the period beginning July 6, 2016, is based on the operation of law, in making the negative rating determination above, the undersigned has considered the doctrine of reasonable doubt but finds that the preponderance of the evidence is against the assignment of a rating in excess of 30 percent for migraine headaches for the period from September 2, 2012 to July 5, 2016, is not warranted. As such, an increased rating for migraine headaches for this period of time may not be granted. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7; Gilbert. REASONS FOR REMAND The STRs reflect several instances of chest pain and costochondritis throughout in the Veteran's his last months of service in 2011 and 2012 and his May 2012 separation history is positive for chest pain. As such and given the Veteran's competent and, for the purpose of this analysis, presumed credible assertions relating current chest pain to service, the undersigned finds that a VA examination that includes an opinion as to whether the Veteran has a disability that is manifested by chest pain that was incurred in service is necessary to fulfill the duty to assist. With respect to hypertension, while this condition was diagnosed at the April 2021 VA examination, the clinician who completed the opinions at that time discussed in the above adjudication found that because hypertension had not been diagnosed, an opinion as to whether this condition was incurred in service was not necessary. Given the fact that hypertension has been diagnosed, the Veteran must be afforded a VA examination that includes an opinion as to whether his hypertension was incurred in service in order to fulfill the duty to assist. For the reasons set forth above, this case is REMANDED for the following action: Arrange for VA examination(s) to address the claims for service connection for a disability manifested by chest pain and hypertension. The Veteran's record, to include a copy of this remand, should be made available to and reviewed by the examiner(s), and the examiner(s) should provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran has a current disability manifested by chest pain or hypertension that was incurred in service. The examiner(s) should support the opinions with detailed rationale. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Andrew Ahlberg, 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.