Citation Nr: 21006354 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 20-02 414 DATE: February 3, 2021 ORDER New and material evidence having been received, the application to reopen the previously denied claim of entitlement to service connection for a respiratory disability is granted. New and material evidence having been received, the application to reopen the previously denied claim of entitlement to service connection for sleep apnea is granted. New and material evidence having been received, the application to reopen the previously denied claim of entitlement to service connection for headaches is granted. Entitlement to service connection for a respiratory disability, diagnosed as diagnosed as allergic rhinitis and sinusitis, is granted. Entitlement to service connection for sleep apnea is granted. Entitlement to service connection for headaches is granted. REMANDED Entitlement to a rating in excess of 20 percent for lumbosacral strain with myofascial pain syndrome (hereinafter low back disability) is remanded. Entitlement to an effective date earlier than February 20, 2018, for the award of a 20 percent rating for a low back disability is remanded. Entitlement to a rating in excess of 20 percent for radiculopathy of the left lower extremity is remanded. Entitlement to a rating in excess of 30 percent for cervical strain is remanded. FINDINGS OF FACT 1. In a January 2013 rating decision, the RO denied the Veteran’s claims of entitlement to service connection for a respiratory disability and headaches. The Veteran was duly notified of the decision and his appellate rights, but he did not perfect an appeal within the applicable time period, nor was new and material evidence received within one year of notification. 2. In a February 2014 rating decision, the RO confirmed the previous denial of service connection for a respiratory disability and headaches. The Veteran was duly notified of the decision and his appellate rights, but he did not perfect an appeal within the applicable time period, nor was new and material evidence received within one year of notification. 3. In a December 2015 rating decision, the RO determined that new and material evidence had not been received to reopen the Veteran’s previously denied claim of entitlement to service connection for a respiratory disability and denied the Veteran’s claim of service connection for sleep apnea. The Veteran was duly notified of the decision and his appellate rights, but he did not perfect an appeal within the applicable time period, nor was new and material evidence received within one year of notification. 4. Evidence received since the final February 2014 rating decision confirming the previous denial of service connection for headaches relates to an unestablished fact necessary to substantiate the claim and, presuming its credibility, raises a reasonable possibility of substantiating the claim for service connection for headaches. 5. Evidence received since the final December 2015 rating decision confirming and continuing the previous denial of service connection for a respiratory disability and denying service connection for sleep apnea relates to an unestablished fact necessary to substantiate the claims and, presuming its credibility, raises a reasonable possibility of substantiating the claims for service connection for a respiratory disability and sleep apnea. 6. The evidence is in equipoise as to whether the Veteran’s respiratory disability, diagnosed as allergic rhinitis and sinusitis, is causally related to his active service. 7. The evidence is in equipoise as to whether the Veteran’s sleep apnea is secondary to his service-connected respiratory disability. 8. The evidence is in equipoise as to whether the Veteran’s headaches are secondary to his service-connected cervical strain. CONCLUSIONS OF LAW 1. The January 2013 rating decision denying service connection for a respiratory disability and headaches is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. The February 2014 rating decision confirming the previous denial of service connection for a respiratory disability and headaches is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. 3. The December 2015 rating decision determining that new and material evidence had not been received to reopen the Veteran’s previously denied claim of entitlement to service connection for a respiratory disability and denying the Veteran’s claim of entitlement to service connection for sleep apnea is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. 4. New and material evidence has been received to warrant reopening of the claim of service connection for a respiratory disability. 38 U.S.C. § 5107, 5108; 38 C.F.R. § 3.156. 5. New and material evidence has been received to warrant reopening of the claim of service connection for sleep apnea. 38 U.S.C. § 5107, 5108; 38 C.F.R. § 3.156. 6. New and material evidence has been received to warrant reopening of the claim of service connection for headaches. 38 U.S.C. § 5107, 5108; 38 C.F.R. § 3.156. 7. The criteria for entitlement to service connection for a respiratory disability, diagnosed as allergic rhinitis and sinusitis, have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.102, 3.303. 8. The criteria for entitlement to service connection for sleep apnea have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.102, 3.303, 3.310. 9. The criteria for entitlement to service connection for headaches have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1987 to July 1991. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from August 2017, March 2018, April 2018, and May 2018 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO), which, inter alia, confirmed and continued the previous denials of service connection for a respiratory disability and sleep apnea because the evidence submitted was not new and material, confirmed and continued the previous denial of service connection for headaches, continued the 30 percent rating for a cervical strain, increased the rating for a low back disability to 20 percent, effective February 20, 2018, and continued the 20 percent rating for radiculopathy of the left lower extremity, respectively. The Board observes that after the appeal was certified and transferred to the Board, additional medical records were associated with the Veteran’s electronic claims file. Since the Veteran has waived RO consideration, initial agency of original jurisdiction (AOJ) review is not required. New and Material Evidence In general, decisions of the RO and the Board that are not appealed in the prescribed time period are final. See 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 3.104, 20.1100, 20.1103. Pursuant to 38 U.S.C. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. For claims to reopen such as this one, filed on or after August 29, 2001, new evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156. To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, the credibility of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, to include by triggering the Secretary’s duty to assist. Id. at 118; but see Villalobos v. Principi, 3 Vet. App. 450 (1992) (evidence that is unfavorable to a claimant is not new and material). 1. New and material evidence having been received, the application to reopen the previously denied claim of entitlement to service connection for a respiratory disability is granted. 2. New and material evidence having been received, the application to reopen the previously denied claim of entitlement to service connection for sleep apnea is granted. In May 2012, the Veteran, inter alia, submitted a claim of service connection for a respiratory disability. In a final January 2013 rating decision, the RO denied the claim, finding that the evidence did not show that the condition was incurred in or caused by service. The RO considered the Veteran’s service treatment records (STRs), which noted a single occurrence of an upper respiratory condition, diagnosed as bronchitis, which was properly treated and resolved without residuals. The record on appeal shows that the Veteran was duly notified of the RO’s decision and his appellate rights. He did not, however, initiate an appeal within the applicable time period nor was new and material evidence received within one year of notification of the January 2013 rating decision. The Veteran does not contend otherwise. Thus, the January 2013 rating decision is final and not subject to revision on the same factual basis. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. In a final February 2014 rating decision, issued after a special review of the Veteran’s claims file, the RO, inter alia, confirmed and continued the previous denial of service connection for a respiratory disability, as the Veteran failed to schedule an appointment for his requested VA examination. The record on appeal shows that the Veteran was duly notified of the RO’s decision and his appellate rights. He did not, however, initiate an appeal within the applicable time period nor was new and material evidence received within one year of notification of the February 2014 rating decision. The Veteran does not contend otherwise. Thus, the February 2014 rating decision is final and not subject to revision on the same factual basis. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. In September 2015, the Veteran submitted a claim to reopen service connection for a respiratory disability and a claim for service connection for sleep apnea. In a final December 2015 rating decision, the RO denied both claims, finding that the evidence submitted for the respiratory disability claim was not new and material, as it failed to show a link between the Veteran’s claimed disability and his active service. The RO denied the service connection claim for sleep apnea on the lack of nexus. In addition, the RO determined that the evidence did not show that the Veteran’s sleep apnea was related to his service-connected cervical strain. The record on appeal shows that the Veteran was duly notified of the RO’s decision and his appellate rights. He did not, however, initiate an appeal within the applicable time period nor was new and material evidence received within one year of notification of the December 2015 rating decision. The Veteran does not contend otherwise. Thus, the December 2015 rating decision is final and not subject to revision on the same factual basis. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. In this appeal, the Veteran seeks to reopen his claims of service connection for a respiratory disability and sleep apnea. As noted above, despite the finality of a prior adverse decision, a claim will be reopened and the former disposition reviewed if new and material evidence is presented or secured with respect to the claim which has been disallowed. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. In order to determine whether new and material evidence has been received, the Board has reviewed the entire record, with particular attention to the additional evidence received since the final December 2015 rating decision. After reviewing the record, the Board finds that the additional evidence received is new and material within the meaning of 38 C.F.R. § 3.156. The additional evidence received since the December 2015 rating decision includes an October 2016 statement from a fellow servicemember, D.S., to the effect that during active duty the Veteran snored loudly and stopped breathing during sleep. See October 2016 statement from D.S. received January 2017. The additional evidence also includes positive nexus opinions from S.D., M.D., regarding the Veteran’s respiratory disability and sleep apnea. See October 2020 correspondence from Dr. S.D. received November 2020. After reviewing the record, the Board finds that new and material evidence has been received sufficient to reopen the claims. Specifically, the positive nexus opinions from Dr. S.D., as well as the October 2016 statement from a fellow servicemember, D.S., indicating that during active duty the Veteran snored loudly and stopped breathing during sleep, were not before agency decision-makers at the time of the December 2015 rating decision. These records are therefore new, and directly address unestablished facts necessary to substantiate the claims of service connection for a respiratory disability and sleep apnea, particularly evidence of an in-service incurrence and causation. When presumed credible, they raise a reasonable possibility of substantiating the claims and trigger the VA’s duty to assist. Accordingly, the standards under 3.156(a) have been met and the claims are reopened. See Shade, 24 Vet. App. at 117. 3. New and material evidence having been received, the application to reopen the previously denied claim of entitlement to service connection for headaches is granted. In May 2012, the Veteran, inter alia, submitted a claim of service connection for headaches. In a final January 2013 rating decision, the RO denied the claim, finding that the evidence did not show that the condition was incurred in or caused by service. The RO considered the Veteran’s STRs, which were negative for complaints, treatment, or diagnosis of a headache condition. The record on appeal shows that the Veteran was duly notified of the RO’s decision and his appellate rights. He did not, however, initiate an appeal within the applicable time period nor was new and material evidence received within one year of notification of the January 2013 rating decision. The Veteran does not contend otherwise. Thus, the January 2013 rating decision is final and not subject to revision on the same factual basis. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. In a final February 2014 rating decision, issued after a special review of the Veteran’s claims file, the RO, inter alia, confirmed and continued the previous denial of service connection for headaches, as the Veteran failed to schedule an appointment for his requested VA examination. The record on appeal shows that the Veteran was duly notified of the RO’s decision and his appellate rights. He did not, however, initiate an appeal within the applicable time period nor was new and material evidence received within one year of notification of the February 2014 rating decision. The Veteran does not contend otherwise. Thus, the February 2014 rating decision is final and not subject to revision on the same factual basis. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. In this appeal, the Veteran seeks to reopen his claim of service connection for headaches. As noted above, despite the finality of a prior adverse decision, a claim will be reopened and the former disposition reviewed if new and material evidence is presented or secured with respect to the claim which has been disallowed. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. The Board notes that in the August 2017 rating decision currently on appeal, the RO reopened the claim and denied it on the merits. Despite the RO’s finding, the Board is obligated by statute (38 U.S.C. §§ 5108, 7104(b)) to address whether new and material evidence has been submitted prior to addressing the merits of the claim. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). Thus, despite the RO’s finding, the Board must make a determination of whether new and material evidence has been presented to reopen the claim. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). In order to determine whether new and material evidence has been received, the Board has reviewed the entire record, with particular attention to the additional evidence received since the final February 2014 rating decision. After reviewing the record, the Board finds that the additional evidence received is new and material within the meaning of 38 C.F.R. § 3.156. The additional evidence received since the February 2014 rating decision includes a July 2017 VA examination noting that during service the Veteran’s headache condition was acute only and that a nexus had not been established. The additional evidence also includes a positive nexus opinion from Dr. S.D. See October 2020 correspondence from Dr. S.D. received November 2020. After reviewing the record, the Board finds that new and material evidence has been received sufficient to reopen the claim. Specifically, the positive nexus opinion from Dr. S.D. was not before agency decision-makers at the time of the February 2014 rating decision. This record is therefore new, and directly addresses unestablished facts necessary to substantiate the claim of service connection for headaches, particularly evidence of causation. When presumed credible, it raises a reasonable possibility of substantiating the claim and triggers the VA’s duty to assist. Accordingly, the standards under 3.156(a) have been met and the claim is reopened. See Shade, 24 Vet. App. at 117. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Disability which is proximately due to or the result of a service-connected disease or injury shall also be service connected. 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 or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). In addition, certain chronic diseases, including an organic disease of the nervous system such as migraine headaches, will be presumed related to service if they were shown as chronic (reliably diagnosed) in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service, with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303, 3.307, 3.309. The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107 (b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. 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(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 4. Entitlement to service connection for a respiratory disability, diagnosed as allergic rhinitis and sinusitis, is granted. The Veteran contends that his respiratory disability is related to environmental exposures during active duty. A March 1987 entry in the Veteran’s STRs noted the Veteran’s complaints of a cold for 1 week. An April 1987 entry noted his complaints of a sore throat and cold symptoms, to include a stuffy head and cough, for 2 days. A November 1988 entry noted the Veteran’s complaints of cold symptoms, a sore throat, and tight chest. The impression was upper respiratory infection. A February 1991 entry noted the Veteran’s complaints of a sore throat and cough for the past 24 hours. The assessment was upper respiratory infection. An April 1991 entry noted the Veteran’s complaints of nasal congestion with yellow discharge and cough for 7 days. The assessment was upper respiratory infection/bronchitis. See March 1987-April 1991 Chronological Record of Medical Care. Private treatment records noted diagnoses of allergic rhinitis and sinusitis. See private treatment records received May 2012 and June 2015. In June 2015 correspondence, the Veteran indicated that he began experiencing respiratory symptoms, to include upper respiratory infections, cold symptoms, chronic sore throat, and sinus problems during active duty. He indicated that he was diagnosed with recurrent sinusitis less than one year after discharge and that he continued to suffer from at least 7 episodes per year of upper respiratory infections, which included rhinitis and sinusitis problems. See June 2015 correspondence from the Veteran. In an October 2020 private medical opinion, Dr. S.D., noted the Veteran’s reports that he had been exposed to a variety of environmental substances since basic training and that shortly after entering the service he began to experience respiratory symptoms, to include nasal stuffiness, congestion, throat irritation, and cold-like symptoms. The physician rendered a positive etiological opinion regarding the Veteran’s respiratory disability. She opined in pertinent part, Based on the veteran’s medical history, clinical findings and diagnoses noted in the available medical records, based on the above discussion, and based on the cited scientific articles, considering that he has no history of AR [allergic rhinitis], rhinosinusitis or sinusitis in his childhood and adolescence, it is the opinion of this reviewer that it is more likely than not that [the Veteran] first developed allergic rhinitis in service. It is also the opinion of this reviewer that in time, the veteran’s allergic rhinitis became chronic and complicated with sinuses involvement due to his in-service exposure to numerous substances. These substances have an antigenic capability against which his immune system developed sensitivity manifesting with allergic episodes of rhinosinusitis causing important impairment of his quality of life and leading to compromise of his nasal sinuses. It is also my opinion that the veteran’s in-service acquired condition of allergic rhinitis, due to environmental exposure to numerous antigens, is more likely than not a significant etiologic factor for the development of his chronic sinusitis condition. See October 2020 correspondence from Dr. S.D. received November 2020. After a review of the evidence, the Board finds that service connection is warranted for a respiratory disability, diagnosed as allergic rhinitis and sinusitis. With regard to the first element of a service connection claim, the evidence shows that the Veteran has a current respiratory disability. Private treatment records, noted above, indicated diagnoses of allergic rhinitis and sinusitis. See private treatment records received May 2012 and June 2015. In addressing the second element, the evidence shows that the Veteran came to sickbay on multiple occasions with complaints of cold symptoms, nasal congestion, cough, and sore throat. The evidence also shows that during active duty the Veteran was diagnosed with an upper respiratory infection on at least 3 occasions. Affording the Veteran the benefit of the doubt, the Board finds that the evidence establishes that the Veteran experienced respiratory symptoms during active duty. With respect to the third element, the nexus requirement, the Board finds that the evidence is in relative equipoise as to whether the Veteran’s current respiratory disability is causally related to the respiratory symptomatology he experienced during active duty. The Board finds the October 2020 positive nexus opinion from Dr. S.D. of great probative weight, as the physician rendered her opinion after thorough review of the claims file and provided a reasoned conclusion and supporting rationale for her determination that the Veteran’s respiratory disability was causally related to active duty. There is no medical opinion evidence to the contrary. Additionally, the Board finds the Veteran’s statements both competent and credible regarding his in-service respiratory symptomatology, as his statements are consistent throughout the course of the claim and are supported by his STRs. Therefore, the Board also assigns great probative weight to the Veteran’s statements. Accordingly, the Board has weighed the probative evidence of record and finds that the evidence is at least in relative equipoise as to the Veteran’s current respiratory disability and the causal relation between the Veteran’s disability and his in-service respiratory symptomatology. The benefit-of-the-doubt rule is therefore for application. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The Board will resolve the reasonable doubt in the Veteran’s favor and find that the evidence supports the grant of service connection for a respiratory disability, diagnosed as allergic rhinitis and sinusitis. See 38 U.S.C. § 5107. 5. Entitlement to service connection for sleep apnea is granted. The Veteran contends that his sleep apnea is secondary to his service-connected cervical strain. See September 2015 VA 21-526EZ, Fully Developed Claim. The Veteran’s STRs do not document any sleep-related abnormalities or complaints. An August 2015 private sleep study indicated a diagnosis of moderate obstructive sleep apnea. See August 2015 Polysomnogram Interpretation. In December 2015, a VA medical opinion was obtained. After review of the Veteran’s claims file, the examiner determined that the Veteran’s sleep apnea was not caused or aggravated by his service-connected cervical strain. The examiner opined in pertinent part, Sleep apnea is not caused by cervical etiology. Sleep apnea can be caused most likely by being overweight, smoking, throat anatomy, being male, neck circumference, family history, use of alcohol, nasal congestion. No medical reference to any cervical spine etiology. No medical nexus can be established. In October 2016 correspondence, a fellow servicemember, D.S., indicated that he roomed with the Veteran for 6 months during active duty. He indicated that the Veteran snored loudly and stopped breathing during sleep. He stated that the Veteran often complained of feeling tired and on several occasions “doz[ed] off during work.” See October 2016 correspondence from D.S. received January 2017. In October 2020, Dr. S.D. rendered a positive etiological opinion regarding the Veteran’s sleep apnea. The physician opined in pertinent part, Based on the above discussion, and the veteran’s medical history, it is the opinion of this reviewer that it is more likely than not that that the veteran’s Obstructive Sleep Apnea (OSA) began while in service, although the OSA went undiagnosed until 2015 when a polysomnogram study confirmed the presumptive diagnosis. The written statement of [D.S.] corroborates that the veteran had sleep problems with the characteristics of OSA while they were in service. However, [the Veteran] did not know by then, that he had such condition and did not seek medical attention for it, thus the sleeping problem went undiagnosed for many years. Over the years, the veteran simply tried to put up with OSA symptoms and its consequences until he obtained a formal diagnosis in 2015, and improved his sleeping by the use of the CPAP device, which he currently uses regularly. Also, it is my opinion that the veteran’s chronic rhinosinusitis which began while in service, more likely than not represents the initial causative factor for the development of his sleeping disorder since these conditions are co-morbid and interrelated through pathophysiologic mechanisms as has been discussed above. This is supported by current scientific articles. See October 2020 correspondence from S.D. received November 2020. After a review of the evidence, the Board finds that service connection is warranted for sleep apnea. As set forth above, disability which is proximately due to or the result of a service-connected disease or injury shall also be service connected. 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 or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). With regard to current disability, the Board finds that the Veteran has a current diagnosis of sleep apnea. The August 2015 private sleep study, noted above, indicated a diagnosis of moderate obstructive sleep apnea. Affording the Veteran the benefit of the doubt, and in light of the grant of service connection for a respiratory disability in the instant decision, the Board finds that the evidence is in relative equipoise as to whether the Veteran’s sleep apnea was caused by his service-connected respiratory disability. The Board finds the October 2020 positive nexus opinion from Dr. S.D. of great probative weight, as the physician rendered her opinion after thorough review of the claims file and provided a reasoned conclusion and supporting rationale for her determination that the Veteran’s sleep apnea developed during active duty as a result of his service-connected respiratory disability. Additionally, although the December 2015 VA examiner determined that the Veteran’s sleep apnea was not secondary to his service-connected cervical strain, the examiner acknowledged that sleep apnea could be caused, at least in part, by nasal congestion. Therefore, the Board also finds the portion of the VA medical opinion indicating a possible link between the Veteran’s sleep apnea and nasal congestion probative. Accordingly, the Board has weighed the evidence of record and finds that the evidence is at least in relative equipoise as to the Veteran’s sleep apnea and the causal relation between the Veteran’s disability and his service-connected respiratory disability. The benefit-of-the-doubt rule is therefore for application. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The Board will resolve the reasonable doubt in the Veteran’s favor and find that the evidence supports the grant of service connection for sleep apnea as secondary to the Veteran’s service-connected respiratory disability. See 38 U.S.C. § 5107. 6. Entitlement to service connection for headaches is granted. The Veteran contends that his headaches are secondary to his service-connected cervical strain. See September 2015 correspondence from the Veteran. An April 1992 post-discharge physical examination noted that the Veteran experienced headaches approximately twice per month, which were resolved with Tylenol. See April 7, 1992 post-discharge physical examination received May 2012 and September 2015. A January 2008 private treatment record noted a diagnosis of migraine headaches, for which the Veteran was prescribed Inderal and Ibuprofen. See January 2008 K.P. record. The Veteran was afforded a VA examination in July 2017. The examiner noted the Veteran’s reports that he began having headaches at least 2 to 5 times per month following a neck injury in 1989. He reported that he continued to experience approximately 5 headache days per month, 2 of which were typically migraines. He reported that he treated his headaches with over-the-counter medication. The examiner determined that the Veteran did not have a chronic headache diagnosis and rendered a negative etiological opinion. The examiner opined the following: During service, condition was acute only. There is no evidence of chronicity of care or of a chronic headache condition. A nexus has not been established. In October 2020, Dr. S.D. rendered a positive etiological opinion regarding the Veteran’s headaches. The physician opined in pertinent part, Based on the veteran’s medical history, the above discussion, and the cited scientific articles, it is the opinion of this reviewer that the veteran’s condition of chronic recurrent headaches, is more likely than not a consequence of his service-connected cervical spine condition. His headaches are therefore, cervicogenic. See October 2020 correspondence from S.D. received November 2020. After a review of the evidence, the Board finds that service connection is warranted for headaches. As set forth above, disability which is proximately due to or the result of a service-connected disease or injury shall also be service connected. 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 or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). With regard to current disability, the Board finds that the Veteran has a current diagnosis of headaches. Although the Board notes the July 2017 VA examination which indicated that the Veteran did not have a chronic headache condition, the Board finds the Veteran’s private treatment records indicating a diagnosis of migraine headaches more probative. Therefore, affording the Veteran the benefit of the doubt, the Board finds that the Veteran has a current diagnosis of headaches. Affording the Veteran the benefit of the doubt, the Board finds that the evidence is in relative equipoise as to whether the Veteran’s headaches were caused by his service-connected cervical strain. The Board finds the October 2020 positive nexus opinion from Dr. S.D. of great probative weight, as the physician rendered her opinion after thorough review of the claims file and provided a reasoned conclusion and supporting rationale for her determination that the Veteran’s headaches were secondary to his service-connected cervical strain. There is no medical opinion evidence to the contrary regarding secondary service connection. While the Board acknowledges the negative July 2017 VA opinion, the Board affords less probative weight to that opinion as the examiner failed to consider the Veteran’s reports of ongoing headaches since service. Additionally, the examiner did not address the issue of secondary service connection. Accordingly, the Board has weighed the evidence of record and finds that the evidence is at least in relative equipoise as to the Veteran’s headaches and the causal relation between the Veteran’s disability and his service-connected cervical strain. The benefit-of-the-doubt rule is therefore for application. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The Board will resolve the reasonable doubt in the Veteran’s favor and find that the evidence supports the grant of service connection for headaches as secondary to the Veteran’s service-connected cervical strain. See 38 U.S.C. § 5107. REASONS FOR REMAND 1. Entitlement to a rating in excess of 20 percent for a low back disability is remanded. 2. Entitlement to an effective date earlier than February 20, 2018, for the award of a 20 percent rating for a low back disability is remanded. 3. Entitlement to a rating in excess of 20 percent for radiculopathy of the left lower extremity is remanded. The Veteran was most recently afforded a VA examination in February 2018. Subsequent to the examination, in April 2018, the Veteran filed a claim for an increased rating for his low back disability. Based on this filing, the Board must presume that the Veteran alleges that his service-connected low back disability has increased in severity. To that end, the Board finds that the Veteran should be afforded a contemporaneous VA examination to determine the current severity of his service-connected low back disability with left lower extremity radiculopathy. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). 4. Entitlement to a rating in excess of 30 percent for cervical strain is remanded. The Veteran was most recently afforded a VA examination for his cervical strain in February 2018. Since that examination, it appears that the severity of the Veteran’s cervical strain may have worsened. In correspondence dated in October 2020, the Veteran indicated that he experienced radiating pain from his neck into his shoulders, constant pain and numbness in both arms, and reduced grip strength. See October 2020 Veteran’s Affidavit, received November 2020. Under these circumstances, the Board finds that the Veteran should be afforded a contemporaneous VA examination in order to determine the current level of severity of his service-connected cervical strain, to include any associated radicular symptomatology. See Snuffer, 10 Vet. App. 400; Caffrey v. Brown, 6 Vet. App. 377. Accordingly, the matters are REMANDED for the following action: 1. The Veteran should be afforded a VA medical examination to determine the current severity of his service-connected low back disability with left lower extremity radiculopathy. Access to the Veteran’s electronic VA claims file must be made available to the examiner for review in connection with the examination. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disabilities under the rating criteria. The examiner should test for both active and passive motion, as well as weight-bearing and non-weight bearing. The examiner should comment on the severity of any painful motion or weakness. The examiner should also provide range of motion measurements, including at what point in the arc of motion pain limits function both regularly and during any flare-ups, even if a flare-up is not observed on that day. In addressing the nature of any disability during a flare-up the examiner must address the severity of the flare-up, the frequency and duration of the flare-up, and all precipitating and alleviating factors. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 2. The Veteran should be afforded a VA medical examination to determine the current severity of his service-connected cervical strain, to include any associated radicular symptomatology. Access to the Veteran’s electronic VA claims file must be made available to the examiner for review in connection with the examination. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disabilities under the rating criteria. The examiner should test for both active and passive motion, as well as weight-bearing and non-weight bearing. The examiner should comment on the severity of any painful motion or weakness. The examiner should also provide range of motion measurements, including at what point in the arc of motion pain limits function both regularly and during any flare-ups, even if a flare-up is not observed on that day. In addressing the nature of any disability during a flare-up the examiner must address the severity of the flare-up, the frequency and duration of the flare-up, and all precipitating and alleviating factors. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). K. Conner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Ruddy, Associate 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.