Citation Nr: 21007300 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 15-00 546A DATE: February 9, 2021 ORDER 1. The application to reopen the claim for service connection for a psychiatric disorder, to include as secondary to degenerative disc disease of the cervical spine and/or cervicogenic headaches, is granted. 2. Entitlement to service connection for bilateral hearing loss disability is denied. 3. Entitlement to service connection for tinnitus is denied. 4. The reopened claim of entitlement to service connection for a psychiatric disorder, variously diagnosed, to include as secondary to degenerative disc disease of the cervical spine and/or cervicogenic headaches, is denied. 5. Entitlement to service connection for sleep disturbances, to include as secondary to degenerative disc disease of the cervical spine and/or cervicogenic headaches, is denied. 6. Entitlement to a compensable disability rating for cervicogenic headaches is denied. FINDINGS OF FACT 1. A May 2002 rating decision denied the Veteran’s claim for service connection for posttraumatic stress disorder (PTSD). The Veteran was properly notified of his appeal rights that same month, but did not submit a timely notice of disagreement (NOD) or submit new and material evidence within one year of the notification regarding the May 2002 rating decision. 2. A December 2013 rating decision denied reopening the Veteran’s previously denied claim of entitlement to service connection for PTSD and denied his new claim of entitlement to service connection for a psychiatric disorder. The Veteran was properly notified of his appeal rights that same month, but did not submit a timely NOD or submit new and material evidence within one year of the notification of the December 2013 rating decision. 3. Evidence received since the December 2013 rating decision was not previously of record or cumulative or redundant of evidence already of record and relates to an unestablished fact necessary to substantiate the Veteran’s claim for service connection for a psychiatric disorder and therefore, raises a reasonable possibility of substantiating the claim. 4. The Veteran does not have a bilateral hearing loss disability for VA purposes. 5. Tinnitus did not have its onset during active service or within one year of service discharge and is not otherwise related to active service. 6. A psychiatric disorder, variously diagnosed, did not have its onset during active service, a psychosis was not manifested within one year of service discharge, a psychiatric disorder is not otherwise related to active service and is not caused or aggravated by degenerative disc disease of the cervical spine and/or cervicogenic headaches. 7. Sleep disturbances did not have its onset during active service and is not otherwise related to active service or caused or aggravated by degenerative disc disease of the cervical spine and/or cervicogenic headaches. 8. For the entire period on appeal, the Veteran’s service-connected cervicogenic headaches have not been manifested by characteristic prostrating attacks of headache pain. CONCLUSIONS OF LAW 1. The May 2002 and December 2013 rating decisions that denied the Veteran’s claims for service connection for PTSD and a psychiatric disorder, respectively, are final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.302, 20.1103 (2019). 2. New and material evidence sufficient to reopen the claim for service connection for a psychiatric disorder has been added to the record. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2019). 3. The criteria for service connection for bilateral hearing loss disability have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2019). 4. The criteria for service connection for tinnitus have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2019). 5. The criteria for service connection for a psychiatric disorder, variously diagnosed, to include as secondary to degenerative disc disease of the cervical spine and/or cervicogenic headaches, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2019). 6. The criteria for service connection for sleep disturbances, to include as secondary to degenerative disc disease of the cervical spine and/or cervicogenic headaches, have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2019). 7. The criteria for a compensable disability rating for cervicogenic headaches have not been met for any period on appeal. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.124a, Diagnostic Code (DC) 8100 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Marine Corps from February 1974 to July 1974, from September 1974 to October 1976, and active duty for training in the Army National Guard from February 1977 to July 1977. The Veteran testified before a decision review officer (DRO) at a January 2015 hearing concerning his increased rating claim on appeal, and a transcript of that hearing has been associated with the claims file. Subsequently, the Veteran and his spouse testified before the undersigned Veterans Law Judge (VLJ) at a July 2018 videoconference hearing, and a transcript of the hearing has also been associated with the claims file. To the extent that the Veteran and his representative reported at the July 2018 Board hearing that they would attempt to obtain private nexus opinions concerning his claims on appeal, the Board is mindful that they did not thereafter submit any additional evidence to be considered in that regard. 1. Whether new and material evidence has been submitted to reopen the claim for service connection for a psychiatric disorder, to include as secondary to degenerative disc disease of the cervical spine and/or cervicogenic headaches. Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. However, a claim may be reopened if new and material evidence is submitted. New evidence is defined as existing evidence not previously submitted to agency decisionmakers, while material evidence is defined as 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. The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. Moreover, in determining whether this low threshold is met, consideration need not be limited to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but also whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering VA’s duty to assist or through consideration of an alternative theory of entitlement. For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. A May 2002 rating decision denied the Veteran’s claim for service connection for PTSD. The Veteran was properly notified of his appeal rights that same month, but did not submit a timely NOD or submit new and material evidence within one year of the notification regarding the May 2002 rating decision. Subsequently, a December 2013 rating decision denied reopening the Veteran’s previously denied claim for service connection for PTSD and denied his new claim for service connection for a psychiatric disorder. The Veteran was properly notified of his appeal rights that same month, but did not submit a timely NOD or submit new and material evidence within one year of the notification of the December 2013 rating decision. Since the prior final December 2013 rating decision, relevant evidence added to the record includes an April 2015 VA mental disorders examination, as well as the Veteran’s new theory that his claimed psychiatric disorder is secondary to the service-connected degenerative disc disease of the cervical spine and/or cervicogenic headaches. Although the April 2015 VA examiner ultimately rendered a negative nexus opinion, the Board finds that the Veteran’s new theory of entitlement, and the nexus opinion which relates to it, constitutes new and material evidence sufficient to warrant reopening of the Veteran’s claim, as it was not of record at the time of the prior final December 2013 rating decision, and it relates to a material element of the Veteran’s claim, namely whether the Veteran’s claimed psychiatric disorder is related to his active service or a service-connected disability. Given the above, the Veteran’s claim for service connection for a psychiatric disorder is reopened. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. To establish a right to compensation for a present disability, a Veteran must show: (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. For certain chronic disorders, including sensorineural hearing loss, tinnitus, and psychoses, service connection may be granted on a presumptive basis if the disease is manifested to a compensable degree within one year following service discharge. Service connection may be granted on a secondary basis for a current disability which is proximately due to or the result of a service-connected disease or injury. Where a service-connected disability aggravates a nonservice-connected condition, a Veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. 2. Entitlement to service connection for bilateral hearing loss disability. 3. Entitlement to service connection for tinnitus. The Veteran asserts that his claimed bilateral hearing loss disability and tinnitus are due to noise exposure during active service. At the July 2018 Board hearing, the Veteran reported hearing problems and ringing in the ears ever since active service, and his representative asserted that the Veteran’s exposure to acoustic trauma and loud noises in the military caused his claimed conditions. However, following a review of the evidence of record, the Board finds that the preponderance of the evidence is against the Veteran’s claims for service connection for bilateral hearing loss disability and tinnitus. The reasons follow. Regarding the first element of a service-connection claim, a current disability, the Board notes that the probative evidence of record does not document a hearing loss disability in either ear in accordance with VA regulation for any period on appeal. A hearing loss disability is defined for VA compensation purposes with regard to audiologic testing involving puretone frequency thresholds and speech discrimination criteria. 38 C.F.R. § 3.385 (2019). Impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies of 500, 1000, 2000, 3000, or 4000 Hz are 26 dB or greater; or when speech recognition scores using the Maryland CNC test are less than 94 percent. The threshold for normal hearing is from 0 to 20 decibels. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Notably, although a March 2015 VA examiner diagnosed bilateral sensorineural hearing loss in the frequency range of 6000 Hz or higher, such audiometric results do not qualify as disabling per VA regulation. Additionally, the Board has reviewed the additional objective evidence of records; however, there are no other objective audiometric test results of record which contradict the probative March 2015 VA examination findings. Thus, the claim for service connection for a bilateral hearing loss disability is denied based on the lack of competent evidence of a bilateral hearing loss disability for VA purposes. Regarding a current tinnitus disability, the Board is mindful that the Veteran reported only right ear tinnitus at the March 2015 VA audiology examination. However, at the July 2018 Board hearing, he reported bilateral tinnitus since active service. As such, the Board resolves any reasonable doubt on that issue and finds that the Veteran has a current tinnitus disability for purposes of that particular claim. Regarding the in-service element of his hearing loss and tinnitus claims, the Board has carefully reviewed service treatment records for documented complaints, treatment, or diagnosis of either hearing loss or tinnitus during active service. The Veteran’s August 1974 enlistment Report of Medical Examination documents a normal clinical evaluation of the Veteran’s ears generally, with documented puretone results that do not qualify as bilateral hearing loss disability per VA regulation. 38 C.F.R. § 3.385. Additionally, within a concurrent August 1974 Report of Medical History at enlistment, the Veteran denied a history of ear trouble or hearing loss. Similarly, the October 1976 separation Report of Medical Examination also documents a normal clinical evaluation of the Veteran’s ears generally, with documented puretone results that do not qualify as bilateral hearing loss disability per VA regulation. Additionally, the Veteran again denied a history of ear trouble or hearing loss within a concurrent October 1976 Report of Medical History at separation. Given the above, the Board finds that the probative evidence of record does not weigh in favor of a finding that the Veteran’s current tinnitus first had its onset during active service, and as such, service connection is not warranted on a direct basis. Regarding the third element of a nexus to active service, the Board also finds that the preponderance of evidence is against a nexus between the Veteran’s claimed hearing loss and tinnitus and his active service. Notably, the evidence of record does not otherwise document that chronic bilateral sensorineural hearing loss or tinnitus had its onset during the one-year period from service discharge in October 1976 and, as such, presumptive service connection for bilateral sensorineural hearing loss or tinnitus is not warranted. Subsequent Reports of Medical Examination conducted during his National Guard service in June 1977, May 1982, June 1986, and January 1988 each document normal clinical evaluations of the Veteran’s ears generally, with documented puretone results that do not qualify as bilateral hearing loss disability per VA regulation. Similarly, the Veteran continued to deny a history of ear trouble or hearing loss within Reports of Medical History in June 1977, May 1982, and June 1986. This shows that the Veteran was not experiencing at least hearing loss in the approximately 10 years following service discharge. As noted above, upon VA audiology examination in March 2015, a VA examiner diagnosed non-disabled bilateral sensorineural hearing loss (in the frequency range of 6000 Hz or higher frequencies) and opined that the Veteran’s hearing loss was not at least as likely as not caused by or a result of an event in military service. The examiner stated that the Veteran’s 1974 induction and 1976 discharge examinations both showed normal hearing, bilaterally. Additionally, the examiner noted that the National Institute for Occupational Safety and Health (NIOSH) recommends that significant threshold shift is defined as a 15 dB HL shift or more at any one frequency of 500 Hz to 4000 Hz, and that, as such, there was not a significant shift in thresholds from induction to discharge in the Veteran’s hearing. Finally, the examiner cited to current studies from the Institute of Medicine, which indicate that “understanding of the mechanisms and processes involved in the recovery from noise exposure suggests that a delay of many years in the onset of noise-induced hearing loss following an earlier noise exposure is extremely unlikely” and “the evidence from laboratory studies in humans and animals is sufficient to conclude that the most pronounced effects of a given noise exposure on pure-tone thresholds are measurable immediately following the exposure.” Therefore, the examiner opined, given the Veteran’s normal hearing at discharge, and no significant shift in thresholds from induction to discharge, that his hearing impairment was less likely than not caused by or aggravated by military noise exposure. Moreover, the examiner noted that the Veteran had a very difficult time stating whether or not he noticed any problems hearing, as he mentioned it can be hard to understand his wife and kids, but when asked again, he reported that he had not really noticed anything. Regarding his claimed tinnitus, the Veteran reported that he first noticed tinnitus in his right ear when he was talking to some other individuals who said they had a noise in their ears. However, he denied experiencing it before that time. The VA examiner opined that the Veteran’s tinnitus is at least as likely as not a symptom associated with his hearing loss, as tinnitus is known to be a symptom associated with hearing loss; however, it was less likely than not caused by or a result of military noise exposure. As a rationale, the examiner cited to Institute of Medicine studies which show that “as the interval between a noise exposure and the onset of tinnitus lengthens, the possibility that tinnitus will be triggered by other factors increases.” Therefore, since the Veteran’s tinnitus first started many years post-discharge, the examiner opined that it is less likely as not related to military noise exposure. Again, the examiner noted that it was very difficult to get any reliable history from the Veteran related to when the tinnitus began, if he noticed it before then, as well as if it had any impact on his life. He specifically denied ever experiencing tinnitus in his left ear and only reported right ear tinnitus. Given the above, the Board affords the most probative value to the March 2015 VA examiner’s negative nexus opinions, which are supported by well-reasoned rationales and reliance upon a review of the Veteran’s claims file, including the Veteran’s service treatment records and post-service treatment records, as well as the Veteran’s own lay statements. The Board has also considered the additional relevant lay evidence of record, including the Veteran’s July 2018 Board hearing testimony discussed above. While the Veteran is competent to report observable symptoms, such as hearing difficulty or ringing in the ears, to the extent he asserts that hearing loss or tinnitus are related to active service, such statements are of no probative value given the Veteran’s lack of audiological expertise needed to diagnose complex and internal conditions and to render a nexus opinion relating them to active service. Additionally, to the extent that the Veteran has asserted that chronic bilateral hearing loss disability or tinnitus first had onset during active service and has been continuous since that time, such statements are inconsistent with other evidence of record, including service treatment records and post-service medical records, which show that the Veteran was not reporting hearing problems or tinnitus in the years following his separation from active service, as well as the March 2015 VA examination, which documents his conflicting reports regarding the date of onset for his conditions. As noted above, in the absence of probative evidence of a current bilateral hearing loss disability, the Veteran’s claim is not warranted. Additionally, given the above, the Board concludes that the preponderance of evidence weighs against the Veteran’s claim for service connection for bilateral hearing loss disability and tinnitus on direct and presumptive bases. As such, there is no reasonable doubt to be resolved, and the claims are denied. 4. Entitlement to service connection for a psychiatric disorder, to include as secondary to degenerative disc disease of the cervical spine and/or cervicogenic headaches. The Veteran claims, including within his July 2018 Board hearing testimony, that his claimed psychiatric disorder is due to active service and/or secondary to his service-connected degenerative disc disease of the cervical spine and/or cervicogenic headaches. However, following a review of the evidence of record, the Board finds that the preponderance of the evidence is against the Veteran’s claim. The reasons for this decision follow. Regarding evidence of a current disability, post-service VA treatment records document that the Veteran was previously diagnosed with depressive disorder upon VA examination in October 1997, September 1998, and March 2002. A November 2013 VA examiner found that although the Veteran had previous diagnoses of depressive disorder, he did not meet the criteria for any mental disorder at that time. Subsequent VA treatment records from April 2014 (during the pendency of the Veteran’s current claim) document an assessment of depression. In September 2014, his psychiatric diagnoses included mild vascular neurocognitive disorder and a history of depressive disorder. Similarly, in November 2014, a VA doctor diagnosed major neurocognitive disorder per DSM-5 criteria. Finally, in April 2015, a VA psychiatric examiner diagnosed major neurocognitive disorder due to vascular issues and depressive disorder due to major neurocognitive disorder. Given the above, the Board finds that the Veteran has satisfied the first element of a current disability for purposes of his claim. Regarding the in-service element of his psychiatric claim, the Board has carefully reviewed service treatment records for documented complaints, treatment, or diagnosis of a psychiatric disorder during active service. The Veteran’s August 1974 enlistment Report of Medical Examination documents a normal clinical psychiatric evaluation, and the Veteran denied a history of depression, excessive worry, or nervous trouble of any sort within a concurrent August 1974 Report of Medical History at enlistment. Similarly, the Veteran’s October 1976 separation Report of Medical Examination also documents a normal clinical psychiatric evaluation, and the Veteran again denied a history of depression, excessive worry, or nervous trouble of any sort within a concurrent October 1976 Report of Medical History at separation. Given the above, the Board finds that the probative evidence of record does not weigh in favor of a finding that the Veteran’s current psychiatric disorder first had its onset during active service, and as such, service connection is not warranted on a direct basis. Regarding the element of a nexus to active service or a service-connected disability, including service-connected degenerative disc disease of the cervical spine and/or cervicogenic headaches, the Board finds that the preponderance of evidence is against a nexus between the Veteran’s claimed psychiatric disorder and his active service or his service-connected degenerative disc disease of the cervical spine and/or cervicogenic headaches. Notably, the evidence of record does not document that a chronic psychosis had its onset during the one-year period from service discharge in October 1976 and, as such, presumptive service connection for psychosis as a chronic disease is not warranted. Additionally, Reports of Medical Examination conducted during his subsequent National Guard service in June 1977, May 1982, June 1986, and January 1988 each document normal clinical psychiatric evaluations, and the Veteran continued to deny a history of depression, excessive worry, or nervous trouble of any sort within Reports of Medical History in June 1977, May 1982, and June 1986. Post-service VA treatment records document a March 1977 VA examination, which failed to document any psychiatric issues. Similarly, a subsequent May 1996 VA General Medical examination documents that the Veteran’s mental status was unremarkable, without any reported psychiatric issues. An October 1997 VA Mental Disorders examination documents the Veteran’s report that he had sought treatment for psychiatric difficulties in 1996 for various stressors including the death of his father, ongoing chronic medical difficulties, his withdrawal from the National Guard, and frustration surrounding his Indian identity. He had received antidepressant medication including Sertraline and Trazodone, which had significantly improved his mental status. Upon subsequent VA mental examination in September 1998, the Veteran denied any significant nervous or psychiatric difficulty, including depression or anxiety, and the examiner found that his prior depression had been treated and resolved. A March 2002 VA PTSD examination documents that the Veteran was seen in November 1999 for chronic depression and anger counseling, and upon follow up in February 2000 for medication evaluation, he was feeling much more calm, after which he had not been seen in the VA mental health clinic since that time, although he continued taking Sertraline for depression and Trazodone for sleep. The Board has considered the above evidence but finds that it does not weigh in favor of a nexus between a current psychiatric disorder and active service or a service-connected disability. Notably, the Veteran’s post-service psychiatric complaints were removed in time from his active service, and they were made in the context of various stressors unrelated to his active service. Additionally, the various psychiatric examinations do not document probative evidence that a psychiatric disorder was caused or aggravated by a service-connected disability. Upon subsequent VA psychiatric evaluation in September 2014, the Veteran reported that he had noticed memory decline over the last two months, with increased stress, irritability, and sleep impairment. He reported that he had been seen in the mental health clinic sporadically in the past, and it was noted that he was seen over ten years before, but he stated that he stopped attending the mental health clinic “because everybody [he] saw would just end up leaving.” His assessed conditions included mild vascular neurocognitive disorder and a history of depressive disorder. The Veteran was afforded an additional VA mental disorders examination in conjunction with his claim in April 2015. At that time, a VA examiner diagnosed major neurocognitive disorder due to vascular issues and depressive disorder due to major neurocognitive disorder, which conditions were inseparable and intertwined. The examiner stated that the Veteran did not exhibit insomnia or a mental sleep disorder due to service-related medical issues, and he did not complain of this during the examination. The examiner noted that the Veteran had previously suffered a stroke and had Alzheimer disease, which the examiner wrote were responsible for his major neurocognitive disorder with secondary depressive disorder. Additionally, the examiner noted that there are no professional peer-reviewed articles to indicate that major neurocognitive disorder due to Alzheimer’s can be caused by degenerative disc disease of the cervical spine and/or cervicogenic headaches. The examiner further stated that even from a level of common knowledge or that of understanding of basic conceptual development of pathology at a lay person level, it does not even make sense how the service-related medical issues could lead to Alzheimer’s dementia (major neurocognitive disorder). Concerning the potential for aggravation, the examiner stated that the Veteran’s service-connected disabilities do not aggravate his major neurocognitive disorder, which was a more recent diagnosis. Notably, there is no probative nexus evidence to weigh against the negative nexus opinion of the April 2015 VA examiner, which is afforded due probative weight by the Board, as it is supported by an adequate rationale. The Board has considered the lay evidence of record, including lay statements of the Veteran, his spouse, and his daughter, and the July 2018 testimony of the Veteran and his wife that assert generally that his claimed psychiatric disorder is related to active service or a service-connected disability. However, the Board finds that the ultimate question of a direct or secondary nexus in this case involves medical and psychiatric expertise which extends beyond that which is immediately observable to a layperson or a simple cause-and-effect relationship understandable to a layperson. As such, the question of etiology in this case may not be competently addressed by lay evidence, and the assertions of the Veteran, his spouse, and/or his representative lack probative value in the context of his claim. In conclusion, the Board finds that the preponderance of the evidence weighs against the Veteran’s claim for service connection for a psychiatric disorder, to include as secondary to degenerative disc disease of the cervical spine and/or cervicogenic headaches. As such, there is no reasonable doubt to be resolved, and the claim is denied. 5. Entitlement to service connection for sleep disturbances, to include as secondary to degenerative disc disease of the cervical spine and/or cervicogenic headaches. The Veteran claims, including within his July 2018 Board hearing testimony, that his claimed sleep disturbances are due to active service and/or secondary to his service-connected degenerative disc disease of the cervical spine and/or cervicogenic headaches. Specifically, the Veteran testified that he had experienced sleep symptoms since after active service and that he was on a list to be tested for sleep apnea, while his wife testified that she had noticed his sleep issues since at least the 1980s. However, following a review of the evidence of record, the Board finds that the preponderance of the evidence is against the Veteran’s claim. The reasons for this decision follow. Regarding evidence of a current disability, post-service VA treatment records include a December 2013 VA Central Nervous System examination which documents that the Veteran does not have sleep disturbances. Upon VA psychiatric evaluation in September 2014, the Veteran reported symptoms of poor sleep. Upon VA mental disorders examination in April 2015, a VA examiner found that the Veteran did not exhibit insomnia or a mental sleep disorder due to service-related medical issues, and he did not complain of this for the examination. Subsequent VA treatment records from January 2019 document a provisional diagnosis of unspecified sleep apnea based upon his reports of snoring, without witnessed apnea. He was advised regarding the impact of a high dosage of Tramadol upon sleep, and an in-lab sleep study was recommended. Given the above evidence, and resolving any reasonable doubt in favor of the Veteran, the Board finds that the Veteran has satisfied the first element of a current disability for purposes of his claim for service connection for sleep disturbances. Regarding the in-service element of his psychiatric claim, the Board has carefully reviewed service treatment records for documented complaints, treatment, or diagnosis of a sleep disorder during active service. The Veteran’s August 1974 enlistment Report of Medical Examination documents normal relevant clinical evaluations, and the Veteran denied a history of frequent trouble sleeping within a concurrent August 1974 Report of Medical History at enlistment. Similarly, the Veteran’s October 1976 separation Report of Medical Examination also documents normal relevant clinical evaluations, and the Veteran again denied a history of frequent trouble sleeping within a concurrent October 1976 Report of Medical History at separation. Given the above, the Board finds that the probative evidence of record does not weigh in favor of a finding that a current sleep disorder first had its onset during active service, and as such, service connection is not warranted on a direct basis. Regarding the element of a nexus to active service or a service-connected disability, including service-connected degenerative disc disease of the cervical spine and/or cervicogenic headaches, the Board finds that the preponderance of evidence is against a nexus between a current sleep disorder and the Veteran’s active service or his service-connected degenerative disc disease of the cervical spine and/or cervicogenic headaches. Post-service VA treatment records document a March 1977 VA examination that does not document any sleep issues noted by the examiner or reported by the Veteran. Additionally, Reports of Medical Examination conducted during his subsequent National Guard service in June 1977, May 1982, June 1986, and January 1988 each document normal relevant clinical evaluations, and the Veteran continued to deny a history frequent trouble sleeping within Reports of Medical History in June 1977, May 1982, and June 1986. Similarly, VA medical and psychiatric examinations conducted in May 1996, October 1997, September 1998, and May 2002 also fail to document any reports of sleep impairment or related diagnosis, and a subsequent December 2013 VA Central Nervous System examination specifically documents that the Veteran did not have any sleep disturbances at that time. During a September 2014 VA psychiatric consultation, the Veteran reported increased stress, irritability, and poor sleep, and he reported taking Trazodone for sleep, although he was not sure if that medication was helping with sleep. Following the consultation, his diagnoses were mild vascular neurocognitive disorder and a history of depressive disorder; however, there were no specific sleep disorders diagnosed. Significantly, upon VA mental disorders examination in April 2015, the Veteran did not report sleep impairment issues, and the VA examiner found that the Veteran did not have insomnia or mental sleep disorder due to service-related medical issues. More recently, VA treatment records from January 2019 document a provisional diagnosis of unspecified sleep apnea based upon the Veteran’s reports of snoring, without witnessed apneas, and he was advised regarding the impact of a high dosage of Tramadol upon his sleep and a sleep study was recommended, although it does not appear that the Veteran subsequently obtained the recommended sleep study. Given the above, the Board finds that the preponderance of the probative evidence of record weighs against the Veteran’s claim of entitlement to service connection for sleep disturbances, to include as secondary to degenerative disc disease of the cervical spine and/or cervicogenic headaches. Notably, there is no probative objective medical evidence of a nexus between a current sleep disorder and his active service or a service-connected disability. The Board has considered the lay evidence of record, including lay statements of the Veteran, his spouse and his daughter, and the July 2018 testimony of the Veteran and his wife that assert generally that a current sleep disorder is related to active service or a service-connected disability. However, the Board finds that the ultimate question of a direct or secondary nexus in this case involves medical expertise which extends beyond that which is immediately observable to a layperson or a simple cause-and-effect relationship understandable to a layperson. As such, the question of etiology in this case may not be competently addressed by lay evidence, and the assertions of the Veteran, his spouse, and/or his representative lack probative value in the context of his claim. Moreover, to the extent that the Veteran has asserted that his sleep symptoms have been continuous following active service, the Board finds that such statements are inconsistent with the post-service medical evidence reviewed above which fails to document complaints of sleep impairment in the years following his discharge from active service and during his subsequent National Guard service. Additionally, to the extent that the March 2015 Notice of Disagreement (NOD) submitted by the Veteran’s representative asserts that the Veteran’s sleep disturbances are secondary to his service-connected bilateral radiculopathy of the upper extremities, the Board finds that the most probative evidence of record, including objective VA treatment records and examination reports, does not weigh in favor of a finding that the Veteran’s claimed sleep disturbances are etiologically related to his service-connected bilateral radiculopathy of the upper extremities. Significantly, upon VA cervical spine and peripheral nerves examination in April 2013, a VA examiner identified the Veteran’s bilateral mild upper extremity radiculopathy with mild intermittent pain and numbness, with no other signs or symptoms of radiculopathy and no other neurologic abnormalities, including no reported sleep disturbances. Although the Veteran is competent to report that upper extremity pain limits his ability to get restful sleep, the ultimate question of a direct or secondary nexus in this case involves medical expertise which extends beyond that which is immediately observable to a layperson or a simple cause-and-effect relationship understandable to a layperson. As such, the question of etiology in this case may not be competently addressed by lay evidence. Moreover, the Board is mindful that aside from this isolated assertion within the March 2015 NOD, subsequent arguments submitted by the Veteran and his representative, including within the July 2015 VA Form 9, July 2018 Board hearing testimony, and the October 2020 Informal Hearing Presentation (IHP), do not continue to raise the assertion that his claimed sleep disturbances are secondary to his service-connected bilateral radiculopathy of the upper extremities. In conclusion, the Board finds that the preponderance of the evidence weighs against the Veteran’s claim for service connection for sleep disturbances, to include as secondary to degenerative disc disease of the cervical spine and/or cervicogenic headaches. As such, there is no reasonable doubt to be resolved, and the claim is denied. Increased Rating 6. Entitlement to a compensable disability rating for cervicogenic headaches. Disability evaluations are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. The Veteran’s service-connected migraine headaches are rated as noncompensable from September 13, 2013 under Diagnostic Code (DC) 8100. Thereunder, a noncompensable, or 0 percent, disability rating is warranted for characteristic prostrating attacks occurring on average less frequently than one in two months over the last several months; a 10 percent disability rating is warranted for characteristic prostrating attacks averaging one in two months; a 30 percent disability rating is warranted for migraine headaches with characteristic prostrating attacks occurring on an average once a month over the last several months; and a maximum schedular 50 percent disability rating is warranted for migraine headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. Notably, the rating criteria do not define “prostrating” attacks. “Prostration” is defined as “extreme exhaustion or powerlessness.” See Dorland’s Illustrated Medical Dictionary 1531 (32d ed. 2012). This is consistent with medical guidance used by the VA Compensation Service that suggests that a “prostrating migraine may be described as a condition that causes lack of strength to the point of exhaustion.” See VA Compensation Service’s Medical Electronic Performance Support System (2017). As discussed below, following a review of the evidence of record, the Board finds that the preponderance of the evidence is against the Veteran’s claim of entitlement to a compensable disability rating for cervicogenic headaches for the entire period on appeal. In April 2014, the Veteran submitted documentation regarding his recently service-connected headaches, which the RO accepted as an increased rating claim. At that time, the Veteran submitted a headache log that he had completed for the period of March 1, 2014 through April 23, 2014 which documents his report of frequent headaches that came on a sharp pain that required him to lay down for up to 30 minutes, after which he experienced ongoing dull headache pain that made him irritable and want to be left alone. VA treatment records from April 2014 document that the Veteran reported headaches for the past five months. He stated that he usually woke up with sharp frontal headache pain for a few seconds that continued afterward as dull pain. Upon VA headache examination in June 2014, the VA examiner noted the Veteran’s cervicogenic headaches since 2013. The Veteran reported sharp pain in the back of the head which typically lasted five minutes and required treatment with Tramadol and Gabapentin. He denied any emergency room or urgent care visits for headaches. He noted that brain imaging the previous month showed that he had a stroke, and reported that he quit driving a truck for work in 2003 after he hurt his back. The VA examiner noted that the Veteran’s reported headaches resulted in constant head pain without non-headache symptoms and that the typical duration was less than one day. The examiner state that the Veteran did not have characteristic prostrating attacks of migraine or non-migraine headache pain, and there were no other pertinent physical findings, complications, conditions, signs and/or symptoms related to his headaches. Regarding functional impact upon the Veteran’s ability to work, the Veteran reported that people won’t hire him, although he again stated that he left work due to issues with back pain. At a December 2014 DRO hearing, the Veteran testified that he usually had headaches two or three times in a week. He stated that during those times, he would sit or lay down in his room with the lights off for about an hour, during which time he couldn’t do anything. He also reported that he was taking Trazadone for headaches and sleep, and testified that he had gone to the emergency room “lots of times” for his headaches and that he was given “something to settle [him] down.” During a subsequent January 2015 VA headaches examination, the Veteran reported that his headaches come on out of nowhere and that he has to lay down for 5-20 minutes before they go away. He stated that Trazadone medication helps him sleep and takes care of his headaches. The examiner noted that the Veteran’s symptoms of headache pain starts in the back of the right side of the head and moves up towards his eyes, and that the typical duration was less than one day. The examiner stated that the Veteran did not have characteristic prostrating attacks of migraine or non-migraine headache pain. Additionally, there were no other pertinent physical findings, complications, conditions, signs and/or symptoms related to his headache condition. The Veteran reported functional impact on his ability to work and noted that he was not currently working, but that he thought the headaches would result in problems with pain and seeing, although he noted that he would still try to work [through the pain]. VA treatment records from May 2015 document that the Veteran took Trazodone at night to help his headaches enough to sleep, although they come back. He described the location of headache pain in his eyes/temples/forehead and top of head, and occurring every day and lasting all day. He reported little relief from Tramadol medication. In order to warrant a compensable disability rating for service-connected cervicogenic headaches, the probative evidence would have to show that the Veteran’s headaches resulted in characteristic prostrating attacks averaging one in two months or more frequently. Notably, however, the preponderance of the evidence of record, including as discussed above, is against a finding that the Veteran’s service-connected cervicogenic headaches were manifested by characteristic prostrating attacks. While the Board acknowledges the Veteran’s reports that his headaches required him to lay down for up to an hour at a time, in addition to the assertion of the Veteran’s representative that such reports as documented in the March-April 2014 headache log warrant a compensable disability rating, the Board finds that the Veteran’s reports do not equate to a finding that his cervicogenic headaches have resulted in characteristic prostrating attacks of headache pain for any period on appeal. Notably, the two objective VA headache examinations conducted on conjunction with the Veteran’s increased rating claim in June 2014 and January 2015 both document the examiners’ findings that the Veteran’s headache condition did not result in characteristic prostrating attacks of migraine or non-migraine headache pain. The Board affords greater probative value to these consistent objective medical findings as opposed to the Veteran’s lay reports. Additionally, the Veteran has inconsistently testified regarding the severity of his headaches. For example, at the December 2014 DRO hearing, he testified that he had gone to the emergency room “lots of times” for his headaches; however, he later denied any such visits, and the objective VA treatment records do not corroborate these reports. During the July 2018 Board hearing, the Veteran and his wife testified that he experienced sharp, painful headaches almost every day and night which required him to lay down. While the Veteran and his wife are competent to report observable symptoms of headache pain that required the Veteran to lay down, to the extent that such reports are offered as evidence of characteristic prostrating attacks of headache pain, the Board affords more probative value to the objective evidence of record discussed above which fails to document such symptoms for any period on appeal. Additionally, while VA treatment records subsequent to 2015 document the Veteran’s ongoing use of prescription Tramadol for headaches and sleep, the objective visit records and notes do not document probative evidence that his service-connected cervicogenic headaches have worsened at any period to result in characteristic prostrating attacks of headache pain. Given the above, the Board finds that the preponderance of evidence weighs against the Veteran’s claim of entitlement a compensable disability rating for cervicogenic headaches for the entire period on appeal. As such, there is no reasonable doubt to be resolved, and the claim for an increased rating is denied. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Chad Johnson, 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.