Citation Nr: 21008496 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 15-45 593 DATE: February 17, 2021 ORDER Entitlement to service connection for migraines is denied. Entitlement to service connection for sleep apnea is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that migraines began during active service, or is otherwise related to an in-service injury or disease. 2. The preponderance of the evidence is against finding that sleep apnea began during active service, or is otherwise related to an in-service injury or disease, to include the Veteran’s service-connected asthma and exposure to burn pits. CONCLUSIONS OF LAW 1. The criteria for service connection for migraines are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for sleep apnea are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from May 2001 to October 2008, to include service in Iraq. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in August 2014 by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared for a hearing before the undersigned Veterans Law Judge in March 2019. A transcript of the hearing is of record. This matter was also previously remanded by the Board in December 2019 for additional development. In that remand, the Board directed that new opinions and examinations be obtained regarding the issues on appeal; as that development has been completed, there is substantial compliance with the Board’s remand instructions, and the case may move forward. Service Connection Generally, to establish service connection there must be competent evidence showing: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the in-service injury incurred or aggravated during service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303; Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted on a secondary basis for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury under 38 C.F.R. § 3.310. Allen v. Brown, 7 Vet. App. 439 (1995). In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and, (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for migraines The Veteran asserts that he is entitled to service connection for migraine headaches. Review of the Veteran’s service treatment records (STRs) reveal documentation of a complaint of headaches in July 2002. Subsequent reports from February 2005 and June 2008 document that the Veteran denied frequent or severe headaches at those times. The Veteran appeared for a VA examination in July 2014 to determine the nature and etiology of his migraines. The examiner determined that the Veteran’s migraines were less likely than not related to his military service because the examiner determined that there were no medical records documenting a diagnosis or treatment for migraines. During the Veteran’s March 2019 hearing, the Veteran reported that he first started experiencing headaches when he was serving in Japan in 2002. He stated that he would treat his headaches with motrin and water; and reported that his headaches occurred throughout his military service and continued to occur post-service. In the previous December 2019 Board remand, the Board found the July 2014 VA medical opinion to be inadequate for failure to address the report of headaches in the Veteran’s STRs. Additionally, the Board found that the Veteran’s statements were not credible as they were contradictory throughout the record. Pursuant to the December 2019 Board remand directives, the Veteran appeared for a new VA examination in January 2020. During the examination the Veteran reported that his headaches began in 2002 and increased in intensity in 2006, and again in 2014. The examiner however, determined that the Veteran’s migraines were less likely than not related to his military service. The examiner explained that the Veteran complained of headaches in 2002 and then again in 2013, more than 10 years later. The examiner stated that the Veteran was diagnosed with migraines in 2015 and his examination was consistent with migraines, however, a nexus was not established due to a lack of diagnosis, treatment, or continuing care in the Veteran’s medical records. The Veteran submitted a statement in support of his claim in January 2020. In his letter the Veteran reiterates that he first started experiencing headaches in 2002. He states that his headaches increased in frequency and severity in 2006. He stated that he was being treated for migraines and that his complaints and treatment were not properly recorded in his service treatment records. With this letter, the Veteran submitted private treatment records from January 2018 to May 2018 showing ongoing care for the Veteran’s migraines. Upon reviewing all of the pertinent evidence of record, the Board finds that the preponderance of the evidence weighs against the Veteran’s claim for entitlement to service connection for migraines. In this regard, the Veteran reported receiving treatment for his headaches while in service and attributed the lack of medical records to poor reporting on behalf of an overwhelmed medical staff. However, the Board does not find this argument compelling, as the Veteran personally did not report headaches on his June 2008 medical examination; he did however, report other ailments such as asthma and recurrent back problems. The Board finds this contemporaneous report of a lack of headache symptoms to be more credible than the Veteran’s recollections made many years after the fact, and in conjunction with his claim for service connection. Moreover, the Board finds that the January 2020 VA examiner's opinion is entitled to great probative weight as such considered all of the pertinent evidence of record, to include the statements of the Veteran, and provided a complete rationale, relying on and citing to the records reviewed. Moreover, the examiner offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). Further, there is no medical opinion to the contrary of record. Consequently, the Board finds that a nexus has not been established, and entitlement to service connection for migraines is not warranted. In reaching such decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claims for service connection for migraines. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. 2. Entitlement to service connection for sleep apnea The Veteran also asserts that he is entitled to service connection for sleep apnea as secondary to his service-connected asthma. In this regard, the Veteran appeared for a VA examination in July 2014 to determine the nature and etiology of his sleep apnea as well as its relation to his asthma. The examiner determined that the Veteran’s sleep apnea was less likely than not related to his military service, to include his service-connected asthma. The examiner explained that there was no medical literature directly linking asthma to sleep apnea. Additionally, the examiner stated that the Veteran did not have a diagnosis of sleep apnea while he was in service. During the Veteran’s March 2019 hearing, he reported that he had issues with his sleep while he was in service but was unsure of the cause of his sleep apnea. He also reported service in Iraq and being exposed to burn pits. In the December 2019 Board remand, the Board found that an addendum opinion was needed to address whether the Veteran’s asthma aggravates his sleep apnea; and to address the effect being exposed to burn pits could have on the Veteran’s sleep apnea. Pursuant to December 2019 Board remand directives, the Veteran appeared for another VA examination in January 2020. The examiner opined that the Veteran’s sleep apnea was less likely than not related to his military service. The examiner explained that the Veteran’s STRs did not document a diagnosis, treatment, or symptoms related to sleep apnea. Additionally, the examiner stated that medical literature did not support a finding of burn pit exposure causing sleep apnea. Further, the examiner reported that medical literature also does not support a finding that asthma directly causes sleep apnea. The examiner then went on to report that the Veteran had symptoms of daytime fatigue, apnea, and snoring and that his condition was not aggravated beyond its normal progression by his asthma. The Veteran submitted a statement in support of his claim in January 2020. In his statement, the Veteran reported that he did not report symptoms of sleep apnea during service because of its delayed onset. He attributed the cause of his sleep apnea to exposure to the burn pits. He also reported that prolonged exposure to burn pits in Iraq exacerbated his asthma which in turn affects his sleep apnea. While the Board acknowledges the Veteran’s lay statements, the Veteran in this case is not competent to provide a nexus opinion regarding this issue as it is medically complex. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the January 2020 VA addendum opinion. The Board finds that the January 2020 VA examiner's opinion is entitled to great probative weight as such considered all of the pertinent evidence of record, to include the statements of the Veteran, and provided a complete rationale, relying on and citing to the records reviewed. Moreover, the examiner offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). Further, there is no medical opinion to the contrary of record. Accordingly, the Board finds that upon reviewing all the pertinent evidence of record, a nexus has not been established. As such, entitlement to service connection for sleep apnea is not warranted. In reaching such decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claims for service connection for sleep apnea. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. K. Hall, 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.