Citation Nr: 21009870 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 16-37 422 DATE: February 23, 2021 ORDER Service connection for a chronic headache disorder, to include as secondary to service-connected tinnitus, is denied. Service connection for obstructive sleep apnea, to include as secondary to service-connected tinnitus, is denied. REMANDED Entitlement to a total disability rating based on individual unemployability as a result of service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. A chronic headache disorder did not originate in service or until years thereafter, is not otherwise etiologically related to service, and was not caused or aggravated by the Veteran’s service-connected tinnitus. 2. Obstructive sleep apnea (OSA) did not originate in service or until years thereafter, is not otherwise etiologically related to service, and was not caused or aggravated by the Veteran’s service-connected tinnitus. CONCLUSIONS OF LAW 1. The criteria for service connection for a chronic headache disorder have not been met. 38 U.S.C. § 1131; 38 C.F.R. § 3.303, 3.304, 3.310. 2. The criteria for service connection for OSA have not been met. 38 U.S.C. § 1131; 38 C.F.R. § 3.303, 3.304, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from January 1985 to October 1987. In connection with this appeal, the Veteran testified at a hearing before the undersigned in September 2019. A transcript of that hearing is of record. In September 2020, the RO granted service connection for posttraumatic stress disorder (PTSD). This represents a complete grant of his appeal in regard to this claim. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). This issue is no longer before the Board. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be established under 38 C.F.R. § 3.303(b), where a condition in service is noted but is not, in fact, chronic, or where a diagnosis of chronicity may be legitimately questioned. The continuity of symptomatology provision of 38 C.F.R. § 3.303(b) has been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 718 F.3d 1331 (Fed. Cir. 2013). Service connection may also be established with certain chronic diseases based upon a legal presumption by showing that the disorder manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service. Such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Service connection may also be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a disability which is aggravated by a service-connected disability. In order to prevail on the issue of secondary service connection, the record must show (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509 (1998). Headache Disorder The Veteran filed a service connection claim for a headache disorder, which was denied by a January 2015 rating decision. He asserts that his headache disorder is secondary to his service-connected tinnitus. At the September 2019 Board hearing, he testified that his headaches began about 15 years previously. He testified his tinnitus made his headaches worse. The Veteran’s STRs do not show any complaints of, treatment for, or diagnosis of headaches during his active service. At the Veteran’s July 1987 separation physical, he had a normal neurological examination and specifically denied having frequent or severe headaches. The first evidence of headaches in the Veteran’s treatment records is April 2010. He reported that his last headache was about four years previously, or approximately in 2006, which is almost two decades after his separation from active service. The record contains no diagnosis of a headache disorder either in service or within one year after service, which would preclude service connection on the basis of continuity of symptomology or on any presumptive basis. There is no medical evidence linking the Veteran’s headache disorder to his active service, and he has not submitted any medical opinion that even suggests that his headache disorder either began during or was otherwise caused by his active service. See Shedden, 381 F.3d 1163, 1167. Instead, the Veteran asserts that his headache disorder is due to his service-connected tinnitus. Accordingly, direct service connection for a headache disorder is not warranted. In November 2014, the Veteran was afforded a VA examination. He reported his headaches began in 1997. He reported that his tinnitus began in approximately 2009. After reviewing the Veteran’s claims file, interviewing the Veteran, and conducting an examination, the examiner opined that the Veteran’s headache disorder was less likely than not due to the Veteran’s tinnitus. The examiner reported that tinnitus may worsen headaches but was most likely not the cause. As the examiner found that tinnitus “may” worsen headaches, in December 2019, the Board found that the opinion was inadequate and remanded the claim for a new opinion. In September 2020, a VA examiner reviewed the Veteran’s claims file and opined that the Veteran’s headache disorder was not at least as likely as not aggravated by the Veteran’s tinnitus. The examiner reported that while the Veteran reported that his tinnitus seemed louder during his headaches, there was no evidence of headaches triggered by tinnitus or other aggravation of the Veteran’s headache frequency, severity, or duration due to his tinnitus. The examiner noted that the Veteran reported his headaches tended to occur after a poor night sleep due to nightmares and that his tinnitus also seemed worse during these times. The examiner explained that though headaches and more pronounced tinnitus coincide, this was not sufficient to state that it was medically probable that the Veteran’s tinnitus was causing or even aggravating his headaches. The examiner reported that the medical record did not establish a baseline headache frequency prior to the onset of tinnitus versus his current headache frequency. The examiner reported that even if this was possible, any change in the Veteran’s headache pattern after his tinnitus onset would more likely than not be simply an association rather than due to causation by his tinnitus. The examiner reported that it was not surprising that the Veteran’s tinnitus was perceived to be louder during his headaches since headaches were associated with sonophobia, and the Veteran reported lying in a quiet room during his headaches, which was an environment that tended to make his tinnitus more noticeable given the lack of ambient background noise. After weighing all the evidence, the Board finds great probative value in the September 2020 VA examiner’s opinion. This negative opinion is sufficient to satisfy the statutory requirements of producing an adequate statement of reasons and bases where the expert has fairly considered material evidence which appears to support the Veteran’s position. Wray v. Brown, 7 Vet. App. 488, at 492-93 (1995). The opinion has not been undermined by the opinion of any other medical professional. Consideration has been given to the Veteran’s personal assertion that his headache disorder was caused or aggravated by his service-connected tinnitus. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issues in this case, the etiology of a headache disorder, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). A chronic headache disorder is not the type of condition that is readily amenable to mere lay diagnosis or probative comment regarding its etiology, as the evidence shows that physical examinations are needed to properly assess and diagnose the disorder. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). That is, although the Board readily acknowledges that Veteran is competent to report perceived symptoms of his headache disorder, he has not been shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation. Nothing in the record demonstrates that he has received any special training or acquired any medical expertise in evaluating headache disorders or tinnitus. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). As such, the Veteran’s assertions do not constitute competent medical evidence. Accordingly, the criteria for service connection for a chronic headache disorder have not been met, and the claim is denied. Obstructive Sleep Apnea The Veteran filed a service connection claim for OSA, which was denied by a January 2015 rating decision. He asserts that his OSA is secondary to his service-connected tinnitus. At the September 2019 Board hearing, he testified that he broke his nose during active service, which resulted in trouble sleeping afterwards. The Veteran’s STRs do not show any complaints of, treatment for, or diagnosis of a broken nose or any sleep disorder during his active service. At the Veteran’s July 1987 separation physical, he had a normal examination of his nose and specifically denied having any nose trouble or frequent trouble sleeping. While he reported a medical history of breaking his leg, undergoing a left hand operation, experiencing strep throat, and experiencing multiple cuts, he did not report experiencing a broken nose. The record contains no diagnosis of OSA either in service or within one year after service, which would preclude service connection on the basis of continuity of symptomology or on any presumptive basis. There is no medical evidence linking the Veteran’s OSA to his active service, and he has not submitted any medical opinion that even suggests that his OSA either began during or was otherwise caused by his active service. See Shedden, 381 F.3d 1163, 1167. In addition, the Veteran’s STRs do not show that he experienced a broken nose during his active service. Indeed, in the Veteran’s original claim for benefits, he did not assert his OSA was due to a broken nose but instead asserted his OSA was due to his service-connected tinnitus. Accordingly, as the medical record does not document that the Veteran experienced a broken nose during his active service, direct service connection for OSA is not warranted. The first evidence of OSA in the Veteran’s treatment records is a January 2013 sleep study that diagnosed the Veteran with OSA, which is over two decades after his separation from service. The Veteran’s medical records do not show that the Veteran’s OSA was caused or aggravated by his tinnitus. In addition, the Veteran has not submitted any competent medical opinion of record suggesting that his OSA might be related to his tinnitus. Consideration has been given to the Veteran’s personal assertion that his OSA was caused or aggravated by his service-connected tinnitus. Although lay persons are competent to provide opinions on some medical issues, see Kahana, 24 Vet. App. 428, 435, as to the specific issue in this case, the etiology of OSA, falls outside the realm of common knowledge of a lay person. See Jandreau, 492 F.3d 1372, 1377 n.4. OSA is not the type of condition that is readily amenable to mere lay diagnosis or probative comment regarding its etiology, as the evidence shows that physical examinations, that includes sleep studies, are needed to properly assess and diagnose the disorder. See Davidson, 581 F.3d 1313. That is, although the Board readily acknowledges that Veteran is competent to report perceived symptoms of OSA, he has not been shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation. Nothing in the record demonstrates that he has received any special training or acquired any medical expertise in evaluating sleep disorders or tinnitus. See King, 700 F.3d 1339, 1345. As such, the Veteran’s assertions do not constitute competent medical evidence. Accordingly, the criteria for service connection for OSA have not been met, and the claim is denied. REASONS FOR REMAND Regarding the issue of entitlement to a TDIU, the Veteran asserted that he was entitled to a TDIU due to his service-connected disabilities in December 2013. He reported that he last worked in 2009 in sales and left his last job due to his tinnitus and mental health. At the September 2019 Board hearing, he testified that he had been fired from every job due to his anger and lack of people skills. He testified that he was granted full Social Security Administration (SSA) disability benefits for his PTSD. In December 2019, the Board remanded the claim for further development, including obtaining SSA records. SSA records show that in a September 2016 Administrative Law Judge (ALJ) decision, the Veteran was granted SSA disability benefits due to his PTSD meeting the SSA criteria for disability. In September 2020, the Veteran was granted service connection for his PTSD. However, the Veteran does not meet the schedular requirements for TDIU. The Veteran is service connected for tinnitus rated at 10 percent disabling from November 20, 2012, PTSD rated at 30 percent disabling from December 9, 2013, and 50 percent disabling from August 31, 2020, and bilateral hearing loss rated at a noncompensable rate effective November 20, 2012. As the Veteran does not meet the scheduler threshold for a TDIU contained in 38 C.F.R. § 4.16(a), a TDIU may only be assigned on an extraschedular basis. 38 C.F.R. § 4.16(b). The Board cannot award a TDIU rating under 38 C.F.R. § 4.16(b) in the first instance, as that regulation requires that the RO first submit the claim to the Director of the Compensation and Pension Service for extraschedular consideration. Bowling v. Principi, 15 Vet. App. 1, 10 (2001). Considering the Veteran was granted SSA disability benefits due to his now service-connected PTSD, a remand is required to adjudicate the issue of entitlement to a TDIU. The matter is REMANDED for the following action: Refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination as to whether the Veteran’s disability picture warranted the assignment of a TDIU on an extraschedular basis. Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Berryman, 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.