Citation Nr: 21011512 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 17-22 459A DATE: March 2, 2021 ORDER The February 14, 2019 Board denial of the claim for service connection for migraine headaches is vacated. The February 14, 2019 Board remand of the issue of entitlement to service connection for obstructive sleep apnea (OSA) is vacated. Service connection for migraine headaches is granted. Service connection for OSA is granted. FINDINGS OF FACT 1. In December 2018, before the promulgation of a February 14, 2019 Board denial of the claim for service connection for migraine headaches and remand of the issue of entitlement to service connection for OSA, the Veteran filed a 90-day extension request. The Veteran’s request was not uploaded into the electronic Veterans Benefits Management System (VBMS) and associated with his claims file until March 2019. 2. The Veteran’s current migraine headaches had their onset during his active duty service. See Service Treatment Records (STRs) dated April 1983, March 1984, August 1989; March 2017 VA Examination; February 2019 Private Medical Nexus Opinion. 3. The Veteran’s OSA is secondary to medication prescribed for his service-connected dysthymic disorder as well as to his service-connected rhinitis and sinusitis. See February 2019 Private Medical Examination. CONCLUSIONS OF LAW 1. Vacatur of the Board’s February 26, 2019 denial of the claim for service connection for migraine headaches is warranted. 38 U.S.C. § 7104; 38 C.F.R. § 20.1000. 2. Vacatur of the Board’s February 26, 2019 remand of the issue of entitlement to service connection for OSA is warranted. 38 U.S.C. § 7104; 38 C.F.R. § 20.1000. 3. The criteria for service connection for migraine headaches are met. 38 U.S.C. §§ 1131, 1132, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 4. The criteria for service connection for OSA are met. 38 U.S.C. §§ 1131, 1132, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.310(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Marine Corps from July to December 1981, and in the Air Force from April 1986 to January 1990. This case is before the Board of Veterans’ Appeals (Board) on appeal from August and November 2013 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. 1. Vacatur The Board may vacate an appellate decision at any time upon request of the appellant or his or her representative, or on the Board’s own motion, when an appellant has been denied due process of law. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.1000(a). Here, the Veteran submitted a motion to vacate the Board’s February 14, 2019 denial of the claim for service connection for migraine headaches and remand of the issue of entitlement to service connection for OSA because at the time of the decision, the Board had not ruled on a Motion for extension submitted to VA prior to the date the Board issued its decision, depriving the Veteran of due process of law. Because the Veteran’s December 2018 request for a 90-day extension, although timely received, was late uploaded to his claim file (in March 2019), the Board’s February 14, 2019 decision and remand was promulgated before the Board had ruled on the Veteran’s request. Therefore, the Board finds that the Veteran was denied due process of law, and the denial of the claim for service connection for migraine headaches and remand of the issue of entitlement to service connection for OSA must be vacated. Service Connection 2. Migraine Headaches Generally, in order to prove service connection, there must be competent, credible evidence of 1) a current disability, 2) in-service incurrence or aggravation of an injury or disease, and 3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). The Veteran has a current diagnosis of migraine headaches, as well as a history of headaches in service. See July 1989 STRs; March 2017 VA Examination. The question at issue is whether the Veteran’s in-service headaches are related to his currently diagnosed migraine headaches. The Veteran has been afforded two VA examinations and nexus opinions on this claim throughout the claim period, as well as a private examination and opinion, and a later addendum. A July 2013 VA examination concluded that the Veteran’s migraines were not related to his active duty service. The examiner noted that although the Veteran reported a history of migraines in July 1989, his STRs contain no diagnosis of migraine headaches. The only headache diagnosis the Veteran received in service was sinus headaches. A July 2014 private examination concluded that the Veteran’s migraine headaches were secondary to his service-connected tinnitus. The examiner cited The Tinnitus Handbook for the proposition that “significant factors associated with tinnitus include . . . migraines. . . .” However, a March 2017 VA examination observed that while migraines are associated with tinnitus, according to the American Migraine Association, migraine headaches aggravate tinnitus, rather than the reverse. In addition, a March 2017 VA examiner concluded that the Veteran’s migraine headaches likely preceded his tinnitus. The examiner noted the Veteran made a request for Fiorinal #2 in April 1983, a drug solely used to treat headaches. In addition, a March 1984 record notes that the Veteran “suffers from a photophobic condition.” The examiner reasoned that the combination of headache pain and photophobia “leans heavily toward migraine in origin.” Finally, the author of the July 2014 private opinion provided an addendum opinion in February 2019. The examiner performed a thorough review of the record, which had been missing from his initial opinion, and concluded that the Veteran’s headaches had their onset during his active duty service and have been subsequently aggravated by his service-connected dysthymic disorder, sinusitis, rhinitis, and tinnitus. Other than the Veteran’s report that he gets headaches when his tinnitus is bothering him, the examiner offered no further support for the proposition that the Veteran’s tinnitus caused or aggravated his migraine headaches. The examiner cited to studies showing a correlation between the frequency of headaches and the frequency of tinnitus, as well as studies showing that sinus headaches are often misdiagnosed as migraine headaches, and others showing an association between psychiatric disorders and headache disorders. However, no study cited suggested specifically that migraine headaches are caused or aggravated by any of the Veteran’s service-connected conditions. Nevertheless, the examiner observed that the in-service headaches diagnosed as sinus headaches coincided with a period of stress for the Veteran, as indicated by the fact that he began seeking mental health treatment at this time. See July 1989 STR (Veteran seen in mental health clinic). The examiner reasoned that it was at least as likely as not that these were in fact migraine headaches brought on by stress. The Board agrees. According to the March 2017 VA examiner, the Veteran likely had migraine headaches at least since 1983, which may have been triggered in July 1989 by emotional stress. See, e.g., “Pathophysiology, clinical manifestations, and diagnosis of migraine in adults,” UpToDate.com (listing emotional stress as the number one trigger of acute migraine headaches). When his headaches appear again in the record post service, they are again noted as migraine headaches. See, e.g., February 2004 Private Treatment Record. As noted above, that is his current diagnosis. For all of these reasons, the Board finds that the Veteran’s current migraine headaches had their onset during his active duty service. To the extent there remains any reasonable doubt as to this conclusion in light of the negative findings of the July 2013 and March 2017 VA examinations, the Board resolves all such doubt in the Veteran’s favor. See 38 C.F.R. § 3.102. Accordingly, service connection for migraine headaches is warranted. 3. OSA In addition to connection directly to service, service connection may be granted where a disability is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Establishing service connection on a secondary basis requires evidence sufficient to show that 1) a current disability exists, and 2) the current disability was either a) caused by or b) aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). The Veteran has been afforded one VA examination and opinion in support of this claim, in April 2019, and has submitted a February 2019 private examination and opinion. The April 2019 VA examiner concluded that the Veteran’s currently diagnosed OSA was not related to in-service asbestos exposure. However, the examiner failed to provide an adequate rationale in support of her opinion, stating only: “There is no medical evidence” to support the claim. Because the nexus opinion of the April 2019 VA examination is not supported by a thorough medical rationale the Board can weigh and compare with competing opinions, the Board finds that it is inadequate for VA purposes and affords it no probative weight. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The February 2019 private examination in contrast concluded that the Veteran’s OSA is secondary to his service-connected dysthymic disorder as well as medication prescribed therefor, and secondary to his service-connected sinusitis and rhinitis. The examiner cited research showing an association between psychiatric disorders and OSA. However, the cited article found that patients with OSA were more likely than the general population to have psychiatric disorders, not that patients with psychiatric disorders were more likely to have or develop OSA. In other words, the article does not support the inference that the Veteran’s dysthymic disorder caused his OSA. Nevertheless, the examiner also cited research showing that anti-depressants, in particular selective serotonin reuptake inhibitors (SSRIs), and benzodiazepines, both of which the Veteran has been prescribed, may produce or exacerbate sleep disorders. See VA Treatment Records dated April 2017, November 2020. One study found that the long term use of benzodiazepines may cause “health problems, such as complete obstructive sleep apnea in heavy snorers. . . .” In addition, the Veteran reported to the private examiner that his service-connected sinus problems produce discomfort when wearing his CPAP at night, causing him to remove it in his sleep, and leading to worsened symptoms of OSA during the day. With the exception of the citation to the study on psychiatric disorders and OSA, the findings and conclusions of the February 2019 private examination are credible, competent, and entitled to significant weight. Moreover, since the April 2019 VA examination is inadequate for VA purposes, there is no probative evidence to the contrary. Therefore, the Board finds that the Veteran’s OSA is secondary to medication prescribed for his service-connected dysthymic disorder and to his service-connected sinusitis and rhinitis. Accordingly, service connection for OSA is warranted. S.C. KREMBS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. Timmerman, 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.