Citation Nr: 21014504 Decision Date: 03/12/21 Archive Date: 03/12/21 DOCKET NO. 16-43 128 DATE: March 12, 2021 ORDER New and material evidence consisting of service records having been received, the claim for service connection for migraine headaches must be readjudicated. To that extent only, the claim is granted. Entitlement to service connection for sleep apnea is granted. REMANDED Entitlement to service connection for migraine headaches, to include as secondary to a service-connected disability or as a residual of a traumatic brain injury (TBI), is remanded. Entitlement to service connection for residuals of TBI is remanded. Entitlement to service connection for a respiratory disability, to include as due to an undiagnosed illness, is remanded. Entitlement to an initial rating for posttraumatic stress disorder (PTSD), in excess of 50 percent as of December 5, 2014, is remanded. Entitlement to an initial rating for PTSD in excess of 30 percent, from February 1, 2014, to December 4, 2014, is remanded. Entitlement to an initial rating for PTSD in excess of 30 percent, prior to November 25, 2013, is remanded. Entitlement to an initial rating in excess of 0 percent for a thoracic spine disability is remanded. FINDINGS OF FACT 1. An April 2010 rating decision denied service connection for migraine headaches. 2. Evidence received since the April 2010 rating decision is neither cumulative nor redundant, and, when considered with previous evidence of record, raises a reasonable possibility of substantiating the claim for service connection for migraine headaches. 3. Resolving reasonable doubt in the Veteran's favor, sleep apnea began during the Veteran's most recent period of active service. CONCLUSIONS OF LAW 1. The April 2010 rating decision that denied service connection for migraine headaches is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 20.302, 20.1103. 2. New and material evidence consisting of service records sufficient to reopen a claim of entitlement to service connection for migraine headaches has been received and the claim is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for entitlement to service connection for sleep apnea have been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1991 to September 1994; March 2003 to September 2003; October 2004 to November 2009; and from January 2011 to April 2012. 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for migraine headaches. Generally, a claim that has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). However, if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108. New evidence means 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(a). New and material evidence is not required as to each previously unproven element of a claim. There is a low threshold for reopening claims. 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of determining whether new and material evidence has been submitted, the credibility of the new evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). To establish service connection for a current disability, a Veteran must show the existence of a present disability; in-service incurrence or aggravation of a disease or injury; and a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Additionally, service connection may be established, on a secondary basis, for a disability which is proximately due to or the result of an established service-connected disability. 38 C.F.R. § 3.310. VA initially denied the Veteran's claim for service connection for migraine headaches in an April 2010 decision. In that decision, VA found that the evidence did not contain sufficient evidence indicating a nexus between claimed migraine headache disability and the Veteran's service. The Veteran did not appeal the decision and it became final. Briefly reviewing the evidence submitted since the April 2010 rating decision, the Veteran has submitted additional evidence, to include a July 2014 line of duty determination, indicating that the Veteran was diagnosed with migraines during his most recent period of active service, lasting from approximately January 2011 to April 2012. The July 2014 line of duty determination is new, because it was not before VA at the time of the April 2010 rating decision. When presuming the credibility of the new evidence, as is required only when determining whether to reopen previously denied claims for service connection, it is also material because it suggests that the Veteran's claimed migraines are related to service. New and material evidence consisting of service records having been received, the claim for service connection for migraine headaches must be readjudicated. 2. Entitlement to service connection for sleep apnea. To establish service connection for a current disability, a Veteran must show the existence of a present disability; in-service incurrence or aggravation of a disease or injury; and a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). The Veteran claims that he developed sleep apnea during his final period of service from January 2011 to April 2012. At a September 2020 Board videoconference hearing, the Veteran provided credible evidence indicating sleep problems during service. In support of the claim, the Veteran also submitted a private May 2012 sleep study, written less than a month after the Veteran's separation from active service, diagnosing sleep apnea. Considering the Veteran's credible reports of sleep disability symptomatology during service and the medical report diagnosing sleep apnea within a month of service, resolving reasonable doubt in the Veteran's favor, the Board finds that the Veteran's sleep apnea began during the Veteran's final period of service. Accordingly, service connection for sleep apnea is granted. REASONS FOR REMAND 1. Entitlement to service connection for migraine headaches, to include as secondary to a service-connected disability or as a residual of TBI, is remanded. 2. Entitlement to service connection for residuals of TBI is remanded. Regarding the claim for service connection for migraine headaches, the Veteran has reported that the claimed disability is related to either service-connected PTSD or a service-connected gastrointestinal disability. Additionally, the Veteran has submitted a line of duty determination suggesting a direct link between the disability and service. Regarding the claim for service connection for residuals of TBI, in August 2012 and December 2014 VA medical examination reports, VA examiners indicated that there was no objective evidence of TBI residuals. However, more recent treatment records indicate treatment for reported TBI symptoms. A remand is necessary to schedule a VA examination to determine the etiology and nature of the Veteran's claimed TBI residuals, to potentially include a claimed migraine headache disability. 3. Entitlement to service connection for a respiratory disability, to include as due to an undiagnosed illness, is remanded. The Veteran claims to have developed a respiratory disability, specifically restrictive lung disease, due to exposure to fire pits in service. Remand is necessary to schedule an examination to determine if the disability is related to either service or due to an undiagnosed illness contracted during service. 4. Entitlement to an initial rating for PTSD, in excess of 50 percent as of December 5, 2014, is remanded. 5. Entitlement to an initial rating for PTSD in excess of 30 percent, from February 1, 2014, to December 4, 2014, is remanded. 6. Entitlement to an initial rating for PTSD in excess of 30 percent, prior to November 25, 2013, is remanded. At a September 2020 Board hearing, the Veteran asserted that PTSD had increased in severity since the Veteran was most recently examined by VA. The Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of his PTSD. Additionally, at the hearing, the Veteran reported receiving treatment for PTSD at the Vet Center in Atlantic City, New Jersey. Remand is required to obtain any outstanding records. 7. Entitlement to an initial rating in excess of 10 percent for a thoracic spine disability is remanded. At the Board hearing, the Veteran asserted that a service-connected thoracic spine disability had increased in severity since the Veteran was most recently examined by VA. The Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of a thoracic spine disability. Regarding all issues, at the hearing, the Veteran indicated that he was being treated for the claimed disabilities on appeal at a VA medical facility. The most recent VA treatment records of record date from 2018. Moreover, VA treatment records currently in evidence contain notations indicating that VA employees scanned medical records into a VA hospital's imaging system, but do not contain any copies of the scanned records. Any treatment records scanned into a VA hospital's imaging system are within VA's constructive possession and are considered potentially relevant to the issues on appeal. Remand is required to allow VA to obtain the outstanding VA treatment records. The case is REMANDED for the following action: 1. Obtain all outstanding VA treatment records. Specifically, obtain the most recent VA treatment records not included in the record of evidence and the records noted as having been scanned into the Vista imaging system by VA Medical Center personnel, as noted in the VA treatment records in evidence, dated April 14, 2017; March 20, 2015; December 9, 2014; May 29, 2014; and March 17, 2012. 2. Obtain the Veteran's treatment records from the Vet Center in Atlantic City, New Jersey. 3. Schedule the Veteran for an examination by a neurologist or neurosurgeon, who has not previously examined the Veteran, to determine the nature and etiology of any migraines and residuals of TBI. The examiner must review the claims file, to include the service medical records, the post-service treatment records, and the Veteran's lay statements, to include those included in the Veteran’s testimony at the September 2020 Board videoconference hearing, in which the Veteran specified multiple incidents of head trauma. In reviewing the service medical and personnel records, the examiner should note the July 2014 line of duty determination, indicating that the Veteran experienced migraine headaches during his final period of service. Having performed the examination, interviewed the Veteran, and reviewed the claims file, the examiner should offer the following opinions: (a.) Confirm that the examiner is a neurologist or neurosurgeon who has not previously examined the Veteran. (b.) List all diagnosed residuals of TBI. Specifically state whether a diagnosis of any headache disability, to include migraines or any post-concussive headaches, is appropriate. (c.) Is it at least as likely as not (50 percent probability or greater) that any identified headache disability or residuals of TBI had their onset during the Veteran's first period of active service, lasting from approximately October 1991 to September 1994? (d.) If the Veteran's migraine headache disability is considered an organic disease of the nervous system, is it at least as likely as not that the disability (1) began during the Veteran's first period of active service, lasting from approximately October 1991 to September 1994, (2) manifested within one year after the Veteran's September 1994 separation from that period of service, or (3) was noted during service with continuity of the same symptomatology since service? (e.) Did a migraine headache disability or residuals of TBI clearly and unmistakably (undebatable) preexist the Veteran’s second period of service, lasting from approximately March 2003 to September 2003? (f.) If the examiner finds that the Veteran’s migraine headache disability or residuals of TBI clearly and unmistakably preexisted the Veteran’s second period of service, lasting from approximately March 2003 to September 2003, was either disability clearly and unmistakably not aggravated by that period of service? (g.) If the examiner finds that that the Veteran’s migraine headache disability or residuals of TBI either did not clearly and unmistakably preexist the Veteran’s second period of service, lasting from approximately March 2003 to September 2003, or was not clearly and unmistakably aggravated by that period of service, is either disability at least as likely as not (50 percent or greater probability) related to the second period of service or any incident of that service? (h.) If the Veteran’s migraine headache disability is considered an organic disease of the nervous system, is it at least as likely as not that the disability (1) began during the Veteran’s second period of active service, lasting from approximately March 2003 to September 2003, (2) manifested within one year after the Veteran’s September 2003 separation from that period of service, or (3) was noted during service with continuity of the same symptomatology since service (i.) Did the Veteran’s migraine headache disability or residuals of TBI clearly and unmistakably (undebatable) preexist the Veteran’s third period of service, lasting from approximately October 2004 to November 2009? (j.) If the examiner finds that the Veteran’s migraine headache disability or residuals of TBI clearly and unmistakably preexisted the Veteran’s third period of service, lasting from approximately October 2004 to November 2009, was either disability clearly and unmistakably not aggravated by that period of service? (k.) If the examiner finds that that the Veteran’s migraine headache disability or residuals of TBI either did not clearly and unmistakably preexist the Veteran’s third period of service, lasting from approximately October 2004 to November 2009, or was not clearly and unmistakably aggravated by that period of service, is either disability at least as likely as not (50 percent or greater probability) related to the Veteran’s third period of service or any incident of that service? (l.) If the Veteran’s migraine headache disability is considered an organic disease of the nervous system, is it at least as likely as not that the disability (1) began during the Veteran’s third period of active service, lasting from approximately October 2004 to November 2009, (2) manifested within one year after the Veteran’s November 2009 separation from that period of service, or (3) was noted during service with continuity of the same symptomatology since service? (m.) Did the Veteran’s migraine headache disability or residuals of TBI clearly and unmistakably (undebatable) preexist the Veteran’s fourth period of service, lasting from approximately January 2011 to April 2012? (n.) If the examiner finds that the Veteran’s migraine headache disability or residuals of TBI clearly and unmistakably preexisted the Veteran’s fourth period of service, lasting from approximately January 2011 to April 2012, was either disability clearly and unmistakably not aggravated by that period of service? (o.) If the examiner finds that that the Veteran’s migraine headache disability or residuals of TBI either did not clearly and unmistakably preexist the Veteran’s fourth period of service, lasting from approximately January 2011 to April 2012, or were not clearly and unmistakably aggravated by that period of service, is either disability at least as likely as not (50 percent or greater probability) related to the Veteran’s fourth period of service or any incident of that service? (p.) Is the Veteran’s migraine headache disability at least as likely as not (50 percent or greater probability) proximately due to the service-connected disabilities, to include PTSD, fibromyalgia, cervical spine disability, radiculopathy of the upper extremities, peripheral neuropathy of the lower extremities, left ankle disability, tinnitus, gastrointestinal disorder with hiatal hernia and irritable bowel syndrome (IBS), thoracic spine disability, bilateral hearing loss, and erectile dysfunction? (q.) Is it at least as likely as not (50 percent or greater probability) that a migraine headache disability has been aggravated (worsened beyond the natural progression of the disorder) by the service-connected disabilities, to include PTSD, fibromyalgia, cervical spine disability, radiculopathy of the upper extremities, peripheral neuropathy of the lower extremities, left ankle disability, tinnitus, gastrointestinal disorder with hiatal hernia and IBS, thoracic spine disability, bilateral hearing loss, and erectile dysfunction? 4. Schedule the Veteran for a VA examination with an examiner with experience in performing Gulf War examinations. The examiner must review the claims file and should note that review in the report. The examiner must review and note the evidence, to include the service medical records, the post-service treatment records, and the Veteran's lay statements, to include those indicating the Veteran's in-service exposure to burn pits during service. The examiner should perform or order any testing found necessary. Having performed the examination, interviewed the Veteran, and reviewed the claims file, the examiner should offer the following opinions: (a.) The examiner must opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran's reported respiratory symptoms can be attributed to a known clinical diagnosis. (b.) The examiner must opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s reported respiratory symptoms are evidence of a chronic disability due to an undiagnosed illness secondary to the Veteran's service in Southwest Asia during the Persian Gulf War. (c.) If the Veteran's respiratory symptoms can be attributed to a known clinical diagnosis, is it at least as likely as not (50 percent probability or greater) that the respiratory disability had its onset during the Veteran's first period of active service, lasting from approximately October 1991 to September 1994? (d.) Did the Veteran’s respiratory disability clearly and unmistakably (undebatable) preexist the Veteran’s second period of service, lasting from approximately March 2003 to September 2003? (e.) If the examiner finds that the Veteran’s respiratory disability clearly and unmistakably preexisted the Veteran’s second period of service, lasting from approximately March 2003 to September 2003, was it clearly and unmistakably not aggravated by that period of service? (f.) If the examiner finds that that the Veteran’s respiratory disability either did not clearly and unmistakably preexist the Veteran’s second period of service, lasting from approximately March 2003 to September 2003, or was not clearly and unmistakably aggravated by that period of service, is it at least as likely as not (50 percent or greater probability) related to the Veteran’s second period of service or any incident of that service? (g.) Did the Veteran’s respiratory disability clearly and unmistakably (undebatable) preexist the Veteran’s third period of service, lasting from approximately October 2004 to November 2009? (h.) If the examiner finds that the Veteran’s respiratory disability clearly and unmistakably preexisted the Veteran’s third period of service, lasting from approximately October 2004 to November 2009, was it clearly and unmistakably not aggravated by that period of service? (i.) If the examiner finds that that the Veteran’s respiratory disability either did not clearly and unmistakably preexist the Veteran’s third period of service, lasting from approximately October 2004 to November 2009, or was not clearly and unmistakably aggravated by that period of service, is it at least as likely as not (50 percent or greater probability) related to the Veteran’s third period of service or any incident of that service? (j.) Did the Veteran’s respiratory disability clearly and unmistakably (undebatable) preexist the Veteran’s fourth period of service, lasting from approximately January 2011 to April 2012? (k.) If the examiner finds that the Veteran’s respiratory disability clearly and unmistakably preexisted the Veteran’s fourth period of service, lasting from approximately January 2011 to April 2012, was it clearly and unmistakably not aggravated by that period of service? (l.) If the examiner finds that that the Veteran’s respiratory disability either did not clearly and unmistakably preexist the Veteran’s fourth period of service, lasting from approximately January 2011 to April 2012, or was not clearly and unmistakably aggravated by that period of service, is either disability at least as likely as not (50 percent or greater probability) related to the Veteran’s fourth period of service or any incident of that service? 5. Schedule the Veteran for an examination by a VA psychiatrist or psychologist to determine the current severity of service-connected PTSD. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms. To the extent possible, the examiner should identify any symptoms and social and occupational impairment due to PTSD alone. The examiner should opine as to the levels of occupational and social impairment caused by PTSD and should described the symptoms resulting in those levels of impairment. 6. Schedule the Veteran for a VA orthopedic examination by an orthopedist to determine the severity of a thoracic spine disability. The examiner must review the record and should note that review in the report. In reviewing the record, the examiner should note the service medical records, the post-service treatment records, and the Veteran's lay statements. A complete rationale should be stated for all opinions and conclusions expressed. All appropriate tests or studies should be accomplished, and all clinical findings should be reported in detail. The examiner must report the range of motion of the thoracic spine, expressed in degrees, to include measurements for weight-bearing, nonweight-bearing, passive motion, and active motion. The examiner must make specific findings as to whether, during the examination, there is objective evidence of pain on motion, weakness, excess fatigability, incoordination, or flare up. If pain on motion is observed, the examiner should indicate the point at which pain begins. The examiner should also indicate whether, and to what extent, the Veteran experiences functional loss of the thoracic spine or any other symptoms during flare-ups or with repeated use. To the extent possible, the examiner should express any additional functional loss in terms of additional degrees of limited motion. The examiner should also state whether there are incapacitating episodes of intervertebral disc syndrome, requiring bed rest prescribed by a physician and treatment by a physician, and if so should state the frequency and duration. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T.M. Gillett 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.