Citation Nr: 21014618 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 17-55 991 DATE: March 15, 2021 ORDER The issue of service connection for migraine headaches is granted. The issue of service connection for obstructive sleep apnea is denied. FINDINGS OF FACT 1. The preponderance of the evidence supports finding that migraine headaches are at least as likely as not related to medication taken to treat the Veteran’s service-connected acquired psychiatric disorder. 2. The Veteran’s obstructive sleep apnea is not secondary to service-connected psychiatric disorder and is not otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for a headache disability have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310. 2. The criteria for service connection for obstructive sleep apnea have not been met. 38 U.S.C. § 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1976 to September 1978. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In May 2020, the Board remanded these matters for further evidentiary development. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to show a 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). Service connection is also warranted for disabilities that are proximately due to or aggravated by service-connected disease or injury. 38 C.F.R. § 3.310. To establish service connection on a secondary basis, the record must reflect sufficient evidence to show (1) that a current disability exists and (2) the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Headaches The Veteran asserts that his headaches are secondary to his service-connected acquired psychiatric disorder. The question before the Board is whether his headaches are proximately due to or aggravated by a service-connected disability, to include his acquired psychiatric disorder. Pursuant to the May 2020 Board remand, a June 2020 VA opinion was obtained regarding whether it is at least as likely as not that a current headache disorder manifested during or is otherwise related to the Veteran’s period of active service. Following a VA examination, the examiner stated, There is insufficient medical evidence to support that the Veteran’s acquired psychiatric disorder was the cause of the Veteran’s claimed migraine headaches. Records from [August 6, 2008] noted his headaches were a side effect of Celexa and would be alleviated when not taking [Celexa]. This is strong evidence to support that his headaches are not from his psychiatric illness. Thus, the claimed migraine headache condition was less likely than not from the acquired psychiatric disorder. The examiner further opined, There is insufficient medical evidence to support that the Veteran’s acquired psychiatric disorder was the cause of or aggravated the Veteran’s claimed migraine headaches. Records from [August 6, 2008] noted his headaches were a side effect of Celexa and would be alleviated when not taking [Celexa]. This is strong evidence to support that his headaches are not from his psychiatric illness. Thus, the claimed migraine headache condition was less likely than not aggravated beyond its natural progression by the acquired psychiatric disorder. The May 2020 VA examiner’s opinion clearly attributes the Veteran’s headaches to medication, namely Celexa, used to treat his service-connected acquired psychiatric disorder. In sum, the Board finds that that the record confirms a diagnosis of headaches and a May 2020 VA opinion links the headaches to medication used to treat his service-connected acquired psychiatric disorder. Therefore, the preponderance of the evidence supports a favorable determination that his headaches are secondary to his service-connected acquired psychiatric disorder. Accordingly, service connection is granted. Obstructive Sleep Apnea The Veteran asserts that his sleep apnea is secondary to his service-connected acquired psychiatric disorder. The Veteran does not assert entitlement based on direct service connection. At the outset, the Veteran has a current diagnosis of obstructive sleep apnea. See October 2015 sleep study. Thus, the first element of direct and secondary service connection is met; however, the second element of direct service connection is not met. Specifically, the Veteran’s service treatment records are silent for any complaints, treatment of, or a diagnosis of obstructive sleep apnea. Conversely, the second element of secondary service connection is met. The Veteran’s acquired psychiatric disorder is currently service connected. Thus, the final element of secondary service connection requires a nexus or link between the Veteran’s obstructive sleep apnea and his service-connected acquired psychiatric disorder, which is generally proven with medical evidence. In a February 2019 private opinion, Miranda Blevins, M.D. opined that the Veteran’s sleep apnea is proximately related to depression. As rationale, she wrote, Research has shown that psychiatric disorders are commonly associated with obstructive sleep apnea. A recent study found that subjects with depression compared with non-depressed controls have a higher prevalence of sleep apnea diagnosis. This study found that with CPAP treatment, both obstructive sleep apnea and psychiatric symptoms decreased providing further evidence of the co-morbidity of these conditions. When I spoke to the [V]eteran on [February 4, 2019], he told me he cannot use his CPAP mask at all due to his mental health symptoms. When his depression and anxiety is bothering him a great deal the CPAP mask makes him feel claustrophobic and trapped and he cannot tolerate it. This is a very common problem for patients who have mental problems and sleep apnea. His inability to use his CPAP mask every night greatly aggravates the effects of his sleep apnea and the next day he is very tired and will fall asleep frequently. His tiredness also adversely affects his depression and anxiety symptoms. Based on my experience, interview with the Veteran on [February 4, 2019], review of the medical records, and supporting literature, I feel it is as likely as not the [V]eteran’s depressive disorder aided in the development of and permanently aggravates his obstructive sleep apnea. Pursuant to the May 2020 Board remand, a June 2020 VA opinion was obtained regarding whether it is at least as likely as not that sleep apnea manifested during or is otherwise related to the Veteran’s period of active service. Following VA examination, the examiner opined that the Veteran’s sleep apnea is less likely than not proximately due to or the result of the Veteran’s service connected acquired psychiatric disorder. As rationale, the examiner stated, There is no evidence that support a direct/indirect pathophysiological correlation between sleep apnea, which is an anatomical pathology where the airway collapses during inspiration in deep sleep and acquired psychiatric disorder. The [V]eteran underwent radiation therapy for epiglottic cancer as noted on [February 16, 2011] medical records. Radiation in this region can cause soft tissue damage and predispose one to [obstructive sleep apnea], which would subsequently be diagnosed on a sleep study conducted on [October 25, 2015]. Thus, the claimed sleep apnea condition was less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran’s acquired psychiatric disorder. Additionally, the studies provided, including the one in the [claims file] notes that those with sleep apnea have higher incidents of co-morbid psychiatric illness, but does not establish grounds as mood disorders cause [obstructive sleep apnea] and vice versa. The evidence in [regard] to this Veteran do not provide evidence that the acquired psychiatric illness aggravated the [obstructive sleep apnea] condition beyond its natural progression. The Board finds the June 2020 VA examiner’s opinion more probative than the private physician’s opinion because the VA examiner’s opinion provides greater explanation and consider, in greater detail, the Veteran’s specific circumstances. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The VA opinion is also entirely consistent with the record. The June 2020 VA examiner explained the pathology of obstructive sleep apnea. The VA examiner also discussed a risk factor for sleep apnea and then cited to objective findings in the Veteran’s medical records confirming he has this very risk factor. The examiner noted the Veteran underwent radiation therapy for “epiglottic” cancer in February 16, 2011 and that radiation in this region can cause soft tissue damage and predispose one to obstructive sleep apnea, which he was subsequently diagnosed with in October 2015. Thus, the VA examiner’s conclusion was based on medical literature and notable objective findings in the Veteran’s medical records. Additionally, the June 2020 VA examiner refuted the February 2019 private opinion citing to studies that note those with sleep apnea have higher incidents of co-morbid psychiatric illness, but do not establish grounds as mood disorders cause obstructive sleep apnea and vice versa. Indeed, the private opinion seems to establish that there may be a medical connection between sleep apnea and psychiatric illness, but it does not establish that the Veteran’s acquired psychiatric disorder caused or aggravated his obstructive sleep apnea. Accordingly, the Board finds this opinion less persuasive than the VA examiner’s opinion against the claim. Consequently, the Veteran’s contention that his sleep apnea was caused or aggravated by his service connected acquired psychiatric disorder is not sufficiently supported by the record, and as such the Board finds that secondary service connection for obstructive sleep apnea must be denied. In reaching this conclusion, the Board has considered the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the claim, this doctrine is not applicable. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Griffith 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.