Citation Nr: 21015078 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 15-23 372A DATE: March 16, 2021 ORDER Entitlement to service connection for lumbar spine disability is dismissed as moot. Entitlement to service connection for hypertension is denied. Entitlement to service connection for migraines secondary to service connected hearing loss on a causation basis is granted. Entitlement to service connection for obstructive sleep apnea (OSA) is denied. REMANDED Entitlement to service connection for bilateral knee degenerative arthritis (bilateral knee disability) is remanded. FINDINGS OF FACT 1. An August 2018 rating decision granted service connection for lumbar spine disability. 2. The Veteran’s hypertension did not manifest in service, within the one-year presumptive period, is not otherwise etiologically related to service, and is not caused or aggravated by a service connected disease or injury. 3. The evidence is at least evenly balanced as to whether the Veteran’s migraines were caused by his service connected hearing loss. 4. The Veteran’s OSA is not related to an in-service injury, event, or disease, and did not have its onset during service. CONCLUSIONS OF LAW 1. The Board lacks jurisdiction over the claim for service connection for lumbar spine disability because the claim has been granted and rendered moot. 38 U.S.C. § 7105; 38 C.F.R. § 20.202. 2. The criteria for service connection for hypertension have not been met on a direct, secondary, or presumptive basis. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309, 3.310. 3. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for migraines, secondary to service connected hearing loss, on a causation basis, have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (b). 4. The criteria for entitlement to service connection for OSA have not all been met. 38 U.S.C. § 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1965 to November 1968. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an August 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) which, inter alia, denied service connection for headaches, high blood pressure, bilateral knee condition, and denied reopening the claim for service connection for a lumbar spine disability. In September 2014, the Veteran filed his notice of disagreement, was issued a statement of the case in July 2015, and in July 2017 perfected his appeal to the Board. In August 2018, the Board, among other things, reopened and remanded the Veteran’s claim for service connection for back disorder, and remanded the claims for service connection for knee disorder, hypertension, and headaches for new VA examinations. In a March 2020 rating decision, the RO granted, among other things, service connection for back condition, evaluating it as 20 percent disabling from April 22, 2014, and 40 percent disabling from September 26, 2019. Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection is also warranted for disability proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). 1. Lumbar Spine Disability As previously noted, the claim for service connection for lumbar spine disability was granted in a rating decision issued by the RO in March 2020. As a general matter, the grant of a claim of service connection constitutes an award of full benefits sought on an appeal of the denial of a service connection claim. Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second Notice of Disagreement must thereafter be timely filed to initiate appellate review of “downstream” issues such as the compensation level assigned for the disability or the effective date of service connection). The Board may dismiss any appeal which fails to identify the specific determination with which the claimant disagrees. 38 U.S.C. § 7105(d); 38 C.F.R. § 20.202(a). Here, as a result of the RO’s actions, there is no determination with which the Veteran disagrees with regard to service connection for lumbar spine disability, as a claim for the same benefit has been granted. Therefore, the Board lacks jurisdiction over this issue. 2. Hypertension VA regulations define hypertension as diastolic blood pressure as predominantly 90mm. or greater, and isolated systolic hypertension as systolic blood pressure predominantly 160mm. or greater with a diastolic blood pressure of less than 90mm, and also provide that hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. See 38 C.F.R. § 4.104, DC 7101, Note 1. Multiple blood pressure readings to be taken over multiple days as specified in Note (1) of DC 7101 applies only to confirming the existence of hypertension. Gill v. Shinseki, 26 Vet. App. 386, 391 (2013). The Veteran’s service treatment records do not reflect treatment for hypertension and his November 1968 medical examination report upon discharge is normal. An October 2019 disability benefits questionnaire (DBQ) reflected the Veteran’s diagnosis of hypertension, and the Veteran reported having it for years with no subjective symptoms. His treatment plan included taking continuous medication, and his blood pressure readings were as follows: 126/74, 127/76, and 124/72 for an average blood pressure reading of 125/74. The examining nurse practitioner (NP) opined that it is less likely than not (less than a 50 percent probability) that his hypertension was due to service as there is no evidence in the service treatment records that the Veteran had high blood pressure. The NP also stated that there is no evidence that the Veteran experienced an event, disease, or injury that would result in hypertension. The NP reported that there is no evidence in the service treatment records supporting aggravation of hypertension as there is no evidence in peer reviewed medical literature rising to a 50 percent or greater nexus likelihood that any of his service connected conditions cause or aggravate hypertension. In a May 2020 addendum DBQ, a physician assistant (PA) opined that the Veteran’s hypertension is less likely than not (less than a 50 percent probability) caused or aggravated by his service connected disabilities. The PA noted that the date of benign essential hypertension diagnosis was June 2006, and a previous June 2014 entry documents “no secondary causes of hypertension identified.” The PA reported that there was no evidence that the Veteran’s hypertension was aggravated beyond a natural progression by any service connected conditions, and VA treatment records from August 2015 to present day indicate stable hypertension without antihypertensive medication adjustments until an August 2016 hospitalization for acute kidney injury due to chronic high-dose morphine use for lower back pain. For the following reasons, service connection for the Veteran’s hypertension is not warranted. The Veteran’s service treatment records do not note symptoms associated with hypertension or instances of high blood pressure, and there is no indication that medication was necessary for any instances of high blood pressure noted during service, or that hypertension or isolated systolic hypertension was confirmed by readings taken 2 or more times on at least 3 different days. The service treatment records appear to be thorough and complete, reflecting treatment for, among other things, headache and neck pain, and it is reasonable to conclude that if the Veteran were prescribed medication to control high blood pressure and hypertension, or if hypertension was confirmed by the aforementioned number of readings, such would have been indicated in service treatment records. Buczynski v. Shinseki, 24 Vet. App. 221, 226-27 (2011) (where there is a lack of notation of medical condition or symptoms where such notation would normally be expected, the Board may consider this as evidence that the condition or symptoms did not exist). The October 2019 NP opined that the Veteran’s hypertension was less likely than not (less than a 50 percent probability) due to service noting no evidence of hypertension in the service treatment records, or an in-service injury, event, or disease which would result in high blood pressure, and the May 2020 PA concurred, noting no diagnosis of hypertension until June 2006, almost 40 years after service. The PA also concluded that there was a lack of causation or aggravation of hypertension by a service connected disability. The NP and PA considered the Veteran’s entire medical history prior to formulating their conclusions, and provided a thorough rationale based on an accurate characterization of the evidence of record, thus the opinions are afforded significant probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). As the first clinical evidence of hypertension was several years after service, and there is no indication that hypertension manifested to a compensable degree within the one-year presumptive period, service connection for hypertension on a presumptive basis as a chronic disease is not warranted. Cf. 38 C.F.R. § 3.307(c); Traut v. Brown, 6 Vet. App. 495 (1994) (establishing service connection on a presumptive basis does not require that a chronic disease be diagnosed within the applicable time period; rather, symptoms that manifest within this time period may subsequently be determined to have been early manifestations of a chronic disease). The Veteran’s contention that his hypertension is related to service has been considered. However, while the Veteran is competent to provide testimony or statements relating to symptoms or facts of events that he has observed and is within the realm of his personal knowledge, he is not competent to establish that which would require specialized knowledge or training, such as medical expertise. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). The record does not show, nor does the Veteran contend, that he has specialized education, training, or experience that would qualify him to render a diagnosis or render a medical opinion on this matter. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the issue in this case is outside the realm of common knowledge of a lay person because it involves a complex medical issue that goes beyond a simple and immediately observable cause-and-effect relationship. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Thus, the Veteran’s statements in this regard are not competent and are afforded no probative weight. For the above stated reasons, the preponderance of the evidence weighs against a nexus between hypertension and service, and against service connection on any other basis. The benefit-of-the-doubt doctrine is therefore not for application, and the claim for service connection for hypertension must be denied. 38 U.S.C. 5107 (b); 38 C.F.R. 3.102. 3. Migraines September 1966 service treatment records reflect that the Veteran was treated for a severe headache, neck pain, and fainting. The Veteran’s November 1968 medical examination report upon discharge is normal. An October 2014 DBQ reflected that the Veteran had a diagnosis of migraines which the Veteran reported he had suffered from for several years and had become progressively worse. The examining physician opined that it is likely as not that the Veteran’s migraine headaches are permanently aggravated by his service connected hearing loss. The physician noted that the May 2012 VA examination report reflected that the Veteran’s headaches are caused by tinnitus, and that an association between headaches and tinnitus is documented in the International Journal of Audiology. An October 2019 DBQ indicated that the Veteran reported headaches in the back of the head, neck, and both temples. He stated that they occurred twice a week with a duration of 4 to 6 hours. The examining NP opined that the Veteran’s headaches are less likely than not (less than a 50 percent probability) service connected, noting that the Veteran was seen one time in service with neck pain and a severe headache, and there is no evidence that this became a chronic condition. The NP additionally opined that the Veteran’s headaches are less likely than not (less than a 50 percent probability) aggravated beyond their natural progression by service, again noting no evidence in the service treatment records of any event, injury, or disease that would result in aggravation of future headaches. He reported that migraine headaches and tinnitus are frequently seen together, but there is no consensus in the peer reviewed medical literature rising to a 50 percent or greater nexus likelihood that tinnitus causes or aggravates migraine headaches. In a May 2020 addendum DBQ, the PA opined that it is less likely than not (less than a 50 percent probability) that the Veteran’s headache condition was caused or aggravated by his service connected disabilities, reporting that the available medical evidence does not show a chronic headache condition prior to 2015, or that it was caused or aggravated beyond its natural progression by his service connected tinnitus, depression, or lumbosacral strain. The PA noted that the Veteran’s private medical records indicate that the Veteran was on prescription opioids for his lower back pain, but they did not mention a diagnosed headache condition, nor complaints of headaches despite repeatedly addressing a broad range of the Veteran’s chronic and acute medical conditions. The PA also noted that service treatment records reflected an acute episode of severe headache with neck pain, but not a chronic headache condition. The Veteran has reported suffering from headaches for several years, and October 2014 DBQ reflected a diagnosis of migraines. Thus, the first element for establishing service connection has been satisfied. The evidence is at least evenly balanced as to whether the Veteran’s migraines are caused by his service connected hearing loss. While the October 2019 NP and may 2020 PA opined that the Veteran’s headaches were less likely than not (less than a 50 percent probability) related to service, they based their opinions on a lack of service and post-service treatment records indicating a chronic condition, or reflecting an event, injury, or disease that would cause aggravation of future headaches which is an impermissible basis upon which to deny service connection. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). Additionally, the May 2020 PA noted a lack of medical evidence reflecting a chronic headache condition, disregarding the Veteran’s competent and credible reports of migraines. Therefore, the October 2019 and May 2020 opinions are inadequate and afforded little probative weight. The October 2014 physician opined that it is as likely as not that the Veteran’s headaches are permanently aggravated by service connected hearing loss, noting an association documented in the international Journal of Audiology. While the physician’s rationale was not extensive, reading the opinion as a whole and in the context of the evidence of record, he found that the nature of the Veteran’s service connected hearing loss made it likely that it had resulted in his current migraines. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (the fact that the rationale provided by an examiner “did not explicitly lay out the examiner’s journey from the facts to a conclusion,” did not render the examination inadequate); Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). The Board notes that while the October 2014 physician opined that the Veteran’s migraines were aggravated by his service connected bilateral hearing loss, the evidence of record does not reflect that the Veteran suffered from migraines prior to suffering from bilateral hearing loss. Therefore, it is reasonable to conclude that the Veteran’s hearing loss caused, rather than aggravated, his migraines. To the extent there is ambiguity as to whether service connection is warranted on a causation or aggravation basis, the Board resolves this interpretive doubt in favor of the Veteran to find service connection warranted on a causation basis. See Brown v. Gardner, 513 U.S. 115, 118 (1994) (in construing veterans’ law, “interpretive doubt is to be resolved in the veteran’s favor”). Moreover, service connection cannot be granted on an aggravation unless the baseline level of severity of the nonservice connected disease is established by medical evidence and that is not apparent in this case. 38 C.F.R. § 3.310(b). The evidence is thus at least evenly balanced as to whether the Veteran’s current migraines are caused by his service connected hearing loss. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for migraines secondary to hearing loss on a causation basis, is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 4. Obstructive Sleep Apnea The Veteran’s service treatment records do not reflect treatment for, or complaints of OSA or any symptoms related to OSA, and his November 1968 medical examination report upon discharge is normal. August 2015 VA treatment records reflect the Veteran was diagnosed with sleep apnea and had a sleep study history which reflected that he required continuous positive airway pressure (CPAP) usage, but the Veteran was unable to tolerate it. In July 2020 DBQ, the examining physician opined that the Veteran’s OSA was less likely than not (less than a 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness, stating that sleep apnea is due to airway obstruction during relaxation of muscles in the airway in REM cycle of sleep, generally in persons over weight. He additionally noted the Veteran’s weight gain from discharge to his 2015 sleep study and a lack of OSA in service, and concluded that the Veteran’s OSA is at least as likely as not (at least a 50 percent probability) due to his post-service weight gain. The Veteran reported that his sleep disorder began in 2008, with symptoms including fatigue and snoring. The preponderance of the evidence is against finding that the Veteran’s OSA had its onset in service, or is otherwise related to service. The July 2020 physician indicated that the Veteran’s OSA was less likely than not (less than a 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness, and provided a thorough rationale regarding the etiology of the Veteran’s OSA to support his conclusion based on an accurate characterization of the evidence of record. The July 2020 physician’s opinion is thus afforded significant probative weight, and there is no medical opinion to the contrary in the evidence of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Additionally, there is no evidence within the Veteran’s treatment records, and the Veteran does not otherwise contend, that he has suffered from OSA or symptoms related to OSA during service, or continuously since service. The Board acknowledges the Veteran’s assertion that his current OSA was due to service. While the Veteran is competent to provide testimony or statements relating to symptoms or facts of events that he has observed and are within the realm of his personal knowledge, he is not competent to establish that which would require specialized knowledge or training, such as medical expertise. Layno, 6 Vet. App. at 469-70. The record does not show, nor does the Veteran contend, that he has specialized education, training, or experience that would qualify him to render a diagnosis or a medical opinion on this matter. Although lay persons are competent to provide opinions on some medical issues, see Kahana, 24 Vet. App. at 435, the issue in this case is outside the realm of common knowledge of a lay person because it involves a complex medical issue that goes beyond a simple and immediately observable cause-and-effect relationship. See Jandreau, 492 F.3d at 1377 n.4. For the foregoing reasons, the weight of the evidence is against a relationship between the Veteran’s service and his current OSA. Therefore, the claim for entitlement to service connection for OSA must be denied. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Reasons for Remand 5. Bilateral Knee Disability The Veteran’s service treatment records do not reflect any complaints of, or treatment for a right or left knee disability, and his November 1968 medical examination report upon discharge is normal. August 2015 VA treatment records reflect the Veteran reported bilateral knee pain with intermittent swelling, erythema, and warmth. A September 2019 DBQ reflected a diagnosis of bilateral knee degenerative arthritis, and the Veteran reported right knee pain which he stated had been hurting for years. He stated that he thinks he injured it when he fell in service, and that it is painful all of the time. He denied left knee pain during the examination, but reported that the symptoms were worse when the weather changes, and when walking for long periods of time. The examining NP opined that the Veteran’s knee disabilities were less likely than not (less than a 50 percent probability) due to service, noting that there was no evidence in the service treatment records that the Veteran had an acute or chronic knee condition in service, noting that the medical examination report upon separation was negative for a knee condition. The NP reported that the Veteran’s bilateral knee disability was likely due to the normal aging process exacerbated by 25 years of the occupational demands as a firefighter. January 2020 VA treatment records reflect the Veteran was treated for bilateral knee pain which he stated he had for 9 years. He also reported that his right knee was significantly injured in service. While the September 2019 NP opined that the Veteran’s knee disabilities were less likely than not due to service, she based her opinion on a lack of service treatment records indicating a knee injury, event or disease which is impermissible. Buchanan v. Nicholson, 451 F.3d 1331, 1336, n. 1 (Fed. Cir. 2006) (noting that VA’s examiner’s opinion, which relied on the absence of contemporaneous medical evidence, “failed to consider whether the lay statements presented sufficient evidence of the etiology of [the veteran’s] disability such that his claim for service connection could be proven without contemporaneous medical evidence”). She also failed to consider the Veteran’s competent and credible reports of a knee injury in service. Therefore, the September 2019 DBQ is inadequate, and a remand for an additional opinion is necessary for adjudication of the Veteran’s claim for service connection for bilateral knee disabilities. The matters are REMANDED for the following action: Obtain an opinion from an appropriate clinician to determine the nature and etiology of the Veteran’s bilateral knee degenerative arthritis. If an examination is deemed necessary, one should be conducted, to include via telehealth if feasible. The clinician should opine as to whether it is at least as likely as not (at least a 50 percent probability) that the Veteran’s right and left knee disabilities had their onset in service, or are otherwise related to service to include the Veteran’s reports of a knee injury when he fell during service. The clinician should provide a complete rationale for any opinion set forth and is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be considered in formulating the requested opinion. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Maddox, 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.