Citation Nr: 21022606 Decision Date: 04/16/21 Archive Date: 04/16/21 DOCKET NO. 17-50 141A DATE: April 16, 2021 ORDER The application to reopen the claim for entitlement to service connection for sleep apnea is granted. The application to reopen the claim for entitlement to service connection for posttraumatic stress disorder (PTSD) is granted. Entitlement to service connection for obstructive sleep apnea is granted. Entitlement to service connection for an acquired psychiatric disorder diagnosed as depressive disorder is granted. Entitlement to service connection for joint pain as due to an undiagnosed illness is granted. Entitlement to service connection for muscle pain as due to an undiagnosed illness is granted. Entitlement to service connection for fatigue as due to an undiagnosed illness is granted. Entitlement to service connection for tension headaches is granted. FINDINGS OF FACT 1. In a June 2012 rating decision, the RO denied entitlement to service connection for sleep apnea and PTSD. The Veteran did not appeal that decision, and new and material evidence was not received within one year of its issuance. 2. The evidence received since the final June 2012 rating decision relates to an unestablished fact necessary to substantiate the claims of service connection for PTSD and sleep apnea and raises a reasonable possibility of substantiating the claims. 3. The evidence is at least evenly balanced as to whether the Veteran’s obstructive sleep apnea had its onset in service. 4. The evidence is at least evenly balanced as to whether the Veteran’s depressive disorder had its onset in service. 5. The evidence is at least evenly balanced as to whether the Veteran’s current joint pain has not been attributed to a known clinical diagnosis and manifested during active duty in the Southwest Asia Theater of operations during the Persian Gulf War. 6. The evidence is at least evenly balanced as to whether the Veteran’s current muscle pain has not been attributed to a known clinical diagnosis and manifested during active duty in the Southwest Asia Theater of operations during the Persian Gulf War. 7. The evidence is at least evenly balanced as to whether the Veteran’s current fatigue has not been attributed to a known clinical diagnosis and manifested during active duty in the Southwest Asia Theater of operations during the Persian Gulf War. 8. The evidence is at least evenly balanced as to whether the Veteran’s current tension headaches is related to service. CONCLUSIONS OF LAW 1. The June 2012 rating decision denying service connection for sleep apnea and PTSD is final. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. New and material evidence has been received to warrant reopening the claims of service connection for sleep apnea and PTSD. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for service connection for obstructive sleep apnea have been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for an acquired psychiatric disorder diagnosed as depressive disorder have been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 5. The criteria for service connection for joint pain as due to an undiagnosed illness have been met. 38 U.S.C. §§ 1110, 1117, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.317. 6. The criteria for service connection for muscle pain as due to an undiagnosed illness have been met. 38 U.S.C. §§ 1110, 1117, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.317. 7. The criteria for service connection for fatigue as due to an undiagnosed illness have been met. 38 U.S.C. §§ 1110, 1117, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.317. 8. The criteria for service connection for tension headaches have been met. 38 U.S.C. §§ 1110, 131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1988 to October 1993, including service in Southwest Asia. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which, inter alia, denied entitlement to service connection for joint pain, muscle pain, chronic fatigue syndrome, and tension headaches, and denied reopening of service connection for PTSD. The RO also reopened the claim of entitlement to service connection for sleep apnea and denied the claim on the merits. The Veteran disagreed with the RO’s determination, and statement of the case (SOC) was issued in September 2017 addressing the matters. In the September 2017 SOC, the RO reopened the claim for entitlement to service connection for PTSD and denied the claim on the merits. The Board has a jurisdictional responsibility to consider whether it was proper for a claim to be reopened, regardless of whether the RO granted or denied an application to reopen. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). In February 2021, the Veteran testified during a virtual Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is associated with the claims file. Claims for service connection for PTSD encompass claims for service connection for all psychiatric disabilities. Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009) (the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant’s description of the claim, reported symptoms, and the other information of record). Thus, the Board has recharacterized the claim on appeal consistent with Clemons. See Murphy v. Wilkie, 983 F.3d 1313 (Fed. Cir. 2020) (the Clemons lenient-claim-scope rule applies to requests to reopen). New and Material Evidence In general, decisions of the RO that are not appealed in the prescribed time period are final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1100, 20.1103. Pursuant to 38 U.S.C. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. 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). To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury or disease incurred in active military 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 disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. 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 discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For veterans with service in the Southwest Asia theater of operations during the Persian Gulf War, service connection may also be established under 38 U.S.C. § 1117; 38 C.F.R. § 3.317. Under that statute and regulation, service connection may be warranted for a Persian Gulf veteran who exhibits objective indications of a qualifying chronic disability that became manifest during active military, naval or air service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more no later than December 31, 2021. The term Southwest Asia theater of operations refers to Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and the airspace above these locations. 38 C.F.R. § 3.317 (e)(2). The Veteran’s DD-214 reflects that the Veteran’s military occupational specialty was as fire control instrument repairman, and that he is a recipient of the Southwest Asia Service Medal with 3 Bronze Service Stars, and Kuwait Liberation Medal among other decorations. Thus, the evidence reflects the Veteran served in Southwest Asia. For purposes of 38 C.F.R. § 3.317, there are three types of qualifying chronic disabilities: (1) an undiagnosed illness; (2) a medically unexplained chronic multi- symptom illness (MUCMI); and (3) a diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C. § 1117 (d) warrants a presumption of service-connection. Under 38 C.F.R. § 3.317, a MUCMI means a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. Chronic multi-symptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. 38 C.F.R. § 3.317 (a)(2)(ii). Along with the three examples of a MUCMI provided by section 1117(a)(2)(B), CFS, fibromyalgia, and irritable bowel syndrome (IBS), there is a list of signs or symptoms that may be a manifestation of an undiagnosed illness or a MUCMI that includes fatigue, gastrointestinal signs or symptoms, signs or symptoms involving the respiratory system, muscle pain, joint pain, and sleep disturbances. 38 U.S.C. § 1117 (g); 38 C.F.R. § 3.317 (b). The term “objective indications of a qualifying chronic disability” includes both “signs,” in a medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317 (a)(3). In the case of claims based on undiagnosed illness under 38 U.S.C. § 1117, unlike those for “direct service connection,” there is no requirement that there be competent evidence of a nexus between the claimed illness and service. Gutierrez v. Principi, 19 Vet. App. 1, 8-9 (2004). Although the Veteran is not medically trained, he is competent to report the observable manifestations of his claimed disorders. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Hence, his own assertions may serve as support for the presence of symptoms supportive of the claimed condition as part of a Gulf War Syndrome under 38 C.F.R. § 3.317. For purposes of Gulf War undiagnosed illness claims, disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period will be considered chronic. The six-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest. 38 C.F.R. § 3.317 (a)(4). 1. Sleep Apnea As set forth above, in June 2012 rating decision, the RO denied entitlement to service connection sleep apnea. The RO found that sleep apnea was not shown in service, nor related to military service. The Veteran was notified of his appellate rights in a June 2012 letter. He did not appeal the RO’s determination and no new and material evidence was received within a year of the issuance of the rating decision. He does not contend otherwise. The RO’s decision is final and not subject to revision on the same factual basis. 38 U.S.C. § 7105(c); 38. C.F.R. §§ 3.104, 20.302, 20.1103. In this appeal, the Veteran seeks to reopen his claim of service connection for sleep apnea. As noted above, despite the finality of a prior adverse decision, a claim will be reopened, and the former disposition reviewed if new and material evidence is presented or secured with respect to the claim which has been disallowed. 38 U.S.C. § 5108 38 C.F.R. § 3.156. Thus, the Board has reviewed the entire record, with particular attention to the additional evidence received since the last final rating decision in June 2012. That evidence includes a February 2021 Board hearing, at which the Veteran testified that he first noticed symptoms of sleep apnea in the early 1990s during service. He noted the continuation of sleep apnea symptoms since service. Given the basis for the prior denial of the claim, and presuming the credibility of this evidence, the Board finds that this additional evidence relates to unestablished facts necessary to substantiate the claim of service connection for sleep apnea disability and raises a reasonable possibility of substantiating the claim; reopening of the claim is warranted. Turning to the merits of the claim, for the following reasons, the Board finds that service-connection for obstructive sleep apnea is warranted. In this case, the evidence of record demonstrates that the requirement for a current disability has been met. Specifically, a July 2015 VA examination reports shows a diagnosis of obstructive sleep apnea. Thus, the first element of service connection has been met. The evidence of record indicates that an in-service disease requirement has been met. The Veteran’s STRs indicates the Veteran reported having trouble with sleeping in July 1991. At his July 1993 separation examination, the Veteran reported having frequent trouble sleeping. The clinician noted that the Veteran’s frequent trouble sleeping was due to anxiety and chapter. At his February 2021 Board hearing, the Veteran testified that the onset set of his sleep apnea was in early 1990s after returning from Gulf War. He often fell asleep at work, and his friend at work advised him that he appeared to have sleep apnea. The Veteran noted that he never had sleep problems prior to service, and his sleep apnea symptoms have continued since service. Here, the STRs along with the competent and credible lay statements from the Veteran demonstrates that he exhibited symptoms during service. This sufficient to meet the second element of the service connection claim. With respect to the third and final element, a nexus, in a July 2015 VA examination report, the examiner opined that the Veteran’s obstructive sleep apnea was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner’s rationale was the Veteran’s July 1993 chapter 13 exam states frequent trouble sleeping due to anxiety and chapter. The examiner noted the STRs are negative for complaints of sleep difficulty or symptoms connected with sleep apnea. The examiner further noted that the Veteran was diagnosed with sleep apnea 22 years post military service. The examiner concluded that it is less likely as not for the current sleep apnea to be due to the complaint noted on separation. The Board finds the July 2015 VA opinion that the Veteran’s current sleep apnea is not related to service is of minimal probative value. Here, the examiner failed to consider competent and credible evidence of the Veteran’s report of the onset of his sleep apnea symptoms in service, and the continuation of those symptoms in the years since service. 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 ). The STRs, competent and credible lay statements of sleep apnea symptoms in-service, and the continuation of symptoms since service, are sufficient to establish that the Veteran’s current sleep apnea is related to service. For the reasons set forth above, the evidence is at least evenly balanced as to whether the Veteran’s sleep apnea had its onset in service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in the Veteran’s favor, service connection is warranted for obstructive sleep apnea. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. PTSD (Acquired Psychiatric Disorder) As set forth above, in June 2012 rating decision, the RO denied entitlement to service connection PTSD. The RO found that a psychiatric disorder was not shown in service, nor related to military service. The Veteran was notified of his appellate rights in a June 2012 letter. He did not appeal the RO’s determination and no new and material evidence was received within a year of the issuance of the rating decision. He does not contend otherwise. The RO’s decision is final and not subject to revision on the same factual basis. 38 U.S.C. § 7105(c); 38. C.F.R. §§ 3.104, 20.302, 20.1103. In this appeal, the Veteran seeks to reopen his claim of service connection for PTSD. As noted above, despite the finality of a prior adverse decision, a claim will be reopened, and the former disposition reviewed if new and material evidence is presented or secured with respect to the claim which has been disallowed. 38 U.S.C. § 5108 38 C.F.R. § 3.156. Thus, the Board has reviewed the entire record, with particular attention to the additional evidence received since the last final rating decision in June 2012. That evidence includes a February 2021 Board hearing, at which the Veteran testified that the onset of his psychiatric symptoms was while serving in the Gulf war. The Veteran noted the continuation of psychiatric symptoms since service. Given the basis for the prior denial of the claim, and presuming the credibility of this evidence, the Board finds that this additional evidence relates to unestablished facts necessary to substantiate the claim of service connection for PTSD and raises a reasonable possibility of substantiating the claim; reopening of the claim is warranted. Turning to the merits of the claim, for the following reasons, the Board finds that service-connection for an acquired psychiatric disorder is warranted. In this case, the evidence of record demonstrates that the requirement for a current disability has been met. Specifically, May 2012 and September 2017 VA examination reports shows a diagnosis of depressive disorder. Thus, the first element of service connection has been met. The evidence of record indicates that an in-service disease requirement has been met. The Veteran’s STRS are negative of findings of an acquired psychiatric disorder. At his February 2021 Board hearing, the Veteran testified that separation from his family and being in a war zone watching people die in a horrifying way caused his depressive disorder. He reported experiencing suicidal ideation, being sad all of the time, without any happiness whatsoever in service. The Veteran stated that once he returned from the Persian Gulf, he noted that he was still having problems with his depression. He noted that his psychiatric symptoms have continued since his military service. The Veteran’s competent and credible lay statements are sufficient to meet the second element of the service connection claim. In May 2012, the Veteran was afforded a VA examination. The examiner concluded that the Veteran did not meet the criteria for a PTSD diagnosis. Rather, the examiner diagnosed the Veteran with depressive disorder, NOS. The examiner opined that the Veteran’s depressive disorder, NOS is less likely as not caused by or the result of service in Southwest Asia. The examiner’s rationale was the Veteran was never diagnosed or treated for depression while in the military. He did not seek mental health treatment until 2011, and was then diagnosed with depression, which was 18 years after discharge from the military. The examiner noted that the Veteran’s current depression symptoms likely maintained by current stressors, such as problems with employment, financial stressors, and concerns about his health. In a September 2017 VA examination report, the examiner indicated that the Veteran does not have a diagnosis of PTSD as he does not meet DSM-V criteria for PTSD. The examiner opined that the Veteran has a diagnosis of persistent depressive disorder that is less likely than not incurred in or caused by his service in Gulf War In-Theater. The examiner’s rationale was that the Veteran’s STRs are silent for a mental health diagnosis, and he first presented for mental health treatment in 2011. The examiner noted the Veteran was diagnosed with persistent depressive disorder and treatment largely focused on the various psychosocial stressors with which the veteran was dealing at the time. The examiner further noted it was consistent with today’s presentation in that the veteran experiences mild depressive symptoms secondary to various psychosocial stressors including recent relocation and unemployment. In this case, the Board finds the May 2012 and September 2017 VA opinions that the Veteran’s depressive disorder is not related to service are of minimal probative value. Indeed, the examiners failed to consider competent and credible evidence of the Veteran’s report of the onset of his depression symptoms in service, and the continuation of those symptoms in the years since service. 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 ). The Veteran’s competent and credible lay statements regarding the onset of his depression symptoms in service and the continuation of those symptoms since service, along with current diagnosis of depressive disorder, provide a sufficient basis to grant service connection. For the reasons set forth above, the evidence is at least evenly balanced as to whether the Veteran’s depressive order had its onset in service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in the Veteran’s favor, service connection is warranted for depressive disorder. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. There are particular requirements for establishing service connection for PTSD in 38 C.F.R. § 3.304(f) that are separate from those for establishing service connection generally. Arzio v. Shinseki, 602 F.3d 1343, 1347 (Fed. Cir. 2010). The Veteran does not appear to have a diagnosis of PTSD consistent with 38 C.F.R. § 4.125 as required by 38 C.F.R. § 3.304(f), which would preclude service connection for PTSD. In any event, although the issue on appeal has previously been characterized as including PTSD, given that there is no indication that there are psychiatric symptoms clearly attributable to a psychiatric disorder other than depressive disorder, for which service connection is being granted, further discussion of PTSD or any other psychiatric disorder is unnecessary. See Howell v. Nicholson, 19 Vet. App. 535, 540 (2006) (explaining that the Secretary must apply the benefit of the doubt doctrine and attribute the inseparable effects of a disability to the claimant’s service-connected disability); Mittleider v. West, 11 Vet. App. 181, 182 (1998) (when it is not possible to separate the effects of the service-connected and non-service-connected disabilities, the benefit of the doubt doctrine described in 38 C.F.R. § 3.102 dictates that such signs and symptoms be attributed to the service-connected disability or disabilities) ; see also Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009) (considering the possibility that bipolar disorder and PTSD did not constitute the same disability, but rejecting this argument based on the facts of that case). 3. Joint Pain, Muscle Pain, Fatigue The Veteran’s service treatment records (STRs) shows complaints and treatment for strained neck muscles and knee strain. His STRs also reflect back, shin, ankle, and foot pain. Post-service VA clinical records dated from December 2011 to December 2017 shows complaints and treatment for bilateral shoulder joint pain, multiple joint pains including back, chest muscle pain, and fatigue. At His February 2021 Board hearing, the Veteran testified that with the chronic fatigue he gets tired easily and his muscles becomes tired, and at times he cannot even lift his arms. He reported that he experiences muscle pain and joint pain in the majority of his body. The Veteran stated that he did not have joint pain, muscle pain, or fatigue prior to service, he experienced all of these conditions in service, and has continued to experience these symptoms since service. In July 2015, the Veteran underwent multiple VA examinations in support of his claims. A Chronic Fatigue Syndrome VA examination report shows the Veteran reported chronic fatigue for several years. The examiner concluded that the Veteran does not meet the criteria for a diagnosis of chronic fatigue syndrome. A Fibromyalgia VA examination report shows the Veteran reported that for the past 3-4 years, he experienced muscle and joint pains in his hands, elbow, shoulders, hips and back. He stated that he was recently given braces for his wrists for possible ulnar neuralgia. The examiner indicated that there was no diagnosis or treatment for fibromyalgia. The examiner concluded that there is no evidence to support a diagnosis of fibromyalgia. For the following reasons, the Board finds that entitlement to service connection for joint pain, muscle pain, and fatigue disabilities due to an undiagnosed illness is warranted. Joint pain, muscle pain, and fatigue are specifically listed as signs or symptoms of undiagnosed illness. 38 C.F.R. § 3.317 (b). Here, the Veteran has provided competent and credible testimony that he did not have joint pain, muscle pain, or fatigue prior to service, started to experience all of these conditions in service, and has continued to experience these symptoms since service. 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. Jandreau, 492 F. 3d at 1377, n.4. There is no evidence of record that the Veteran lacks credibility, thus his statements are afforded significant probative value. In addition, the Veteran’s testimony of joint pain, muscle pain, and fatigue symptoms since service establishes that the Veteran’s joint pain, muscle pain, and fatigue have persisted more than six months. Moreover, the evidence shows that the joint pain of the Veteran’s joint pain, muscle pain, and fatigue manifested during service and have not been attributed to a known clinical diagnosis. Specifically, the July 2015 VA examiner concluded that the Veteran’s reported symptoms do not meet the criteria for a diagnosis of chronic fatigue syndrome. The examiner further concluded that there is no diagnosis of or treatment for fibromyalgia, and no evidence to support a diagnosis of fibromyalgia. For the above reasons, the evidence is at least evenly balanced as to whether the Veteran’s disabilities manifested by joint pain, muscle pain, and fatigue are due to an undiagnosed illness. 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 joint pain, muscle pain, and fatigue disabilities due to undiagnosed illness is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 4. Headaches For the following reasons, the Board finds that service connection for headaches disability is warranted. In this case, the evidence of record indicates that the Veteran has a current headaches disability. Specifically, a July 2015 VA examination report shows a diagnosis of tension headaches. Thus, the first element of service connection has been met. The evidence of record also supports a finding that the in-service disease requirement has been met. The Veteran’s (STRs) shows complaints and treatment for headaches. In his October 2015 Notice of Disagreement (NOD), the Veteran reported that he experienced headaches in service, but treatment himself with over-the-counter medication. He noted that he knew his supervisors would get upset with him if he went to sick call too much, therefore, he struggled through with the headaches. At His February 2021 Board hearing, the Veteran testified that he did not have headaches prior to service and has continued to experience headaches since service. The next issue is whether the third element of a nexus has been met. In July 2015, the Veteran underwent a VA examination. The examiner opined that the Veteran’s headaches is a disease with a clear and specific etiology and diagnosis and is less likely as not related to specific exposure event experienced during service in Southwest Asia. In this case, the Board finds the July 2015 opinion that the Veteran’s headaches disability is not related to service of no probative value. Specifically, the examiner failed to address the STR that shows treatment for headaches in service. Additionally, the examiner failed to provide an explanation to support the opinion that the Veteran’s headaches was not related to his active service. Moreover, the examiner failed to consider competent and credible evidence of the Veteran’s report of the onset of his headache symptoms in service, and the continuation of those symptoms in the years since service. Given the lack of an adequate medical opinion, there is no contrary evidence of record. While the Board could remand the case for an additional medical opinion, such action could be construed as a request for another opinion could be construed as obtaining additional evidence for the sole purpose of denying a claim, which is impermissible. 38 C.F.R. § 3.304(c) (The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination); Gardner-Dickson v. Wilkie, No. 19-4765, 2020 U.S. App. Vet. Claims LEXIS 1927 (Panel Order), at *20 (denying petition for a writ of mandamus challenging a remand, but agreeing with the petitioner that it would not be permissible for VA to undertake... additional development if a purpose was to obtain evidence against an appellant’s case.’ (citing Mariano v. Principi, 17 Vet. App. 305, 312 (2003) and Hart v. Mansfield, 21 Vet. App. 505, 508 (2007)). The above evidence is sufficient to decide the claim. There is competent evidence of current headaches disability, headaches during active duty, and a relationship between the two as shown by the Veteran’s competent, credible statements, which are consistent with the service and post service treatment records. Moreover, there is no other evidence that attributes the Veteran’s current headaches disability to any other cause. Based on the evidence of record, and resolving reasonable doubt in his favor, the Board finds that the Veteran currently has tension headaches that were incurred during his active service. Thus, service connection for tension headaches is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Walker, 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.