Citation Nr: 21026665 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 16-26 660 DATE: May 3, 2021 ORDER Service connection for major depressive disorder is granted. Service connection for obstructive sleep apnea (OSA) is granted. Service connection for coronary artery disease (CAD) is granted. Service connection for hypertension is granted. Service connection for thyroid disease is denied. An initial evaluation of 50 percent for migraine headaches is granted. REMANDED The claim of entitlement to service connection for a low back disability is remanded. The claim of entitlement to service connection for radiculopathy of the bilateral lower extremities is remanded. The claim of entitlement to service connection for sinusitis is remanded. The claim of entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran's major depressive disorder is related to his service-connected hearing loss and tinnitus. 2. The Veteran's OSA is related to his major depressive disorder. 3. The Veteran's CAD is related to his major depressive disorder. 4. The Veteran's hypertension is related to his major depressive disorder. 5. For the entire period of the appeal, the Veteran's headache disability has been productive of very frequent prostrating and prolonged attacks of headache pain productive of severe economic inadaptability. CONCLUSIONS OF LAW 1. The criteria to establish service connection for major depressive disorder as secondary to hearing loss and tinnitus have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 2. The criteria to establish service connection for OSA as secondary to major depressive disorder have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 3. The criteria to establish service connection for CAD as secondary to major depressive disorder have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 4. The criteria to establish service connection for hypertension as secondary to major depressive disorder have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 5. The criteria for a 50 percent evaluation for a headache disability have been met. 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.124a, Diagnostic Code 8100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from August 1974 to August 1978. This matter comes before the Board of Veterans' Appeals (Board) from a March 2014 rating decision by the Agency of Original Jurisdiction (AOJ). In January 2019, the Board denied service connection for a respiratory disorder, skin cancer, ruptured groin, left index finger amputation, fracture of the right lower leg, diabetes mellitus, and syncope; higher evaluations for hearing loss and tinnitus; and an earlier effective date for the award of service connection for headaches. The issues of entitlement to service connection for depression, CAD, OSA, hypertension, a low back disability, radiculopathy of the lower extremities, sinusitis, a thyroid disorder, an increased rating for headaches, and TDIU were remanded. Service Connection Entitlement to VA compensation may be granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C. §§ 1110 (wartime service), 1131 (peacetime service); 38 C.F.R. § 3.303. To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease initially 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 may be granted for any disease 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). However, "[a] determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service." Watson v. Brown, 4 Vet. App. 309, 314 (1993). Service connection may also be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). This includes any increase in disability (aggravation) that is proximately due to or the result of a service-connected disease or injury. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either caused or aggravated by a service-connected disease or injury. Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Major depressive disorder Service treatment records reflect that in January 1976, the Veteran was noted to have a history of heavy alcohol use. In June 1977, he was referred for physical examination and interview for questionable alcohol abuse problems/psychosis. A July 1977 enlisted performance evaluation notes a sharp decline in the Veteran's overall attitude. The author indicated that the Veteran's former high standard of performance and attitude appeared to drop off drastically upon notification that he was being transferred. He noted that, while the Veteran had a history of alcohol abuse, the decline in his performance could not be attributed directly to alcohol abuse. He indicated that the Veteran's overall outlook had become cynical and depressive. In November 2013, the Veteran's mother stated that the Veteran returned home from service a drastically changed person. She noted that the Veteran was untrusting, defensive, paranoid, depressed and anxious. She noted that the Veteran struggled with alcoholism and drug abuse. A November 2013 statement by the Veteran indicates that he experienced depression, anxiety, panic attacks, and erratic behavior during service. In November 2015, H.H.G., Ph.D., completed a VA disability benefits questionnaire, indicating a diagnosis of major depressive disorder. She noted the Veteran's report of having self-medicated with alcohol, and that he had been sober since 2013. Following interview of the Veteran and review of the record, Dr. G. concluded that the Veteran suffered from major depressive disorder that more likely than not began during service and had continued uninterrupted to the present. She additionally remarked that the Veteran's major depressive disorder was aggravated by his hearing loss and tinnitus. She cited to a body of literature detailing the connection between medical issues and psychological disorders, and the holistic effect of medical and psychiatric disturbances. On VA examination in February 2020, the diagnosis was major depressive disorder. The examiner concluded that the psychiatric disorder was not related to service. However, he indicated that he could not rule out whether tinnitus had contributed to some of the Veteran's psychiatric symptoms. Having carefully considered the record, the Board concludes that service connection for major depressive disorder is warranted. In this regard, the Board observes that Dr. G. provided a detailed discussion of the principles underlying her conclusion that major depressive disorder was aggravated by the Veteran's hearing loss and tinnitus. On the other hand, the VA examiner indicated that he could not rule out such a relationship. As to this question, the Board finds that the opinion of Dr. G. outweighs the opinion of the VA examiner. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for major depressive disorder is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. OSA Hypertension CAD In November 2015, H.S., M.D. opined that the Veteran's depression aided in the development of and permanently aggravated the Veteran's OSA and hypertension. Further, he opined that hypertension caused or permanently aggravated the Veteran's CAD. Regarding OSA, Dr. S. cited to research showing that psychiatric disorders were commonly associated with OSA. He pointed out that at the time of a sleep study in 2014, the Veteran reported depression, anxiety, and stress. Regarding hypertension, Dr. S. cited to research showing that anxiety and depression were predictive of later incidence of hypertension and prescription for such. He noted that a recent study had found the incidence rate of hypertension to be higher in persons with high or intermediate depressive symptom scores. Dr. S. also noted that risk factors for CAD included depression and hypertension. He cited to medical literature that indicated a well-established association between hypertension and CAD. Following review of the medical records and interview with the Veteran, Dr. S. opined that the Veteran's depression aided in the development of and permanently aggravated the Veteran's OSA and hypertension, and that in turn, hypertension caused or permanently aggravated the Veteran's CAD. In July 2016, a VA examiner concluded that the Veteran's OSA, hypertension, and CAD were not proximately due to or the result of the Veteran's mental health condition. She did not provide an opinion regarding whether these claimed disabilities were aggravated beyond normal progression by the Veteran's major depressive disorder. Upon review of the record, the Board concludes that service connection for OSA, hypertension, and CAD is warranted. In this regard, the record contains an opinion by a medical professional who reviewed the history, interviewed the Veteran, researched medical literature, and provided an opinion supported by rationale. On the other hand, the VA examiner did not adequately discuss the medical principles underlying her conclusions, and did not provide an opinion regarding aggravation. As there is an informed medical opinion indicating that the claimed OSA and hypertension are related to the Veteran's now service-connected major depressive disorder, and that in turn, the Veteran's CAD is related to his hypertension, the Board concludes that service connection is in order. Evaluation of Headaches The Veteran seeks a higher initial evaluation for his headache disability. Disability evaluations are determined by the application of a schedule of ratings based on average impairment in earning capacity. 38 U.S.C. § 1155 (2012). Percentage evaluations are determined by comparing the manifestations of a particular disorder with the requirements contained in the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can practically be determined, the average impairment in earning capacity resulting from such disease or injury and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations which are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusion. If there is a question as to which evaluation to apply to the Veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In cases where the original rating assigned is appealed, consideration must be given to whether a higher rating is warranted at any point during the appeal period. Fenderson v. West, 12 Vet. App. 119 (1999). Under the criteria for evaluating migraine headaches, a 50 percent evaluation is assigned where there are very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. A 30 percent rating is assigned with characteristic prostrating attacks occurring on an average once a month over last several months. A 10 percent evaluation is assigned where there are characteristic prostrating attacks averaging one in two months over the last several months. A noncompensable evaluation is assigned for less frequent attacks. 38 C.F.R. § 4.124a, Diagnostic Code 8100. In November 2015, Dr. S. completed a VA disability benefits questionnaire. He noted that when he interviewed the Veteran, he reported headaches that had become more frequent and severe over the years. The Veteran indicated that he experienced pulsating or throbbing head pain, bilateral head pain, worsening of pain with physical activity, nausea, light and sound sensitivity, and blurred vision. He related that typical head pain lasted four to eight hours. Dr. S. indicated that the Veteran had prostrating attacks of headache pain more frequently than once per month. He indicated that the Veteran's headaches required him to lie down in a dark, quiet room, and that it was expected that the Veteran would miss several days of work and require frequent unscheduled breaks throughout the day. In July 2016, a VA examiner indicated that the Veteran experienced constant head pain, pain localized to one side of the head, and tinnitus. She noted that there were no characteristic prostrating attacks. In January 2019, the Board noted the differing findings and noted that the reports of Dr. S. and the VA examination were a mere eight months apart. An additional examination was directed. On VA examination in February 2020, the diagnosis was migraine including migraine variants. The Veteran reported that he had a headache all of the time, and that he awoke with a headache and went to sleep with a headache. He endorsed 10/10 pain. The examiner noted that the Veteran experienced constant head pain, but that he did not experience any non-headache symptoms associated with headaches. She indicated that the Veteran had characteristic prostrating attacks once per month, on average. She concluded that he did not have very prostrating and prolonged attacks productive or severe economic inadaptability. Upon careful review of the evidence pertaining to the Veteran's headaches, the Board concludes that the report by Dr. S. is the most probative as to the severity of the Veteran's headache disability. Neither the July 2016 nor February 2020 VA examination reports contain a history or discussion of symptomatology as comprehensive as that elicited by Dr. S. Both of the VA examination reports indicate fewer associated symptoms than those reported to Dr. S., neither VA examiner elicited a full history, and it does not appear that the Veteran was questioned regarding the impact of his headaches on his occupational functioning (i.e., time missed from work, accommodations). Having found that the report of Dr. S. is most probative as to the severity of the Veteran's headaches, the Board concludes that an initial evaluation of 50 percent is warranted. REASONS FOR REMAND Service connection for a low back disability Service connection for radiculopathy bilateral lower extremities In the January 2019 remand, the Board noted that the Veteran's service treatment records reflected that he underwent X-ray examination following a motor vehicle accident during service. In that regard, the record reflects that in June 1977, the Veteran was seen following a motorcycle accident, complaining of a stiff neck and back pain. The Board directed that an examination be conducted. On VA examination in February 2020, the diagnoses were lumbar degenerative disc disease with disc extrusion at L4-5, and lumbar radiculopathy. The examiner opined that the disability was not related to service, reasoning in part, that the service treatment records were silent. As noted, this is not the case. As there is evidence indicating that the Veteran was involved in a motorcycle accident during service, and complained of back pain following that incident, this evidence must be considered in formulating an opinion regarding the etiology of the Veteran's current back disability. Accordingly, an additional examination is necessary. Service connection for sinusitis In the January 2019 remand, the Board acknowledged the Veteran's report of nasal problems during service. In that regard, the Board observes that service treatment records reflect that in July 1976, the Veteran was seen for a moderate nosebleed. X-rays were clear. On VA examination in February 2020, the diagnosis was allergic rhinitis. The examiner opined that it was not related to service, reasoning in part, that the service treatment records were silent. As noted, this is not the case. As there is evidence indicating that the Veteran received treatment for nasal issues during service, and has stated that he had nasal problems during service, this evidence must be considered in formulating an opinion regarding the etiology of the Veteran's current allergic rhinitis. Accordingly, an additional examination is necessary. Thyroid disease In the January 2019 remand, the Board observed that the Veteran sought service connection for thyroid disease as secondary to his psychiatric disorder. This issue was remanded as inextricably intertwined with the issue of entitlement to service connection for major depressive disorder. Private treatment records reflect a diagnosis of hypothyroidism. Moreover, as the Board has determined that service connection for major depressive disorder is warranted, an examination to determine whether the Veteran's thyroid disorder was caused or aggravated by his major depressive disorder is warranted. TDIU Considering the Board's award of service connection for major depressive disorder, OSA, hypertension, and CAD, the AOJ's assignment of evaluations for these disabilities will change the Veteran's total evaluation for compensation. Moreover, adjudication of the remanded issues might also provide support for the Veteran's TDIU claim. Thus, the Board has concluded that it would be inappropriate at this juncture to enter a final determination on the TDIU issue. See Henderson v. West, 12 Vet. App. 11 (1998), citing Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination to determine the nature and etiology of his low back disability. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. The examination report must include a notation that this record review took place. After the record review and examination of the Veteran, the examiner should identify all relevant conditions referable to the Veteran's lumbar spine, to include associated neurological manifestations. The examiner should provide an opinion regarding whether it is at least as likely as not that any such condition was incurred in, or is otherwise related to active service. In rendering this opinion, the examiner is asked to discuss the June 1977 service treatment record noting a motorcycle accident. The examiner is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, he or she must provide an explanation for such rejection. The examiner is not to improperly discount the Veteran's lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. The complete rationale for all opinions should be set forth, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be provided without resorting to mere speculation, the examiner must provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 2. Schedule the Veteran for an examination to determine the nature and etiology of his claimed sinusitis/allergic rhinitis. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. The examination report must include a notation that this record review took place. After the record review and examination of the Veteran, the examiner should provide an opinion regarding whether it is at least as likely as not that sinusitis or allergic rhinitis was incurred in, or is otherwise related to active service. In rendering this opinion, the examiner is asked to discuss the July 1976 service treatment record noting treatment for a moderate nosebleed. The examiner is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, he or she must provide an explanation for such rejection. The examiner is not to improperly discount the Veteran's lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. The complete rationale for all opinions should be set forth, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be provided without resorting to mere speculation, the examiner must provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 3. Schedule the Veteran for an examination to determine the nature and etiology of his claimed thyroid disease. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. The examination report must include a notation that this record review took place. After the record review and examination of the Veteran, the examiner should provide an opinion regarding whether it is at least as likely as not that thyroid disease was incurred in, or is otherwise related to active service. The examiner should also provide an opinion regarding whether it is at least as likely as not that thyroid disease was caused or aggravated (worsened beyond normal progression) by the Veteran's service-connected major depressive disorder In rendering these opinions, the examiner is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, he or she must provide an explanation for such rejection. The examiner is not to improperly discount the Veteran's lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. The complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be provided without resorting to mere speculation, the examiner must provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 4. Then, readjudicate the Veteran's claims. If the decision remains adverse to the Veteran, he and his representative should be furnished a supplemental statement of the case (SSOC) and afforded an appropriate period within which to respond thereto. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Barone, 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.