Citation Nr: 21026791 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 17-44 257 DATE: May 4, 2021 ORDER Service connection for obstructive sleep apnea is granted. Service connection for migraine headaches is granted. Service connection for a thyroid disability is denied. FINDINGS OF FACT 1. Symptoms of difficulty sleeping, daytime sleepiness and fatigue, and apneic episodes were manifested during active service, continued after service separation, and were ultimately attributed to a diagnosis of obstructive sleep apnea. 2. Chronic symptoms of migraine were manifested during service, and the Veteran is currently diagnosed with migraine headaches. 3. There was no endocrine system injury or disease manifested during service, and the currently diagnosed thyroid disability is not causally or etiologically related to service. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection of obstructive sleep apnea are met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. 2. Resolving reasonable doubt in the Veteran's favor, the criteria for presumptive service connection for migraine headaches are met. 38 U.S.C. §§ 1110, 1112, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. 3. The criteria for service connection for a thyroid disability are not met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, had active service from June 1987 and December 1996. This matter is on appeal from a January 2015 rating decision. In August 2020, the Veteran testified at a virtual Board hearing before the undersigned. The Board finds that the duties to notify and assist the appellant in this case have been fulfilled. Neither the Veteran nor the evidence has raised any specific contentions regarding the duties to notify or assist. Service Connection Legal Authority Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, 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 established on a direct basis when there is competent, credible evidence of: (1) a current disability; (2) a disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. 38 C.F.R. § 3.303(a), (d). Service connection may be established on a presumptive basis for chronic diseases listed under 38 C.F.R. § 3.309(a) if chronic symptoms of the disease were shown in service; the disease was manifested to a compensable degree with a presumptive period, usually one year after service separation; or continuous symptoms of the disease were manifested since service. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.33(b), 3.307, 3.309(a); see also Walker v. Shinseki, 708 F. 3d 1131 (Fed. Cir. 2013). Because the current diagnosis of obstructive sleep apnea and hypothyroidism are not listed as a chronic disease under 38 C.F.R. § 3.303(b), the presumptive service connection provisions are not applicable to those diagnoses; however, migraine (as an organic disease of the nervous system) is a chronic disease under 38 C.F.R. § 3.303(b), so the presumptive service connection provisions are applicable to that diagnosis. Service connection may be established on a secondary basis for a disability which was either: (1) caused by, or (2) aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310 (a). Compensation based on secondary aggravation will be awarded only for the degree of disability over and above the degree of disability prior to aggravation. Allen v. Brown, 7 Vet. App. 439 (1995). 1. Service connection for obstructive sleep apnea is granted. The Veteran contends that symptoms of obstructive sleep apnea (i.e., daytime sleepiness, fatigue, and apneic episodes) had their onset during service and continued thereafter. See https://medlineplus.gov/genetics/condition/obstructive-sleep-apnea (noting that individuals with obstructive sleep apnea may experience interrupted sleep with frequent awakenings and loud snoring with repeated pauses in breathing). He seeks service connection on this basis. After review of the lay and medical evidence of record, the Board finds that the evidence is in equipoise on the question of whether symptoms of the currently diagnosed obstructive sleep apnea had their onset during service. Service treatment records, which are complete, include reports of breathing problems and difficulty sleeping, along with other symptoms, at various times, although such symptoms during service were not always attributed to a definitive underlying diagnosis. See, e.g., October 1993 service emergency care and treatment note (episodic shortness of breath and subjective palpitations of unknown etiology). On the July 1995 service report of medical history, the Veteran specifically checked "Yes" when asked if he then had or had ever had shortness of breath and frequent trouble sleeping. At the August 2020 Board hearing, the Veteran's spouse credibly testified that during service she witnessed the Veteran awakening at night and gasping for air. The symptoms described are consistent with obstructive sleep apnea. Because the spouse's hearing testimony that the Veteran experienced nighttime awakening while gasping for air during service is consistent with the service treatment record findings, including the Veteran's own in-service report that he experienced frequent trouble sleeping and shortness of breath in July 1995, and is not inconsistent with other lay or medical histories, it is deemed credible and of significant probative value. Approximately six years after service separation (i.e., in December 2002), a private ear, nose, and throat (ENT) specialist considered the same reported symptoms of disturbed sleep, daytime sleepiness and fatigue, and waking while gasping for breath, in addition to the symptom of snoring, appeared to diagnose suspected obstructive sleep apnea, and recommended a polysomnography. See December 2002 private ENT treatment record. In October 2014, a polysomnography (i.e., a sleep study) confirmed the presence of obstructive sleep apnea. In consideration of the foregoing, the Board finds that the evidence is at least in equipoise on the question of whether the in-service symptoms of difficulty sleeping, breathing problems, and apneic episodes were a manifestation of the obstructive sleep apnea during service. The same symptoms continued after service, and were later diagnosed as sleep apnea. Resolving reasonable doubt in the Veteran's favor, the Board finds that direct service connection for obstructive sleep apnea under 38 C.F.R. § 3.303(d) is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Service connection for migraine headaches is granted. The Veteran contends that migraine headaches had their onset during service and continued after service. He seeks service connection on this basis. Preliminarily, the Board finds that migraine headaches did not exist prior to service. Migraine headaches were not noted at service entrance, so the presumption of sound condition as it relates to migraine headaches is applicable. While some evidence of record suggests that migraine headaches may have existed prior to active service due to a pre-service history of boxing with periods of unconsciousness resulting in chronic headaches thereafter, the presumption of soundness has not been rebutted by the high evidentiary burden of clear and unmistakable evidence. For this reason, in this case the Board will consider whether migraine headaches were incurred during service. 38 U.S.C. § 1111; 38 C.F.R. §§ 3.303, 3.304. After review of all the lay and medical evidence of record, the Board finds that the evidence is at least in equipoise on the question of whether chronic symptoms of migraine were manifested during service. The service treatment records, which are complete, include report of and treatment for headaches, among other symptoms, at various times. On the July 1995 service report of medical history, the Veteran checked "yes" when asked if he then had or had ever had frequent or severe headaches. Later, on the October 1996 service separation report of medical assessment, the Veteran reported that he had been treated for headaches since the last service examination and had concerns about the headaches. When asked for health provider comments on the same service medical assessment report, the October 1996 service medical examiner wrote that the Veteran had episodic migraines. At the August 2020 Board hearing, the Veteran testified that he experienced chronic symptoms of migraine during service, in addition to in-service headaches associated with the service-connected chronic sinusitis, and that he continued to experience migraine headaches after service. The Veteran's account of chronic migraine symptoms during and since service is deemed credible and of significant probative value, is consistent with his own in-service report of symptoms and complaints, and is consistent with the October 1996 notation by a service medical examiner that the Veteran had episodic migraines. The Veteran is currently diagnosed with migraine headaches, in addition to (service-connected) chronic sinusitis, which indicates separate and distinct disabilities and symptoms from the sinusitis. In consideration of the foregoing, and resolving reasonable doubt in favor of the Veteran, the Board finds that presumptive service connection under the provisions of 38 C.F.R. § 3.303(b) is warranted for migraine headaches based on chronic symptoms of migraine during service. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 3. Service connection for a thyroid disability is denied. The Veteran contends that the current hypothyroidism was caused by exposure to jet fuel during service. He seeks service connection on this basis. After review of all the lay and medical evidence of record, the Board finds that the weight of the lay and medical evidence is against finding that there was an endocrine system injury or disease during service, or that thyroid symptoms were manifested during service. The service treatment records, which are complete, are absent of complaints of, diagnoses of, or treatment for hypothyroidism symptoms or for thyroid problems, including injury or disease, during service. On the July 1995 service report of medical history, the Veteran checked "no" when asked if he then had or had ever had thyroid trouble. Because the service treatment records are complete, and the Veteran received in-service treatment for other medical problems such as upper respiratory infection and gastroenteritis with no report, findings, diagnosis, or treatment for thyroid symptoms, the Board finds that a thyroid disability is a condition that would have ordinarily been recorded during service, if it had been present; therefore, the lay and medical evidence contemporaneous to service is of significant probative value and weighs against a finding of an endocrine system injury or disease during service. Although the Veteran served as a fuel specialist and may have been exposed to jet fuel while performing his military duties, such exposure is not shown to have resulted in endocrine system injury, disease, or symptoms during service. The weight of the evidence is against finding that sleep apnea was otherwise causally or etiologically related to service. The evidence shows no symptoms of a thyroid disability until approximately 2007, 11 years after service separation. See February 2007 private progress report (noting an impression of low thyroid-stimulating hormone). Hypothyroidism was later diagnosed in 2010, approximately 14 years after service. See April 2012 VA Persian Gulf Registry examination report. Considered together with the lay and medical evidence contemporaneous to service showing no in-service endocrine system injury or disease and no in-service hypothyroidism symptoms, the approximate 11-year period between service separation and the onset of hypothyroidism symptoms is an additional factor that weighs against service incurrence. At the Board hearing, the Veteran testified that hypothyroidism was first diagnosed and treated in 1998 or 2000; however, he also expressed uncertainty about the exact date and told the April 2012 VA examiner that hypothyroidism was diagnosed in 2010, which significantly varies from the account that hypothyroidism had its onset in 1998 or 2000. Additionally, the July 1998 significant medical history report is of record and shows that at that time the Veteran checked "no" when asked if he then had or had ever had thyroid trouble. Post-service treatment records dating back to 2002 that are of record show no diagnosis of hypothyroidism until 2011. For these reasons, the Board does not find the Veteran's testimony that hypothyroidism was diagnosed in 1998 or 2000 to be credible, so it is of no probative value. No VA medical opinion was obtained in connection with this appeal because any favorable opinion would necessarily be based on an inaccurate factual history of an in-service endocrine system injury, endocrine system disease, or thyroid symptoms, which is contrary to the weight of the evidence and the Board's factual findings in this case; therefore, any nexus opinion would be of no probative value. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that a medical opinion based on an inaccurate factual basis is of no probative value). Although the Veteran has asserted his belief that the current thyroid disability was caused by jet fuel exposure during service, he is a lay person and, under the specific facts of this case that include no in-service thyroid injury, disease, symptoms, or findings, does not have the requisite medical expertise to render a competent medical opinion in this case regarding the etiology of hypothyroidism that first many years after service. Such a diagnosis and an opinion as to its relationship to service involve understanding of unseen body systems processes and disease processes that are largely unobservable by the five senses of a lay person, involve an understanding of the endocrine system and the possible or likely causes or etiologies of hypothyroidism, and involve making findings based on medical knowledge and clinical testing results. Consequently, the Veteran's unsupported lay opinion relating hypothyroidism to service is of no probative value to relate hypothyroidism to service. See Waters v. Shinseki, 601 F.3d 1274, 1277 1278 (Fed. Cir. 2010) (concluding that a veteran's lay belief that his schizophrenia and anti-psychotic drugs to treat it had aggravated his diabetes and hypertension was not of sufficient weight to trigger VA's duty to seek a medical opinion on the issue). Thus, the weight of the evidence shows that hypothyroidism had its onset many years after service and is unrelated to service, including in-service jet fuel exposure. For these reasons, the appeal must be denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Palmer, 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.