Citation Nr: 21027551 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 18-46 736 DATE: May 6, 2021 ORDER Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected post-traumatic stress disorder (PTSD), is granted. Entitlement to service connection for migraine headache disability, to include as secondary to service-connected PTSD disability is granted. REMANDED Entitlement to service connection for a bilateral foot disability, including flat feet (pes planus), is remanded. Entitlement to service connection for traumatic brain injury (TBI) is remanded. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran's favor, his obstructive sleep apnea began during his active service or is proximately due to or the result of his service-connected PTSD. 2. Resolving reasonable doubt in the Veteran's favor, his migraine headache disability is proximately due to or the result of his service-connected PTSD. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected PTSD, are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. 2. The criteria for entitlement to service connection for migraine headache disability, to include as secondary to service-connected PTSD, are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 2009 to January 2013. These matters come before the Board of Veterans' Appeals (Board) on appeal from August 2017 and October 2017 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). In November 2019, the Board denied the appeal. The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (Court) and in December 2020, the parties submitted a Joint Motion for Partial Remand (JMPR). In a December 2020 Order, the Court granted the JMPR, and vacated that part of the November 2019 Board decision that denied entitlement to service connection for obstructive sleep apnea, migraine headaches, bilateral flatfoot and TBI. The Court remanded the matters for action consistent with the JMPR. The Veteran asserts that he has "foot problems" including pain, flat feet, and tenderness of plantar surfaces. See April 2021 Statement in Support of Claim. The Board has recharacterized the Veteran's claim for entitlement to service connection for bilateral flat foot (pes planus) as a claim for entitlement to service connection for any foot disability, however diagnosed. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 - 67 (Fed. Cir. 2004). Service connection may also be granted where a disability is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. 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 (a) caused by or (b) aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 48 (1995) (en banc). The Veteran's claims do not include a disability which is considered a "chronic disease" under 38 C.F.R. § 3.309 (a). Therefore, the presumptive provisions of 38 C.F.R. § 3.303 (b) for "chronic" in-service symptoms and "continuous" post service symptoms do not apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected PTSD, is granted. The Veteran generally asserts that his obstructive sleep apnea onset during his active service. See July 2017 Statement in Support of Claim. Alternatively, he asserts that his obstructive sleep apnea is caused or aggravated by the service-connected PTSD. See May 2019 Memorandum in Support of Claim and April 2021 Motion. The Veteran has a current obstructive sleep apnea diagnosis, which was first diagnosed by a December 2013 polysomnogram, less than one-year post-discharge from active service. Thus, the first element of service connection, the existence of a present disability, has been met. The next issue before the Board is whether the Veteran's obstructive sleep apnea was incurred in or caused by his active duty service, and if not, whether his obstructive sleep apnea is proximately due to, the result of, or aggravated beyond its natural progression by a service-connected disability, specifically his service-connected PTSD. Upon separation from active service, the Veteran reported having in-service sleeping problems, specifically restless sleep, insomnia and waking up tired, despite averaging 10 hours of sleep per night. See November 2012 separation Report of Medical Assessment. The Veteran generally asserts that he experienced symptoms of obstructive sleep apnea during service, that some of his fellow soldiers observed his obstructive sleep apnea symptoms while he was in service, and his ex-spouse and girlfriend also reported that he snored and stopped breathing while sleeping. See July 2017 Statement in Support of Claim. The Veteran submitted October 2014 lay statements from fellow Veteran, O.S. and fellow Veteran, J.S. O.S. states that he and others observed the Veteran sleeping during working hours. L.R., the Veteran's supervisor, states that he observed the Veteran either sleeping or falling asleep during normal working hours. See August 2018 Lay Statement; see also April 2019 lay Statement. The Veteran, his fellow soldier and supervisor are competent to report sleep disturbance symptoms and daytime sleepiness, because this requires only personal knowledge as it comes to them through their senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Thus, there is some in-service evidence of reported sleeping difficulties and daytime tiredness. As discussed in further detail below, the Veteran's private examiner opines that the reports of the Veteran, his friend and supervisor's attestation to the Veteran's in-service sleep difficulties constitute strong evidence of in-service obstructive sleep apnea. As to the question of whether the Veteran's current obstructive sleep apnea disability is related to his service, there are probative opinions in favor of and against the claim. The evidence against the claim includes a March 2014 VA sleep apnea examination. The examiner opined that the claimed obstructive sleep apnea disability was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. As rationale, the examiner first acknowledged that the Veteran reported having various sleep problems that were noted upon separation from active service. The examiner noted that the Veteran's weight was normal during service and that he gained weight post service, specifically, that he gained approximately 55 pounds in the first-year post service. The examiner stated that although the Veteran reported having difficulty sleeping upon discharge, this is a nonspecific symptom and his symptoms were felt to be insomnia by the medical examiner and the Veteran reported averaging 10 hours of sleep per night on average. The examiner stated that people with insomnia and restless sleep do not necessarily have obstructive sleep apnea. He further stated that the Veteran gained over 50 pounds and became obese after service and that obesity is an independent risk factor for sleep apnea and that he was not obese in service and was not diagnosed with sleep apnea in service. Additional evidence against the claim includes a July 2017 VA sleep apnea examination. The examiner opined that the Veteran's obstructive sleep apnea is less likely than not incurred in or caused by sleep disturbance with a diagnosis of insomnia in service. As rationale, the examiner stated that although the Veteran reported difficulty sleeping which was diagnosed as insomnia following a report of non-restorative sleep, restless sleep, despite averaging 10 hours of sleep per night, that service treatment records did not show complaints of snoring, episodes of breathing cessation during sleep witnessed by another person, abrupt awakenings accompanied by shortness of breath or gasping. Additionally, the examiner noted that the Veteran was first diagnosed post service in December 2013. The evidence in favor of the claim includes a March 2019 private examination and opinion as well as a February 2021 updated private examination and opinion by Dr. M. R., who is Board certified in Internal Medicine. In the March 2019 private examination report, the examiner noted that the Veteran was diagnosed with obstructive sleep apnea within one year of discharge from active service. The examiner opined that it is more likely than not that the Veteran's obstructive sleep apnea is related to his service-connected PTSD. As rationale, the examiner stated that the Veteran has been prescribed medication due to ongoing sleep disturbances and nightmares related to his military service and service-connected PTSD, and that despite treatment for his obstructive sleep apnea, he continued to demonstrate apnea-hypopneas (AHI) of 18 apnea events per hour during rapid eye movement (REM) sleep. Thus, the Veteran's obstructive sleep apnea is not fully controlled by the use of a CPAP. The examiner noted that such evidence is indicative of a finding that the Veteran's obstructive sleep apnea is also affected by his service-connected PTSD. In the updated February 2021 examination and report, the examiner stated that the Veteran's buddy statements document that the Veteran had obstructive sleep apnea symptoms while on active duty. She further stated that she does not agree with the July 2017 VA examiner's opinion that "many people with insomnia do not have sleep apnea," and therefore, the Veteran's obstructive sleep apnea was not incurred in or caused by a sleep disturbance with a diagnosis of insomnia during service. The examiner referenced a study in conflict with the VA examiner's opinion. The private examiner asserts that the medical literature supports a finding that self-reported symptoms are the best predictor of obstructive sleep apnea. The examiner then provided reasons with supporting studies in support of entitlement to service connection for sleep apnea. These proffered reasons include the understanding of the pathophysiology of obstructive sleep apnea in veterans with PTSD, a statistically significant association between PTSD symptoms and obstructive sleep apnea in veterans with and without obesity, sleep experts recognize an association between PTSD and sleep apnea, and PTSD related symptoms of sleep disturbances are not distinct from obstructive sleep apnea. In April 2011, the Veteran, through his attorney, submitted a medical abstract which notes that obstructive sleep apnea may be delayed from the time between the onset of any major feature of obstructive sleep apnea and referral to a sleep center, as well as the time between the first obstructive sleep apnea complaint to a health care provider and referral to the center. The abstract notes that once obstructive sleep apnea-related features are apparent to a clinician, the average time to referral for diagnostic testing is 9.9 months. The Board recognizes that the Veteran's first complaints to a health care provider regarding obstructive sleep apnea symptoms were necessarily prior to his December 2013 obstructive sleep apnea diagnosis. Such evidence that the Veteran necessarily reported his obstructive sleep apnea symptoms to a health care provider months prior to his December 2013 obstructive sleep apnea diagnosis, and thus shortly after discharge, weighs in favor of the Veteran's claim, as it tends to show that the Veteran had obstructive sleep apnea months before his diagnosis, and/or in-service. Upon review of the record, the evidence is at least in equipoise as to whether the Veteran's current obstructive sleep apnea is related to his service, to include as secondary to his service-connected PTSD. Further, the record does not contain a competent medial opinion regarding secondary service connection other than the private examiner's opinion. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for obstructive sleep apnea, to include as secondary to service-connected PTSD is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Entitlement to service connection for migraine headache disability, to include as secondary to service-connected PTSD disability The Veteran contends that his migraine headache disability was incurred in service or is causally related to or aggravated beyond its natural progression by his service-connected disabilities. In November 2016, the Veteran reported having morning headaches. In March 2019, the Veteran reported having chronic headaches/migraines for over five years. 2019 VA treatment records indicate that the Veteran is prescribed migraine medication. Thus, the first element of service connection, the existence of a present disability, has been met. The question for the Board is whether the Veteran has a current migraine headache disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. In the March 2019 private examination. Dr. M.R. opined that the Veteran's daily migraine (vs. tension headaches) are either related to his in-service head injuries or his obstructive sleep apnea, which is secondarily related to his service-connected PTSD. As rationale, examiner stated that migraine and tension headaches are associated with PTSD in the medical literature and the association is stronger in men, despite women having higher overall incident of migraine headaches, and further that both chronic tension type headaches and chronic migraines are comorbid with PTSD. In the February 2021 updated examination and opinion, the examiner provided additional supporting rationale for her positive nexus opinion, including reference to medical literature. The Board finds the private examination report is the most probative evidence of record with regard to the Veteran's migraine headache disability, as it is based on consideration of the Veteran's entire record and contains a fully discussed, reasoned rationale. Further, there is no medical evidence to the contrary. Additionally, in April 2021, the Veteran, through his attorney, submitted medical abstracts noting a strong association between PTSD and migraine headaches and between obstructive sleep apnea and migraine headaches. Thus, Board finds that the evidence is at least in equipoise as to whether the Veteran's current migraine headache disability is proximately due to or the result of his service-connected PTSD and/or obstructive sleep apnea, which is now service-connected as a result of this decision. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for a migraine disability headache disability, to include as due to service-connected disability, is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 3. Entitlement to service connection for a bilateral foot disability, to include flat feet (pes planus), is remanded. The Veteran contends he is entitled to service connection for "foot pains." See January 2021 Statement in Support of Claim. The Board cannot make a fully informed decision on the issue of entitlement to service connection for a bilateral foot disability, to include flat feet (pes planus), because no examiner has opined whether any foot disability was incurred during his active service. Generally, a medical examination is required for a service connection claim where there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in-service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran's VA treatment records show a present diagnosis of flat feet. He reported "foot trouble" during his November 2012 separation from service examination. The Veteran asserts that he was diagnosed with flat feet in service, for which he was prescribed inserts, and that he continued to have issues with his feet to the present. See August 2017 Statement in Support of Claim. Such evidence meets the threshold for an examination under McLendon. Based on the foregoing, the Board finds a remand is required to obtain an examination and opinion to determine the etiology of any bilateral foot disability. Id. 4. Entitlement to service connection for a TBI is remanded. Likewise, the Board cannot make a fully informed decision on the issue of entitlement to service connection for a TBI because the information and evidence of record does not contain sufficient, competent medical evidence to decide the claim. 38 C.F.R. § 3.159 (c)(4). A May 2017 TBI screening noted that the Veteran hit his head on the pavement in-service and he felt dazed for the remainder of the day. The February 2021 private examiner stated that there may be a connection between the Veteran's in-service fall, his headaches, and a subsequent medical diagnosis of a mild TBI. Such evidence meets the threshold for an examination under McLendon. On remand, a medical examination and nexus opinion pertaining to the relationship between a TBI diagnosis and the Veteran's service, must be obtained. The matters are REMANDED for the following action: 1. Update the Veteran's VA treatment records associate with the claims file. 2. Schedule the Veteran for a foot conditions examination. The examiner must review the Veteran's claims file. The examiner is asked to identify any bilateral foot disabilities. If a diagnosis cannot be provided but any foot condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: Is any foot disability at least as likely as not related to service, including from wearing boots and marching, hiking and running during boot camp? Provide a rationale to support the opinion. In rendering an opinion, the Veteran is presumed credible for the limited purposes of the request herein. 3. Schedule the Veteran for a VA examination to determine if he has a diagnosis of residuals of a TBI, and, if so, whether it is related to his active duty service. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion(s) below. The examiner must obtain from the Veteran and include in the examination report a complete description regarding the onset and continuity of symptoms. All appropriate diagnostic testing should be performed. Following a complete review of the evidence of record, and with consideration of the Veterans statements, the examiner is requested to provide the following opinion: Determine whether it is at least as likely as not (50 percent probability or higher) that the Veteran has residuals of a TBI which began during or is etiologically related to his active duty service, to include as due to an in-service fall. Why or why not? The examiner must address the April 2017 TBI screening based on the Veteran's report of a fall in service with symptoms of feeling confused, dazed or seeing stars with subsequent headaches, the May 2017 diagnosis, by history alone, of a mild TBI, as well as the authorization to undergo an MRI. A complete rationale for this opinion is required. Citation to accepted medical literature and principles (or lack thereof) would be of great assistance to the Board. If the examiner is unable to provide any opinion without resorting to speculation, he or she must explain why this is so. In rendering an opinion, the Veteran is presumed credible for the limited purposes of the request herein. Jennifer White Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Susan Leary 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.