Citation Nr: 21028295 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 15-12 497 DATE: May 10, 2021 ORDER Entitlement to service connection for unspecified anxiety disorder is granted. Entitlement to service connection for headaches is granted. Entitlement to service connection for obstructive sleep apnea is granted. REMANDED Entitlement to service connection for a lumbar spine disability is remanded. Entitlement to service connection for sciatica is remanded. Entitlement to a total disability rating based upon individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. Resolving all reasonable doubt in the Veteran's favor, the Veteran's currently diagnosed unspecified anxiety disorder had its onset during military service. 2. Resolving all reasonable doubt in the Veteran's favor, the Veteran's currently diagnosed tension headaches are caused by his service-connected unspecified anxiety disorder. 3. Resolving all reasonable doubt in the Veteran's favor, the Veteran's currently diagnosed obstructive sleep apnea is etiologically related to his service-connected unspecified anxiety disorder. CONCLUSIONS OF LAW 1. The criteria for service connection for unspecified anxiety disorder are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for headaches are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 3. The criteria for service connection for obstructive sleep apnea are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant in this case, served on active duty from February 1980 to April 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from March 2013 and August 2014 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In a March 2013 rating decision, in pertinent part, the RO denied entitlement to service connection for a lumbar spine disability, posttraumatic stress disorder (PTSD), and sciatica and denied entitlement to a TDIU. In an August 2014 rating decision, in pertinent part, the RO denied entitlement to service connection for headaches and obstructive sleep apnea. This matter was previously before the Board in September 2018. In pertinent part, the Board denied entitlement to service connection for PTSD and remanded the issues of service connection for a lumbar spine disability, sciatica, obstructive sleep apnea, headaches, an acquired psychiatric disorder other than PTSD, and entitlement to a TDIU. The Board observes that an April 2021 VA back examination report was added to the claims file after the RO's adjudication in a February 2021 Supplemental Statement of the Case (SSOC), without a waiver of initial RO consideration. See Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Public Law No. 112-154, 126 Stat. 1165 (amending 38 U.S.C. § 7105 to provide that if new evidence is submitted with or after a substantive appeal received on or after February 2, 2013, then it is subject to initial review by the Board unless the Veteran explicitly requests agency of original jurisdiction (AOJ) consideration). Nonetheless, since the Board is remanding the service connection claims for a lumbar spine disability and sciatica for further development and the entire claims file is to be reviewed by the AOJ, as well as the VA examiner prior to rendering an opinion, there is no prejudice to the Veteran. The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Service Connection Claims Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection may alternatively be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a disorder which is aggravated by a service-connected disability; compensation may be provided for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. See 38 C.F.R. § 3.310(b); Allen v. Brown, 8 Vet. App. 374 (1995). Any amount of aggravation is sufficient to establish secondary service connection; permanent aggravation or worsening of a non-service-connected disability is not required. See Ward & Neal v. Wilkie, 31 Vet. App. 233 (2019). Effective August 4, 2014, VA amended the portion of the Rating Schedule dealing with mental disorders and its adjudication regulations that define the term "psychosis" to remove outdated references to the DSM-IV and replace them with references to the updated Fifth Edition (DSM-5). See 79 Fed. Reg. 149, 45094. The provisions of the interim final rule apply to all applications for benefits that are received by VA or that were pending before the Agency of Original Jurisdiction on or after August 4, 2014. Id. VA adopted as final, without change, the interim final rule and clarified that the provisions of this interim final rule do not apply to claims that have been certified for appeal to the Board or are pending before the Board as of August 4, 2014. See 80 Fed. Reg. 53, 14308 (March 19, 2015). In this matter, the RO certified the Veteran's appeal to the Board after August 4, 2014; therefore, the claim for service connection for an acquired psychiatric disability other than PTSD is governed by DSM-5 and the GAF scores are not relevant for consideration. See Golden v. Shulkin, 29 Vet. App. 221, 225-26 (2018) (holding that the Board errs when it uses GAF scores to assign a psychiatric rating in cases where DSM-5 applies). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to her through her senses. See Layno, 6 Vet. App. 465, 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d 1372, 1377. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 1. Entitlement to service connection for an acquired psychiatric disability other than PTSD In its September 2018 decision, the Board denied entitlement to service connection for PTSD. However, the issue of service connection for an acquired psychiatric disability other than PTSD remains on appeal before the Board. As an initial matter, the Board finds that the Veteran has a current acquired psychiatric disability diagnosed as unspecified anxiety disorder, made in accordance with the DSM-5 criteria. See November 2015 private "Mental Disorders" Disability Benefits Questionnaire (DBQ). In addition, the Veteran has current diagnoses of alcohol use disorder and major depressive disorder. See September 2019 VA PTSD examination report; VA treatment records dated September 2012 to November 2019. Therefore, a current acquired psychiatric disability, other than PTSD, is established. Thus, the questions remaining before the Board are whether there is competent evidence of in-service incurrence of an acquired psychiatric disability and a nexus between the in-service disability and the currently diagnosed disability. On review, the Board finds that the evidence is at least in equipoise as to whether the Veteran's currently diagnosed unspecified anxiety disorder had its onset during active service and continues to the present. In an attachment to the November 2015 private "Mental Disorders" DBQ, Dr. H.H.-G., a psychologist, wrote, "There is a body of literature detailing the emergence of mental health symptoms within active duty servicemen" and she noted that some researchers "found that active military service impacts depression, anxiety and quality of life satisfaction. Additionally, other researchers revealed that guilt is a salient feature in mental health diagnoses of active duty military personnel." Ultimately, Dr. H.H.-G. opined that "[the Veteran] suffers from unspecified anxiety disorder [that] more likely than not began in military service [and] continues uninterrupted to the present..." The Board affords great probative value to Dr. H.H.-G.'s medical opinion given her expertise in psychology, her thorough examination of the Veteran, and citation to medical literature to support her opinion. The Board acknowledges that the examiner who conducted the September 2019 VA PTSD examination opined that the Veteran's currently diagnosed PTSD and alcohol use disorder were "more likely than not related to an in-service stressor (MST). Medical records do not indicate a history of mental health problems upon enlistment, but do indicate problems with mental health and alcohol use following his service. Medical records also indicate treatment for MST many years prior to a disability claim." In its September 2018 decision, the Board found that the evidence failed to corroborate the Veteran's reported incident of military sexual trauma (MST), since he claimed that the incident occurred while he was deployed to Korea, and the Veteran's military personnel records and DD-214 do not show any foreign service. This finding constitutes the law of the case. See DiCarlo v. Nicholson, 20 Vet. App. 52, 57 (2006). As the September 2019 VA medical opinion is based upon an uncorroborated stressor, the Board affords it little to no probative value. Accordingly, the November 2015 private medical opinion is the only adequate etiology opinion of record and it is favorable to the Veteran's claim. For these reasons, the Board finds that service connection for unspecified anxiety disorder is warranted. The appeal is therefore granted. 2. Entitlement to service connection for headaches The Veteran also asserts he is entitled to service connection for headaches, to include as secondary to his unspecified anxiety disorder. As an initial matter, the Board finds that the Veteran has a current diagnosis of tension headaches. See July 2018 private "Headaches" DBQ. Accordingly, a current disability is established. Next, as discussed above, the Veteran is now awarded service connection for unspecified anxiety disorder. Thus, the question remaining before the Board is whether there is competent evidence of a nexus between the Veteran's service-connected unspecified anxiety disorder and his currently diagnosed tension headaches. On review, the Board finds that the evidence is at least in equipoise as to whether the Veteran's tension headaches are etiologically related to his service-connected unspecified anxiety disorder. In a July 2018 private "Headaches" DBQ, the Veteran reported that he has several headaches that occur each month and are brought on by stress caused by his anxiety. When he feels anxious and stressed due to anxiety, this will bring on a headache and he must go lie down in a dark quiet room for relief. The July 2018 DBQ was completed by Dr. H.S., a medical doctor. In an attachment to the DBQ, Dr. H.S. wrote, "Research has shown patients with mental health disorders are more likely to develop headaches because pain and mood are regulated by the same part of the brain. In one study, it was determined mental health disorders can both cause or aggravate headaches. Based on my interview with the veteran, review of the veteran's claims file, and the above cited medical literature it is my opinion the veteran's anxiety disorder more likely than not both cause[s] and permanently aggravate[s] the veteran's headaches." The Board affords great probative value to Dr. H.S.'s medical opinion given his expertise as a medical doctor, consideration of the Veteran's lay reports of symptoms, review of the Veteran's claims file, and citation to medical literature to support his opinion. The Board notes that the Veteran has not been provided a VA examination for his headaches. Therefore, the July 2018 private medical opinion is the only adequate etiology opinion of record and it is favorable to the Veteran's claim. For these reasons, and after resolution of all reasonable doubt in the Veteran's favor, the Board finds that service connection for headaches is warranted. The appeal is therefore granted. 3. Entitlement to service connection for obstructive sleep apnea In addition, the Veteran asserts he is entitled to service connection for obstructive sleep apnea, to include as secondary to his unspecified anxiety disorder. As an initial matter, the Board finds that the Veteran has a current diagnosis of obstructive sleep apnea. See October 2015 VA sleep medicine diagnostic study report; January 2016 private "Sleep Apnea" DBQ. Accordingly, a current disability is established. Next, as discussed above, the Veteran is now awarded service connection for unspecified anxiety disorder. Thus, the question remaining before the Board is whether there is competent evidence of a nexus between the Veteran's service-connected unspecified anxiety disorder and his currently diagnosed obstructive sleep apnea. On review, the Board finds that the evidence is at least in equipoise as to whether the Veteran's obstructive sleep apnea is etiologically related to his service-connected unspecified anxiety disorder. A January 2016 private "Headaches" DBQ was completed by Dr. H.S., a medical doctor. In an attachment to the DBQ, Dr. H.S. wrote, "When I spoke to the veteran on 1/14/2016 he told me he frequently can not use his CPAP due to his anxiety disorder. He has 3-5 panic attacks per week due to the mask. His inability to use his CPAP every night greatly aggravates the effects of his sleep apnea and the next day he is very tired and will fall asleep frequently. His tiredness also adversely affects his anxiety." Dr. H.S. further wrote, "Research has shown that psychiatric disorders are one of the contributing factors to OSA. A recent study found that subjects with anxiety compared with individuals that do not suffer from anxiety have a higher prevalence of sleep apnea diagnosis, the veterans with sleep apnea had higher rates of depression. Another study found that with CPAP treatment, both OSA and psychiatric symptoms decreased providing further evidence of the co-morbidity of these conditions." Ultimately, Dr. H.S. opined, "Based on my experience, interview with the Veteran, review of the medical records, and supporting literature, I feel it is as likely as not the Veteran[']s anxiety aided in the development and permanently aggravates his OSA." The Board affords great probative value to Dr. H.S.'s medical opinion given his expertise as a medical doctor, consideration of the Veteran's lay reports of symptoms, review of the Veteran's claims file, and citation to medical literature to support his opinion. The Board notes that the Veteran has not been provided a VA examination for his obstructive sleep apnea. Therefore, the January 2016 private medical opinion is the only adequate etiology opinion of record and it is favorable to the Veteran's claim. For these reasons, and after resolution of all reasonable doubt in the Veteran's favor, the Board finds that service connection for obstructive sleep apnea is warranted. The appeal is therefore granted. (Continued on the next page) REASONS FOR REMAND 1. Entitlement to service connection for a lumbar spine disability is remanded. The Veteran asserts he is entitled to service connection for a lumbar spine disability. The Board finds that remand is necessary prior to appellate review of this claim. First, in an August 1980 service treatment record (STR), service medical personnel requested an X-ray of the Veteran's low back. However, the Veteran's STRs do not contain a radiology report of the lumbar spine. On remand, the RO should undertake any appropriate efforts to obtain the in-service radiology report of the Veteran's lumbar spine, document all attempts to obtain the evidence, and if it is unavailable, a formal finding of unavailability should be made. Second, during an April 2015 VA pain medicine consultation and the April 2021 VA back examination, the Veteran reported that he had received physical therapy and chiropractic care for his back pain. It is unclear whether these treatments were sought through VA or through a private provider. Thus, on remand, the Veteran should be provided a VA Form 21-4142, Authorization for Release of Information, so that VA may obtain any outstanding private treatment records relating to his claimed lumbar spine disability. Additionally, any outstanding VA treatment records should be associated with the claims file. Third, in its September 2018 decision, the Board requested that the VA examiner provide an opinion as to whether the Veteran's lumbar spine disability clearly and unmistakably preexisted the Veteran's entrance into active service. If the VA examiner determined that the disability did not preexist service, the examiner was asked to opine whether it at least as likely as not had its onset during service or was otherwise caused by it. The January 2021 VA examiner opined that the claimed condition, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. Additionally, the January 2021 VA examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The Board finds the January 2021 VA medical opinion inadequate because the examiner failed to provide any rationale for the finding that the Veteran's lumbar spine disability clearly and unmistakably preexisted service. Additionally, the VA examiner provided an opinion as to direct causation, even though such an opinion was only requested if the lumbar spine disability was not found to have preexisted service. Based on the foregoing, the Board finds the January 2021 VA medical opinion inadequate and unclear. Thus, remand is required to obtain an adequate addendum opinion. Fourth, in a January 2011 "Questionnaire on Pain" submitted as part of the Veteran's claim for disability benefits from the Social Security Administration, the Veteran reported that his back pain is brought on by "nerves PTSD." Thus, the Board finds that an opinion should be obtained as to whether the Veteran's lumbar spine disability is proximately due to or aggravated by his service-connected unspecified anxiety disorder. 2. Entitlement to service connection for sciatica is remanded. The Veteran asserts he is entitled to service connection for sciatica, to include as secondary to his lumbar spine disability. The Board finds that remand is necessary prior to appellate review of this claim. First, in a January 2021 VA medical opinion, the VA examiner opined that the Veteran's claimed sciatica was less likely than not incurred in or caused by the claimed in-service injury, event, or illness, reasoning, "During service, Sciatica of the left side, was acute only. There is no evidence of chronicity of care and symptoms are subjective only. The veteran denied left sided sciatica during this exam and only c/o right sided radiculopathy secondary to current diagnoses of degenerative arthritis of the lumbar spine and lumbar stenosis. A nexus has not been established." To the extent the January 2021 VA examiner's opinion is based on the purported lack of current left-sided sciatica, the Board finds that the opinion is directly contradicted by the finding in the April 2021 VA back examination report that the Veteran had radiculopathy of the bilateral lower extremities involving the sciatic nerve. Thus, the Board finds the January 2021 VA medical opinion inadequate. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Second, the Veteran's service connection claim for sciatica must be remanded as it is inextricably intertwined with the outcome of the Veteran's service connection claim for a lumbar spine disability. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). 3. Entitlement to a TDIU is remanded. The Board finds that the Veteran's claim of entitlement to a TDIU must be remanded as it is inextricably intertwined with the assignment of disability ratings for his newly service-connected unspecified anxiety disorder, headaches, and obstructive sleep apnea. See Harris v. Derwinski, 1 Vet. App. 180 (1991). Accordingly, the matters are REMANDED for the following action: 1. Undertake all appropriate efforts to obtain any radiology reports of the Veteran's lumbar spine rendered during his active service. All attempts to obtain the evidence should be documented, and if it is unavailable, a formal finding of unavailability should be made. 2. Send the Veteran a VA Form 21-4142, Authorization for Release of Information, for completion, to obtain any outstanding private treatment records relating to his claimed lumbar spine disability. 3. Ensure that all outstanding VA treatment records are associated with the claims file. 4. Obtain an addendum VA medical opinion regarding the nature and etiology of the Veteran's lumbar spine disability. The claims file, including a copy of this Remand, must be made available to, and be reviewed by, the examiner. If another examination is indicated, one should be provided to the Veteran. After a review of the entire claims file, the examiner is asked to: (a) Provide an opinion as to whether the Veteran's lumbar spine disability clearly and unmistakably existed prior to his entrance to service. (b) If the lumbar spine disability clearly and unmistakably existed prior to service, opine whether such disability was clearly and unmistakably NOT AGGRAVATED beyond its natural progression by the Veteran's service. (c) If the lumbar spine disability did not clearly and unmistakably exist prior to service, opine whether it at least as likely as not (50 percent probability or greater) had its onset during service or is otherwise related to it. (d) Provide an opinion as to whether the Veteran's lumbar spine disability is at least as likely as not (50 percent probability or greater) proximately due to OR aggravated by his service-connected unspecified anxiety disorder. * Specifically, consider a January 2011 "Questionnaire on Pain," submitted as part of the Veteran's claim for disability benefits from the Social Security Administration, in which the Veteran reported that his back pain is brought on by "nerves PTSD." * Any amount of aggravation is sufficient to establish secondary service connection; permanent aggravation/worsening of a non- service-connected disability is not required. See Ward & Neal v. Wilkie, 31 Vet. App. 233 (2019). The examiner must provide a complete rationale for all opinions rendered. 5. Obtain an addendum VA medical opinion regarding the nature and etiology of the Veteran's sciatica. The claims file, including a copy of this Remand, must be made available to, and be reviewed by, the examiner. If another examination is indicated, one should be provided to the Veteran. After a review of the entire claims file, the examiner is asked to provide an opinion as to: (a) Whether the Veteran's sciatica at least as likely as not (50 percent probability or greater) had its onset during or is otherwise related to the Veteran's active service. (b) Whether the Veteran's sciatica is at least as likely as not (50 percent probability or greater) proximately due to OR aggravated by his lumbar spine disability. * Any amount of aggravation is sufficient to establish secondary service connection; permanent aggravation/worsening of a non- service-connected disability is not required. See Ward & Neal v. Wilkie, 31 Vet. App. 233 (2019). The examiner must provide a complete rationale for all opinions rendered. 6. Once initial ratings have been assigned for the unspecified anxiety disorder, headaches, and obstructive sleep apnea, readjudicate the remanded claims on appeal. S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. M. Gill, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.