Citation Nr: 21031417 Decision Date: 05/21/21 Archive Date: 05/21/21 DOCKET NO. 16-41 544 DATE: May 21, 2021 ORDER Service connection for sleep apnea is granted. Service connection for headaches is granted. FINDINGS OF FACT 1. The evidence is at least in equipoise as to whether the Veteran's sleep apnea is etiologically related to service-connected major depressive disorder (MDD). 2. The evidence is at least in equipoise as to whether the Veteran's headaches are etiologically related to service-connected MDD. CONCLUSIONS OF LAW 1. The criteria for service connection for sleep apnea have been met. 38 U.S.C. §§ 1101, 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for service connection for headaches have been met. 38 U.S.C. §§ 1101, 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1989 to March 1991. This matter came before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in November 2016 by a Department of Veterans Affairs (VA) Regional Office (RO). In February 2019 and July 2020, the Board remanded the case for additional development. As an initial matter, this appeal originally included a claim of service connection for a psychiatric disability. In a February 2021 rating decision, the RO granted service connection for MDD, effective July 22, 2014. This constituted a full grant of the benefit sought on appeal. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also 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). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996). Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). 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) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Further, service connection may not be awarded on the basis of aggravation without establishing a pre-aggravation baseline level of disability and comparing it to the current level of disability. 38 C.F.R. § 3.310(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for sleep apnea The Veteran contends that he is entitled to service connection for sleep apnea. The Veteran asserts that his sleep apnea is secondary to his MDD. As an initial matter, the Board finds that evidence of record reflects that the Veteran has a current diagnosis of obstructive sleep apnea. The Veteran underwent a sleep study in January 2016 at which he was found to have obstructive sleep apnea. In a November 2017 Disability Benefits Questionnaire (DBQ), the examiner found that the Veteran had a diagnosis of obstructive sleep apnea. The Veteran's service treatment records (STRs) are silent for any complaint diagnosis, or treatment of sleep apnea or sleep-related problems during the Veteran's active service. There is also no indication of any complaint, diagnosis, or treatment of sleep apnea from the years immediately following the Veteran's active service. In a June 2014 VA Psychology Note, the Veteran stated that he does not sleep, and he gets three or four hours of sleep a night. In a September 2014 Psychiatry Outpatient E&M Note, the Veteran reported that his sleep is disruptive with napping during the day. He stated that he is a heavy snorer, and others have witnessed apneic episodes. He noted that he has low energy level and concentration. The examiner opined that the Veteran had possible sleep apnea. In a VA Mental Health Nursing Note from the same day, the Veteran stated that his sleep is not good at all. In a December 2014 VA Addendum, the Veteran stated that his stress has significantly compromised his sleep. In another Addendum from the same day, the Veteran stated that he was having difficulty sleeping. In a March 2015 VA Primary Care Nursing Note, the Veteran reported that he wakes up a lot trying to catch his breath, and he was snoring really badly. He stated that he feels sleepy all the time no matter how many hours he sleeps. In a July 2015 VA Mental Health Nursing Note, the Veteran reported that he has not been able to sleep, and he gets four or five hours of sleep per night. He stated that he tosses and turns all night long. In an August 2015 VA Primary Care Nurse Practitioner Outpatient Note, the Veteran stated that he snores at night and wakes up tired during the day. In a September 2015 VA Mental Health Nursing Note, the Veteran reported that he usually has a lot on his mind at night, which makes it difficult to sleep. In the January 2016 sleep study, the examiner noted that the Veteran had daytime sleepiness, snoring, and witnessed apneic events. The Veteran was found to have severe obstructive sleep apnea with daytime hypersomnolence, and the examiner recommended use of a CPAP. No other evidence of record demonstrates a causal relationship between the Veteran's obstructive sleep apnea and his active service. Based on the foregoing, the Board finds that the Veteran's sleep apnea is not shown to be causally or etiologically related to any disease, injury, or incident in service. Thus, service connection for sleep apnea on a direct basis is not warranted. In statements from December 2018 and April 2021, the Veteran's representative asserted that the Veteran's sleep apnea was secondary to his MDD. In a November 2017 DBQ, the examiner reported that the Veteran had a diagnosis of obstructive sleep apnea with daytime hypersomnolence. The examiner opined that it is as likely as not that the Veteran's MDD has aided in the development of and permanently aggravated his sleep apnea. The Veteran stated that he attempts to use his CPAP at night but removes it prematurely due to it making him feel claustrophobic and smothered, and this further exacerbates his mental health symptoms. The examiner observed that a June 2014 mental health record shows a diagnosis of dysthymia with symptoms of isolating, depression, anger, and sleep impairment; and a mental health records from 2016 show a diagnosis of unspecified depressed disorder with symptoms of depression, anxiety, sleep impairment, anger, and irritability. An October 2018 statement by Dr. HG shows a diagnosis of MDD with symptoms of depressed mood, anxiety, suspiciousness, panic attacks more than once a week, near continuous panic or depression, chronic sleep impairment, memory loss, disturbances of motivation and mood, difficulty establishing and maintaining effective work/social relationships, difficulty adapting to stressful circumstances, inability to establish and maintain effective relationships, and persistent delusions or hallucinations. The November 2017 examiner explained that research has shown that psychiatric disorders are commonly associated with obstructive sleep apnea. A recent study found that subjects with depression compared with non-depressed have a higher prevalence of a sleep apnea diagnosis. Another study found that with CPAP treatment, both obstructive sleep apnea and psychiatric symptoms decreased providing further evidence of the comorbidity of these conditions. Consequently, based on the evidence as described above, the Board finds the evidence is at least in equipoise as to whether the Veteran's sleep apnea is caused by, aggravated by, or otherwise a result of his service connected MDD. Therefore, the Board resolves all doubt in his favor and finds that service connection for sleep apnea is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 2. Entitlement to service connection for headaches The Veteran contends that he is entitled to service connection for headaches. The Veteran asserts that his headaches are secondary to his MDD. As an initial matter, the Board finds that evidence of record reflects that the Veteran has a current diagnosis of tension headaches. In a November 2017 DBQ, the examiner diagnosed the Veteran with tension headaches. The Veteran's STRs are silent for any complaint diagnosis, or treatment of headaches problems during the Veteran's active service. There is also no indication in the evidence of record of any complaint, diagnosis, or treatment of headaches from the years immediately following the Veteran's active service. In a March 2016 VA Mental Health Nursing Note, the Veteran reported that he had been having headaches constantly. In a September 2016 VA Primary Care Nurse Practitioner Outpatient Note, the Veteran reported that he had been under a lot of stress, and he had been having tension headaches associated with abdominal cramping when he thinks about it. In a September 2016 VA Eye Consult, the Veteran reported that brightness induces headaches. In an August 2017 VA Social Work Group Counseling Note, the Veteran reported that he will have headaches and feel overwhelmed when he is stressed. In an October 2019 VA Pain Nursing Note, the Veteran reported headache pain, which he rated at 7 out of 10. No other evidence of record demonstrates a causal relationship between the Veteran's headaches and his active service. Based on the foregoing, the Board finds that the Veteran's headaches are not shown to be causally or etiologically related to any disease, injury, or incident in service. Thus, service connection for headaches on a direct basis is not warranted. In statements from December 2018 and April 2021, the Veteran's representative asserted that the Veteran's headaches are secondary to his MDD. In a November 2017 DBQ, the examiner diagnosed the Veteran with tension headaches. The Veteran reported that he suffered from prostrating attacks of headache pain three or four times a week with nausea, vomiting, light and sound sensitivity, disturbed concentration, blurred vision, and dizziness. The examiner opined that it is as likely as not that the Veteran's MDD has aided in the development of and permanently aggravated his headaches. The Veteran stated that when his depression is bothering him, he becomes stressed out, and this brings on a headache. The November 2017 examiner explained that medical research states that patients with a mental health condition are more likely to develop headaches because pain and mood are actually regulated by the same part of the brain, and it is well established that mental disorders both cause and aggravate headaches. The examiner observed that the Veteran experiences approximately three to four headaches per week lasting one to nine hours. When these prostrating attacks arise, they force the Veteran to lie down in a quiet room. Consequently, based on the evidence as described above, the Board finds the evidence is at least in equipoise as to whether the Veteran's headaches are caused by, aggravated by, or otherwise a result of his service connected MDD. Therefore, the Board resolves all doubt in his favor and finds that service connection for headaches is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). M.W. Kreindler Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Dawn A. Leung, 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.