Citation Nr: 21032309 Decision Date: 05/26/21 Archive Date: 05/26/21 DOCKET NO. 17-56 143 DATE: May 26, 2021 REMANDED The claim of service connection for migraine headaches is remanded. The claim of service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD), is remanded. The claim of service connection for obstructive sleep apnea is remanded. The claim of service connection for peripheral neuropathy of the left lower extremity is remanded. The claim of service connection for peripheral neuropathy of the right lower extremity is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1987 to August 1991. His decorations include the Combat Action Ribbon. This case is before the Board of Veterans' Appeals (Board) on appeal from September and November 2015 rating decisions of the Department of Veterans Affairs (VA), Regional Office (RO), in Denver, Colorado. The Veteran's notice of disagreement (NOD) was received in April 2016. The RO issued Statements of the Case (SOCs) in October 2017. The Veteran's Appeal To Board Of Veterans' Appeals (VA Form 9), was received in October 2017. In January 2021, the Veteran testified at a Board hearing over which the undersigned Veterans Law Judge presided. A transcript of the testimony is of record. Claims of service connection for PTSD encompass claims of service connection for all psychiatric disorders. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). While a Veteran may only seek service connection for PTSD, the claim cannot be limited to that diagnosis, but must rather be considered a claim for any mental disorder that may be reasonably ascertained. As the asserted disability has been variously diagnosed, the issue is expanded to include all psychiatric disorders. 1. Entitlement to service connection for migraine headaches. The Veteran asserts that he experiences migraine headaches that were first manifested during his period of active service in the Gulf War theater of operations. During his January 2021 Board hearing, he testified that he had had not had migraine headaches prior to active service, but that he would merely experience the average headache. He added that he first began experiencing migraine headaches during combat activity while serving in Desert Storm. The Veteran's February 1987 enlistment report of medical examination is silent as to a history of migraine headaches prior to active service. However, in the accompanying report of medical history, the Veteran indicated that he had recently experienced a migraine headache. Following service, private outpatient treatment record private medical record dated in 2009, 2011, and 2012 show that the Veteran reported onset of migraine headaches at 14 years of age, since he was a teenager, and during adolescence. Other private medical records dated in 2011 show that he reported onset in 1988 which would have been during his period of active service. A letter from R. Salter, FNP-BC, dated in October 2020, shows that the Veteran, in pertinent part, was said to have migraine headaches potentially related to active service. It was also suggested that the Veteran's PTSD had led to his migraine headaches. In light of the foregoing, the Veteran should be afforded a VA examination so as to determine the precise nature and likely etiology of the asserted migraine headaches. In this regard, an opinion should be obtained as to whether the diagnosed migraine headaches had onset in service; pre-existed service, but were aggravated by service; or are secondary to the asserted psychiatric disorder, to include PTSD. See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); Allen v. Brown, 7 Vet. App. 439 (1995); see also Colvin v. Derwinski, 1 Vet. App. 171 (1991); Hatlestad v. Derwinski, 3 Vet. App. 213 (1992). It is noted that where a Veteran engaged in combat with the enemy, and it is claimed that a disease or injury was incurred in such combat, VA shall accept as sufficient proof of service connection satisfactory lay or other evidence of service incurrence, if the lay or other evidence is consistent with the circumstances, conditions, or hardships of such service. 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(d). To establish service connection, however, there must be medical evidence of a nexus between the current disability and the combat injury. See Dalton v. Nicholson, 21 Vet. App. 23 (2007); Libertine v. Brown, 9 Vet. App. 521, 523-24 (1996). Not only is the combat injury presumed, but so are the consequences of that injury at least in service. See Reeves v Shinseki, 682 F.3d 988 (Fed. Cir. 2012). 2. Entitlement to service connection for a psychiatric disorder, to include PTSD. The Veteran asserts that he has a psychiatric disorder, to include PTSD, that is manifested as a result of his period of active service. During the January 2021 Board hearing, he described experiencing anxiety, panic attacks, and depression since combat service in Saudi Arabia. Following service, an August 2015 VA examination report shows a diagnosis alcohol abuse disorder, in sustained remission. The examiner indicated that the Veteran did not meet the criteria for a diagnosis of PTSD. A March 2017 VA examination report shows that the Veteran was diagnosed with alcohol and stimulant use disorders. The examiner indicated that the Veteran did not meet the criteria for a diagnosis of PTSD. The October 2020 letter from R. Salter, FNP-BC, shows that the Veteran, in pertinent part, was said to have a diagnosis of PTSD as a direct result of his military service. However, there was no further rationale given for the opinion provided. In light of the foregoing, the record must be supplemented by ordering another medical examination. Colvin, 1 Vet. App. at 175; Hatlestad, 3 Vet. App. at 216; see also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). 3. Entitlement to service connection for obstructive sleep apnea. The Veteran asserts that he has obstructive sleep apnea that is manifested as a result of his period of active service. During the January 2021 Board hearing, he described that he first discovered he had obstructive sleep apnea in 1992. He attributed his symptoms to exposure to oil fires, burn pits, and other environmental exposures during service in Saudi Arabia. An October 2015 VA examination report shows that the Veteran was diagnosed with sleep apnea. The examiner opined that it was less likely than not that the obstructive sleep apnea was related to a specific exposure event experienced by the Veteran during service in Southwest Asia. The examiner explained that obstructive sleep apnea was caused by relaxation of the soft palate, uvula, tongue and throat, external obstruction, or nasal obstruction. This would lead to airway narrowing or obstruction that caused hypopneas and apneas. The current evidence based medical literature did not support a causal relationship between exposure and the development of the condition, The October 2020 letter from R. Salter, FNP-BC, shows that it was indicated that exposure to pollutants during the Veteran's time in service contributed to chronic breathing issues and sleep apnea. However, there was no further rationale given for the opinion provided. In light of the foregoing, the record must be supplemented by ordering another medical examination. Colvin, 1 Vet. App. at 175; Hatlestad, 3 Vet. App. at 216; see also Barr, 21 Vet. App. at 311. 4. Entitlement to service connection for peripheral neuropathy of the left lower extremity. 5. Entitlement to service connection for peripheral neuropathy of the right lower extremity. The Veteran asserts that he has peripheral neuropathy of the left and right lower extremities that is manifested as a result of his period of active service. During the January 2021 Board hearing, he described experiencing numbing and itching the lower extremities during and soon after separation from active service. He added that he has experienced symptoms ever since. A VA peripheral neuropathy examination report dated in July 2015 shows that the Veteran was diagnosed with lower leg neuropathy. The Veteran attributed his symptoms to medication given while in Desert Storm, artillery rounds containing nerve gas shot at troop movement, and constrictive boots worn in service. The examiner concluded that the claimed lower leg neuropathy, if found, was at least as likely as not incurred in or caused by the claimed in service injury, event, or illness. The examiner explained being somewhat on the fence about whether there is a service connection given the history and limited medical records. The medical records show that he reported exposure to sulfa and nerve agent medicine but there was no documentation to prove this. He did serve in Desert Storm where such exposures may have occurred. If it was indeed the case that he was exposed to neurotoxic agents, and this can be demonstrated, then it would be reasonable to say that his peripheral neuropathic condition was related to service. Establishment of these exposures seemed to be the key to making the connection. The Veteran mentioned wearing uncomfortable boots as one source of his peripheral neuropathic pain, and this was not seen as making sense. A VA peripheral neuropathy examination report dated in October 2015 shows that it was indicated that the Veteran did not have a diagnosis peripheral neuropathy. The report, however, indicates that an electromyograph study was not conducted. A VA medical opinion was obtained in February 2017 without an in-person physical examination of the Veteran. The VA examiner indicated that he the Veteran had not been examined, the presence or absence of a peripheral neuropathy could not be confirmed. However, even the presence of peripheral neuropathy was to be assumed, the evidence did not support a service-related condition. The available service treatment records were silent for complaints that would be consistent with a peripheral neuropathy, and he did not carry this diagnosis at that time. Further, post-separation care notes documented a diagnosis of diabetes, which was a common etiology for peripheral neuropathy. The examiner concluded that if a peripheral neuropathy was present, it was less likely than not related to service and more likely than not secondary to diabetes. The October 2020 letter from R. Salter, FNP-BC, shows that the Veteran was said to have been diagnosed with peripheral neuropathy potentially related to active service. It was further opined that wearing boot bands for long periods of time during service had contributed to the neuropathy. No rationale was provided. In light of the foregoing, the record must be supplemented by ordering another medical examination, to include an electromyograph study so to determine the precise nature and likely etiology of the asserted lower extremity peripheral neuropathy. Colvin, 1 Vet. App. at 175; Hatlestad, 3 Vet. App. at 216; see also Barr, 21 Vet. App. at 311. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination for his asserted migraine headaches. The examiner must review the claims file. 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. Following review of the entire claims file, including the January 2021 Board hearing transcript and the relevant medical evidence; and, following examination of the Veteran, the examiner is requested to address each of the following: (a) Is it clear and unmistakable (obvious, manifest, and undebatable) that the Veteran's migraine headaches (as opposed to general tension or other type headaches) existed prior to active service. If so, state whether it is clear and unmistakable (obvious, manifest, and undebatable) that the pre-existing diagnosis WAS NOT aggravated (i.e., permanently worsened) during service or whether it is clear and unmistakable that any increase was due to the natural progress. (b) If the examiner determines that the Veteran's migraine headaches did not pre-exist service, then state whether it is at least as likely as not that the diagnosed migraine headaches had onset in service, or are otherwise related to disease or injury in active service. (c) State whether (i) it is at least as likely as not that the Veteran's diagnosed migraine headaches were caused (in whole or in part) by the asserted psychiatric disorder, to include PTSD; and (ii) it is at least as likely as not that the Veteran's diagnosed migraine headaches are aggravated (made worse as shown by comparing the current disability to medical evidence created prior to any aggravation) by the asserted psychiatric disorder, to include PTSD. If the migraine headaches are aggravated by the psychiatric disorder, to include PTSD, the examiner should to the extent possible indicate the level of such aggravation by identifying a baseline level of disability. In rendering an opinion, the examiner must consider and address the October 2020 opinion from R. Salter, FNP-BC. In providing the requested opinion, the clinician should consider the Veteran's reported injury and symptoms in service and thereafter, including the nature of his reported injury and the onset, progression and severity of his reported symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his current disabilities, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? In remanding this matter, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran's assertions. Neither the Veteran's credibility nor any lack thereof should be presumed in this remand. The absence of evidence of treatment for migraine headaches in the Veteran's service treatment records cannot, standing alone, serve as the basis for a negative opinion. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what if any additional evidence would be necessary before an opinion could be rendered. 2. Schedule the Veteran for a VA examination for his asserted psychiatric disorder, to include PTSD. The examiner must review the claims file. The examiner should identify all acquired psychiatric disability during the claims period. The examiner should address the Veteran's private diagnoses of PTSD and anxiety. For each disability, the examiner should opine regarding whether it is at least as likely as not that the disability had its onset in service; was manifested by psychosis in the year immediately following active service; or is otherwise the result of a disease or injury in service? The examiner must consider and address the October 2020 opinion from R. Salter, FNP-BC. In providing the requested opinion, the clinician should consider the Veteran's reported stressors and symptoms in service and thereafter, including the nature of his reported stressors and symptoms and the onset, progression and severity of his reported symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported stressors and symptoms in service and thereafter represented the onset of his current disabilities, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? In remanding this matter, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran's assertions. Neither the Veteran's credibility nor any lack thereof should be presumed in this remand. The absence of evidence of treatment for a particular psychiatric disorder in the Veteran's service treatment records cannot, standing alone, serve as the basis for a negative opinion. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what if any additional evidence would be necessary before an opinion could be rendered. 3. Schedule the Veteran for a VA examination for his asserted obstructive sleep apnea. The examiner must review the claims file. The examiner is requested to opine as to whether it is at least as likely as not that the obstructive sleep apnea had its onset in service; or is otherwise the result of a disease or injury in service, to include exposure to certain pollutants during his period of active service? The examiner must consider and address the October 2020 opinion from R. Salter, FNP-BC. In providing the requested opinion, the clinician should consider the Veteran's reported injury and symptoms in service and thereafter, including the nature of his reported injury and the onset, progression and severity of his reported symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his current disabilities, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? In remanding this matter, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran's assertions. Neither the Veteran's credibility nor any lack thereof should be presumed in this remand. The absence of evidence of treatment for obstructive sleep apnea in the Veteran's service treatment records cannot, standing alone, serve as the basis for a negative opinion. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what if any additional evidence would be necessary before an opinion could be rendered. 4. Schedule the Veteran for a VA examination for his asserted peripheral neuropathy of the left and right lower extremities. The examiner must review the claims file. An electromyograph is requested, if possible, to determine whether a diagnosis of peripheral neuropathy of the lower extremities is accurate. The examiner is requested to opine as to whether it is at least as likely as not that the asserted peripheral neuropathy of the left and right lower extremities had onset in service; or is otherwise the result of a disease or injury in service, to include exposure to certain pollutants and the wearing of boot bands during his period of active service? The examiner must consider and address the October 2020 opinion from R. Salter, FNP-BC. In providing the requested opinion, the clinician should consider the Veteran's reported injury and symptoms in service and thereafter, including the nature of his reported injury and the onset, progression and severity of his reported symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his current disabilities, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? In remanding this matter, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran's assertions. Neither the Veteran's credibility nor any lack thereof should be presumed in this remand. The absence of evidence of treatment for peripheral neuropathy in the Veteran's service treatment records cannot, standing alone, serve as the basis for a negative opinion. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what if any additional evidence would be necessary before an opinion could be rendered. L. B. CRYAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Orfanoudis, 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.