Citation Nr: 21039813 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 16-50 003A DATE: July 1, 2021 ORDER Service connection for headaches is granted. Service connection for erectile dysfunction is granted. REMANDED Entitlement to service connection for obstructive sleep apnea is remanded. FINDINGS OF FACT 1. The Veteran's current headaches had their onset during active duty military service. 2. The Veteran's current erectile dysfunction is proximately due to or the result of his service-connected psychiatric disorder. CONCLUSIONS OF LAW 1. The criteria for service connection for headaches have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for erectile dysfunction have been 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 in the United States Marine Corps from February 1989 to February 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2014 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO) in Waco, Texas. Service Connection Service connection may be established for a disability resulting from an injury incurred or disease contracted in the line of duty, or for aggravation of a preexisting injury incurred or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may also 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). Certain chronic diseases will be presumed related to service if they were noted as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if continuity of the same symptomatology has existed since service, with no intervening cause. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). A "veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54). Although all the evidence has been reviewed, only the most relevant and salient evidence is discussed below. See Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (holding that the Board must review the entire record but does not have to discuss each piece of evidence). 1. Service connection for headaches is granted. The Veteran is seeking service connection for headaches and presents two theories of entitlement for his claim. First, the Veteran contends that he experienced headaches during service and such headaches have continued since service. Alternatively, he contends that his headaches were either caused or aggravated by his service-connected disabilities. The Veteran's service treatment records document his periodic reports of headaches and blurred vision throughout service. He was diagnosed with Guillain-Barre Syndrome (GBS). Over time, his GBS stabilized but his headaches and blurred vision persisted. Post-service, the Veteran continued to report experiencing occasional headaches blurry vision shortly after his discharge from service. Upon examination, the Veteran's treating physicians assessed that the Veteran was status post GBS with residuals, to include headaches. See VA Treatment Records dated April 2, 1992, May 23, 1992, July 22, 1992, April 6, 1994, and November 25, 1995. Throughout the appeal period, the Veteran continued to receive treatment for his headaches. In October 2014, a VA physician found that the Veteran had a history of migraines. Notably, there was no contemporaneous diagnostic testing, studies, or evaluations performed to support this diagnosis. Subsequently, in June 2015, the Veteran's physician found that while the Veteran's GBS has "settled down," the Veteran still had some sequalae, to include headaches. During the appeal period, the Veteran was afforded several VA examinations to determine the nature and etiology of his headaches. For the following reasons, the Board finds that the medical opinions of record are insufficient as to the issue of etiology. At the February 2014 VA examination, the Veteran reported that during service he had severe complications of GBS, to include paralysis, blurry vision and headaches. He further indicated that after his GBS resolved, he continued to have headaches after his separation from service. At the time of the VA examination, the Veteran's symptoms include head pain, nausea, vomiting, sensitivity to sound, and changes in vision. Upon review of the record and examination of the Veteran, the examiner diagnosed migraines including migraine variants and found that it was not at least as likely as not that the Veteran's claimed headaches were connected to his period of service. In so finding, the examiner found that the Veteran only had one instance of headaches during service. The examiner further found that there was a discrepancy in the post-service diagnoses and further evaluation was required to solidify a diagnosis of either tension headaches or migraine headaches. Ultimately, the examiner found that it appeared the Veteran's current headaches onset in either 1992 or 2001, after his separation from service. At the September 2018 VA examination, the Veteran continued to experience headaches, nausea, vomiting, and changes in his vision. Upon review of the record, the examiner found that the Veteran's headaches were less likely than not proximately due to or the result of his period of service. In so finding, the examiner noted the Veteran's in-service diagnosis of GBS and his subsequent headaches. However, the examiner found that migraine headaches were not a sequalae of GBS. Most recently, at the October 2020 VA examination, the examiner found that the Veteran's headaches were less likely than not proximately caused by his service-connected acquired psychiatric disorder. In so finding, the examiner found that the link between headaches and GBS was unknown. The examiner further reasoned that while stress or anxiety could contribute to headaches, there were too many other variables that must be ruled out. The Board finds that these opinions, even when taken together, are insufficient to establish a probative negative nexus between the Veteran's current headaches and either his period of service or his service-connected acquired psychiatric disorder, as the opinions are each deficient in some way. As it pertains to the February 2014 VA examination, the Board finds that the negative nexus is based on an inaccurate factual premise as the examiner found that the Veteran only reported headaches one time during service. As previously noted, the Veteran reported experiencing headaches several times during his period of service and treatment records dated shortly after discharge document the Veteran's statements of continued headaches during service. Regarding the September 2018 VA examination, the examiner's negative nexus failed to consider the Veteran's lay statements or the early treatment records which attribute the Veteran's headaches to his in-service GBS. Further, while the examiner focused on the diagnosis of migraines, the examiner did not consider whether the Veteran manifested tension headaches attributable to his period of service. Lastly, the most recent opinion rendered in October 2020 is speculative and conclusory at best and fails to consider the specific facts of the Veteran's case nor did the examiner attempt to rule out the additional variables that could contribute to the Veteran's headaches. After resolving any doubt in the Veteran's favor, the Board finds that the competent and credible evidence of record shows that the Veteran's current headaches began during service and have been recurrent since that time. In this regard, the Veteran's reports of headaches in and since service carries significant probative value as the reports are competent and consistent with evidence of headaches in service and immediately following service. Indeed, the probative objective medical evidence supports the Veteran's contentions: showing that he has continued to seek treatment for headaches since his discharge from service. Therefore, as the evidence shows that the Veteran's current headaches had their onset in service, service connection is warranted. See Flynn v. Brown, 6 Vet. App. 500, 503 (1994). 2. Service connection for erectile dysfunction is granted. Service connection is warranted for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Here, the rationale of the July 2019 VA medical opinion supports the Veteran's claim. Specifically, while the examiner concluded that the Veteran's erectile dysfunction is not likely due to his service-connected psychiatric disorder, the examiner acknowledged that the psychiatric disorder is a risk factor, but likely not the "major causative factor for ED." Critically, the evidence need not establish that a service-connected psychiatric disorder is the major causative factor, only that it is at least as likely as not that it caused or aggravated the disability in question. In this case, the Board finds that it does. Particularly as the examiner found that both the psychiatric disorder itself and the medication prescribed for the same can result in erectile dysfunction. Thus, after resolving any doubt in the Veteran's favor, the Board finds that service connection is warranted. In reaching this decision, the Board acknowledges the unfavorable September 2020 examiner's opinion, but finds that it is not adequate to oppose the notion of secondary service connection. Indeed, the examiner provided only a conclusory opinion as to whether the Veteran's psychiatric medication causes or aggravates his current erectile dysfunction. REASONS FOR REMAND Obstructive Sleep Apnea The Board finds that remand is required to obtain an opinion as to whether the Veteran's current OSA is related to his period of service. The service treatment records document the Veteran's reports of fatigue, difficulty sleeping, and intermittent sleep disruption. Shortly after discharge, the Veteran continued to report issues with fatigue and sleeping. As there is documentation of an in-service event, a current disability, and an alleged nexus between the two, remand is required for an examination to determine the etiology of the Veteran's obstructive sleep apnea. McLendon v. Nicholson, 20 Vet. App. 79 (2006); see Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). (Continued on the next page) The matters are REMANDED for the following action: Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his obstructive sleep apnea. The examiner must opine whether it is at least as likely as not related to an in-service event, to include his reports of fatigue and insomnolence. Joshua Castillo Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Orie, 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.