Citation Nr: 21039979 Decision Date: 07/02/21 Archive Date: 07/02/21 DOCKET NO. 12-27 337 DATE: July 2, 2021 REMANDED Entitlement to service connection for obstructive sleep apnea is remanded. Entitlement to service connection for chronic fatigue syndrome is remanded. Entitlement to a higher rating for post-concussion syndrome with insomnia disorder is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1984 to October 1987. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in February 2015 and February 2019 and was remanded for further development. The requested development was completed, and the case has been returned to the Board for further appellate action. 1. Entitlement to service connection for obstructive sleep apnea is remanded. The Veteran asserts that his sleep apnea began during service after sustaining a head injury in a rappelling accident and/or was caused or aggravated by his service-connected post-concussion syndrome with insomnia disorder. Service treatment records show that the Veteran lost consciousness for 20 to 30 minutes after hitting another person while rappelling from a helicopter in October 1986. In January 1988, the Veteran underwent a VA examination, during which he reported, among other things, twitching in his feet when he slept. Subsequent treatment records show complaints of difficulty sleeping and daytime fatigue as early as May 2004. An August 2009 VA sleep consultation note shows that the Veteran reported trouble sleeping and daytime sleepiness since 1987 and symptoms of abnormal body movements and jerking in his legs while sleeping. A sleep study performed in September 2009 revealed a diagnosis of obstructive sleep apnea. In February 2015, the Board remanded the claim to obtain a medical opinion with respect to direct service connection and a new opinion with respect to secondary service connection that addresses articles submitted by the Veteran regarding an association between traumatic brain injury (TBI) and sleep disorders. In September 2015, a VA examiner reviewed the evidence of record, including the articles submitted by the Veteran, and opined that it was less likely than not that the Veteran's sleep apnea was due to or the result of his service-connected post-concussion syndrome. In October 2017, another VA examiner reviewed the evidence of record and indicated that the medical literature does not support an association between TBI and sleep apnea. When asked to comment on various factors noted in the Veteran's September 2009 sleep study, the examiner indicated that limb movement is a subjective symptom which may be associated with sleep apnea. In February 2019, the Board again remanded the claim to obtain a medical opinion as to whether the Veteran's obstructive sleep apnea is directly related to service and a new opinion as to whether the Veteran's sleep apnea was caused or aggravated by his service connected disabilities. In December 2019, a VA examiner reviewed the evidence of record, including the articles submitted by the Veteran, and opined that it was less likely than not that the Veteran's sleep apnea was incurred in or caused by service or caused or aggravated by his service-connected post-concussion syndrome. In support of this, the examiner explained that obstructive sleep apnea is an obstructive phenomenon involving the upper airways and not caused by non-obstructive disabilities. The examiner further explained that sleep disorders associated with TBI would be centrally mediated, not obstructive. Because the examiner's rationale only addressed secondary service connection, the Board finds that another remand is necessary in order to obtain a medical opinion as to whether the Veteran's sleep apnea had its onset during service or is otherwise directly related to service, in accordance with the terms of the Board's prior remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In doing so, the examiner should address the Veteran's January 1988 report of twitching in his feet when he slept and the October 2017 VA examiner's opinion that limb movement is a subjective symptom which may be associated with sleep apnea. 2. Entitlement to service connection for chronic fatigue syndrome is remanded. The Veteran asserts that he has chronic fatigue syndrome which is secondary to his service-connected post-concussion syndrome with insomnia disorder. Treatment records from 2004 to 2007 show reports of difficulty sleeping and daytime fatigue, and the assessments included metabolic syndrome, adrenal insufficiency with low testosterone, chronic fatigue and immune dysfunction syndrome (CFIDS), chronic fatigue syndrome with positive Epstein-Barr virus (EBV) titer, and sleep dysfunction. In April 2009, the Veteran filed the instant claim for service connection. Subsequent treatment records note a reported past medical history of chronic fatigue syndrome, but they do not appear to show a diagnosis of chronic fatigue syndrome during the course of the Veteran's claim. The Veteran underwent a VA examination in August 2012, and it was noted that he had a diagnosis of chronic fatigue syndrome. However, the examiner later indicated that the Veteran did not have any findings, signs, or symptoms attributable to chronic fatigue syndrome, and a diagnosis of chronic fatigue syndrome has not been established. The examiner explained that other causes for the Veteran's reported fatigue have not been ruled out, and it is more likely that the Veteran's symptoms are related to his chronic low testosterone level, which is a normal and expected outcome of the aging process. The Veteran underwent another VA examination in September 2015, and it was noted that the Veteran was diagnosed with chronic fatigue syndrome in 2005. The examiner opined that it was less likely than not that chronic fatigue syndrome was caused by the Veteran's service-connected post-concussion syndrome. In support of this, the examiner explained that the Veteran was diagnosed with early onset hypogonadism (reduced testosterone production) which could account for most or all of his reported chronic fatigue syndrome symptoms, and which reportedly improved with testosterone treatment. In October 2017, a VA physician reviewed the evidence of record and indicated that there was insufficient evidence to support a diagnosis of chronic fatigue syndrome. In February 2019, the Board remanded the claim to obtain new medical opinions as to whether the Veteran's chronic fatigue syndrome was directly related to service or caused or aggravated by his service connected disabilities. In doing so, the Board instructed the examiner to concede the presence of chronic fatigue syndrome. In December 2019, a VA physician reviewed the evidence of record and indicated that he was unable to concede the diagnosis of chronic fatigue syndrome without a workup pertaining to such a diagnosis. The physician explained that chronic fatigue syndrome is a diagnosis of exclusion and requires the absence of other plausible causes. He indicated that in this case, the Veteran has multiple conditions that could account for his symptoms, such as obstructive sleep apnea, other sleep disorders, and back disabilities, which would contradict a diagnosis of chronic fatigue syndrome. To the extent that the Board's prior remand directives may be interpreted as finding the Veteran has a current diagnosis of chronic fatigue syndrome, the Veteran is on notice that the Board has not made a determination as to whether the evidence shows a current diagnosis of chronic fatigue syndrome. See, e.g. Smith v. Wilkie, 32 Vet. App. 332, 339 (2020) (an appellant must first be given notice and an opportunity to respond before the Board reverses a prior Board remand's characterization of evidence as credible); see also Degmetich v. Brown, 104 F.3d 1328, 1333 (1997) (holding that the existence of a current disability is the cornerstone of a claim for VA disability compensation). Accordingly, the claim is remanded to provide the Veteran with an opportunity to respond to this notice. 3. Entitlement to an increased rating for post-concussion syndrome with insomnia disorder is remanded. In February 2019, the Board remanded the claim to obtain a medical opinion as to whether the Veteran has a seizure disorder as a residual of his service-connected post-concussion syndrome that should be evaluated separately. See 38 C.F.R. § 4.124a, Diagnostic Code 8045 (physical dysfunction as a residual of TBI, including seizures, is to be evaluated separately, as long as the same signs and symptoms are not used to support more than one evaluation). In December 2019, a VA psychologist reviewed the evidence of record and appears to have opined that the Veteran's seizures are not a residual of his service-connected post-concussion syndrome because 90 percent of seizures caused by TBI occur within the second year following the TBI. In January 2020, the Veteran underwent a VA TBI examination with a physician, and it was noted that the Veteran has received treatment for seizures since 2011. The examiner indicated that the Veteran's seizure disorder did not appear to occur during active duty and cannot be a TBI residual without resorting to speculation. However, the examiner did not provide a rational to support the opinion. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). Accordingly, the Board finds that a remand is necessary to obtain a new medical opinion with an adequate rationale. Additionally, the Veteran asserts that he has restless leg syndrome as a residual of his service-connected post-concussion syndrome with insomnia disorder. As previously noted, the Veteran reported during a January 1988 VA examination that he had twitching in his feet when he slept, and treatment records during the appeal period show treatment for restless leg syndrome. Accordingly, the Board finds that a medical opinion should also be obtained as to whether the Veteran's restless leg syndrome is a residual of his service-connected post-concussion syndrome. See 38 C.F.R. § 4.124a, Diagnostic Code 8045. Finally, in February 2015, the Board found that the Veteran had a current diagnosis of a headache disability which had been present since his in-service rappelling accident, and service connection was granted for a headache disability on a direct basis. However, it does not appear that Board decision has been implemented. Such matter may potentially impact the evaluation assigned for the post-concussion syndrome, as the Veteran's insomnia disorder with post-concussion syndrome is currently evaluated under the General Rating Formula for Mental Disorders, which does not contemplate symptoms of headaches, rather than under Diagnostic Code 8045 for traumatic brain injury residuals. See 38 C.F.R. § 4.130. Accordingly, on remand, the RO should issue a rating decision implementing the Board's February 2015 grant of service connection for a headache disability. The matters are REMANDED for the following action: 1. Issue a rating decision implementing the Board's February 2015 decision granting service connection for a headache disability, as appropriate. 2. Obtain a medical opinion pursuant to the Veteran's claim for service connection for obstructive sleep apnea. Do not schedule the Veteran for another examination unless it is deemed necessary by the examiner to respond to the question presented. After review of the claims file, the examiner should provide an opinion as to whether it at least as likely as not (50 percent probability or greater) that the Veteran's obstructive sleep apnea had its onset during service or is otherwise related to service. A complete rationale must be provided. The examiner's opinion should address the January 1988 VA examination report showing that the Veteran reported twitching in his feet when he slept and the October 2017 VA examiner's opinion that limb movement is a subjective symptom which may be associated with sleep apnea. 3. Obtain a medical opinion pursuant to the Veteran's claim for an increased rating for post-concussion syndrome with insomnia disorder. Do not schedule the Veteran for another examination unless it is deemed necessary by the examiner to respond to the questions presented. After review of the claims file, the examiner should answer the following: (a.) Is it at least as likely as not (50 percent probability or greater) that the Veteran's seizures are a residual of his service-connected post-concussion syndrome with insomnia disorder? (b.) Is it at least as likely as not (50 percent probability or greater) that the Veteran's restless leg syndrome is a residual of his service-connected post-concussion syndrome with insomnia disorder? A complete rationale must be provided. The examiner's opinion should address the January 1988 VA examination report showing that the Veteran report twitching in his feet when he slept. K. A. BANFIELD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Banister, 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.