Citation Nr: 22018472 Decision Date: 03/29/22 Archive Date: 03/29/22 DOCKET NO. 17-29 112 DATE: March 29, 2022 ORDER Entitlement to a rating in excess of 10 percent for allergic rhinitis is dismissed. Entitlement to a rating in excess of 70 percent for major depressive disorder is dismissed. Entitlement to an earlier effective date than January 13, 2014, for the 70 percent evaluation for major depressive disorder is dismissed. Entitlement to an earlier effective date than July 11, 2012, for service connection for allergic rhinitis is dismissed. Entitlement to an earlier effective date than July 11, 2012, for service connection for bilateral shin splints is dismissed. New and material evidence has been submitted to reopen the claim of entitlement to service connection for sleep apnea. New and material evidence has been submitted to reopen the claim of entitlement to service connection for headaches. Entitlement to service connection for sleep apnea is granted. Entitlement to service connection for headaches is granted. REMANDED Entitlement to a compensable rating for shin splints, left leg is remanded. Entitlement to a compensable rating for shin splints, right leg is remanded. Entitlement to a rating in excess of 10 percent for tender scar, Cesarean section is remanded. Entitlement to service connection for ovarian dermoid cyst as secondary to the service-connected disability of C-section scar is remanded. FINDINGS OF FACT 1. The Veteran withdrew her claim for entitlement to a rating in excess of 10 percent for allergic rhinitis at the July 2021 Board hearing. 2. The Veteran withdrew her claim for entitlement to a rating in excess of 70 percent for major depressive disorder at the July 2021 Board hearing. 3. The Veteran withdrew her claim entitlement to an earlier effective date for service connection for allergic rhinitis at the July 2021 Board hearing. 4. The Veteran withdrew her claim entitlement to an earlier effective date for service connection for major depressive disorder at the July 2021 Board hearing. 5. The Veteran withdrew her claim for entitlement to an earlier effective date for service connection for bilateral shin splints at the July 2021 Board hearing. 6. New and material evidence has been received that relates to unestablished facts that are necessary to substantiate the claim for entitlement to service connection for sleep apnea. 7. New and material evidence has been received that relates to unestablished facts that are necessary to substantiate the claim for entitlement to service connection for headaches. 8. The Veteran's sleep apnea had its onset while on active duty. 9. The Veteran's headaches are secondary to her service-connected sleep apnea and narcolepsy. CONCLUSIONS OF LAW 1. The criteria for withdrawal of entitlement to a rating in excess of 10 percent for allergic rhinitis have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 2. The criteria for withdrawal of entitlement to a rating in excess of 70 percent for major depressive disorder have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 3. The criteria for withdrawal of entitlement to an earlier effective date for service connection for allergic rhinitis have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 4. The criteria for withdrawal of entitlement to service connection for major depressive disorder have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 5. The criteria for withdrawal of entitlement to an earlier effective date for entitlement to service connection for a bilateral shin disability have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 6. New and material evidence has been submitted to reopen the Veteran's claim for entitlement to service connection for sleep apnea. 38 U.S.C. §§ 1110, 5107(b), 5108; 38 C.F.R. §§ 3.156, 20.302, 20.1103. 7. New and material evidence has been submitted to reopen the Veteran's claim for entitlement to service connection for headaches. 38 U.S.C. §§ 1110, 5107(b), 5108; 38 C.F.R. §§ 3.156, 20.302, 20.1103. 8. The criteria for service connection for obstructive sleep apnea have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 9. The criteria for service connection for headaches have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1998 to March 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from October 2013 and July 2014 rating decisions by the Department of Veterans Affairs (VA). In July 2021, the Veteran testified at a Board hearing. The transcript of that hearing has been associated with the Veteran's claims file. Withdrawal 1. Evaluation of major depressive disorder currently evaluated as 70 percent disabling. 2. Evaluation of allergic rhinitis evaluated as 10 percent disabling 3. Entitlement to an earlier effective date than January 13, 2014, for the 70 percent evaluation for major depressive disorder 4. Entitlement to an earlier effective date than July 11, 2012, for service connection for allergic rhinitis. 5. Entitlement to an earlier effective date than July 11, 2012, for service connection for bilateral shin splints The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. At the July 2021 Board hearing, the Veteran, stated that she wished to withdraw her appeal as to the issues of entitlement to increased ratings for her allergic rhinitis and major depressive disorder. The Veteran also stated that she wished to withdraw her appeal for entitlement to earlier effective dates for the award of service connection for allergic rhinitis, major depressive disorder, and bilateral shin splints. The Veteran's testimony demonstrated a clear and unequivocal intention to withdraw her appeals regarding these claims. Thus, there remains no allegation of errors of fact or law for appellate consideration on these issues. Accordingly, the Board does not have jurisdiction to review these appeals and these claims are dismissed. New and Material Evidence VA may reopen a claim that has been previously denied if new and material evidence is submitted by or on behalf of a veteran. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). "New" evidence is evidence not previously submitted to agency decision makers and "material" evidence is evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). In determining whether the evidence presented or secured since the prior final disallowance of the claim is new and material, the credibility of the evidence is generally presumed. Cox v. Brown, 5 Vet. App. 95, 98 (1993); Justus v. Principi, 3 Vet. App. 510, 513 (1992). VA is required to review for newness and materiality only the evidence submitted by a claimant since the last final disallowance of the claim on any basis, whether a decision on the underlying merits or, a petition to reopen. Evans v. Brown, 9 Vet. App. 273, 283 (1996). Regardless of any RO determinations that new and material evidence has been submitted to reopen service connection, the Board must still determine whether new and material evidence has been submitted in this matter. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). 6. New and material evidence to reopen the claim for entitlement to service connection for sleep apnea In May 2009, the Veteran's claim for sleep apnea was denied. The Veteran did not appeal that decision and it became final. VA received a request to reopen the Veteran's claim on July 11, 2012. Subsequently, the Board notes that additional medical treatment records and medical opinions were associated with the Veteran's claims file. The Board finds that this evidence is new and material, is neither cumulative nor redundant of the evidence previously of record, is presumed credible, and raises a reasonable possibility of substantiating the claim. Accordingly, the claim for entitlement to service connection for sleep apnea is reopened. To this limited extent only, the petition to reopen the claim is granted. 7. New and material evidence to reopen the claim for entitlement to service connection for headaches In July 2004, the Veteran's claim for headaches was denied. The Veteran did not appeal that decision and it became final. VA received a request to reopen the Veteran's claim on July 11, 2012. Subsequently, the Board notes that additional medical treatment records and medical opinions were associated with the Veteran's claims file. The Board finds that this evidence is new and material, is neither cumulative nor redundant of the evidence previously of record, is presumed credible, and raises a reasonable possibility of substantiating the claim. Accordingly, the claim for entitlement to service connection for headaches is reopened. To this limited extent only, the petition to reopen the claim is granted. Service Connection The Veteran contends that these disabilities are related to her military service. In order to establish service connection for the claimed disability, there must be (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 current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The requirement of a current disability is "satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim." See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309(a). 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 C.F.R. § 3.303(d). Other specifically enumerated disorders will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty. 38 C.F.R. §§ 3.309. In addition, for secondary service connection, it must be shown that the disability for which the claim is made is proximately due to or the result of service-connected disease or injury, or that service-connected disease or injury has aggravated the nonservice-connected disability for which service connection is sought. See 38 C.F.R. § 3.310. Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1153 (a); 38 C.F.R. § 3.303 (a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Although lay persons are competent to provide opinions on some medical issues, some medical issues fall outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale and a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the Veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). In evaluating the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau, supra. Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Evans v. West, 12 Vet. App. 22, 30 (1998). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA 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). Lastly, in order to deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). 8. Entitlement to service connection for sleep apnea As to a current diagnosis, the Board notes that the Veteran's disability has been diagnosed as obstructive sleep apnea. As to the in-service incurrence, the Board notes that the Veteran was treated for sleep disorders while on active duty. As to the Veteran's lay statements, the Veteran testified that she experienced symptoms related to her disorder while on active duty. Turning to the medical evidence at hand, the Board notes that the Veteran attended a VA examination in January 2020. Following the examination, the examiner found that the Veteran's sleep apnea was not related to her military service or her service-connected disabilities. In October 2019, the Veteran submitted an opinion from her private doctor. Dr. M. H. opined that the Veteran's rhinitis and narcolepsy contributed to the development of sleep apnea. In November 2020, the Veteran submitted an additional private medical opinion. The doctor stated that the Veteran's current Obstructive Sleep Apnea (OSA) is at least as likely as not incurred in active duty as her symptoms of snoring and hyper somnolence were present during active duty as evidenced by the multiple sleep studies, workups, and treatment that were ordered during active duty. The doctor stated that the Veteran was incorrectly under diagnosed as idiopathic hyper somnolence. The doctor stated that these symptoms are persistent to the present day and meet criteria for OSA. The doctor stated that the Veteran started having symptoms while in active duty per her personal account and STR showed multiple treatments for hyper somnolence with fatigue and snoring. The doctor stated that she was diagnosed with idiopathic hyper somnolence with fatigue and snoring. The doctor stated that she was diagnosed with idiopathic hyper somnolence and the sleep study was read as normal even though it was not normal. The doctor stated that it did show shortened sleep latency and REM sleep abnormalities consistent with narcolepsy and she did have some deoxygenation and snoring noted. The doctor stated that it wasn't until she had a pulmonology referral due to the narcolepsy symptoms not improving with narcolepsy medications alone that the sleep disordered breathing was found with a RDI of 7. The doctor stated that it wasn't until some years later in 2012 that the unresolved symptoms prompted a CPAP titration study trial that did resolve the apnea and snoring thus granting diagnosis of mild OSA and sleep disordered respiration. The doctor also stated that the snoring, sleep apnea, and hyper somnolence are related to the sleep apnea diagnosis and not the narcolepsy. In sum, the Board finds that service connection is warranted for the Veteran's obstructive sleep apnea. After a review of the record, the Board finds that the evidence, both positive and negative as to the issues of service connection for sleep apnea is at least in approximate equipoise. Therefore, based on the foregoing and resolving all reasonable doubt in the Veteran's favor, the Board finds that service connection for the Veteran's obstructive sleep apnea is warranted. 9. Entitlement to service connection for headaches As to a current diagnosis, the Board notes that the Veteran's disability has been diagnosed as migraine headaches. As to the in-service incurrence, the Board notes that the Veteran was treated for headaches. Turning to the medical evidence at hand, the Board notes that the Veteran attended a VA examination in August 2013. The examiner stated that there is reference to possible migraine headache noted in the c-file in May 2000. The examiner stated that the Veteran does have other comorbidities that could lead to headaches (such as sleep apnea, though as migraine headache complaint was listed in the chart in May 2000 it is at least as likely as not that her complaint of a migraine headache was truly a migraine and can be connected to a current diagnosis of migraine headaches. In September 2013 the RO requested another examination. The September 2013 VA examiner opined that the Veteran did not meet the criteria for a diagnosis of a migraine headache. In September 2020, the Veteran submitted a private medical opinion. The Veteran's private doctor stated that it is "well known in the medical community that migraine headaches are often caused by and worsened by a lack of oxygen that is seen with obstructive sleep apnea due to a collapse of the airway; this lack of oxygen causes the morning headaches that are indicative of sleep apnea, but also can lead to migraines." In sum, the Board finds that service connection is warranted for the Veteran's migraine headaches. After a review of the record, the Board finds that the evidence, both positive and negative as to the issues of service connection for migraine headaches is at least in relative equipoise. Therefore, based on the foregoing and resolving all reasonable doubt in the Veteran's favor, the Board finds that service connection for the Veteran's migraine headaches is also warranted. REASONS FOR REMAND 1. Evaluation of shin splints, left leg evaluated as 0 percent disabling. is remanded. 2. Evaluation of shin splints, right leg evaluated as 0 percent disabling. is remanded. In July 2021, the Veteran testified that her shin splints cause pain and lost range of motion in her knees. In turn, the Board acknowledges that the Veteran's lay statements raise the possibility that the severity of her disability has increased since her last examination. See Snuffer v. Gober, 10 Vet. App. 400 (1997) (noting that a veteran is entitled to a new VA examination where there is evidence that the condition has worsened since the last examination). Moreover, a review of the record indicates that the Veteran last received an examination for her disabilities in September 2019 and the available treatment records are inadequate to properly evaluate the severity of her disabilities. Thus, for the above stated reasons, the Board finds a remand is necessary to afford the Veteran a contemporaneous examination to determine the current severity of her disabilities. See Allday v. Brown, 7 Vet. App. 517, 526 (1995) (indicating that, where the record does not adequately reveal the current state of the claimant's disability, fulfillment of the statutory duty to assist requires a contemporaneous medical examination, particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since the previous examination). 3. Evaluation of tender scar, Cesarean section currently evaluated as 10 percent disabling is remanded. A review of the record shows that the Veteran's scar was last evaluated in April 2016 and the available treatment records are inadequate to properly evaluate the severity of her disability. Thus, the Board finds a remand is necessary to afford the Veteran a contemporaneous examination to determine the current severity of her disability. 4. Entitlement to service connection for ovarian dermoid cyst as secondary to the service-connected disability of C-section scar is remanded. As to the Veteran's claim for service connection for an ovarian cyst, the Board notes that the Veteran has not been afforded a VA examination for this disability. According to McLendon, an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in- service event, injury, or disease," or that a disease, manifested in accordance with presumptive service connection regulations, occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, the record reflects that the Veteran has a diagnosis of a present disability. Moreover, the record reflects that the Veteran's disability may be related to her C-section scar and there is insufficient evidence to decide this case. As the Board finds that the criteria set forth in McLendon has been met to this claim, a VA examination should be obtained. The matters are REMANDED for the following action: 1. Obtain the Veteran's VA treatment records from December 18, 2020, to the present. 2. Schedule the Veteran for a VA examination to determine the current severity of her left and right shin disabilities. The examiner must address the Veteran's contentions that she experiences pain and lost range of motion in her knees. 3. Schedule the Veteran for a VA examination to determine the severity of her C-Section scar. 4. Schedule the Veteran for an appropriate VA examination to determine the nature and etiology of the Veteran's ovarian cyst. The electronic claims file must be reviewed by the examiner. All indicated testing and studies must be conducted, and all pertinent symptomatology must be reported in detail. (A). Is it at least as likely as not (50 percent probability or greater) that the Veteran's ovarian cyst, had its onset in service or is caused by or related at least in part to her active service? (B). Is it as least as likely as not that the Veteran's ovarian cyst was caused or aggravated by the Veteran's service-connected C-Section scar? In providing the requested opinions, the examiners should consider the Veteran's competent lay claims regarding the observable symptoms he has experienced. The VA examination report must include a complete rationale for all opinions expressed. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Rescan, 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.