Citation Nr: 22020880 Decision Date: 04/07/22 Archive Date: 04/07/22 DOCKET NO. 17-04 438 DATE: April 7, 2022 ORDER Entitlement to service connection for a sleep disorder, to include sleep apnea, as secondary to posttraumatic stress disorder (PTSD) with obsessive compulsive disorder, neurocognitive disorder and traumatic brain injury (TBI), is granted. Entitlement to an effective date of December 4, 1967, but no earlier, for the award of service connection for migraine headaches is granted. FINDINGS OF FACT 1. The Veteran's sleep apnea is proximately due to his PTSD with TBI. 2. The Veteran separated from active service on December 3, 1967. On December 7, 1967, he filed a formal claim seeking VA compensation for, among other things, severe headaches. 3. A December 1967 rating decision granted entitlement to service connection for malaria and determined that the Veteran's headaches were considered an aspect of malaria and were not a "separate ratable disease entity." 4. In a January 1968 VA examination report, the Veteran related to the examiner that his headaches began after being exposed to grenade explosion in February 1967, months before he was diagnosed with malaria and independent of the same. This examination report is new evidence that is material to the issue of whether service connection for headaches was warranted as a separate disease entity from his malaria was received within one year of the December 1967 rating decision. 5. A May 1968 rating decision in relevant part denied entitlement to service connection for concussion with hearing loss and determined that there were "no residuals" from a grenade explosion in service, considering the January 1968 VA examination report findings. The decision also granted entitlement to service connection for anxiety reaction with conversion symptoms and assigned an initial noncompensable rating. 6. During a September 1968 hearing, the Veteran again emphasized his belief that his headaches were due to an injury from a concussion grenade explosion 7. The Department of Veterans Affairs (VA) did not issue a decision that was directly responsive to whether the Veteran's reports during the January 1968 VA examination and September 1968 hearing constituted new and material evidence with regard to his headache claim, specifically whether it was a separate disease entity subject to service connection independent from his malaria. 8. The Veteran's entitlement to service connection for migraine headaches arose no later than December 4, 1967. CONCLUSIONS OF LAW 1. The criteria entitlement to service connection for sleep apnea, as secondary to PTSD with TBI, are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. 2. The Veteran's December 1967 claim for entitlement to service connection for a headache disability as a disease entity independent from malaria remained pending until service connection for migraine headaches was established. 38 C.F.R. § 3.156(b). 3. The criteria for an effective date of December 4, 1967, but no earlier, for the award of service connection for migraine headaches are met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from December 1965 to December 1967, including service in the Republic of Vietnam. His decorations include the Combat Infantryman Badge. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2013 rating decision of an Agency of Original Jurisdiction (AOJ) of the VA. In this regard, in July 2013 the Veteran filed a timely Notice of Disagreement (NOD) as to issues including entitlement to service connection for sleep apnea and in March 2014 he filed a NOD as to issues including entitlement to an earlier effective date of service connection for migraine headaches. In January 2022, the Veteran testified at a videoconference hearing before the undersigned. The Veteran's representative was unable to attend the hearing and the Veteran acknowledged that he wished to proceed without his representative present. Separately, the Board is issuing a decision governed by VA's modernized appeals system addressing entitlement to service connection for erectile dysfunction and entitlement to special monthly compensation. The Board has recharacterized the service connection claim on appeal to focus on the Veteran's claimed symptoms. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). 1. Entitlement to service connection for sleep apnea, as secondary to PTSD with TBI, is granted. The Veteran asserts that his sleep apnea is due to his service-connected disabilities, including his PTSD and/or TBI. See, e.g., Board Hearing Transcript. The Board agrees. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Secondary service connection may be granted for a disability that is proximately due to or aggravated by a service-connected disability. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.310. The Veteran has been diagnosed with sleep apnea and he is in receipt of service connection for TBI and PTSD, among other disabilities. Thus, the key question in this appeal is whether there is an etiological relationship between his current sleep apnea and his TBI. The evidence against the claim includes the opinion of a VA examiner. The evidence in favor of the claim includes medical opinions and supplemental opinions that the Veteran submitted. Initially, the Board observes that the VA examiner's opinion did not adequately address secondary service connection due to aggravation. However, remand to correct this deficiency is unnecessary as the record supports the award of secondary service connection on the more favorable proximate cause basis. The VA examiner diagnosed the Veteran with obstructive sleep apnea and opined that sleep apnea was less likely than not proximately due to or the result of the Veteran's service-connected disabilities. The examiner explained that the pathogenesis of obstructive sleep apnea is not completely understood and noted risk factors for sleep apnea. The examiner acknowledged studies suggesting an association between obstructive sleep apnea and PTSD, as well as TBI, but stated that association does not necessarily establish causation. The examiner explained that "at this time, to my knowledge, the current medical literature does not firmly establish either PTSD or TBI, to be a true disease determinant, rather than merely an associated factor." See September 2016 Sleep Apnea Disability Benefits Questionnaire (DBQ) and Medical Opinion. Furthermore, the examiner also explained that while medications may exacerbate obstructive sleep apnea, a causative link has not been established. The examiner also explained that the Veteran's sleep disturbances are likely not solely attributed to obstructive sleep apnea, as sleep disturbances also occur with increased frequency in patients with TBI compared to the general population, and as sleep-related breathing disorders are common in patients such as the Veteran who have had a stroke or transient ischemic attack. See id. In favor of the claim are opinions that the Veteran submitted. The Veteran submitted a medical opinion from Dr. H.G.B., who opined that the Veteran's sleep apnea was directly caused by this depression and PTSD, which in turn were caused by his TBI. See March 2014 H.G.B. Opinion. The Veteran also submitted an opinion from Dr. C.N.B., who stated that literature reports a potential association between sleep apnea and TBI. See December 2013 C.N.B. Opinion. He also submitted an opinion from Dr. H.W.L., who listed sleep apnea among the disabilities that should be service connected. See March 2014 Dr. H.W.L. Report. While these detailed opinions adequately address other disabilities, with respect to sleep apnea they are speculative or lack a rationale and are not probative. The Veteran subsequently submitted an addendum opinion from Dr. H.W.L. This addendum opinion included a thorough rationale and addressed the opinion of the VA examiner. Dr. H.W.L. noted that the VA examiner's opinion addressed the causes of sleep apnea in generalities but did not focus on the specifics of the Veteran's sleep apnea. He explained that the Veteran was not obese and did not have a compromised upper airway, which are among the risk factors for sleep apnea. Moreover, he explained that the Veteran's sleep apnea was best classified as a "mixed" sleep apnea and stated that this type of sleep apnea was commonly due to a central nervous system disease such as PTSD or TBI. Dr. H.W.L. See January 2018 Dr. H.W.L. Addendum Opinion. Here, the most probative evidence of record is Dr. H.W.L.'s addendum opinion. In this regard, both Dr. H.W.L. and the VA examiner are competent to provide a medical opinion. However, Dr. H.W.L. is shown to have additional relevant expertise as he is Board certified in sleep medicine. Moreover, Dr. H.W.L.'s opinion focuses on the specifics of the Veteran's appeal. Critically, the VA examiner's opinion indicates that the examiner was not prepared to offer a positive opinion in the absence of literature "firmly establish[ing] either PTSD or TBI as a true disease determinant" or sleep apnea. This requirement for definitive medical evidence demands a higher burden of proof than is required under the Veterans Benefits system. See, e.g., Trimble v. McDonough, No. 21-0843, 2022 U.S. App. Vet. Claims LEXIS 418 (March 25, 2022) (an examiner's opinion based solely on the lack of scientific consensus is improper). The Board acknowledges that the December 2012 polysomnography report diagnoses the Veteran with obstructive sleep apnea and does not indicate mixed or central sleep apnea. However, the Board interprets Dr. H.W.L.'s description of the Veteran's sleep apnea as "central" or "mixed" as evidencing his opinion that the Veteran's sleep apnea has a component arising from central nervous system. Moreover, the December 2012 polysomnography report affirms the presence of evidence of obstructive sleep apnea and notes that if narcolepsy is a consideration, a repeat study with a multiple sleep latency test should be considered, indicating that the diagnosis of obstructive sleep apnea is not to the exclusion of other diagnoses. See December 2012 Polysomnography Report. Finally, the Board acknowledges that the Veteran indicated on his substantive appeal that he wished for narcolepsy to be considered as part of his appeal. See January 2017 VA Form 9. The evidence of record does not show a current diagnosis of narcolepsy. See November 2016 Narcolepsy DBQ. However, as noted above, the Board is granting service connection for the Veteran's claimed condition. If the Veteran wishes to seek service connection for an additional sleep condition, he may file a claim on the appropriate VA form. 2. Entitlement to an effective date of December 4, 1967 for the award of service connection for migraine headaches is granted. The Veteran asserts that he is entitled to compensation for headaches effective from December 4, 1967, the day after his separation from service. See, e.g., Board Hearing Transcript. The Board agrees. Generally, the effective date of an award is assigned based on the later of (1) the date that the entitlement arose or (2) the date of claim. Claims that are received within one year of a veteran's separation from active duty will allow for a service connection award the day after service separation. See 38 C.F.R. § 3.400(b)(2). A claimant, or his or her representative, must file a Notice of Disagreement (NOD) with a determination by the AOJ within one year from the date that that agency mails notice of the determination to him or her. Otherwise, that determination will become final. 38 C.F.R. § 19.52(a). New and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). Initially, the Board observes that the Statement of the Case (SOC) characterizes the issue on appeal as entitlement to an earlier effective date of a separate rating for headaches. However, as the December 1967 rating decision did not award service connection for migraine headaches, the Board has recharacterized the issue on appeal accordingly. The Veteran separated from service effective December 3, 1967. See DD Form 214. He filed a formal claim seeking VA compensation on December 7, 1967. His claim listed a disability of "severe headaches" with onset in February 1967, loss of hearing caused by a concussion grenade with onset in February 1967, and malaria with onset August 1967. See December 1967 VA Form 21-526. A December 1967 rating decision granted service connection for malaria and assigned a 10 percent rating effective December 4, 1967. The decision noted that the Veteran's claimed headaches were considered to have been associated with malaria and did not represent "a separate ratable disease entity." The rating decision noted that the claim as to "concussion with hearing loss" was deferred for examination. The Veteran did not appeal the December 1967 rating decision. However, he presented for a VA examination in January 1968. At that time he reported that since the February 1967 grenade explosion he experienced continuous headaches every 4 to 5 days that occurred for 3 to 5 days. Notably, the examination report indicated that the Veteran's malaria was in remission and no parasites were seen in specimens; yet the Veteran continued to endorse severe headaches. A May 1968 rating decision denied entitlement to service connection for "hearing loss, residuals of concussion" and granted service connection for anxiety reaction with conversion symptoms and assigned an initial noncompensable (zero percent) rating. The rating decision was in no way responsive to whether the Veteran's reports during the January 1968 VA examination constituted new and material evidence with regard to his headache claim, specifically whether the Veteran evidence a separate disease entity (here, migraine headaches) subject to service connection independent from his malaria. The Veteran filed a timely NOD and appealed the May 1968 rating decision. In June 1968, the AOJ issued an SOC that identified the issues on appeal as entitlement to service connection for hearing loss and entitlement to a compensable evaluation for service-connected nervous condition. The SOC was in no way responsive to whether the January 1968 VA examination report constituted new and material evidence with regard to his headache claim. On September 19, 1968, the Veteran testified at a hearing at the AOJ. His representative explained that the purpose of the hearing was for the Veteran to explain the difficulties he had due to a concussion injury from a grenade explosion in service. At the hearing, his representative noted that the Veteran was told that his headaches were "probably related to malaria" but the Veteran disagreed and explicitly stated that he believed that his headaches were due to an injury from a concussion grenade explosion. See September 1968 Hearing Transcript at 8. In February 1969, the AOJ issued a Supplemental SOC that identified the issues of entitlement to service connection for hearing loss and entitlement to a compensable evaluation for service-connected nervous condition. The SSOC was in no way responsive to whether the Veteran's reports during the January 1968 VA examination or his September 1998 testimony constituted new and material evidence with regard to his headache claim A July 1969 Board decision determined that service connection for defective hearing with tinnitus was not established and that a compensable rating for anxiety reaction was not warranted. The Board decision was not responsive to whether the Veteran's January 1968 VA examination report or September 1968 testimony was new and material with regard to his headache claim. Here, as the Veteran filed a formal claim seeking compensation within one year of separation from service that explicitly noted that he was seeking compensation for severe headaches, the first question for the Board is whether this claim was subject to a final adjudication. The unappealed December 1967 rating decision denied compensation for headaches separate from malaria and thus adjudicated the initial claim of entitlement to compensation for severe (migraine) headaches as a disease entity separate from malaria. However, the Veteran's January 1968 VA examination report and September 1968 hearing testimony that attributed his headaches to the grenade explosion prior to the onset of malaria was new and material evidence that was received within one year of the December 1967 decision, and VA never issued a decision that was directly responsive to this evidence. See 38 C.F.R. § 3.156(b). Thus, as new and material evidence was received within one year of the December 1967 rating decision and it was not addressed by the AOJ, the December 1967 claim remained pending until its adjudication in June 2013. Accordingly, the date of claim for entitlement to compensation for headaches is December 4, 1967, the day after the Veteran's separation from service. The final question is when the Veteran's entitlement to service connection for migraine headaches arose. Here, the evidence shows that the Veteran's migraine headaches are due to the grenade explosion and have been present since 1967. See, e.g., May 2013 VA Headaches DBQ (characterized as post-concussive headaches diagnosed in 1967); July 2016 Headaches DBQ (characterized as migraine including migraine variants). Accordingly, as the date of claim is December 4, 1967 and as entitlement to service connection for migraine headaches had arisen by that date, an effective date of December 4, 1967 for the award of service connection for migraine headaches is granted. Entitlement to an even earlier effective date of service connection cannot be assigned, as the day after separation from service is the earliest date permitted by law. The Veteran is advised that the AOJ will implement the Board's award of entitlement to an earlier effective date of service connection and will assign an initial disability rating prior to June 14, 2011 in the first instance. If the Veteran believes that he is entitled to a higher disability rating than is assigned by the AOJ, he should request review of that decision by filing the appropriate VA form. S. BUSH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D.M. Badaczewski, 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.