Citation Nr: A25041237 Decision Date: 05/06/25 Archive Date: 05/06/25 DOCKET NO. 210525-176906 DATE: May 6, 2025 ORDER Entitlement to service connection for a traumatic brain injury (TBI) with residuals, including headaches, is granted. REMANDED Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. Entitlement to service connection for right leg restless leg syndrome is remanded. Entitlement to service connection for left leg restless leg syndrome is remanded. FINDING OF FACT The Veteran sustained a TBI during active service, and she has continued to have residuals, such as headaches, since that time. CONCLUSION OF LAW The criteria for entitlement to service connection for residuals of a TBI, to include headaches, are met. 38 U.S.C. §§ 1110, 1154(b), 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from February 2001 to July 2001; and from October 2002 to July 2006. Among her many decorations are the Purple Heart, Army Commendation with Valor Device, and Combat Action Badge. See DD Form 214. This appeal comes to the Board of Veterans' Appeals (Board) from a May 2020 rating decision by a Department of Veterans Affairs (VA) Regional Office. In the May 25, 2021 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Evidence Submission docket. Therefore, the Board may only consider the evidence of record at the time of the May 2020 agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran, or her attorney, with or within 90 days from receipt of, the VA Form 10182. 38 C.F.R. § 20.303. If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the date the Board received the VA Form 10182, or (2) more than 90 days following the date the Board received the VA Form 10182, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.303, 20.801. If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim for service connection for a traumatic brain injury (TBI) with residuals, including headaches, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. However, because the Board is remanding the claims of entitlement to service connection for OSA and bilateral leg restless leg syndrome, any evidence the Board could not consider will be considered by the AOJ in the readjudication of those claims. 38 C.F.R. § 3.103(c)(2)(ii). In the May 2020 rating decision, although the AOJ made conflicting findings regarding whether new and relevant evidence had been received, the decision included adjudication of the merits of the Veteran's claims for entitlement to service connection. The Board accepts the AOJ's merits determinations as implicit favorable findings that the Veteran did present new and relevant evidence to readjudicate each of the claims. See generally 38 U.S.C. § 5104A (explaining that favorable findings are binding upon the Board absent clear and convincing evidence to the contrary); 38 C.F.R. § 3.104(c). Thus, the Board's decision only addresses the issues of the Veteran's entitlement to service connection. The Board acknowledges that the attachment to the May 2021 VA Form 10182 contained a hyperlink to content that is not otherwise part of the record on appeal; however, that content was not accessed nor considered as part of the record before the Board. See Bowey v. West, 11 Vet. App. 106, 108-09 (1998) (holding that the mere reference to non VA documents is insufficient to incorporate them into the record). Last, the Board has recharacterized the claim for entitlement to service connection for migraine headaches as a claim for entitlement to service connection for TBI with residuals, including headaches. While the AOJ recognized that the Veteran had previously phrased her claim as one for concussion with loss of consciousness and headaches secondary to IED injury, the AOJ most recently limited the claim to headaches. See May 2020 Rating Decision. However, the Board has re-broadened the claim in accordance with the arguments and medical evidence of record. See generally Clemons v. Shinseki, 23 Vet. App. 1 (2009). 1. Entitlement to service connection for a TBI with residuals, including headaches The Veteran's representative asserts that the Veteran's headaches began during service and continued after service. Counsel also asserts that the Board should rely on the positive opinions of record, and medical literature showing that mild TBIs commonly produce migraine headaches and other residuals, to grant the claim. Last, counsel asserts that the Veteran should be afforded a VA examination because the last exam was in 2016. See Attachment to the May 2021 VA Form 10182. The Veteran also asserts that she should be service-connected for TBI and headaches, based on a 2004 in service occurrence in which her vehicle rolled after detonation of an improvised explosive device (IED). She described a head injury, unconsciousness, and a concussion at that time. She stated that since the IED event, she has taken medication for headaches. The Veteran contends that her headaches are related to her in service head trauma. She described a variety of symptoms that she believes are due to her TBI. The Veteran also asserts that her service-connected back and neck disabilities cause daily headaches/migraines. See Attachment to the May 2021 VA Form 10182. For the reasons that follow, the Board finds that entitlement to service connection for residuals of a TBI, to include headaches, is warranted. A Veteran is entitled to VA disability compensation for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38?U.S.C. §§?1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. Service connection may 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). Generally, to establish a right to compensation for a present disability, a Veteran must show: (1) a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury incurred or aggravated during service, referred to as the "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Additionally, for any Veteran who engaged in combat with the enemy in active service, VA accepts as sufficient proof of service-connection of any disease or injury alleged to have been incurred in such service satisfactory lay or other evidence of in service incurrence or aggravation, as long as such evidence is consistent with the circumstances of service, even if there is no official record of such in service incurrence. See 38 U.S.C. § 1154(b). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence persuasively favors the claim or is in approximate balance, with the Veteran prevailing in either event, or whether the evidence persuasively weighs against the claim, in which case the claim is denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776 (2021). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the claimant. Lynch, 21 F.4th, at 780-81. In evaluating the Veteran's claim for disability benefits, the Board gives due consideration to all pertinent medical and lay evidence. 38 U.S.C. § 1154(a). Lay testimony is competent to prove that a claimant exhibited certain lay-observable symptoms and the time that those symptoms appeared. Layno v. Brown, 6 Vet. App. 465, 470 (1994); see generally 38 C.F.R. § 3.159(a)(2). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336 37 (Fed. Cir. 2006). The AOJ has favorably found that the Veteran has been diagnosed with the disabilities of migraine and tension headaches. See May 2020 Rating Decision. Thus, with regard to the Veteran's TBI, all elements of service connection are at issue. Turning to the first element of service connection, resolving doubt in the Veteran's favor, she has been diagnosed with TBI in addition to her headaches. By way of background, shortly after service, a July 2006 VA examination found that the Veteran did not have a diagnosis of a concussion with loss of consciousness because the condition had resolved, but the Veteran did report headaches at that time. See July 2006 VA Examination. In September 2013, the Veteran had an MRI of her brain which noted a history of TBI with subsequent cognitive dysfunction. The Veteran was diagnosed with migraine headaches. See September 2013 Private Treatment Record. According to another September 2013 private treatment record, the Veteran was diagnosed with postconcussion syndrome and a history of TBI, including a note that the Veteran appeared to have a TBI based on the evaluation. In October 2013, the Veteran was diagnosed with PTSD and TBI. In January 2016, the Veteran had a VA examination for TBI and headaches. The examiner opined that the Veteran did not have, nor had she ever had, a TBI or residuals. Despite noting the Veteran's lay statements regarding her 2004 head injury, including subsequent symptoms of headaches, memory issues, difficulty concentrating, and sleep issues, the examiner found that the Veteran did not complain of memory impairment or impairment of concentration. The examiner also found that the Veteran did not report any subjective symptoms of TBI. The examiner noted 30/30 for the mini-mental state exam performed that date. In the remarks section of the examination report, the examiner stated that the October 2013 abnormal MRI of the brain was consistent with headaches, not a claimed TBI residual. Without explanation, the examiner stated that memory issues were part of a mental disorder, and that there was no evidence of TBI or residuals. The examiner stated that the October 2004 service treatment record showed a back injury from the IED blast. During February 2016 VA treatment, the Veteran had a positive TBI screening. The VA clinician indicated that the Veteran had already been diagnosed with a TBI during service. In March 2016, a VA physician opined that the Veteran sustained a TBI during her 2004 deployment. The opinion was based on the history of the Veteran's injury and the course of her clinical symptoms. During April 2016 VA treatment, the Veteran was diagnosed with TBI with brief loss of consciousness. Additionally, after an examination and review of service treatment records by one of the Veteran's treating physicians, the physician opined that the Veteran had a current diagnosis of TBI and sleep dysfunction. See September 2016 Nexus Statement. The Board finds that the Veteran had a diagnosis of TBI with residuals because her treatment records are replete with diagnoses of TBI, postconcussive syndrome, a history of TBI, and references to symptoms, including headaches, related to her in service TBI. See September 2013 Treatment Record (diagnosing chronic post traumatic headache); August 2016 VA Treatment Records (chronic headaches, dizziness and balance problems related to a head injury; TBI with subsequent cognitive dysfunction). In making this determination, the Board gives significant weight to the September 2016 nexus statement. The statement is adequate because it was based on a review of STRs and examination of the Veteran. While the physician did not review treatment records since separation, the opinion is nonetheless adequate because physician M.P.P. was one of the Veteran's treating physicians and thus, was familiar with her medical history after service. The Board acknowledges the July 2006 VA examination, which found that the Veteran's concussion had resolved. However, nothing in that examination report suggested that the Veteran did not have residuals, especially considering that the Veteran reported headaches at that time. See July 2006 VA Examination. Additionally, the January 2016 VA examination weighs against the claim, but it is not entitled to significant weight. The examiner did not address the positive evidence of TBI diagnoses that were of record at the time of the examination, and the findings of the examination report conflicted with the Veteran's lay statements at the time of the examination. At most, the negative evidence of record places the evidence, in its totality, in approximate balance. The Board resolves doubt in favor of the Veteran and finds that the Veteran had a diagnosis of TBI with residuals post service. Element two of service connection is also satisfied. While the Veteran's lay statements could be sufficient, as she is a combat Veteran, her service treatment records further support her claim. See generally 38 U.S.C. § 1154(b). According to an October 2004 service treatment record, the Veteran was involved in a rollover accident and had a short period of unconsciousness. A November 2005 service treatment record clarified that the motor vehicle accident, which occurred during service in Iraq, was caused by an IED. The Veteran's competent and credible lay statements provide additional details. The Veteran stated that she was less than 10 feet from the blast when the IED went off. She was a passenger in a Humvee when the vehicle ran over the IED, and the vehicle flipped over. She stated that she was hit by debris, was thrown, and lost consciousness for less than 5 minutes. She reported wearing a helmet. She felt disoriented and confused immediately following the incident. See March 2016 VA Treatment Record. Accordingly, the lay and medical evidence weigh persuasively in favor of an in-service injury, event, or disease. Last, the Veteran's TBI, to include residuals are related to the named in-service event. In making this determination, the Board affords great probative weight to the September 2016 nexus statement by one of the Veteran's treating physicians. The physician indicated that the Veteran's TBI and sleep dysfunction were caused by or a result of the Veteran's combat trauma. As rationale, the physician indicated that the Veteran had sustained head trauma during service. The physician found that based on the timing of the Veteran's symptoms, which started after the in service trauma, and the Veteran's lack of other risk factors for her symptoms or any other injuries, a positive nexus was found. This opinion is adequate because it is based on examination of the Veteran, familiarity with her medical history as a treating physician, and review of service treatment records. The physician's rationale is convincing, as it is logical and consistent with the majority of other evidence of record. See, e.g., March 2016 VA Treatment Record (noting that the Veteran did not have a brain injury/concussion prior to the 2004 injury and had none after the deployment). Accordingly, the opinion persuasively weighs in favor of the claim. In contrast, the January 2016 VA opinion in conjunction with the examination relied on the lack of diagnosis and is therefore not entitled to probative weight with respect to the nexus element. The remainder of the medical evidence also weighs in favor of the claim. In September 2016, the Veteran provided Dr. K.C., a primary care physician, with one of the medical articles she also submitted to the Board. See September 2016 Private Treatment Record. The physician stated that the article suggested that insomnia is a symptom of mild TBI. The physician reviewed the Veteran's chart and saw complaints of insomnia dating back to 2006, with at least three visits recording post traumatic insomnia (February 27, 2007, November 28, 2007, and February 13, 2008). The physician opined that evidence in the Veteran's chart suggested that her insomnia started or was aggravated during service. While the September 2016 opinion by Dr. K.C. alone would not be sufficient, as there is no indication service treatment records were reviewed, in conjunction with the September 2016 nexus statement by Dr. M.P.P., Dr. K.C.'s opinion provides additional support that the Veteran's sleep symptomatology was a residual of the Veteran's TBI. The evidence also showed that headaches were a residual of the Veteran's TBI. Treatment records showed that the Veteran had migraine and tension headaches since the IED blast. See March 2013 Private Treatment Record. Treatment records also describe headaches as "post-traumatic" and "postconcussive." See November 2013 Private Treatment Record; March 2016 VA Treatment Record. During September 2016 private treatment, Dr. K.C. opined that the Veteran's migraine headaches were service connected. Dr. K.C. based the opinion on the Veteran's in service treatment for headaches and subsequent treatment records, including an assessment by physician W.D.W. See September 2016 Private Treatment Record. In finding headaches as a residual of the Veteran's TBI, the Board acknowledges the negative findings in the January 2016 VA examination report, with accompanying opinions. The January 2016 VA examiner opined that migraine and tension headaches were primary headache disorders that were less likely than not incurred in or caused by the accident and/or IED and/or combat during military service. As rationale, the VA clinician relied on the review of available medical records, medical literature, and clinical experience. The clinician stated that although service treatment records showed that the Veteran was treated for headaches during service, there was no objective evidence of chronicity at that time. The VA clinician also stated that there was no objective evidence that the Veteran's headaches had onset during service or shortly after discharge. The VA clinician stated that the Veteran's headaches began in March 2013 according to her treatment records and self-reported history. This opinion is not entitled to any probative weight, as it conflicts with the evidence of record. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) ("An opinion based upon an inaccurate factual premise has no probative value."). In July 2006, shortly after service, the Veteran reported recurrent migraine headaches that occurred twice a week for an hour at a time. See July 2006 VA Examination. In October 2007, the Veteran's past medical history included occasional headaches which were treated with over-the-counter Excedrin. See October 2007 Private Treatment Record. She also complained of chronic migraine headaches during an October 2008 VA examination for a psychiatric condition. Thus, the evidence of record showed headaches starting during service and continuing after service. As the January 2016 VA opinion relied upon an incorrect factual premise, it is not entitled to any weight. The Board further recognizes the Veteran's lay statement regarding the onset of her headaches during the January 2016 VA examination, as relied upon by the examiner in finding a 2013 onset. However, the Veteran's statement regarding a 2014 onset of migraines concerned her diagnosis of migraines rather than the onset of migraine symptomatology. See January 2016 VA Examination Report. Indeed, her records indicate that her headaches had been increasing a few years prior to that time. See November 2013 Private Treatment Record. Accordingly, the Board finds that the evidence persuasively weighs in favor of finding that headaches are a residual of the Veteran's TBI. The Board acknowledges the Veteran's contention that migraines should be rated at a compensable percentage. See Attachment to the May 2021 VA Form 10182. However, the appropriate rating will be decided by the AOJ in the first instance. As entitlement to service connection is warranted on a direct basis, the Board need not address other theories of entitlement or remand for an additional VA examination. See generally Attachment to the May 2021 VA Form 10182. Because the evidence persuasively favors the claim, entitlement to service connection for residuals of a TBI, to include headaches, is warranted. 38 U.S.C. §§ 1110, 1154(b), 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS FOR REMAND 1. Entitlement to service connection for OSA The Veteran and her representative contend that OSA is (1) related to the Veteran's in service head injury, (2) a residual of TBI, (3) secondary to the Veteran's insomnia, (4) secondary to her service-connected psychiatric disorder, and (5) subject to secondary service connection with obesity as an intermediate step. The Veteran's representative also asserts that the VA examination and opinion of record are inadequate. See Attachment to the May 2021 VA Form 10182. While the VA examination of record provides sufficient information, the Board agrees that remand for an additional VA opinion is required. The AOJ has favorably found that the Veteran has been diagnosed with the disability of OSA. See May 2020 Rating Decision. However, the Board cannot yet adjudicate the Veteran's claim because the AOJ failed to obtain a medical opinion with sufficient information to decide the claim. See generally 38 C.F.R. § 20.802(a) (explaining that the Board shall remand to the AOJ for correction of a pre-decisional duty to assist error); 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); see Barr v. Nicholson, 21 Vet. App. 303 (2007). After a January 2016 VA examination, a VA clinician opined that the Veteran's OSA was less likely than not caused by or a result of the complaints of still feeling tired after sleeping, as noted during military service. As rationale, the VA clinician explained the pathophysiology of OSA. The clinician also stated that the severity of OSA in an individual "is influenced by other factors as well, including upper airway anatomy, arousal threshold, upper airway muscle drive, and stability of the respiratory control system." The clinician explained that the underlying pathophysiology of OSA "may vary by age, with younger patients more likely to have alterations in ventilatory control and older patients more likely to have predominant upper airway collapsibility." Last, the VA clinician stated that review of the Veteran's record was silent for a diagnosis of a sleep disorder during service and mild OSA was diagnosed 7 years after separation. This opinion does not provide sufficient information to adjudicate the claim because it does not apply recited medical principles to the facts of the Veteran's case, and it does not consider the Veteran's in-service reports of difficulty breathing or exposure to sand/dust. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Bailey v. O'Rourke, 30 Vet. App. 54, 60-61 (2018) (holding that a medical opinion was inadequate as a matter of law because the rationale was based solely on general articles and did not discuss any facts pertaining to the Veteran's condition or individual circumstances). The Veteran not only complained of feeling tired after sleeping, but she also complained of difficulty breathing. She reported exposure to sand/dust. See September 2005 Service Treatment Records. As the Veteran incurred a head injury during service, the opinion also should have addressed whether OSA was related to that in-service event, as well. Additionally, according to an April 2016 VA treatment record, the Veteran reported various exposures while serving in the Persian Gulf, including smoke from oil fires, tent heaters, cigarettes, and burning trash/feces. Since the January 2016 VA examination occurred prior to the Veteran's report during April 2016 VA treatment, the examiner did not have the opportunity to consider this relevant record. Accordingly, on remand, the AOJ will obtain a VA medical opinion that considers all relevant evidence of record. Last, the Veteran and her representative have asserted that secondary service connection is warranted because (1) OSA is related to the Veteran's back and neck injuries, and (2) OSA is secondary to the Veteran's other service connected disabilities because they caused inactivity, led to weight gain, and obesity then caused OSA. These arguments were before the AOJ. See May 2020 Correspondence. As the January 2016 VA opinion did not address these issues, on remand, the AOJ will obtain an opinion addressing secondary service connection. 2. Entitlement to service connection for right leg restless leg syndrome 3. Entitlement to service connection for left leg restless leg syndrome The Veteran and her representative contend that bilateral lower extremity restless leg syndrome is secondary to OSA. See Attachment to the May 2021 VA Form 10182. The AOJ has favorably found that the Veteran has been diagnosed with mild periodic limb movement disorder, bilaterally. See May 2020 Rating Decision. However, because a decision on the remanded issue of entitlement to service connection for OSA could significantly impact a decision on the issue of entitlement to service connection for bilateral lower extremity restless leg syndrome, the issues are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (providing that two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both issues have been considered). Thus, remand of the claims for service connection for right and left leg restless leg syndrome is warranted. On remand, the AOJ will readjudicate the claims for service connection for OSA and bilateral lower extremity restless leg syndrome. In so doing, the AOJ will consider all relevant evidence of record, including the May 2021 lay statement and subsequent treatment records. 38?C.F.R. §?20.802(c). The matters are REMANDED for the following action: 1. First, obtain a medical opinion from an appropriate VA clinician regarding the etiology of the Veteran's OSA. No additional examination of the Veteran is necessary unless the clinician determines otherwise. The evidentiary record, including a copy of this remand, must be provided to, and reviewed by, the clinician before rendering the opinion. The reviewing clinician must opine on: (a.) Whether the Veteran's OSA is at least as likely as not related to an in-service injury, event, or disease, to include feeling tired after sleeping; difficulty breathing; a head injury; and exposure to sand/dust, and smoke from oil fires, tent heaters, cigarettes, and burning trash/feces. (b.) Whether the Veteran's OSA is at least as likely as not caused or aggravated by (any incremental increase in severity due to) the Veteran's service connected back and neck disabilities. The opinion must address aggravation. i. If the service-connected back or neck disabilities did not cause, but aggravated, the Veteran's OSA, specify, to the extent possible, the degree of disability (pathology or impairment) that has resulted from such aggravation. (c.) Is it at least as likely as not that the Veteran's service-connected disabilities caused or aggravated the Veteran's obesity? i. The reviewing clinician is advised that a finding that obesity was aggravated due to service-connected disabilities may encompass any additional incremental increase in obesity resulting from the service-connected disabilities, regardless of its permanence. (d.) If so, is it at least as likely as not that the Veteran's obesity, or its aggravation, is a substantial factor in causing the Veteran's OSA? (e.) If so, is it at least as likely as not that the OSA would not have occurred but for the Veteran's obesity or the aggravation of obesity? The clinician should provide full explanation of the rationale for each opinion. In formulating any opinion, the reviewing clinician should also address all relevant medical and lay evidence of record, including the Veteran's 2004 head injury. The reviewing clinician is not to mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. The Board reminds the clinician that the absence of in-service evidence of a medical diagnosis is not always fatal to a service connection claim, as the laws and regulations do not require in-service complaints of, or treatment for, a diagnosed condition to establish service connection. If an opinion cannot be provided without resorting to speculation, the reviewing clinician must provide a complete explanation for why an opinion cannot be rendered. In so doing, the reviewing clinician must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that question. 2. Second, readjudicate the claims for service connection for OSA, right leg restless leg syndrome, and left leg restless leg syndrome. R. Bisignani Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Garcia, 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.