MIGRAINE

Summary

The veteran, who served from August 1974 to August 1976, appeals the denial of service connection for headaches, a neurological disorder of the right upper extremity, and obstructive sleep apnea (OSA). The Board previously remanded these claims for further development, specifically for VA examinations. The veteran testified to experiencing headaches during service and sought treatment in 2009, but service treatment records (STRs) showed no complaints or diagnosis for headaches. Similarly, STRs noted a mild right elbow strain in service, but post-service records and examinations showed no current diagnosis for a right upper extremity neurological disorder. For OSA, the veteran claimed it was secondary to service-connected tinnitus and APD, and also claimed in-service symptoms. However, STRs were silent on sleep issues, and post-service records only showed a diagnosis without a clear link to service or service-connected conditions. VA examinations in November 2021 found no current diagnosis for headaches or the neurological disorder, deeming the veteran's complaints subjective. The examiner also provided negative nexus opinions for OSA, citing risk factors like age and obesity, and stating tinnitus/APD were not known causes. The Board found these opinions well-reasoned and afforded them great probative weight, denying the claims for headaches and OSA. The claim for erectile dysfunction (ED) was remanded due to an inadequate VA opinion, which failed to adequately explain the lack of medical relationship between ED and the service-connected APD and lumbar spine disability, and did not address the impact of APD medication on ED.

Rationale

No current diagnosis for headaches; STRs silent on headaches; VA examiner found no chronic headache diagnosis

Full Decision Text

Citation Nr: 22065877
Decision Date: 11/25/22	Archive Date: 11/25/22

DOCKET NO. 16-32 063
DATE: November 25, 2022

ORDER

Service connection for headaches, to include as secondary to a service-connected disability, is denied.

Service connection for a neurological disorder of the right upper extremity is denied.

Service connection for obstructive sleep apnea (OSA), to include as secondary to a service-connected disability, is denied.

REMANDED

Service connection for erectile dysfunction (ED), to include as secondary to the service-connected acquired psychiatric disorder (APD), is remanded.

FINDINGS OF FACT

1. The weight of the evidence is against finding that the Veteran has a current diagnosis for headaches, or that they are otherwise related to his military service. 

2. The weight of the evidence is against finding that the Veteran has a current diagnosis for a neurologic disorder of the right upper extremity, or that it is otherwise related to his military service.

3. The weight of the evidence is against finding that the Veteran's OSA is related to any service-connected disabilities.  

CONCLUSIONS OF LAW

1. The criteria for service connection for headaches have not been met.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. 

2. The criteria for service connection for a neurological disorder of the right upper extremity have not been met.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303.

3. The criteria for service connection for OSA have not been met.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from August 1974 to August 1976.  The Veteran provided testimony before a Veterans Law Judge (VLJ) at a March 2019 Board hearing.  A complete transcript is of record.  The VLJ who held the 2019 hearing is no longer at the Board.  In October 2020, the Board notified the Veteran that he could request another hearing with a different VLJ.  No response was received; thus, the Board finds his hearing request satisfied.

This appeal was previously before the Board in October 2021.  The Board remanded the service connection claims for headaches, ED, OSA, a right upper extremity disability, and a total disability rating based on individual unemployability (TDIU) for further development.  The Board will discuss the individual reasons for remand in their respective sections.  

Regarding a TDIU, VA received the Veteran's numerous service connection claims on August 22, 2011.  During the pendency of this appeal, he was granted service connection for an APD, a lumbar spine disability, tinnitus, and bilateral hearing loss, effective August 22, 2011.  The Veteran disagreed with some of the assigned ratings, meaning that there were increased ratings claims on appeal, during this appeal period.  VA also received the Veteran's claim for a TDIU, during the pendency of this appeal.  As such, the issue of a TDIU became part and parcel to the increased ratings claims on appeal.  Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009).  

The March 2022 rating decision granted the Veteran a TDIU rating, effective August 22, 2011.  Given that the Veteran has been granted a TDIU, for the entire period on appeal, the Board finds that this is considered a full grant of benefits sought on appeal and the claim is no longer before the Board.  See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997).

Service Connection

1. Service connection for headaches, to include as secondary to a service-connected disability, is denied.

2. Service connection for a neurological disorder of the right upper extremity, is denied.

The Veteran asserts that he has experienced headaches during his active-duty service and ever since.  He asserts that his right upper extremity condition began during his active-duty service when he injured his right elbow.  

A review of the Veteran's service treatment records (STRs) shows that the Veteran complained of right elbow pain in June 1975, due to a fall.  He was diagnosed with a mild muscle strain of the right elbow.  There were no complaints, treatment, or diagnosis for headaches or a headache condition.  The Veteran's August 1976 separation examination showed a normal clinical evaluation
 include as secondary to a service-connected disability, is denied.

2. Service connection for a neurological disorder of the right upper extremity, is denied.

The Veteran asserts that he has experienced headaches during his active-duty service and ever since.  He asserts that his right upper extremity condition began during his active-duty service when he injured his right elbow.  

A review of the Veteran's service treatment records (STRs) shows that the Veteran complained of right elbow pain in June 1975, due to a fall.  He was diagnosed with a mild muscle strain of the right elbow.  There were no complaints, treatment, or diagnosis for headaches or a headache condition.  The Veteran's August 1976 separation examination showed a normal clinical evaluation of the entire body, with no complaints from the Veteran.  

The Veteran provided testimony at a March 2019 Board hearing.  Regarding headaches, he testified that they began during his active-duty service, but did not seek treatment for them.  He also indicated a continuity of symptomatology.  He testified that he first sought treatment for his headaches in 2009.  Regarding the right upper extremity condition, he testified that he believes that the in-service right elbow injury is related to his current right upper extremity symptoms.  He reported that he experienced grip loss after the right elbow injury.  

A review of the Veteran's post-service private and VA treatment records shows intermittent complaints of headache pain.  However, there does not appear to be any diagnosis for any chronic headache conditions.  Regarding the right upper extremity neuropathy, he did report numbness in October 2015, but the treating VA medical professional noted that his sensations were intact.  There was treatment and diagnosis for lower extremity radiculopathy, but not for the upper right extremity.  

The October 2021 Board decision remanded the service connection claims for headaches and for a neurologic disorder of the right upper extremity for further development.  The Board noted that the Veteran had not been afforded VA examinations for those claimed conditions, and that given his assertions, medical opinions were necessary.  

The Veteran was afforded VA examinations for headaches and peripheral nerve conditions in November 2021.  The Board notes that the same VA examiner provided both examinations and medical opinions.  After in-person examinations and a review of the Veteran's claims file, the examiner found that the Veteran did not have a diagnosis for a chronic headache condition, or for a neurological disorder of the right upper extremity.  Regarding headaches, the examiner found that there was an absence of chronic headache complaints, evidence of treatment, or a diagnosis for a headache condition.  Given such, there was no evidence of an aggravation and also noted that the APD and headaches were separate entities and not medically related meaning a causal relationship had not been established.  

Regarding the neurologic condition, the examiner reported that the objective examination was normal and that they symptoms were subjective only.   

Here, the Veteran was afforded in-person VA examinations, pursuant to the Board's October 2021 Board decision.  He was also provided medical opinions regarding headaches and the neurologic condition.  As such, the Board finds that there has been substantial compliance with the Board's October 2021 remand directives.  See Stegall v. West, 11 Vet. App. 268, 271 (1998).  

Here, the Board acknowledges that the Veteran's STRs contains a note for a right elbow injury and recognizes the Veteran's testimony regarding his right arm symptoms and symptoms for headaches.  However, the fact remains that that the Veteran has not been shown by the medical evidence to have a diagnosis for headaches or a neurologic disorder of the right upper extremity.  His post-service treatment records are silent for a diagnosis for the claimed conditions.  Further, the Veteran was afforded VA examinations in October 2021, and the VA examiner, who was able to examine the Veteran, in-person, and reviewed his claims file, was unable to find diagnoses for the aforementioned conditions.  

In the absence of proof of a current disability, there can be no valid claim.  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  Congress has specifically limited entitlement to service connection to cases where such incidents have resulted in a disability.  Brammer, 3 Vet. App. at 225.  In the absence of any competent evidence regarding a diagnosis for a headache condition or a neurologic disorder of the right upper extremity, the Board must conclude the Veteran does not currently suffer from such disabilities.  Without competent evidence of a diagnoses for the claimed conditions, the Board must deny the Veteran's claims.  See Degmetich v. Brown, 104 F.3d 1328, 1333 (1997).

The Board also acknowledges the Veteran's testimony regarding experiencing pain related to his headaches and
. App. 223, 225 (1992).  Congress has specifically limited entitlement to service connection to cases where such incidents have resulted in a disability.  Brammer, 3 Vet. App. at 225.  In the absence of any competent evidence regarding a diagnosis for a headache condition or a neurologic disorder of the right upper extremity, the Board must conclude the Veteran does not currently suffer from such disabilities.  Without competent evidence of a diagnoses for the claimed conditions, the Board must deny the Veteran's claims.  See Degmetich v. Brown, 104 F.3d 1328, 1333 (1997).

The Board also acknowledges the Veteran's testimony regarding experiencing pain related to his headaches and has considered whether these statements reflect that the Veteran has experienced functional impairment of earning capacity, such that the reported pain would qualify as a current disability.  Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018).  However, although the Veteran's reports indicate that his symptoms have affected him, they do not indicate or suggest that the pain has caused any functional impairment of earning capacity.  For example, the Veteran did not testify, nor do his post-service treatment records provide any indication that his headaches hinder his ability to function.  As such, even when considering the Veteran's statements, the Board finds that the overwhelming weight of the evidence is against a finding that the Veteran's reports of pain, related to his headaches, qualifies as a current disability.

Here, the Board is sympathetic to the Veteran's assertions and belief that service connection is warranted based on his testimony that his headaches and right arm neurologic disorder are related to his active-duty service.  However, the Board emphasizes that the clinical and objective evidence of record, to include the post-service VA treatment records and the October 2021 VA examinations show no current diagnoses for the claimed conditions.

Accordingly, service connection for headaches and right upper extremity neuropathy is denied.

3. Service connection for OSA, to include as secondary to a service-connected disability, is denied.

The Veteran asserts that his OSA is secondary to the service-connected tinnitus.  He also asserts that he experienced OSA symptoms during his active-duty service.

A review of the Veteran's STRs do not reveal any complaints, treatment, or diagnosis for any sleep conditions.  Further, the separation examination showed a normal clinical evaluation of the entire body and the Veteran did not provide any indication of any sleep issues.  

The Veteran's post-service treatment records show a diagnosis for OSA.  However, there was no indication that it was secondary to any service-connected disabilities.  

The Veteran testified that his OSA was related to his tinnitus because the ringing in his ears caused difficulty with sleep.  He also indicated that during his active-duty service he snored, felt tired after sleeping, and was always fatigued.  

The Board's October 2021 decision remanded the service connection claim for OSA because, although he was provided a VA examination and medical opinion in May 2016, an opinion regarding aggravation was not provided.  The Board found that a new medical opinion was necessary to ascertain whether the OSA was secondary to the service-connected tinnitus and/or APDs.  

The Veteran was afforded a VA examination in November 2021.  The examiner noted that a February 2016 sleep study confirmed the diagnosis for OSA.  After a review of the Veteran's claims file, the examiner provided negative nexus opinions.  Regarding direct service connection, she explained that medical records did not show any symptoms for sleep issues until November 2013, when he complained of poor sleep, racing thoughts, and hopelessness.  She indicated that these were associated with his mental health issues.  Regarding secondary service connection, she reported that the tinnitus and APDs may aggravate sleep issues, but would not aggravate or cause OSA.  She reported that the etiology of OSA is due to the interaction between unfavorable anatomic upper airway susceptibility and sleep related changes in the UA function.  She also noted that the risk factors for OSA included age, gender, obesity, neck size, and tongue size.  She indicated that the Veteran's age, gender, and obesity increased his risk for OSA.  She reported that tinnitus and APDs are not known risk factors that would cause or affect OSA.  

Here, the Veteran was provided a new medical opinion by the November 2021 VA examiner and the examiner provided a well-reasoned and robust rationale, in support of her opinion.  As such, the Board finds that there has been substantial compliance with the October 2021 Board's remand.  See Stegall v. West, 11 Vet. App. 268, 271 (1998).  

To the extent that the Veteran believes that his O
 gender, obesity, neck size, and tongue size.  She indicated that the Veteran's age, gender, and obesity increased his risk for OSA.  She reported that tinnitus and APDs are not known risk factors that would cause or affect OSA.  

Here, the Veteran was provided a new medical opinion by the November 2021 VA examiner and the examiner provided a well-reasoned and robust rationale, in support of her opinion.  As such, the Board finds that there has been substantial compliance with the October 2021 Board's remand.  See Stegall v. West, 11 Vet. App. 268, 271 (1998).  

To the extent that the Veteran believes that his OSA is related to his active-duty service, and in the alternative, as secondary to a service-connected disability, such a medical opinion requires medical expertise, and that determination cannot simply be made by lay observation alone; and the Veteran is not considered competent (meaning medically qualified by training or experience) to provide such a medical opinion.  See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  Given the Veteran's assertions, a VA addendum opinion was sought, which took into account the Veteran's assertions.  Unfortunately, the November 2021 VA examiner provided negative nexus opinions regarding both direct and secondary service connection.  The Board notes that neither the Veteran, nor his attorney, has offered any competent medical opinions that would undermine the VA addendum medical opinion of record.  The Board also notes that VA received the Veteran's representative's Appellate Brief in September 2022.  The representative offered no further evidence or substantive argument with regard to the service connection claim for OSA.  The representative also noted that further development was sought, pursuant to the October 2021 Board decision.  However, the representative did not point out any inadequacies or problems with the November 2021 VA examination or the associated medical opinion.  

The Board acknowledges the positive evidence, to include the Veteran's diagnosis for OSA.  However, the November 2021 VA examiner explained why it is less likely than not that the Veteran's OSA was related to the service-connected tinnitus and/or APDs.  She explained that the Veteran had several risk factors of OSA, such as age, gender, and obesity; while on the other hand, tinnitus and APDs were not known risk factors for OSA.

Here, the November 2021 VA examiner's opinion is afforded great probative weight because she was able to review the Veteran's claims file and provided a robust and well-reasoned rationale to support her opinion.  

While the Board has considered the Veteran's lay statements and assertions regarding the onset and etiology of his OSA, that evidence is afforded less probative weight than the medical opinions.  The Veteran is competent to the extent that he can provide information regarding what he experienced through his senses and can provide citations to medical literature, but he is not competent (meaning medically qualified through training or expertise) to provide a medical opinion, such as determining either when he was diagnosed with OSA or the etiology of the OSA.  See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  The Board acknowledges that the Veteran has provided statements regarding his in-service incurrences.  However, the November 2021 VA examiner found that the post-service treatment records did not support finding a relationship between his active-duty service and his OSA.  Further, the Board notes that his STRs did not reflect any complaints of snoring, sleepiness, or fatigue; and the post-service treatment records did not indicate any sleep issues until 2013, about three decades after his separation from the military.  

The Board has seriously considered the Veteran's statements; and it was in recognition them that the Board remanded the claim to obtain an addendum medical opinion.  However, ultimately the medical evidence was most probative in this case, and it weighed squarely against service connection. 

Accordingly, service connection for OSA is denied.

REASONS FOR REMAND

Service connection for ED, to include as secondary to a service-connected disability, is remanded.

The Veteran asserts that his ED is related to his service-connected APD.  He also testified that his ED was related to the service-connected lumbar spine disability.  His representative has asserted that his ED may be secondary to medication he takes for the service-connected APD.  

The Veteran testified that his ED may be secondary to his service-connected lumbar spine disability because a doctor had told him such.  He also testified that he did not take Viagra anymore because he had been prescribed a medication for another condition and that he could not take both Viagra and that medication at the same time.  


 OSA is denied.

REASONS FOR REMAND

Service connection for ED, to include as secondary to a service-connected disability, is remanded.

The Veteran asserts that his ED is related to his service-connected APD.  He also testified that his ED was related to the service-connected lumbar spine disability.  His representative has asserted that his ED may be secondary to medication he takes for the service-connected APD.  

The Veteran testified that his ED may be secondary to his service-connected lumbar spine disability because a doctor had told him such.  He also testified that he did not take Viagra anymore because he had been prescribed a medication for another condition and that he could not take both Viagra and that medication at the same time.  

Pursuant to the Board's October 2021 remand, the Veteran was afforded a VA examination for ED in November 2021.  After an in-person examination and a review of the Veteran's claims file, the examiner provided a negative nexus opinion.  The examiner noted that the evidence did not show that the ED was caused by or incurred during service.  She noted that the Veteran was prescribed Viagra in 2013, but that the medical evidence did not show any complaints or treatment since then.  The examiner also explained that ED and APDs are separate entities and are not medically related.  

Although the Veteran was provided a VA examination and a medical opinion, the Board finds that there has not been substantial compliance with the Board's October 2021 remand directives.  The Veteran testified that his ED was secondary to the service-connected lumbar spine disability, but the examiner explained that the ED and the service-connected disabilities, to include the APDs and the lumbar spine disability were separate entities and were not medically related.  Further, the examiner did not discuss the Veteran's medication for his APDs, in her explanation.  Here, the Board finds that the VA examiner's medical opinion is inadequate because she simply provided a conclusory statement and did not explain how or why she came to that conclusion.  For example, she did not explain why the lumbar spine disability and the ED were separate entities, when the Veteran suffers from lower extremity radiculopathy, associated with the lumbar spine.  Further, even if the APDs and the ED are separate medical entities, his medication could reasonably affect his ED.  As such, the Board finds that an addendum opinion is required.  

Accordingly, service connection for ED is remanded.

The matters are REMANDED for the following action:

1. Obtain addendum opinions to the November 2021 VA medical opinion regarding ED.  If an in-person examination is required, one should be scheduled.  The examiner should provide the following opinions: 

(a) Is it as likely as not (approximately 50 percent or greater) that the Veteran's ED was caused by his service-connected APD, to include as due to medications taken to treat such?  Why or why not?  

(b) Is it as likely as not (approximately 50 percent or greater) that the Veteran's ED was aggravated (made worse) by his service-connected APD, to include medications to treat such?  Why or why not?

(c) Is it as likely as not (approximately 50 percent or greater) that the Veteran's ED was caused by his service-connected lumbar spine disability?  Why or why not?  

(d) Is it as likely as not (approximately 50 percent or greater) that the Veteran's ED was aggravated (made worse) by his service-connected lumbar spine disability?  Why or why not?

The examiner should discuss whether the Veteran's prescription for Seroquel has caused or aggravated his ED.  See Appellate Brief dated September 21, 2022.

The examiner should also discuss the Veteran's testimony that he was told by a medical professional that his ED was caused by his back condition.  

If aggravation is found, the examiner should identify the baseline level of severity of the ED by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the ED.

In providing their opinion, the examiner is reminded to provide a rationale to support his or her medical opinion.  The Board notes that the November 2021 VA examiner's medical opinion regarding ED has been found to be inadequate because a conclusory statement was provided, without any explanation as to why the ED and the service connected APDs and lumbar spine disabilities were separate entities.  

 

 

CLAIRE M. DAVIDOSKI

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	E. Fu, 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