Citation Nr: 18160443
Decision Date: 12/26/18	Archive Date: 12/26/18

DOCKET NO. 13-21 051A
DATE:	December 26, 2018
Service connection for migraine headaches is denied.
The Veteran’s appeal for entitlement to service connection for sleep apnea, to include as due to herbicide exposure or secondary to service connected post-traumatic stress disorder (PTSD) is denied.
Although there is evidence that the Veteran has a current disability manifested by headaches, there is no competent medical evidence that would relate these headaches to a service connected disability, and no contentions or evidence that would relate them to active service.  
The criteria for entitlement to service connection for migraine headaches have not been met.  38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.303, 3.310 (2018). 
The Veteran had active service from November 1963 to November 1965.  He had service in Vietnam, where he earned a Bronze Star with “V” device and the Combat Infantryman Badge.  These matters come to the Board from an appeal of an August 2011 rating decision.  
The record shows that the Veteran’s notice of disagreement and statement of the case addressed five issues, including service connection for a right shoulder disability, service connection for gastroesophageal reflux disease, and an increased initial rating for PTSD.  However, the Veteran, in his July 2013 Form 9, specifically states that he did not wish to appeal these issues.  No additional development was undertaken in those matters and they have not been certified to the Board.  Therefore, they are not part of the current appeal. 
Entitlement to Service Connection for Migraine Headaches
The Veteran contends that he has developed migraine headaches as the result of active service.  He contends that he has migraine headaches, which he attributes to a right shoulder disability he believes was incurred in service.  
Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service.  38 U.S.C. § 1110; 38 C.F.R. § 3.303(a).  Establishing service connection generally requires (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 present disability.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303.  Consistent with this framework, service connection is warranted for a disease first 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).
Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third elements is through a demonstration of continuity of symptomatology.  However, this method may be used only for the chronic diseases listed in 38 C.F.R. § 3.309, and migraine headaches are not on this list.  Walker v. Shinseki, 708 F.3d 1331, 1336-38 (Fed. Cir. 2013). 
Regulations provide that service connection is warranted for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury.  38 C.F.R. § 3.310(a).  Further, a disability which is aggravated by a service-connected disorder may be service connected to the degree that the aggravation is shown.  Allen v. Brown, 7 Vet. App. 439, 449 (1995); 38 C.F.R. § 3.310(b).  In order to establish entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; (3) medical evidence establishing a nexus between the service-connected disability and the current disability.  See Wallin v. West, 11 Vet. App. 509, 512 (1998).
In relevant part, 38 U.S.C. § 1154(a) (2012) requires that VA give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim for disability benefits.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). 
The Federal Circuit has held that “[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.”  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (“[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence”).
When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant.  38 U.S.C. § 5107(b).
Although the evidence does not include a current diagnosis of migraine headaches, July 2010 VA treatment records state that the Veteran noted a return of headaches in the last month or so.  May 2015 VA treatment records also include a report of pain due to chronic headaches.  VA treatment records also show that the Veteran’s medication lists report he has been prescribed aspirin for headaches as needed.  The Board finds this to be competent medical evidence of a current headache disability.  
However, the competent evidence does not attribute the Veteran’s headaches to a service-connected disability.  The record shows that the Veteran’s two service-connected disabilities are prostate cancer and PTSD.  There is no competent evidence indicating that one of these disabilities has produced the Veteran’s headaches, and the Veteran does not contend that they do.  Although the June 2010 VA treatment records attribute the Veteran’s morning headaches to either a sleep disorder or degenerative joint disease, service connection has not been established for either of these disabilities.  It follows neither disability can serve to establish service connection on a secondary basis.  38 C.F.R. § 3.310.
The Board has also considered entitlement to service connection for headaches on a direct basis, but the evidence also fails to support service connection under this theory.  The Veteran’s service treatment records are negative for complaints, treatment or a diagnosis relating to headaches.  The Veteran denied a history of frequent or severe headaches on a November 1965 Report of Medical History competed at discharge from service, and the examination conducted at that time was also normal.  There is no current medical evidence or opinion that relates the Veteran’s headaches to active service, and the Veteran himself has not done so.  The Veteran has not been provided a VA examination of his headaches, but in the absence of any contentions or evidence that the headache may be associated with active service, even the low threshold for a link between the current disability and service has not been met, and an examination is not necessary to make a decision on this issue.  38 U.S.C. § 5103A(d) (2012); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). 
Entitlement to Service Connection for Sleep Apnea, to Include as Due to Herbicide Exposure or Secondary to PTSD 
The Veteran contends that he has developed sleep apnea as the result of active service.  He contends that he has had sleep problems since leaving service.  
He states the sleep apnea is the result of either exposure to herbicides such as Agent Orange, or due to his service-connected PTSD.
As noted, the record shows that entitlement to service connection for PTSD has been established, effective from September 2010.  The record also establishes that the Veteran served in Vietnam.  In fact, the record shows that the Veteran earned the Bronze Star with “V” device during this service.  Based on the foregoing, exposure to herbicides such as Agent Orange during his Vietnam service is presumed.  38 C.F.R. §§ 3.307, 3.309.  
The post-service record shows that the Veteran’s first reported complaints of sleep problems are found in VA treatment records dated July 2010.  Obstructive sleep apnea appears to have been first diagnosed in February 2011.  
The Veteran was afforded a June 2011 VA examination in conjunction with his claim for service connection for sleep apnea.  This examiner states that the claims file was reviewed.  He also obtained a history from the Veteran, who reported sleep problems since discharge from service.  At the conclusion of the report, the examiner opined that the Veteran’s obstructive sleep apnea was not related to either his service-connected PTSD or related directly to active service.  
Unfortunately, this examination is deficient for at least two reasons.  First, the examiner failed to either note or address the Veteran’s service treatment records, in particular the Report of Medical History obtained at the time of the Veteran’s November 1965 discharge examination in which he answered “yes” to a history of frequent trouble sleeping.  The Board is unable to discern if this might represent the initial manifestation of obstructive sleep apnea so it would like this to be considered by an appropriate competent medical professional.
Also, the June 2011 VA examiner failed to provide an opinion as to whether the Veteran’s sleep apnea may be related to his presumed exposure to herbicide agents.  Although obstructive sleep apnea is not a disease that is presumed to be the result of herbicide exposure, this does not preclude establishing service connection with proof of direct causation.  Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994).  
The matter is REMANDED for the following action:
Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any obstructive sleep apnea.  The examiner is to provide an opinion whether it is at least as likely as not related to an in-service injury, event, or disease, including the reported history of frequent trouble sleeping on the November 1965 Report of Medical History.  
The examiner is to provide an opinion whether the Veteran’s obstructive sleep apnea is at least as likely as not related to his presumed in-service exposure to herbicides agents, such as Agent Orange.  Simply stating that this disability is not among those presumed to be related to such exposure will not be a sufficient rationale. 
Finally, the examiner should state whether the Veteran’s sleep apnea it is at least as likely as not (1) proximately due to his service-connected PTSD, OR (2) aggravated beyond its natural progression by PTSD.  If aggravation is deemed to have occurred, the examiner should state whether a baseline of severity prior to the aggravation can be established.  If so, this baseline should be described.  
A comprehensive rationale for all opinions is to be provided.  If the examiner is unable to provide any portion of the requested opinions, they should state whether this is the result of the limits of their own expertise, the limits of medical science, or the absence of information in the record that would enable the opinions to be provided.  

Paul Sorisio
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	J. L. Prichard, Counsel 

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