10-14 578
10-14 578
| Board of Vet. App. | Mar 31, 2017Background
- Veteran served Nov 1984–May 1995 including Gulf War service (Persian Gulf veteran).
- Initial RO decisions (2007, 2008) denied service connection for sleep apnea and memory loss; granted fibromyalgia (20%) and IBS (10%); later increased fibromyalgia to 40% (effective Sept 27, 2006) and migraines to 30% (effective Oct 9, 2014).
- Board remanded multiple times; Veteran and spouse testified at a 2015 hearing; record includes multiple VA exams (2007–2016).
- Medical evidence: diagnosed obstructive sleep apnea (2006) attributed by VA examiners to obesity/BMI >30; fibromyalgia with widespread, near-constant, treatment‑refractory symptoms; headaches/migraines with prostrating attacks ~once/month; IBS with alternating diarrhea/constipation and near‑constant abdominal distress.
- VA medical opinions linked memory loss to service‑connected fibromyalgia and headaches; VA examiners found sleep apnea not service‑related and not an undiagnosed/multi‑symptom illness.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Service connection for sleep apnea (including as undiagnosed illness) | Sleep apnea began in service or is a Gulf War undiagnosed‑illness manifestation | VA: sleep apnea is a diagnosed obstructive disorder caused by obesity (BMI>30); not undiagnosed illness and not shown to have onset in service | Denied — sleep apnea not service‑connected and not an undiagnosed illness |
| Service connection for memory loss (including secondary to fibromyalgia/headaches) | Memory loss symptoms are current and caused by service‑connected fibromyalgia/headaches | VA: medical opinion supports nexus to service‑connected conditions | Granted — service connection for memory loss as secondary to fibromyalgia and headaches |
| Initial rating in excess of 40% for fibromyalgia | Fibromyalgia symptoms warrant >40% | VA: fibromyalgia meets criteria for 40% (constant, refractory); 40% is the maximum under DC 5025 | Denied — 40% is the maximum schedular rating assigned and warranted |
| Increased rating for migraines/headaches (pre‑Oct 9, 2014 and after) | Headaches are frequent and severely prostrating, warranting >30% or 50% | VA: headaches are prostrating ~once/month (30% level); not very frequent completely prostrating producing severe economic inadaptability | Granted 30% for entire appeal period; higher rating denied |
| Initial compensable rating for IBS | IBS causes severe alternating diarrhea/constipation with constant abdominal distress warranting 30% | VA: some examiner variably described symptoms, but records and lay reports support severe presentation | Granted 30% for entire appeal period |
Key Cases Cited
- Gutierrez v. Principi, 19 Vet. App. 1 (explaining undiagnosed‑illness presumptive framework for Gulf War veterans)
- Nieves‑Rodriguez v. Peake, 22 Vet. App. 295 (medical opinion must consider accurate facts and provide adequate rationale)
- Jandreau v. Nicholson, 492 F.3d 1372 (lay evidence competency principles)
- Gilbert v. Derwinski, 1 Vet. App. 49 (benefit‑of‑the‑doubt rule)
- Thun v. Peake, 22 Vet. App. 111 (three‑step extraschedular referral inquiry)
- Caluza v. Brown, 7 Vet. App. 498 (elements required for service connection)