Veteranclaims’s Blog

April 13, 2018

Single Judge Application; PTSD secondary service connection for sleep apnea; Medical Literature; medical competence; Parks v. Shinseki, 716 F.3d 581, 585 (Fed. Cir. 2013);

Excerpt from decision below:

“The Board’s reliance on the VA opinions was clearly erroneous. Appellant submitted three medical journal articles, all of which were relevant to his theory of secondary service connection for sleep apnea, after all the medical examinations had been performed, meaning that none of the examiners could have considered the evidence when they made their opinions.
The Secretary argues examiners are “presumed competent and qualified, and thus
presumed to be up to date on the relevant medical literature.” Secretary’s Br. at 10-11; see also Sickels v. Shinseki, 643 F.3d 1362, 1366 (Fed. Cir. 2011) (holding that, without evidence to the contrary, medical examiners are presumed competent). This reading of the presumption goes too far. While he is correct that VA examiners are presumed competent, that presumption goes to the qualifications of an examiner to render an opinion rather than the adequacy of an examiner’s opinion. See Parks v. Shinseki, 716 F.3d 581, 585 (Fed. Cir. 2013) (“In the case of competent medical evidence, . . . VA benefits from a presumption that it has properly chosen a person who is qualified to provide a medical opinion[.]”) (emphasis added). The presumption doesn’t allow the Board to rely on inadequate medical examinations that didn’t consider relevant evidence.
Additionally, the Secretary argues that the submitted articles don’t undermine the VA
examiners’ findings because they did not “establish a direct causal relationship between PTSD and obstructive sleep apnea.” Secretary’s Br. at 11. While that may or may not be true, this is post hoc rationalization that cannot cure the Board’s error. See Martin v. Occupational Safety & Health Review Comm’n, 499 U.S. 144, 156.

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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 17-0705
STEVEN W. BRUNER, APPELLANT,
V.
ROBERT L. WILKIE,
ACTING SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before ALLEN, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.
ALLEN, Judge: Appellant Steven W. Bruner appeals through counsel a December 2, 2016,
Board of Veterans’ Appeals (Board) decision denying service connection for sleep apnea.1 This
appeal was timely filed. The Court has jurisdiction pursuant to 38 U.S.C. §§ 7252(a) and 7266(a).
For the reasons that follow, the Court will set aside the Board’s decision and remand the matter for
further proceedings.
I. RELEVANT FACTS AND PROCEDURAL HISTORY
Appellant served honorably in the United States Marine Corps from 1966 to 1969,
including service in the Republic of Vietnam. In 2009, a VA regional office (RO) granted him
service connection for post-traumatic stress disorder (PTSD). He filed a service-connection claim
for sleep apnea secondary to PTSD the next year.
Appellant underwent a medical examination in August 2010 and, in September of that year,
the RO denied appellant’s claim, a decision with which he timely disagreed. The Board then
1 The Board remanded the issue of a total disability rating based on individual unemployability. Accordingly,
that issue isn’t before the Court. See Breeden v. Principi, 17 Vet.App. 475, 478 (2004) (holding that a Board remand
isn’t a final decision over which this Court has jurisdiction).
2
remanded the claim to the RO for another medical examination, which occurred in February 2012.
Another examination was performed in April 2012.
In November 2014, the Board once again remanded the claim for an additional medical
examination, which was obtained in February 2015. The February 2015 examiner found “no
evidence to support that [appellant’s] service-connected disabilities that include PTSD . . . result[]
in any upper airway resistance thus leading to his current sleep disorder.” He also noted that “there
is no evidence to support that [appellant’s] service-connected disabilities . . . in any way
permanently aggravate any issues of sleep disturbance or disorder.”
Appellant’s representative submitted a written presentation to the Board that discussed
three medical journal articles linking sleep apnea to PTSD in March 2016. Then, on December 2,
2016, the Board denied appellant’s service-connection claim for sleep apnea. This appeal followed.
II. ANAYLSIS
This appeal concerns three medical journal articles appellant submitted while his claim was
before the Board. Appellant’s Brief (Br.) at 6-13. He argues the Board either violated its duty to
assist by failing to obtain a medical opinion that discussed the articles (which were submitted after
his most recent medical examination but before the Board issued its decision) or improperly relied
on the February 2015 medical opinion because its finding of “no evidence” linking PTSD and sleep
apnea is contradicted by the articles he submitted. Id. The Secretary argues the articles only show
correlation, not causation, and the February 2015 examiner is entitled to the presumption of
competence, so the Court should assume he or she reviewed all relevant literature. Secretary’s Br.
at 8-14.
The Secretary’s duty to assist includes providing medical examinations when necessary.
38 U.S.C. § 5103A(d). When he chooses to do so, the examination must be adequate. Barr v.
Nicholson, 21 Vet.App. 303, 311-12 (2007); Stegall v. West, 11 Vet.App. 268, 270-71 (1998)
(remanding where a VA medical examination was “inadequate for evaluation purposes”); see also
Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 301 (2008) (“The Board must be able to conclude
that a medical expert has applied valid medical analysis to the significant facts of the particular
case in order to reach the conclusions submitted in the medical opinion.”). Examinations are
adequate when they consider a veteran’s prior medical history and describe the disability well
enough so the Board can make a fully informed decision. Stefl v. Nicholson, 21 Vet.App. 120, 123
3
(2007). Whether a medical examination is adequate is a factual question, which the Court reviews
for clear error. See 38 U.S.C. § 7261(a)(4); D’Aries v. Peake, 22 Vet.App. 97, 103 (2008). Finally,
as always, the Board must provide a statement of reasons or bases for its decision sufficient for
veterans to understand its basis and assist judicial review. Allday v. Brown, 7 Vet.App. 517, 527
(1995).
Regarding the medical literature appellant submitted, the Board stated:
The Board acknowledges the statements that some medical literature indicates that
that[sic] those with PTSD may be more likely to suffer with sleep apnea; however,
there is no competent evidence of record that PTSD was the cause of the Veteran’s
sleep apnea or aggravates his sleep apnea beyond its natural progression in the
Veteran’s particular case.
The Board also found the VA examination opinions more probative than the literature because
“the examiners have expertise, reviewed the claims file, and provided reasoning for the expressed
opinions that were specific to the Veteran’s case.”
The Board’s reliance on the VA opinions was clearly erroneous. Appellant submitted three medical journal articles, all of which were relevant to his theory of secondary service connection for sleep apnea, after all the medical examinations had been performed, meaning that none of the examiners could have considered the evidence when they made their opinions.
The Secretary argues examiners are “presumed competent and qualified, and thus
presumed to be up to date on the relevant medical literature.” Secretary’s Br. at 10-11; see also Sickels v. Shinseki, 643 F.3d 1362, 1366 (Fed. Cir. 2011) (holding that, without evidence to the contrary, medical examiners are presumed competent). This reading of the presumption goes too far. While he is correct that VA examiners are presumed competent, that presumption goes to the qualifications of an examiner to render an opinion rather than the adequacy of an examiner’s opinion. See Parks v. Shinseki, 716 F.3d 581, 585 (Fed. Cir. 2013) (“In the case of competent medical evidence, . . . VA benefits from a presumption that it has properly chosen a person who is qualified to provide a medical opinion[.]”) (emphasis added). The presumption doesn’t allow the Board to rely on inadequate medical examinations that didn’t consider relevant evidence.
Additionally, the Secretary argues that the submitted articles don’t undermine the VA
examiners’ findings because they did not “establish a direct causal relationship between PTSD and obstructive sleep apnea.” Secretary’s Br. at 11. While that may or may not be true, this is post hoc rationalization that cannot cure the Board’s error. See Martin v. Occupational Safety & Health Review Comm’n, 499 U.S. 144, 156.
4
The Board should have obtained a new medical opinion that adequately considered the
articles. Because the opinions didn’t address all the relevant and favorable evidence of record, they
are inadequate for rating purposes. See Stefl, 21 Vet.App. at 123. Accordingly, remand is
warranted. See Tucker v. West, 11 Vet.App. 369, 374 (1998).
On remand, appellant is free to submit additional evidence and argument, including the
arguments raised in the briefs to this Court, in accordance with Kutscherousky v. West, 12 Vet.App.
369, 372-73 (1999) (per curiam), and the Board must consider any such evidence or argument
submitted, Kay v. Principi, 16 Vet.App. 529, 534 (2002). The Court reminds the Board that “[a]
remand is meant to entail a critical examination of the justification for the decision,” Fletcher v.
Derwinski, 1 Vet.App. 394, 397 (1991), and the Board must proceed expeditiously, in accordance
with 38 U.S.C. §§ 5109B and 7112.
III. CONCLUSION
After consideration of the parties’ briefs and a review of the record, the Board’s December
2, 2016, decision denying service connection for sleep apnea is SET ASIDE and REMANDED for
further proceedings consistent with this decision.
DATED: April 12, 2018
Copies to:
Amie Leonard, Esq.
VA General Counsel (027)

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