Veteranclaims’s Blog

June 20, 2019

Single Judge Application; sleep apnea; it’s clear he’s competent to report snoring; Bernard, 4 Vet.App. at 394; impermissible reopening of claim by Board;

Filed under: Uncategorized — Tags: — veteranclaims @ 12:35 pm

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 18-3448
ROY L. HOLTON, APPELLANT,
V.
ROBERT L. WILKIE,
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 Roy L. Horton served the Nation honorably in the United States Army from October 1978 to October 1981. He appeals an April 10, 2018, Board of Veterans’ Appeals decision that denied service connection for sleep apnea and a right leg disability.1
The question in this appeal, which was timely and over which the Court has jurisdiction,2 is whether the Board clearly erred by (i) failing to discuss whether appellant should’ve been afforded a medical examination addressing whether his sleep apnea was related to service and (ii)
denying him service connection for a right knee disability after it had reopened the claim without considering or discussing how such an action could prejudice him.
Because the Board appeared to require independent corroboration of appellant’s reports of
snoring when there’s no basis for such a requirement in law and because the Board made an
impermissible medical judgment in making its decision, the Board provided inadequate reasons
and bases for denying service connection for sleep apnea. And because the Board failed to consider
or discuss possible prejudice to appellant from its reopening and immediate merits adjudication of
1 The Board also remanded service connection claims for hypertension and a bilateral ankle disability. These claims
are not before the Court. See Breeden v. Principi, 17 Vet.App. 475, 478 (2004) (per curiam order).
2 See 38 U.S.C. §§ 7252(a), 7266(a).
2
his right ankle disability, its statement of reasons and bases for denying service connection for a
right ankle disability is inadequate. Thus, the Court sets aside the Board’s decision and remands
this matter for readjudication.
I. ANALYSIS
A. Sleep Apnea
The Board’s reasons or bases for denying service connection for sleep apnea are inadequate.
The Board denied the claim because none of the evidence showed “any medical link” between appellant’s sleep patterns and sleep apnea.3 Appellant doesn’t dispute that. Instead, he argues none of the evidence showed “any medical link” between his sleep patterns and sleep apnea because VA hasn’t yet provided him with a medical examination addressing that condition. And he contends this omission is arbitrary, capricious, an abuse of discretion, or otherwise unlawful. The Court agrees.
VA’s duty to assist includes “providing a medical examination or obtaining a medical
opinion when such an examination is necessary to make a decision on the claim.”4 A medical
examination is necessary when there is (1) “competent evidence of a current disability or persistent
or recurrent symptoms of a disability,” (2) evidence establishing an in-service “event, injury, or
disease,” and (3) an “indication” that the disability or symptoms “may” be associated with service,
“but (4) insufficient medical evidence of record for the Secretary to” decide the claim.5 The Court
reviews the Board’s determination concerning whether there is sufficient evidence of nexus to
warrant an examination under a deferential standard. The Court will uphold the Board’s decision
unless the Board acted arbitrarily or capriciously, abused its discretion, or otherwise acted
unlawfully.6 Finally, the Board must support its determination that VA satisfied its duty to assist
with an adequate statement of reasons or bases.7
Since the Board didn’t engage in the McLendon analysis, it’s hard to discern on what basis
it denied the claim. But it appears that the basis was the third McLendon element, that there be an
3 Record (R.) at 7.
4 38 U.S.C. § 5103A(d).
5 McLendon v. Nicholson, 20 Vet.App. 79, 81 (2006); see 38 U.S.C. § 5103A(d)(2).
6 See McLendon, 20 Vet.App. at 83-84.
7 See 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet.App. 517, 527 (1995).
3
“indication” that the disability or symptoms “may” be associated with service.8 The Court has
clarified that this element sets “a low threshold.”9 Nonetheless, the Board stated that “[w]hile the
Veteran states that he snored in service, he does not supply any basis for that knowledge.”10 And
the Board noted that “[t]here are no statements from those who witnessed him sleeping in service
of record.”11 Appellant had complained of snoring. But the Board concluded, without citing any medical support for its conclusion, that “the presence of snoring does not, in and of itself, demonstrate the presence of sleep apnea.”12
There are three main problems with the Board’s analysis. First, at some level the Board’s statement is, quite frankly, nonsensical. It’s difficult to conceive what the Board meant when it stated that appellant “does not supply any basis for” knowing he snores.13 He was there when he
snored and is reporting what happened. The Board does not suggest he is incredible, and it’s clear he’s competent to report snoring, so the Board’s discussion is confusing. Second, to the extent one can understand what the Board said here, it appears the Board required independent corroboration
of appellant’s reports of snoring when there’s no basis for such a requirement in law. In fact, the Board isn’t permitted to find that lay statements lack credibility “merely because they [are] not corroborated by contemporaneous medical records.”14 And finally, the Board’s finding that “the presence of snoring does not, in and of itself, demonstrate the presence of sleep apnea” is an independent medical judgment the Board simply isn’t allowed to make.15 The Board’s speculation that appellant’s snoring doesn’t reflect sleep apnea may even be correct. But the solution isn’t for
the Board to engage in such medical judgment itself. Instead, the Court has instructed that “[i]f the medical evidence of record is insufficient, or, in the opinion of the [Board], of doubtful weight or credibility, the [Board] is always free to supplement the record by seeking an advisory opinion [or]
ordering a medical examination.”16
8 McLendon, 20 Vet.App. at 83.
9 Id.
10 R. at 7.
11 Id.
12 Id.
13 Id.
14 Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006).
15 See Colvin v. Derwinski, 1 Vet.App. 171, 175 (1991).
16 Id.
4
The Board’s reasons or bases for denying service connection for sleep apnea are inadequate.
Finding this error harmless would require more factfinding than the Court may do.17 Thus, the Court sets aside this portion of the Board’s decision and remands the matter to the Board for readjudication.18
B. Right Ankle Disability
The Board’s reasons and bases for its denial of service connection for a right ankle disability
are inadequate. Appellant’s right ankle disability didn’t come before the Board as an original claim.
Instead, it came as a request for reopening of a previously denied service-connection claim. The Board reopened the claim and, in the same decision, addressed the merits. Appellant argues the Board’s addressing of the merits while simultaneously reopening his claim was in direct
contravention to this Court’s holding in Bernard v. Brown that when “the Board addresses in its decision a question that had not been addressed by the [regional office],” the Board “must consider whether the claimant has been given adequate notice of the need to submit evidence or argument on that question” as well as “an opportunity to submit such evidence and argument and to address that question at a hearing, and, if not, whether the claimant has been prejudiced thereby.”19
The Court agrees.
Here, the Board failed to discuss possible prejudice to appellant by its immediate
consideration of the merits of his right ankle disability claim without giving him a chance to submit
additional evidence. Instead, after engaging in the reopening analysis, the Board simply stated that
“[t]he Veteran’s service connection claim is therefore reopened, and the Board will address the
merits.”20 This bald, conclusory statement falls far short of the prejudice analysis required under
Bernard. Because the Board did not consider and discuss possible prejudice to appellant from its
immediate consideration of the merits of his reopened right ankle disability, the Court will not
adjudicate this argument in the first instance.21 Thus, the Court also sets aside this portion of the
Board’s decision and remands the matter to the Board for readjudication.
17 See 38 U.S.C. § 7261(c)(2); Shinseki v. Sanders, 556 U.S. 396, 406-07 (2009).
18 See Tucker v. West, 11 Vet.App. 369, 374 (1998); Allday, 7 Vet.App. at 527.
19 4 Vet.App. 384, 394 (1993).
20 R. at 9.
21 Bernard, 4 Vet.App. at 394.
5
Given this disposition, the Court need not now address the remaining arguments and issues
raised by appellant. 22 In pursuing his case on remand, appellant is free to submit additional
evidence and argument, including the arguments raised in his briefs to this Court. He has 90 days
to do so from the date of VA’s postremand notice.23 The Board must consider any such evidence
or argument. 24 The Court reminds the Board that “[a] remand is meant to entail a critical
examination of the justification for the decision.”25 The Board must proceed expeditiously.26
II. CONCLUSION
The Board’s April 10, 2018, decision is SET ASIDE and the matter REMANDED.
DATED: June 19, 2019
Copies to:
Glenn R. Bergmann, Esq.
VA General Counsel (027)
22 See Best v. Principi, 15 Vet.App. 18, 20 (2001).
23 Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order); see also Clark v. O’Rourke, 30 Vet.App.
92, 97 (2018).
24 Kay v. Principi, 16 Vet.App. 529, 534 (2002).
25 Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991).
26 38 U.S.C. §§ 5109B, 7112.

Leave a Comment »

No comments yet.

RSS feed for comments on this post. TrackBack URI

Leave a Reply

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.

Powered by WordPress.com.