Veteranclaims’s Blog

June 22, 2019

Single Judge Application; McLendon, 20 Vet.App. at 83; duty to assist has three distinct, although interrelated, reasons; duty to assist is more than one sentence; evidence that satisfy the “low threshold for triggering a nexus examination is certainly sufficient to require the Board to discuss the issue; veteran “is certainly competent to attest to observable symptoms; however he does not have the medical expertise to diagnose in-service sleep apnea” or “heads-I-win/tails-you-lose”;

Excerpt from decision below:

” B. The Board’s statement of reasons or bases for denying service connection is deficient.
The Board’s decision is not adequate for the Court to engage in meaningful judicial review with respect to VA’s compliance with its duty to assist. There are three distinct, although interrelated, reasons why this is so.
First, the Board’s entire discussion concerning the duty to assist is one sentence: “Neither the Veteran nor his representative has raised any issues with the duty to notify or assist.”14 While it is true that the Board is not required to conjure procedural arguments a veteran has not made,15
it must address issues that are raised by the record.16 As we will discuss, that is precisely the case here. Therefore, the Board was required to explain why appellant was not entitled to a medical examination concerning nexus under McLendon. Because it did not do that, the Court is hamstrung
in reviewing the Board’s decision.
Second, and related to the first point, the record contained evidence that appears to satisfy the “low threshold”17 for triggering a nexus examination. It was certainly sufficient to require the Board to discuss the issue. Appellant has testified that while he was in the Army he gasped for air and experienced morning headaches and daytime sleepiness.18 He also has a “long history of snoring.”19 All agree these can be symptoms of a sleep disorder. The Board did not find appellant incredible and he is certainly competent to provide such testimony.20 Given all of this, the Court is unsure why these in-service symptoms of a potential sleep disorder were not enough to trigger VA’s duty to provide a medical examination. As we held in McLendon, VA must provide an
12 38 U.S.C. § 7104(d)(1); Gilbert, 1 Vet.App. at 57.
13 Tucker v. West, 11 Vet.App. 369, 374 (1998).
14 R. at 5.
15 See Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016).
16 See, e.g., Comer v. Peake, 557 F.3d 1362, 1366-69 (Fed. Cir. 2009); Robinson v. Shinseki, 557 F.3d 1355, 1361
(Fed. Cir. 2009); Schroeder v. West, 212 F.3d 1265, 1271 (Fed. Cir. 2000).
17 McLendon, 20 Vet.App. at 83.
18 See R. at 531.
19 R. at 76.
20 See Layno v. Brown, 6 Vet.App. 465, 469-70 (1994).
4
examination “where there is already some evidence in the record of a current disability and some evidence that ‘indicates’ that the disability ‘may be associated’ with the claimant’s military service.”21 On remand, the Board must explain why no examination is required given this evidence
and legal standard, taking into account the next error we discuss. If it can’t do so, it must provide appellant with an examination.
Finally, the Court is confused by the Board’s logic in downgrading appellant’s lay testimony about in-service symptomatology as part of its weighing of the evidence. The Board stated that appellant “is certainly competent to attest to observable symptoms; however he does not have the medical expertise to diagnose in-service sleep apnea.”22 Putting aside for the moment the point we just made that this testimony likely would trigger VA’s duty to provide a medical examination, the Board’s rationale has a “heads-I-win/tails-you-lose” quality to it. The Board appears to be saying that appellant’s lay statements don’t carry the day because one needs medical expertise to diagnose sleep apnea, yet the Board was able to determine without a medical examination that he didn’t have a sleep disorder. The Board needs to be clearer about its reasoning when it weighs the evidence on remand, whether or not it determines that VA must provide appellant with an examination. In this regard, the Court reminds the Board that it is precluded from “provid[ing] its own medical judgment in the guise of a Board opinion.”23”

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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 18-0853
JUAN ABREU-NAVEDO, 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 Juan Abreu-Navedo served the Nation honorably in the United
Army. In this appeal, which is timely and over which the Court has jurisdiction,1 he contests an
October 30, 2017, decision of the Board of Veterans’ Appeals that denied him service connection
for sleep apnea.2 Because the Board did not support its decision with an adequate statement of its
reasons or bases, we will set aside the decision and remand this matter for further proceedings.
I. ANALYSIS
In the decision on appeal, the Board denied appellant’s claim for service connection for
sleep apnea. The Board accepted that he had a current diagnosis of this condition.3 But it concluded
1 See 38 U.S.C. §§ 7252(a), 7266(a).
2 Record (R.) at 2-15. The Board granted appellant service connection for PTSD, right ear hearing loss, and erectile
dysfunction. These are favorable findings that the Court may not review. See Medrano v. Nicholson, 21 Vet.App. 165,
170 (2007). In addition, the Board remanded claims for (1) service connection for diabetes mellitus type II; (2) service
connection for a voiding dysfunction secondary to diabetes; (3) service connection for bilateral peripheral neuropathy
of the upper extremities; (4) service connection for bilateral peripheral neuropathy of the lower extremities; (5) an
initial compensable rating for left ear hearing loss; and (6) a total disability rating based on individual unemployability.
The Court lacks jurisdiction over these remanded matters. See Breeden v. Principi, 17 Vet.App. 475, 478 (2004) (per curiam order). 3 R. at 10.
2
that it had to deny the claim because “the evidence of record does not demonstrate that [appellant’s] sleep apnea had its onset in service or was caused or aggravated by an in service event.”4 Appellant argues, in part, that the Board erred by not affording him a medical examination in connection with his claim.
A. The Legal Landscape
Establishing service connection generally requires evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.5 As noted above, in his appeal, appellant argues that the Board erred in its service-connection determination because it should have afforded him a medical examination.
The Secretary’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.”6 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.7 The threshold requiring a medical examination is not a high one.8 The Court uses the
“arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” standard to
review the ultimate question of whether an examination is necessary.9 Additionally, to review the
embedded questions of fact, we look for clear error.10 Under this standard, the Court may overturn
the Board’s factual findings only if there’s no plausible basis in the record for the Board’s decision
and it’s “left with the definite and firm conviction that” the Board’s decision was in error.11And
importantly for this appeal, for all findings on a material issue of fact and law, the Board must
4 R. at 10.
5 See Hickson v. West, 12 Vet.App. 247, 253 (1999); 38 C.F.R. § 3.303(a) (2018).
6 38 U.S.C. § 5103A(d).
7 McLendon v. Nicholson, 20 Vet.App. 79, 81 (2006); see 38 U.S.C. § 5103A(d)(2).
8 See McLendon, 20 Vet.App. at 81-82.
9 Id. at 81; see also Kent v. Principi, 389 F.3d 1380, 1384 (Fed. Cir. 2004) (noting a previous holding that this standard
of review “contemplates de novo review of questions of law”).
10 McLendon, 20 Vet.App. at 81-85.
11 See Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990).
3
support its decision with an adequate statement of reasons or bases that enables a claimant to
understand the precise bases for the Board’s decision and facilitates review in this Court.12 If the
Board failed to do so, remand is appropriate.13
B. The Board’s statement of reasons or bases for denying service connection is deficient.
The Board’s decision is not adequate for the Court to engage in meaningful judicial review with respect to VA’s compliance with its duty to assist. There are three distinct, although interrelated, reasons why this is so.
First, the Board’s entire discussion concerning the duty to assist is one sentence: “Neither the Veteran nor his representative has raised any issues with the duty to notify or assist.”14 While it is true that the Board is not required to conjure procedural arguments a veteran has not made,15
it must address issues that are raised by the record.16 As we will discuss, that is precisely the case here. Therefore, the Board was required to explain why appellant was not entitled to a medical examination concerning nexus under McLendon. Because it did not do that, the Court is hamstrung in reviewing the Board’s decision.
Second, and related to the first point, the record contained evidence that appears to satisfy the “low threshold”17 for triggering a nexus examination. It was certainly sufficient to require the Board to discuss the issue. Appellant has testified that while he was in the Army he gasped for air and experienced morning headaches and daytime sleepiness.18 He also has a “long history of snoring.”19 All agree these can be symptoms of a sleep disorder. The Board did not find appellant incredible and he is certainly competent to provide such testimony.20 Given all of this, the Court is unsure why these in-service symptoms of a potential sleep disorder were not enough to trigger VA’s duty to provide a medical examination. As we held in McLendon, VA must provide an
12 38 U.S.C. § 7104(d)(1); Gilbert, 1 Vet.App. at 57.
13 Tucker v. West, 11 Vet.App. 369, 374 (1998).
14 R. at 5.
15 See Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016).
16 See, e.g., Comer v. Peake, 557 F.3d 1362, 1366-69 (Fed. Cir. 2009); Robinson v. Shinseki, 557 F.3d 1355, 1361
(Fed. Cir. 2009); Schroeder v. West, 212 F.3d 1265, 1271 (Fed. Cir. 2000).
17 McLendon, 20 Vet.App. at 83.
18 See R. at 531.
19 R. at 76.
20 See Layno v. Brown, 6 Vet.App. 465, 469-70 (1994).
4
examination “where there is already some evidence in the record of a current disability and some evidence that ‘indicates’ that the disability ‘may be associated’ with the claimant’s military service.”21 On remand, the Board must explain why no examination is required given this evidence and legal standard, taking into account the next error we discuss. If it can’t do so, it must provide appellant with an examination.
Finally, the Court is confused by the Board’s logic in downgrading appellant’s lay testimony about in-service symptomatology as part of its weighing of the evidence. The Board stated that appellant “is certainly competent to attest to observable symptoms; however he does not have the medical expertise to diagnose in-service sleep apnea.”22 Putting aside for the moment the point we just made that this testimony likely would trigger VA’s duty to provide a medical examination, the Board’s rationale has a “heads-I-win/tails-you-lose” quality to it. The Board appears to be saying that appellant’s lay statements don’t carry the day because one needs medical expertise to diagnose sleep apnea, yet the Board was able to determine without a medical examination that he didn’t have a sleep disorder. The Board needs to be clearer about its reasoning when it weighs the evidence on remand, whether or not it determines that VA must provide appellant with an examination. In this regard, the Court reminds the Board that it is precluded from “provid[ing] its own medical judgment in the guise of a Board opinion.”23

Because the Court is remanding this matter to the Board for readjudication, the Court need
not address any remaining arguments now, and appellant can present them to the Board.24 On
remand, appellant may submit additional evidence and argument and has 90 days to do so from
the date of VA’s post-remand notice.25 The Board must consider any such additional evidence or
argument submitted.26 The Board must also proceed expeditiously.27
21 McLendon, 20 Vet.App. at 83.
22 R. at 10.
23 Colvin v. Derwinski, 1 Vet.App. 171, 172 (1991), overruled on other grounds by Hodge v. West, 155 F.3d 1356
(Fed. Cir. 1998).
24 Best v. Principi, 15 Vet.App. 18, 20 (2001).
25 Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order); see also Clark v. O’Rourke, 30 Vet.App.
92 (2018).
26 Kay v. Principi, 16 Vet.App. 529, 534 (2002).
27 38 U.S.C. §§ 5109B, 7112.
5
II. CONCLUSION
After consideration of the parties’ briefs, the governing law, and a review of the record, the
Court SETS ASIDE the October 30, 2017, Board decision and REMANDS this matter for further
proceedings consistent with this decision.
DATED: June 21, 2019
Copies to:
David M. Sonenshine, Esq.
VA General Counsel (027)

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