Veteranclaims’s Blog

August 4, 2021

Single Judge Application; Walsh v. Wilkie, 32 Vet.App. 300, 306-07 (2020) (holding that, when using obesity as an “intermediate step” in a secondary-service-connection analysis, such analysis may include linkage through secondary aggravation);

Designated for electronic publication only
NO. 20-0591
Before BARTLEY, Chief Judge.
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
BARTLEY, Chief Judge: Veteran Tyrone S. Freeland appeals through counsel an
October 8, 2019, Board of Veterans’ Appeals (Board) decision that denied service connection for
obstructive sleep apnea (OSA), claimed as secondary to obesity caused by service-connected major
depressive disorder. Record (R.) at 5-10. For the reasons that follow, the Court will set aside the
October 2019 Board decision and remand the matter for further development and readjudication
consistent with this decision.
Mr. Freeland served honorably in the U.S. Air Force from April 1983 to June 1992 with
additional service in the Air Force Reserve from October 1977 to April 1978 and from May 2009
to October 2010. R. at 1403, 1731-32. He served in support of Operation Desert Shield/Desert
Storm from August 1990 to June 1992. R. at 1403.
In January 2018, Mr. Freeland filed a claim for service connection for OSA as secondary
to service-connected depression. R. at 888-91.1 Following VA examination in January 2018, the
1 Service connection for major depressive disorder was granted effective January 5, 2017. See R. at 699.
examiner opined that Mr. Freeland’s OSA was less likely than not proximately due to or the result
of his service-connected mental health condition. R. at 712.
In February 2018, a VA regional office denied the service-connection claim. R. at 697-700.
In April 2018, Mr. Freeland, through counsel, filed a Notice of Disagreement. R. at 504-27. And
following a May 2018 Statement of the Case, R. at 472-92, he perfected an appeal to the Board in
June 2018, R. at 460-61.
In the October 2019 decision on appeal, the Board found the weight of the evidence was
against concluding that Mr. Freeland’s OSA was proximately due to or aggravated by his serviceconnected
depression. R. at 6-10. In reaching its conclusion, it found the January 2018 medical
opinion “more probative than the lay evidence and treatise evidence because it was prepared by a
skilled, neutral medical professional after examining the [v]eteran, obtaining a medical history,
and review of the claims file.” R. at 9. This appeal followed.
Mr. Freeland’s appeal is timely and the Court has jurisdiction to review the October 2019
Board decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). Single-judge disposition is
appropriate. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990).
The Board’s determinations regarding service connection and the adequacy of a medical
examination or opinion are findings of fact subject to the “clearly erroneous” standard of review.
38 U.S.C. § 7261(a)(4); see D’Aries v. Peake, 22 Vet.App. 97, 104 (2008); Davis v. West,
13 Vet.App. 178, 184 (1999). “A factual finding ‘is “clearly erroneous” when although there is
evidence to support it, the reviewing court on the entire evidence is left with the definite and firm
conviction that a mistake has been committed.'” Hersey v. Derwinski, 2 Vet.App. 91, 94 (1992)
(quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)).
When VA seeks to obtain a medical opinion, the Secretary must ensure that the opinion
provided is adequate. Barr v. Nicholson, 21 Vet.App. 303, 311 (2007). A VA medical opinion is
adequate “where it is based upon consideration of the veteran’s prior medical history and
examinations,” Stefl v. Nicholson, 21 Vet.App. 120, 123 (2007), “describes the disability . . . in
sufficient detail so that the Board’s ‘evaluation of the claimed disability will be a fully informed
one’,” id. (quoting Ardison v. Brown, 6 Vet.App. 405, 407 (1994)), and “sufficiently inform[s] the
Board of a medical expert’s judgment on a medical question and the essential rationale for that
opinion,” Monzingo v. Shinseki, 26 Vet.App. 97, 105 (2012). See Acevedo v. Shinseki, 25 Vet.App.
286, 293 (2012) (“[A]n adequate medical report must rest on correct facts and reasoned medical
judgment so as [to] inform the Board on a medical question and facilitate the Board’s consideration
and weighing of the report against any contrary reports.”); Nieves-Rodriguez v. Peake, 22 Vet.App.
295, 301 (2008) (“[A] medical examination report must contain not only clear conclusions with
supporting data, but also a reasoned medical explanation connecting the two.”).
The Board must support its material determinations of fact and law with adequate reasons
or bases. 38 U.S.C. § 7104(d)(1); Pederson v. McDonald, 27 Vet.App. 276, 286 (2015) (en banc);
Allday v. Brown, 7 Vet.App. 517, 527 (1995); Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990).
To comply with this requirement, the Board must analyze the credibility and probative value of
evidence, account for evidence it finds persuasive or unpersuasive, and provide reasons for its
rejection of material evidence favorable to the claimant. Caluza v. Brown, 7 Vet.App. 498, 506
(1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table).
Mr. Freeland argues, in part, that the January 2018 examiner’s opinion is inadequate and,
therefore, the Board erred by relying on it to deny service connection for OSA. Appellant’s Brief
(Br.) at 7-8. He argues that, although the examiner linked sleep apnea to obesity, she failed to
sufficiently address whether his obesity was caused by his depression. Id. The Secretary urges the
Court to affirm the Board decision, arguing, in part, that the Board did not err by relying on the
January 2018 medical opinion. Secretary’s Br. at 14-15.
In her opinion, the January 2018 examiner opined that it was less likely than not that Mr.
Freeland’s OSA was proximately due to or the result of his major depressive disorder. R. at 712.
She stated that, although the veteran is obese and obesity is an important risk factor for developing
OSA, not all depressive disorders lead to obesity and there are multiple risk factors for developing
obesity other than depression. R. at 712-13. In support of her negative linkage opinion, the
examiner explained that, although the veteran experienced depression during service, service
treatment records reflected that his body weight was normal. R. at 713 (referring to a 1989 notation
of 156 pounds and a 1992 notation of 153 pounds). She additionally noted that Mr. Freeland did
not experience a significant weight gain when he was treated with anti-depressive medications. Id.
The Board found the examiner’s opinion probative because it was supported by a complete
rationale. R. at 9.
The Court concludes that the January 2018 VA opinion is inadequate and that the Board
erred by relying on the opinion to deny the claim. Initially, although the Board addressed secondary
causation and aggravation, R. at 7, the January 2018 opinion addressed only causation, R. at 712-

  1. See El-Amin v. Shinseki, 26 Vet.App. 136, 140 (2013) (holding that a medical examination or
    opinion that fails to address whether a service-connected disability aggravated the claimed
    disability is inadequate to inform the Board on the issue of secondary service connection); see also
    Walsh v. Wilkie, 32 Vet.App. 300, 306-07 (2020) (holding that, when using obesity as an
    “intermediate step” in a secondary-service-connection analysis, such analysis may include linkage
    through secondary aggravation)
    In addition, although the examiner seemingly opined that Mr. Freeland’s depression had no
    effect on his obesity, see Secretary’s Br. at 14-15 (characterizing the examiner’s opinion as
    concluding that the veteran’s “depression did not likely lead to his obesity because the relative
    onsets . . . did not suggest a link”), her rationale does not support such an opinion. Notably, her
    reference to Mr. Freeland’s weight during service as being normal despite his experiencing
    depressive symptoms does not sufficiently inform the Board as to whether his weight gain after
    service was affected by his depression. Neither does her notation that Mr. Freeland’s weight did
    not significantly change in 2013 and 2014 during his treatment with anti-depressants, as his VA
    medical records reflect a diagnosis of obesity as early as January 2011. See R. at 747.
    The Court recognizes that there is no reasons or bases requirement imposed on examiners,
    Monzingo, 26 Vet.App. at 105; Acevedo, 25 Vet.App. at 293; however, the probative value of a
    medical opinion derives from the “factually accurate, fully articulated, sound reasoning for the
    conclusion,” Nieves-Rodriguez, 22 Vet.App. at 304. Absent a reasoned explanation discussing
    whether Mr. Freeland’s obesity was caused or aggravated by his major depressive disorder, the
    Court cannot conclude that the examiner’s rationale was adequate to sufficiently inform the Board
    of the expert judgment that served as the basis for the opinion. See Monzingo, 26 Vet.App. at 105;
    Acevedo, 25 Vet.App. at 293; Nieves-Rodriguez, 22 Vet.App. at 304.
    Accordingly, the Court concludes that the January 2018 medical opinion is inadequate to
    adjudicate the claim for service connection for OSA. See D’Aries, 22 Vet.App. at 104. The Board
    therefore clearly erred in relying on the opinion to deny the claim, see Ardison, 6 Vet.App. at 407,
    and remand of this claim is warranted to obtain a new medical opinion, see Barr, 21 Vet.App. at
    311; see also Tucker v. West, 11 Vet.App. 369, 374 (1998) (holding that remand is the appropriate
    remedy “where the Board has incorrectly applied the law, failed to provide an adequate statement
    of reasons or bases for its determinations, or where the record is otherwise inadequate”).
    Given this disposition, the Court need not address any additional arguments, which could
    not result in a remedy greater than remand. However, the Court will provide guidance to the Board
    for readjudication of the claim upon remand. See Quirin v. Shinseki, 22 Vet.App. 390, 396 (2009)
    (holding that, to provide guidance to the Board, the Court may address an appellant’s other
    arguments after determining that remand is warranted).
    Mr. Freeland additionally argues that the Board erred in failing to consider whether OSA
    may be considered a medically unexplained chronic multi-symptom illness based on his service in
    Southwest Asia. Appellant’s Br. at 2-5 (citing Stewart v. Wilkie, 30 Vet.App. 383, 398 (2018)); see
    38 U.S.C. § 1117; 38 C.F.R. § 3.317 (2020). The Secretary argues that the Board need not have
    addressed such a theory as it was not explicitly raised by the veteran or reasonably raised by the
    record. Secretary’s Br. at 6-8. The Court need not address Mr. Freeland’s argument because,
    regardless of whether the theory was reasonably raised below, it now has been raised. Therefore,
    upon readjudication, the Board should specifically address this theory of service connection.
    On remand, Mr. Freeland is free to submit additional arguments and evidence, including
    the arguments raised in his brief to this Court, and the Board must consider any such evidence or
    argument submitted. See Kay v. Principi, 16 Vet.App. 529, 534 (2002); Kutscherousky v. West,
    12 Vet.App. 369, 372-73 (1999) (per curiam order). The Court reminds the Board that “[a] remand
    is meant to entail a critical examination of the justification for the [Board’s] decision,” Fletcher v.
    Derwinski, 1 Vet.App. 394, 397 (1991), and must be performed in an expeditious manner in
    accordance with 38 U.S.C. § 7112.
    Upon consideration of the foregoing, the October 8, 2019, Board decision is SET ASIDE
    and the matter is REMANDED for further development and readjudication consistent with this
    DATED: January 29, 2021
    Copies to:
    Cameron Kroeger, Esq.
    VA General Counsel (027)

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