Veteranclaims’s Blog

August 19, 2021

Single Judge Application; Francway v. Wilkie, 940 F.3d 1304, 1308 (Fed. Cir. 2019) (“[O]nce the veteran raises a challenge to the competency of the medical examiner, the presumption [of competence] has no further effect, and, just as in typical litigation, the side presenting the expert ( here [,] the VA) must satisfy its burden of persuasion as to the examiner’s qualifications.” ); Francway, 940 F.3d. at 1309 (“‘[W]hether an examiner is competent and whether he has rendered an adequate exam[ination] are two separate inquiries.'” (quoting Mathis v. McDonald, 834 F.3d 1347, 1351 (Fed. Cir. 2016) (Hughes, J., concurring in denial of rehearing en banc)));

Filed under: Uncategorized — Tags: — veteranclaims @ 11:19 pm

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 20-2915
THOMAS M. CLAYTON, APPELLANT,
V.
DENIS MCDONOUGH,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before MEREDITH, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
MEREDITH, Judge: The pro se appellant, Thomas M. Clayton, appeals a January 16, 2020,
Board of Veterans’ Appeals (Board) decision that declined to reopen claims for benefits for a
respiratory disorder, including as due to smoke inhalation, and obstructive sleep apnea (OSA), and
denied benefits for hearing loss and an acquired psychiatric disorder, including a depressive
disorder and anxiety. Record (R.) at 4-21. The Board reopened a claim and granted benefits for
tinnitus. These are favorable findings that the Court may not disturb. See Medrano v. Nicholson,
21 Vet.App. 165, 170 (2007), aff’d in part, dismissed in part sub nom. Medrano v. Shinseki,
332 F. App’x 625 (Fed. Cir. 2009); see also Bond v. Derwinski, 2 Vet.App. 376, 377 (1992) (per
curiam order) (“This Court’s jurisdiction is confined to the review of final Board . . . decisions
which are adverse to a claimant.”). This appeal is timely, and the Court has jurisdiction to review
the Board’s 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). For the following reasons,
the Court will affirm the Board’s decision declining to reopen claims for benefits for a respiratory
disorder, including as due to smoke inhalation, and OSA, and denying benefits for hearing loss
and an acquired psychiatric disorder, including a depressive disorder and anxiety.
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I. BACKGROUND
The appellant served on active duty in the U.S. Marine Corps from November 1986 to May 1991. R. at 740.R. at 740. His enlistment examination report contains the following audiogram results:
Hertz 500 1000 2000 3000 4000
Right -5 5 -5 5 0
Left 5 0 5 0 10
R. at 59 (all results in decibels). An in-service July 1989 audiogram reflects the following levels:
Hertz 500 1000 2000 3000 4000
Right 15 10 5 5 -5
Left 10 10 5 10 5
R. at 60. At separation, his ears, sinuses, lungs and chest, and psychiatric condition were clinically
evaluated as normal. R. at 63-64. The appellant denied hearing loss; ear, nose, or throat trouble;
chronic or frequent colds; shortness of breath; pain or pressure in his chest; a chronic cough;
frequent trouble sleeping; depression or excessive worry; or nervous trouble of any sort. R. at 71;
see R. at 71-72.
In May 2014, the appellant underwent a private sleep study; the physician noted an
impression of moderate sleep apnea. R. at 724. VA treatment records further reflect a positive
screening for post-traumatic stress disorder (PTSD), a negative screening for depression, and an
assessment of moderate OSA. R. at 365-67, 376-78.
The appellant applied for benefits for breathing difficulties and sleep apnea in July 2014.
R. at 689-90; see R. at 397. In April 2015, he underwent VA examinations for his claimed
respiratory condition and OSA as part of a Gulf War general medical examination. R. at 428-44.
The examiner noted the appellant’s report of a “nocturnal cough for a period following return from
the Gulf that resolved,” but indicated that, because “there [wa]s no current respiratory diagnosis or
issue,” she was “unable to entertain causation relating to a Gulf War exposure.” R. at 432.
Regarding OSA, the examiner acknowledged that the appellant had a current diagnosis of sleep
apnea but concluded that “there [wa]s no undiagnosed sleep disturbance that could be attributed to
a Gulf War exposure.” R. at 435.
A VA regional office (RO) denied benefits for breathing difficulties from smoke inhalation
and OSA later that month. R. at 381-402. The RO found no diagnosed respiratory condition, no
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undiagnosed illness or medically unexplained chronic multisymptom illness, no nexus between
the appellant’s OSA and military service, and no undiagnosed sleep disturbance. R. at 399-400.
In November 2016, a VA physician referred the appellant for mental health treatment; he
was diagnosed with depression and PTSD symptoms later that month. R. at 301-03, 305. One year
later, he applied for benefits for OSA, anxiety, depression, and hearing loss. R. at 333-41. He
asserted that, “[a]s a [c]annoneer, [he] was always around the big guns [in service] and when they
went off without ear protectors you would go deaf”; that “[t]he water from Camp Lejeune[] has
[him] worried and depressed”; that he experienced “difficulty in sleeping” and anxiety and
depression whenever he thinks about his time in Kuwait; and that “[w]atching and smelling the
burning oil wells ha[d] done things to [his] breathing.” R. at 336.
The appellant underwent a VA hearing loss examination in December 2017. R. at 277-85.
The examination report reveals the following audiogram results:
Hertz 500 1000 2000 4000
Right 10 5 5 10
Left 10 0 5 10
R. at 278. His speech discrimination scores from the Maryland CNC test were 100% for both ears,
and the examiner diagnosed him with normal hearing. R. at 278-81.
The appellant also underwent a VA PTSD examination in January 2018. R. at 249-55. The
examiner diagnosed an unspecified depressive disorder but opined that it is less likely than not due
to or incurred in service and found that the appellant did not meet the diagnostic criteria for PTSD
under the fifth edition of the Diagnostic and Statistical Manual of Mental Disorders. R. at 249,

Later that month, the RO denied the appellant’s claims for benefits for hearing loss, anxiety,
and an unspecified depressive disorder, claimed as depression, and declined to reopen the
previously denied claims for a respiratory condition and OSA. R. at 164-82. The appellant
disagreed with the RO’s decision and perfected an appeal to the Board. R. at 47-49, 97-129, 154-58.
He in part contended that “[s]moke was a frequent problem during Desert Storm”; questioned
whether the April 2015 and January 2018 VA examiners were competent to provide their
respective opinions; asserted that hearing loss evaluations should not be conducted “in a very
controlled ([s]ilent) environment”; and stated that the VA examiner who diagnosed depression
should have talked to his spouse “to see what her side of the story was[.]” R. at 157-58.
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The Board issued the decision on appeal in January 2020, declining to reopen claims for a
respiratory disorder, including as due to smoke inhalation, and OSA, and denying benefits for
hearing loss and an acquired psychiatric disorder. R. at 4-21. This appeal followed.
II. ANALYSIS
In his informal brief, which the Court construes liberally, see De Perez v. Derwinski,
2 Vet.App. 85, 86 (1992), the appellant asserts that the burn pits and smoke in service caused his
breathing problems, contributed to OSA, and added to his anxiety and depression. Appellant’s
Informal Brief (Br.) at 1. He contends that he is unable to hear as well as when he was younger,
which he also attributes to military service, and asserts that the Board erred by failing to afford
him the benefit of the doubt. Appellant’s Informal Br. at 1-2. Further, he reiterates the assertions
he made in his disagreement with the RO’s January 2018 decision, and asks the Court to grant
benefits for all the claimed conditions, including tinnitus. Appellant’s Informal Br. at 3, Attachment
at 1-2; see R. at 157-58. The Secretary requests that the Court dismiss the appellant’s purported
appeal of the Board’s decision to reopen a claim and award benefits for tinnitus. Secretary’s Br. at
2, 14-15. Otherwise, the Secretary asserts that the Court should affirm the Board’s decision.
Secretary’s Br. at 7-15.
For claims to reopen for which VA provided notice of a decision prior to February 19,
2019, see 38 C.F.R. §§ 3.2400(b), 19.2(a) (2021), “[i]f new and material evidence is presented or
secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim
and review the former disposition of the claim,” 38 U.S.C. § 5108 (2012 & Supp. IV 2017); see
38 C.F.R. § 3.156(a) (2021). The evidence “must be both new and material.” Smith v. West,
12 Vet.App. 312, 314 (1999). “New evidence is evidence not previously part of the actual record
before agency adjudicators,” and material evidence is “existing evidence that, by itself or when
considered with previous evidence of record, relates to an unestablished fact necessary to
substantiate the claim.” 38 C.F.R. § 3.156(a). New and material evidence “can be neither
cumulative nor redundant of the evidence of record at the time of the last prior final denial of the
claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.”
38 C.F.R. § 3.156(a); see Shade v. Shinseki, 24 Vet.App. 110, 121 (2010). Further, establishing
that a disability is service connected for purposes of entitlement to VA disability compensation
generally requires medical or, in certain circumstances, lay evidence of (1) a current disability,
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(2) incurrence or aggravation of a disease or injury in service, and (3) a nexus between the claimed
in-service injury or disease and the current disability. See 38 U.S.C. § 1110; Shedden v. Principi,
381 F.3d 1163, 1166-67 (Fed. Cir. 2004); see also Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed.
Cir. 2009); 38 C.F.R. § 3.303 (2021).
Whether the record establishes entitlement to service connection and whether new and
material evidence has been submitted are findings of fact, which the Court reviews under the
“clearly erroneous” standard of review. See Prillman v. Principi, 346 F.3d 1362, 1366-67
(Fed. Cir. 2003); Russo v. Brown, 9 Vet.App. 46, 50 (1996). A finding of fact is clearly erroneous
when the Court, after reviewing the entire evidence, “is left with the definite and firm conviction
that a mistake has been committed.” United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948);
see Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990). As with any material issue of fact or law, the
Board must provide a statement of the reasons or bases for its determination “adequate to enable a
claimant to understand the precise basis for the Board’s decision, as well as to facilitate review in
this Court.” Allday v. Brown, 7 Vet.App. 517, 527 (1995); see 38 U.S.C. § 7104(d)(1); Gilbert,
1 Vet.App. at 56-57.
A. Tinnitus, Respiratory Disorder, & OSA
As an initial matter, the Court notes that the Board reopened the appellant’s claim for
tinnitus and granted entitlement to benefits. R. at 10, 15-16. The Court thus agrees with the
Secretary that there is no adverse Board decision concerning the appellant’s tinnitus claim, and that
matter is not before the Court. See 38 U.S.C. § 7266; see also Medrano, 21 Vet.App. at 170; Bond,
2 Vet.App. at 377.
The Board found that the April 2015 RO decision denying benefits for a respiratory
disorder, to include as due to smoke inhalation, and OSA was final, noting that the claims were
denied in 2015 because there was no evidence of a respiratory disability and no competent
evidence linking OSA to service. R. at 9. The Board then recognized that VA treatment records
had been submitted since that decision but declined to reopen the claim for a respiratory disorder
because new and material evidence establishing a current disability had not been submitted. R. at

The Board explained that, although the evidence might be new, it was not material because it
did not relate to an unestablished fact, that is, a current disability. R. at 9.
For OSA, the Board determined that, despite evidence of VA treatment and “reaffirmation
of the initial [OSA] diagnosis” that had been submitted since the 2015 RO denial, the criteria for
6
reopening the claim had not been met. R. at 10. The Board found that evidence regarding a current
diagnosis was cumulative of the evidence of record in April 2015 and that there was no competent
evidence linking OSA to military service. R. at 10.
On appeal to this Court, the appellant “always bears the burden of persuasion.” Berger
v. Brown, 10 Vet.App. 166, 169 (1997); see Hilkert v. West, 12 Vet.App. 145, 151 (1999) (en
banc), aff’d per curiam, 232 F.3d 908 (Fed. Cir. 2000) (table). Regarding the Board’s determination
that new and material evidence had not been submitted to reopen the claims for a respiratory
disorder, as due to smoke inhalation, and OSA, the Court notes that the appellant raises no specific
argument contesting any aspect of the Board’s decision. See Coker v. Nicholson, 19 Vet.App. 439,
442 (2006) (per curiam) (“The Court requires that an appellant plead with some particularity the
allegation of error so that the Court is able to review and assess the validity of the appellant’s
arguments.”), vacated on other grounds sub nom. Coker v. Peake, 310 F. App’x 371 (Fed. Cir.
2008) (per curiam order); see also Locklear v. Nicholson, 20 Vet.App. 410, 416 (2006) (Court
unable to find error when arguments are undeveloped).
Instead, as noted above, he attributes his “breathing problems” and OSA to in-service
smoke exposure, see Appellant’s Informal Br. at 1, and reasserts the arguments he presented to
VA—he contends that he inhaled black smoke from oil well fires during service and questions the
competence of the April 20, 2015, VA examiner who provided a negative nexus opinion
concerning OSA, see Appellant’s Informal Br.; Attachment at 1; R. at 157. Because neither
contention undermines the Board’s findings—that evidence received after the April 22, 2015, RO
decision does not show a current respiratory disability or a link between OSA and service—the
Court concludes that he has not met his burden of demonstrating that the Board’s findings were
clearly erroneous or otherwise inadequately explained. See Prillman, 346 F.3d at 1366-67; Allday,
7 Vet.App. at 527; see also Paralyzed Veterans of Am. v. Sec’y of Veterans Affairs, 345 F.3d 1334,
1342-43 (Fed. Cir. 2003) (holding that, “in the absence of new and material evidence, VA is not
required to provide assistance to a claimant attempting to reopen a previously disallowed claim,
including providing a medical examination or obtaining a medical opinion”). Thus, the Court will
affirm the Board’s decision declining to reopen these claims.
B. Hearing Loss
The Board found that the appellant had been exposed to acoustic trauma while in service.
R. at 13. However, in denying the claim, the Board provided the following analysis:
7
[T]he [appellant] does not currently exhibit a “hearing loss disability” as that term
is defined by 38 C.F.R. § 3.385. His VA examination in December 2017[] showed
pure tone thresholds and speech recognition testing results which were not of
sufficient severity to be classified as a hearing loss disability for VA purposes. The
[appellant] has reported no worsening of his hearing acuity since his last VA
examination and there is no competent medical evidence to suggest that he has a
hearing loss for VA compensation purposes.
R. at 14. The Board further found that the appellant was not competent to opine as to the degree
of his hearing loss, the December 2017 VA audiology examination was “[t]he most probative
evidence of record,” and the “preponderance of the evidence is against the . . . claim.” R. at 15.
The Board acknowledged the appellant’s contention that his hearing should have been assessed in
a crowded and noisy environment but determined that “VA regulations specifically define the
testing protocol.” R. at 14.
The Court concludes that the appellant has not demonstrated error in the Board’s decision.
See Hilkert, 12 Vet.App. at 151; Berger, 10 Vet.App. at 169. In that regard, he does not challenge
the Board’s finding that he is not competent to assess the degree of any hearing loss or point to
evidence demonstrating a current hearing loss disability. To the extent that he reasserts his
argument that the testing methodology employed by the VA examiner in December 2017 was
inadequate, he does not challenge the Board’s explanation that “VA regulations specifically define
the testing protocol for and the parameters of a hearing loss disability for compensation purposes,”
R. at 14, nor has he offered more than his lay opinion as to the alleged impropriety of the
Secretary’s testing method. Accordingly, the Court will not further entertain this argument. See
Coker, 19 Vet.App. at 442; see also Martinak v. Nicholson, 21 Vet.App. 447, 454 (2007) (rejecting
the appellant’s challenge to VA’s testing method because he “offered no expert medical evidence
demonstrating that an audiometry test conducted in a sound-controlled room produces inaccurate,
misleading, or clinically unacceptable test results[,] . . . [or] that an alternative testing method
exists and that this method is in use by the general medical community”).
C. Acquired Psychiatric Disorder
The Board initially noted that the appellant’s service medical records were silent for any
findings or complaints relating to an acquired psychiatric disorder and noted the results of the
January 2018 VA mental health examination, including the examiner’s opinion that there is no
evidence to suggest that the appellant’s diagnosed unspecified depressive disorder, or any
psychiatric disorder, is related to service. R. at 17. The Board found the opinion to be based on a
8
review of the entire record and “highly probative.” R. at 18. The Board then concluded, based on
the lack of in-service records, the specific denials of psychiatric problems on his separation
examination report, and the time between separation from service and the first evidence of a
psychiatric disability, over 20 years, that the preponderance of the evidence was against the claim.
R. at 18-19. Finally, the Board acknowledged the appellant’s contention that the January 2018 VA
examiner was not competent, but the Board found the appellant’s argument lacking specificity and
thus “insufficient evidence to call into question the competency of the examiner . . . based on what
appears to be only a disagreement with the conclusion.” R. at 18.
The appellant questions why the VA examiner did not diagnose anxiety and whether a
“professional” evaluated him and suggests that the examiner’s opinion is inadequate because the
examiner did not speak to his spouse prior to rendering an opinion. Appellant’s Informal Br.,
Attachment at 1 (“Why was a diagnosis not made if the condition exists, why yes, it would take a
professional to evaluate the patient, so why wasn’t this done?”), 2 (“Did the doctor talk to the
[v]eteran’s wife to see what her side of the story was? No one knows the veteran quite like a
spouse.”). However, the Board essentially found that the appellant’s challenge to the examiner’s
competence was undeveloped and “appear[ed] to be only a disagreement with the [examiner’s]
conclusion.” R. at 18. The appellant does not dispute the Board’s characterization of his argument,
point to any record evidence reflecting statements from his spouse, or otherwise explain what
information the examiner might have obtained from his spouse that could affect her opinion that
the appellant’s depressive disorder is less likely than not related to service. Accordingly, he has not
met his burden of demonstrating error on the part of the Board. See Hilkert, 12 Vet.App. at 151;
Berger, 10 Vet.App. at 169; cf. Francway v. Wilkie, 940 F.3d 1304, 1308 (Fed. Cir. 2019) (“[O]nce the veteran raises a challenge to the competency of the medical examiner, the presumption [of competence] has no further effect, and, just as in typical litigation, the side presenting the expert
(here[,] the VA) must satisfy its burden of persuasion as to the examiner’s qualifications.”); Francway, 940 F.3d. at 1309 (“‘[W]hether an examiner is competent and whether he has rendered an adequate exam[ination] are two separate inquiries.'” (quoting Mathis v. McDonald, 834 F.3d 1347, 1351 (Fed. Cir. 2016) (Hughes, J., concurring in denial of rehearing en banc)))
.
D. Benefit of the Doubt
Finally, the appellant generally asserts that the Board erred in failing to apply the benefit
of the doubt. Appellant’s Informal Br. at 2. However, for the reasons discussed above, he has not
9
demonstrated that the benefit of the doubt was applicable. See 38 U.S.C. § 5107(b) (“When there
is an approximate balance of positive and negative evidence regarding any issue material to the
determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.”);
38 C.F.R. § 3.102 (2021); see also Lynch v. McDonough, 999 F.3d 1391, 1395 (Fed. Cir. 2021)
(reaffirming that, under section 5107(b) and established caselaw, a claimant is to receive the
benefit of the doubt “if the positive and negative evidence is in approximate balance[,] []which
includes but is not limited to equipoise[]”); Ortiz v. Principi, 274 F.3d 1361, 1364-65 (Fed. Cir.
2001).
III. CONCLUSION
After consideration of the parties’ pleadings and a review of the record, the Board’s
January 16, 2020, decision declining to reopen claims for benefits for a respiratory disorder,
including as due to smoke inhalation, and OSA, and denying benefits for hearing loss and an
acquired psychiatric disorder, including a depressive disorder and anxiety, is AFFIRMED.
DATED: July 14, 2021
Copies to:
Thomas M. Clayton
VA General Counsel (027)

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