Veteranclaims’s Blog

September 9, 2021

Single Judge Application; See Garner v. Tran, 33 Vet.App. 241, 251 (2021) (holding that the Board “clearly erred” in finding medical opinions “adequate to adjudicate the [secondary service-connection] claim” when “[t]hese opinions provide[d] no insight into the relevant [aggravation] inquiry”); El-Amin v. Shinseki, 26 Vet.App. 136, 140-41 (2013) (holding that examinations that focus solely on causation, or that state that one condition is more or less likely “related to” another condition, without explaining whether “related to” includes aggravation, are insufficient for the purposes of determining whether one condition aggravated another); see also Healey v. McDonough, 33 Vet.App. 312, 321 (2021) (“When VA instructs an examiner to provide an opinion as to secondary service connection, that examiner must separately address the causation and aggravation prongs of secondary service connection. ‘[A]ggravation of a condition by a service-connected disability is independent of direct causation.'” (first citing El-Amin, 26 Vet.App. at 140-41; and then quoting Atencio v. O’Rourke, 30 Vet.App. 74, 91 (2018)));

Filed under: Uncategorized — Tags: — veteranclaims @ 9:37 pm

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 20-5637
PAUL MUNDY, APPELLANT,
V.
DENIS MCDONOUGH,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before DAVIS, Senior Judge.1
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.
DAVIS, Senior Judge: The self-represented appellant, Paul Mundy, appeals an April 17, 2020, Board of Veterans’ Appeals (Board) decision that denied entitlement to disability compensation for obstructive sleep apnea (OSA), including as secondary to service-connected depressive disorder.2 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.3 Because the Board erred in relying on inadequate medical opinions in finding that Mr. Mundy’s service-connected depressive disorder did not aggravate his OSA, the Court will set aside the Board’s decision and remand the matter for further proceedings consistent with this decision.
I. ANALYSIS
In the decision on appeal, the Board denied entitlement to disability compensation for OSA, including as secondary to service-connected depressive disorder, because it concluded that “the
1 Judge Davis is a Senior Judge acting in recall status. In re Recall of Retired Judge, U.S. VET. APP. MISC. ORDER 03-21 (Jan. 4, 2021).
2 Record (R.) at 2-11.
3 See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990).
2
preponderance of the evidence” is against the claim.
4 The Board weighed six VA opinions (from March 2012, April 2013, May 2015, April 2019, and two addendum opinions to the April 2019 opinion, both dated in June 2019) and one private opinion (from January 2019).
Specifically, the Board noted that the evidence against Mr. Mundy’s claim included a March 2012 VA examiner’s opinion that “it was less likely than not that [Mr. Mundy]’s OSA is related directly to active service”;5 an April 2013 VA opinion that “it was less likely than not that [Mr. Mundy]’s service-connected orthopedic disabilities caused or aggravated (permanently worsened) his OSA”;6 a May 2015 VA opinion that “it was less likely than not that [Mr. Mundy]’s service-connected major depressive disorder caused his OSA” or “aggravated (permanently worsened) his OSA”;7 an April 2019 VA opinion that Mr. Mundy’s OSA was “less likely than not . . . related directly to active service”;8 and two June 2019 addendum opinions, which the Board described as opining that it was “less likely than not” that the service-connected depressive disorder “caused or aggravated” Mr. Mundy’s OSA.9 The Board also noted that Mr. Mundy had submitted a private medical opinion dated in January 2019 wherein the examiner opined that it was “at least as likely as not that [Mr. Mundy’s] service-connected major depressive disorder aggravated his OSA.”10
When weighing the evidence, the Board determined that “[a]ll of the VA [examiners’] opinions were fully supported.”11 It concluded that the January 2019 private examiner’s favorable aggravation opinion is “outweighed by the multiple negative medical nexus opinions . . . dating back to 2012.”12 It further explained:
It is not clear from a review of the [January 2019 private examiner]’s opinion how he reviewed relevant medical literature concerning the contended etiological relationship between OSA and depression and reached the opposite conclusion to
4 R. at 4.
5 R. at 5.
6 R. at 6.
7 R. at 6.
8 R. at 7.
9 R. at 7.
10 R. at 6.
11 R. at 8.
12 R. at 8.
3
the one reached by multiple VA [examiners] who reviewed the medical literature before and after the [January 2019 private] opinion.
13
The Board determined that a statement from the second June 2019 VA addendum opinion—”that, although there were medical studies which showed that, . . . ‘OSA may be an underlying etiology for depression,’ there were no studies ‘showing depression as an etiology for OSA'”—was “highly persuasive.”14
On appeal to this Court, when an appellant is self-represented, the Court will liberally interpret his or her informal brief.15 In his informal brief, Mr. Mundy argues that the Board erred when it gave more probative weight to the unfavorable medical evidence than the favorable medical evidence.16 He also argues that the Board erred when it did not afford him the benefit of the doubt17 and that the Board violated his constitutional rights to due process under the Fifth and Fourteenth Amendments to the U.S. Constitution.18 The Secretary asserts that Mr. Mundy has not demonstrated error, inadequacy, or any constitutional defects in the Board’s decision and that the Court should therefore affirm the Board’s decision.19
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, (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.20 Service connection may be established on a secondary basis for a current disability that is either proximately caused by, or aggravated by, a service-connected disability.21
13 R. at 8.
14 R. at 8 (quoting R. at 73).
15 See De Perez v. Derwinski, 2 Vet.App. 85, 86 (1992).
16 Appellant’s Informal Brief (Br.) at 1-5; see De Perez, 2 Vet.App. at 86. The Court’s references to Mr. Mundy’s informal brief refer to the overall pagination of the Portable Document Format (PDF) document.
17 Appellant’s Informal Br. at 2 (citing 38 U.S.C. § 5107(b); 38 C.F.R. § 3.303 (2021)).
18 Appellant’s Informal Br. at 5 (citing Cushman v. Shinseki, 576 F.3d 1290, 1298 (Fed. Cir. 2009)).
19 Secretary’s Br. at 9-18.
20 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.
21 See Allen v. Brown, 7 Vet.App. 439, 448 (1995) (en banc); 38 C.F.R. § 3.310(a), (b) (2021).
4
The Court reviews the Board’s determination as to the adequacy of a medical examination or opinion under the “clearly erroneous” standard of review set forth in 38 U.S.C. § 7261(a)(4).22 “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.'”23
Here, the Board summarized the medical opinions and concluded that the VA opinions were “fully supported.”24 The Board did not expressly discuss its reasons for finding the VA examinations adequate. Rather, the Board, in relying on these examinations, implicitly found that they were adequate.
The Board described both June 2019 VA addendum opinions as negative causation and aggravation opinions, found that they were “fully supported,” and relied on them to rebut the favorable January 2019 aggravation opinion (especially relying on the second June 2019 VA addendum opinion as “highly persuasive”).25 The two June 2019 VA addendum opinions, however, do not reflect that the VA examiner addressed whether Mr. Mundy’s depression could have aggravated his OSA. In the first addendum opinion, the VA examiner opined that Mr. Mundy’s OSA is “less likely than not proximately due to or the result of depression.”26 The examiner’s rationale includes that “[d]epression does not cause OSA”; “[d]isturbances of sleep . . . are frequently associated with depression”; and that sleep apnea is a “separate medical condition” than disturbances of sleep; but the rationale is silent as to whether depression can aggravate OSA.27 In his second addendum opinion, the VA examiner left blank the section of the report labeled “Section VI – Medical Opinion for Aggravation of a Non[-]Service[-]Connected Condition by a Service[-]Connected Condition.”28 The VA examiner completed the section labeled “Section IV – Medical Opinion for Secondary Service Connection” and marked the box that provided: “The claimed condition is less likely than not . . . proximately due to or the result of
22 See D’Aries v. Peake, 22 Vet.App. 97, 104 (2008) (per curiam).
23 Hersey v. Derwinski, 2 Vet.App. 91, 94 (1992) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)).
24 R. at 8.
25 R. at 7-8.
26 R. at 103-104.
27 See R. at 104 (emphasis added).
28 R. at 73.
5
the veteran’s service[-]connected condition.”
29 However, here too, review of the opinion reflects that the examiner’s full rationale, provided below, is silent as to whether depression can aggravate OSA:
[OSA] and depression are noted as two conditions that have a significant overlap in symptoms, and there are a few studies that postulate that OSA may be an underlying etiology for depression. No studies currently noted showing depression as an etiology for OSA. It is less likely than not that [Mr. Mundy]’s current OSA is due to depression.30
Given that the June 2019 VA addendum opinions do not address whether Mr. Mundy’s depression aggravated his OSA, the Board clearly erred in finding these opinions adequate as to the issue of whether Mr. Mundy’s OSA was aggravated by his service-connected depressive disorder.31
Additionally, as the Board found, the May 2015 VA opinion concluded that it was “less likely than not that [Mr. Mundy]’s service-connected major depressive disorder aggravated (permanently worsened) his OSA.”32 This Court has held that “the ‘permanent worsening’ standard has no application in cases involving an incremental increase in disability of a non-service-connected condition proximately due to or the result of a service-connected disease or injury.”33 Therefore, the May 2015 VA opinion is also inadequate as to whether Mr. Mundy’s
29 R. at 73.
30 R. at 73 (emphasis added).
31 See Garner v. Tran, 33 Vet.App. 241, 251 (2021) (holding that the Board “clearly erred” in finding medical opinions “adequate to adjudicate the [secondary service-connection] claim” when “[t]hese opinions provide[d] no insight into the relevant [aggravation] inquiry”); El-Amin v. Shinseki, 26 Vet.App. 136, 140-41 (2013) (holding that examinations that focus solely on causation, or that state that one condition is more or less likely “related to” another condition, without explaining whether “related to” includes aggravation, are insufficient for the purposes of determining whether one condition aggravated another); see also Healey v. McDonough, 33 Vet.App. 312, 321 (2021) (“When VA instructs an examiner to provide an opinion as to secondary service connection, that examiner must separately address the causation and aggravation prongs of secondary service connection. ‘[A]ggravation of a condition by a service-connected disability is independent of direct causation.'” (first citing El-Amin, 26 Vet.App. at 140-41; and then quoting Atencio v. O’Rourke, 30 Vet.App. 74, 91 (2018))).
32 R. at 6 (emphasis added); see R. at 2530 (May 2015 VA examination report reflecting that VA requested an aggravation opinion as to “whether it is at least as likely as not that the current obstructive sleep apnea is permanently worsened beyond natural progression by the service-connected major depressive disorder” (emphasis added)), 2649 (March 2015 Board decision remanding the matter for an aggravation opinion and instructing the examiner to opine on “whether it is as least as likely as not that the current sleep apnea disorder is permanently worsened (versus temporary exacerbation of symptoms) by the service-connected major depressive disorder” (emphasis added)).
33 Ward v. Wilkie, 31 Vet.App. 233, 240 (2019). The Court concluded instead that “compensation was due for any incremental increase in disability . . . in non-service-connected disabilities resulting from service-connected conditions, above the degree of disability existing before the increase—regardless of its permanence.” Id. at 239.
6
service-connected depressive disorder aggravated his OSA, and the Board clearly erred in relying on this opinion.
Moreover, the Board clearly erred to the extent it relied on the remaining March 2012, April 2013, and April 2019 VA opinions to discount the weight of the January 2019 private opinion that Mr. Mundy’s OSA was aggravated by his service-connected depressive disorder.34 Even by the Board’s description of the March 2012, April 2013, and April 2019 negative medical nexus opinions, none of these opinions addressed whether Mr. Mundy’s depression aggravated his OSA.35
Because the Board relied on the five VA opinions that did not answer the aggravation question (March 2012, April 2013, April 2019, and two June 2019 addendum opinions) and one inadequate VA aggravation opinion from May 2015 to conclude that “the preponderance of the evidence” is against the claim and deny it, the Board’s errors described above are prejudicial.36 Accordingly, remand is warranted for the Board to obtain a medical opinion as to whether Mr. Mundy’s service-connected depressive disorder aggravated his OSA.37
Given this disposition, the Court will not now address the remaining arguments and issues raised by the appellant.38 On remand, Mr. Mundy is free to submit additional evidence and argument on the remanded matter, including the specific arguments raised here on appeal, and the Board is required to consider any such relevant evidence and argument.39 The Court reminds the
34 R. at 8.
35 See R. at 5 (describing that the March 2012 VA examiner opined that “it was less likely than not that [Mr. Mundy]’s OSA is related directly to active service”), 6 (describing that the April 2013 VA examiner opined that “it was less likely than not that [Mr. Mundy]’s service-connected orthopedic disabilities caused or aggravated (permanently worsened) his OSA” (emphasis added)), 7 (describing that the April 2019 VA examiner opined that “it was less likely than not that [Mr. Mundy]’s OSA is related directly to active service”).
36 See 38 U.S.C. § 7261(b)(2) (requiring the Court to “take due account of the rule of prejudicial error”); Shinseki v. Sanders, 556 U.S. 396, 409 (2009) (holding that the Court reviews Board decisions for harmless error and that the burden is on the appellant to show that he or she suffered prejudice as a result of VA error).
37 See Tucker v. West, 11 Vet.App. 369, 374 (1998) (“[W]here the Board has incorrectly applied the law . . . or where the record is otherwise inadequate, a remand is the appropriate remedy.”).
38 See Quirin v. Shinseki, 22 Vet.App. 390, 395 (2009) (“[T]he Court will not ordinarily consider additional allegations of error that have been rendered moot by the Court’s opinion or that would require the Court to issue an advisory opinion.” (citing Best v. Principi, 15 Vet.App. 18, 20 (2001) (per curiam order))); Mahl v. Principi, 15 Vet.App. 37, 38 (2001) (per curiam order) (“[I]f the proper remedy is a remand, there is no need to analyze and discuss all the other claimed errors that would result in a remedy no broader than a remand.”).
39 See Kay v. Principi, 16 Vet.App. 529, 534 (2002) (stating that, on remand, the Board must consider additional evidence and argument in assessing entitlement to the benefit sought); Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order).
7
Board that “[a] remand is meant to entail a critical examination of the justification for the decision,”
40 and the Board must proceed expeditiously, in accordance with 38 U.S.C. § 7112.
II. CONCLUSION
After consideration of the parties’ pleadings and a review of the record, the Board’s April 17, 2020, decision is SET ASIDE, and the matter is REMANDED for further proceedings consistent with this decision.
DATED: August 19, 2021
Copies to:
Paul Mundy
VA General Counsel (027)
40 Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991).

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.