Veteranclaims’s Blog

January 7, 2022

Single Judge Application; Walsh v. Wilkie, 32 Vet.App.; § 3.310(a); Allen v. Brown; Secondary service connection may be awarded when a disability “is proximately due to or the result of a service-connected disease or injury.” 38 C.F.R. § 3.310(a) (2021). “Additional disability resulting from the aggravation of a non-service-connected condition by a serviceconnected condition is also compensable under 38 C.F.R. § 3.310.” Allen v. Brown, 7 Vet.App. 439, 448 (1995) (en banc). The Court has recognized that “aggravation is just causation of an increase in disability—i.e., a discrete portion of disability—rather than of the whole disability itself.” Walsh v. Wilkie, 32 Vet.App. 300, 306 (2020). Thus, the Court held that “when aggravation of a veteran’s non-service-connected condition is proximately due to or the result of a serviceconnected condition, such veteran shall be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation.” Allen, 7 Vet.App. at 448.;

Filed under: Uncategorized — Tags: — veteranclaims @ 4:10 am

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 20-7124
DWIGHT E. REYNOLDS, APPELLANT,
V.
DENIS MCDONOUGH,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before PIETSCH, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
PIETSCH, Judge: Dwight E. Reynolds appeals through counsel a September 11, 2020,
Board of Veterans’ Appeals (Board) decision that denied VA benefits for sleep apnea, including
as secondary to tinnitus and deviated nasal septum. 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). Singlejudge
disposition is appropriate as the issue is of “relative simplicity” and “the outcome is not
reasonably debatable.” Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the reasons that
follow, the Court will affirm the Board’s September 11, 2020, decision.
I. FACTS
Mr. Reynolds served on active duty in the U.S. Army from December 1964 to December

  1. Record (R.) at 5610.
    In January 2015, Mr. Reynolds filed a claim for benefits for sleep apnea. R. at 5598-99. A
    VA regional office (RO) denied his claim the following month, and Mr. Reynolds appealed that
    decision. R. at 5581-84, 5568-69, 5216. Mr. Reynolds’s claim was remanded twice by the Board.
    R. at 3871, 3273.
    2
    In the first remand order, issued on September 10, 2018, the Board ordered VA to provide
    Mr. Reynolds with a medical opinion as to whether his sleep apnea was at least as likely as not
    related to service or otherwise proximately due to, the result of, or aggravated by his serviceconnected
    tinnitus. R. at 3866-82. Mr. Reynolds underwent a medical examination in November
    2018, at which the examiner found that his sleep apnea was less likely than not related to his
    service or his service-connected tinnitus. R. at 653-58.
    On July 31, 2019, the Board again remanded Mr. Reynolds’s claim for VA to obtain a
    medical opinion to address whether his sleep apnea was at least as likely as not caused by, or
    otherwise aggravated by, his newly service-connected deviated nasal septum. R. at 3262-79. In an
    October 2019 VA medical opinion, a VA examiner opined that Mr. Reynold’s sleep apnea was less
    likely than not caused or aggravated by his deviated nasal septum. R. at 665-67. The examiner,
    instead, found that Mr. Reynolds’s condition was caused by his age and weight. R. at 666. The
    examiner also found no evidence that his deviated septum aggravated his sleep apnea, noting that
    he did not have problems with his sleep apnea treatment, including his use of a continuous positive
    airway pressure (CPAP) machine and that nothing indicated that his condition had progressed more
    intensely than it naturally would. R. at 667.
    The Board issued the decision on appeal on September 11, 2020, denying benefits for sleep
    apnea, to include as secondary to tinnitus and deviated nasal septum. R. at 1-15. The Board found
    that VA had complied with its remand orders by obtaining the requested VA opinions. In
    addressing the merits of Mr. Reynolds’s claim, the Board noted that he had a current diagnosis of
    sleep apnea, but the Board found that the evidence did not show that his condition was related to
    service or his service-connected disabilities.
    Mr. Reynolds argues that the Board erred by relying on inadequate medical opinions to
    decide his claim. Specifically, he argues that the medical opinion failed to address fully address
    whether his sleep apnea was aggravated by his service-connected deviated nasal septum. Based on
    the inadequacies in these examinations, Mr. Reynolds argues that the Board failed to ensure that
    VA satisfied its duty to assist. He also argues that the Board’s reasons or bases were inadequate
    where the Board adopted the medical opinion without discussing treatment records that noted that
    his deviated septum prevented him from undergoing his preferred treatment for sleep apnea.
    3
    In response, the Secretary argues that Mr. Reynolds has not shown that the Board erred by
    relying on the November 2018 and October 2019 VA medical opinions, which were adequate. The
    Secretary also disputes Mr. Reynolds’s arguments with respect to the Board’s reasons or bases and
    states that most of his arguments constitute lay hypothesizing by his attorney.
    II. ANALYSIS
    Under 38 U.S.C. § 5103A, the Secretary has a duty to assist claimants that includes, in
    certain circumstances, providing a medical examination or obtaining a medical opinion. See
    38 C.F.R. § 3.159(c)(4) (2021). “Once the Secretary undertakes the effort to provide an
    examination when developing a service-connection claim, . . . he must provide an adequate one.”
    Barr v. Nicholson, 21 Vet.App. 303, 311 (2007). A medical examination or 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, if any, 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) (per curiam).
    The Board’s determination of whether a medical opinion is adequate and whether the
    Secretary has fulfilled the duty to assist are findings of fact that the Court reviews under the
    “clearly erroneous” standard of review. 38 U.S.C. § 7261(a)(4); D’Aries v. Peake, 22 Vet.App. 97,
    104 (2008) (per curiam); Van Valkenburg v. Shinseki, 23 Vet.App. 113, 120 (2009). 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); Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990).
    In every decision, the Board must provide a statement of the reasons or bases for its
    determination, adequate to enable an appellant to understand the precise basis for the Board’s
    decision as well as to facilitate review in this Court. 38 U.S.C. § 7104(d)(1); Allday v. Brown,
    7 Vet.App. 517, 527 (1995); Gilbert, 1 Vet.App. at 56-57. To comply with this requirement, the
    Board must analyze the credibility and probative value of the evidence, account for the evidence
    4
    it finds persuasive or unpersuasive, and provide the reasons for its rejection of any 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. Reynolds argues that the VA medical opinions ignore evidence that his deviated
    septum interferes with his ability to use CPAP equipment and other therapy to treat his sleep apnea.
    He argues that the November 2018 examiner’s indication that there were no other pertinent findings
    related to his sleep apnea and the October 2019 examiner’s rationale that he had no complaints
    with the use of his CPAP equipment were contradicted by the evidence. Mr. Reynolds is correct
    that the evidence shows that, at one point, his deviated septum hampered his use of a CPAP
    machine, noting a treatment record from July 2015 and a history of his condition described in
    November 2015. However, he ignores evidence that, in November 2015, his treatment provider
    found that medications he had been given to treat the problems with his deviated septum had
    “improved significantly” his condition so that he was “tolerating a full-mask CPAP machine
    without problems.” R. at 1787. The October 2019 medical opinion specifically addressed this
    evidence, stating that Mr. Reynolds’s “most recent sleep (CPAP) note demonstrated no complaints
    with the CPAP or the equipment related to the CPAP.” R. at 667.
    VA examiners are not required to provide reasons or bases or to address every piece of
    evidence in the record. See Monzingo, 26 Vet.App. at 107; Acevedo v. Shinseki, 25 Vet.App. 286,
    293 (2012). As discussed by the Board, the evidence reflects that Mr. Reynolds did experience
    problems using his CPAP equipment, but that, with treatment, those problems resolved. Mr.
    Reynolds has failed to point to any evidence showing that the period that he did experience such
    problems aggravated his condition. And, it is not clear to the Court why, in this case, an examiner’s
    failure to discuss problems that were no longer relevant could render an opinion inadequate. Thus,
    the Court finds that Mr. Reynolds has failed to demonstrate that the VA opinions were inadequate
    based on the examiners’ failure to expressly address his earlier problems using his CPAP
    equipment. See Hilkert v. West, 12 Vet.App. 145, 151 (1999) (en banc) (holding that the appellant
    bears the burden of demonstrating error on appeal), aff’d per curiam, 232 F.3d 908 (Fed. Cir. 2000).
    Mr. Reynolds also challenges the November 2018 examiner’s reference to an August 2016
    notation that his oral cavity was crowded and that he had a Mallampati score of III. In discussing
    5
    the August 2016 notation, the November 2018 VA examiner noted that “Mallampati classification
    can be helpful in predicting whether a patient might have obstructive sleep apnea” and may
    correlate with the severity of that condition. R. at 658. Mr. Reynolds, through his attorney, provides
    a series of questions that he believes the examiner should have addressed, including the possible
    significance of crowded oral cavity, issues related to air flow volume, as well as the effects of his
    dentures. However, his questions are all speculative as to the potential relevance of any of this
    information. See Hyder v. Derwinski, 1 Vet.App. 221, 225 (1991) (explaining that a counsel’s
    “[l]ay hypothesizing, particularly in the absence of any supporting medical authority, serves no
    constructive purpose and cannot be considered by this Court”). Contrary to Mr. Reynolds’s
    argument, the examiner was not required to educate the Board or Mr. Reynolds on everything
    related to sleep apnea but was instead required to provide an opinion as to the etiology of his sleep
    apnea with sufficient rationale, which the examiners did in this case.
    Mr. Reynolds further challenges the October 2019 examiner’s rationale that there was no
    evidence that his deviated septum, diagnosed in 1965, aggravated his sleep apnea, diagnosed in
  2. In discussing whether Mr. Reynolds’s deviated septum caused his sleep apnea, the examiner
    noted the length of time between Mr. Reynolds’s diagnoses of deviated septum and sleep apnea,
    stating that if his deviated septum had caused his sleep apnea, his sleep apnea would have been
    diagnosed sooner. She then explained that his sleep apnea was caused by other factors, including
    age and weight. Contrary to his argument, this discussion by the examiner was made in addressing
    secondary service connection based on causation, not aggravation. Further, to the extent that he
    revives his argument that his deviated septum aggravated his sleep apnea because his deviated
    septum interfered with his use of CPAP equipment, including nasal pillows, he fails to explain
    how not being able to use his preferred treatment actually worsened his condition, such that the
    examiner was required to discuss it. See Monzingo, 26 Vet.App. at 107; see also Hilkert,
    12 Vet.App. at 151.
    As to the Board’s reasons or bases, Mr. Reynolds reiterates many of the same arguments
    that were raised with respect to the VA opinions of record. Because the Court finds that the
    opinions were adequate, the Court also finds that the Board did not err by relying on them or
    finding that VA satisfied its duty to assist. The Court further finds that the Board did not err in
    6
    failing to address each specific allegation regarding the examiners’ opinions raised by Mr.
    Reynolds. The record of proceedings before the Court does not indicate that the adequacy of the
    examinations was raised below, and such an analysis was not required where the opinions
    described Mr. Reynolds’s disability in sufficient detail and provided a thorough rationale to support
    the opinion. See Stefl, 21 Vet.App. at 123.
    Mr. Reynolds also argues that the Board failed to properly analyze whether his sleep apnea
    was aggravated by his deviated septum despite noting that his deviated septum altered the
    treatment for his sleep apnea. He states that “the need to adjust treatment tactics was ‘favorable
    evidence'” that the Board should have addressed in its analysis. As to the timing of his diagnoses,
    he states that “the Court held in Frost v. Shulkin, 29 Vet. App. 131, 134 (2017), ‘for a veteran to
    be service-connected on a secondary basis under a causation theory, the primary disability need
    not be service-connected, or even diagnosed, at the time the secondary condition is incurred.'”
    Appellant’s Brief at 16. He explains that, “[i]n this case, the primary disability is [sleep apnea],
    while the deviated nasal septum is the secondary, aggravating condition,” clarifying that his
    deviated septum “is an aggravating condition because it interferes with [his] treatment therapy for
    [sleep apnea].”
    Secondary service connection may be awarded when a disability “is proximately due to or the result of a service-connected disease or injury.” 38 C.F.R. § 3.310(a) (2021). “Additional disability resulting from the aggravation of a non-service-connected condition by a serviceconnected condition is also compensable under 38 C.F.R. § 3.310.” Allen v. Brown, 7 Vet.App. 439, 448 (1995) (en banc). The Court has recognized that “aggravation is just causation of an increase in disability—i.e., a discrete portion of disability—rather than of the whole disability itself.” Walsh v. Wilkie, 32 Vet.App. 300, 306 (2020). Thus, the Court held that “when aggravation of a veteran’s non-service-connected condition is proximately due to or the result of a serviceconnected
    condition, such veteran shall be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation.” Allen, 7 Vet.App.
    at 448.

    In its decision, the Board recognized that Mr. Reynolds’s deviated septum affected his
    treatment for sleep apnea. However, the Board found that his deviated septum did not cause or
    7
    aggravate his condition. The Court finds that the Board did not err in finding that there was no
    evidence of aggravation. Initially, the Court notes that Mr. Reynolds does not cite any evidence to
    support his statements that his doctors had to “work around” his deviated septum or were unable
    to treat his condition or altered their treatment as a result of his deviated septum. Although Mr.
    Reynolds may have preferred using nasal pillows or not having to use a full mask CPAP machine,
    nothing in the record suggests that his inability to use his preferred treatment method increased the
    severity of his sleep apnea in any way. See Spicer v. McDonough, U.S. Vet. App. No. 18-4489,
    _ Vet.App. _, (Sept. 14, 2021). Being annoyed or inconvenienced by a form of treatment for
    one condition as a result of a separate service-connected condition is not sufficient to demonstrate
    aggravation for purposes of establishing service connection on a secondary basis. See Allen,
    7 Vet.App. at 448. Further, to the extent that Mr. Reynolds attempts to rely on Frost to support his
    argument and states that his sleep apnea is his primary disability and his deviated septum is the
    secondary condition, his arguments seem to be based on a misreading of the law. Establishing
    service connection on a secondary basis requires a showing that a service-connected condition
    worsened a non-service-connected disability. Id.
    Mr. Reynolds also reiterates his arguments concerning his Mallampati score, oral cavity,
    and dentures, and he provides other theories for how is sleep apnea is aggravated by his deviated
    septum. But he does not cite any medical evidence to support his theories. Instead, they again
    appear to be hypotheses put forth by his attorney. See Kern v. Brown, 4 Vet.App. 350, 353 (1993)
    (explaining that “appellant’s attorney is not qualified to provide an explanation of the significance
    of the clinical evidence”); Hyder, 1 Vet.App. at 225. Accordingly, the Court finds these arguments
    with merit.
    Mr. Reynolds also raises an argument concerning a VA examiner’s earlier findings
    regarding the etiology of his deviated septum, specifically noting that the Board found the
    examiner’s statements to be contradictory when granting benefits for that claim. However, the
    Court finds he has failed to show that any concern by the Board with respect to his deviated septum
    examination in conjunction with that claim is relevant to the matter on appeal or that the Board
    should have otherwise addressed that examination. See Coker v. Nicholson, 19 Vet.App. 439, 442
    (2006), rev’d on other grounds sub nom. Coker v. Peake, 310 F. App’x 371 (Fed. Cir. 2008) (“The
    8
    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.”); see also Locklear v.
    Nicholson, 20 Vet.App. 410, 416 (2006) (holding that the Court will not entertain underdeveloped
    arguments).
    For these reasons, the Court finds that Mr. Reynolds has failed to demonstrate error in the
    Board decision on appeal. The Court further finds that he has abandoned all other arguments not
    raised on appeal. See Pederson v. McDonald, 27 Vet.App. 276, 285 (2015) (en banc) (holding that
    claims not argued on appeal are deemed abandoned and dismissing the matters). The Court,
    therefore, will affirm the decision denying Mr. Reynolds VA benefits for sleep apnea.
    III. CONCLUSION
    Upon consideration of the foregoing analysis, the record of proceedings before the Court,
    and the parties’ pleadings, the September 11, 2020, Board decision is AFFIRMED.
    DATED: November 30, 2021
    Copies to:
    David C. Wagner, Esq.
    VA General Counsel (027)

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