09-42 469
09-42 469
| Board of Vet. App. | Feb 28, 2017Background
- Veteran served on active duty Dec 1995–Oct 2007 and filed for service connection for sleep apnea; RO denied claim in May 2009.
- July 2015 Board denied service connection; the Veteran appealed and the Court vacated and remanded pursuant to a Joint Motion for Remand (May 2016).
- June 2016 VA examiner provided opinions addressing causation and relationship to service-connected knee disorders and weight gain, but with limited rationale regarding aggravation.
- Veteran’s representative (Jan 2017) argued VA opinions were inadequate because they failed to address whether in-service subjective complaints supported current sleep apnea and inadequately addressed aggravation by service-connected knee disorders via weight gain.
- Board found the existing VA opinions inadequate under Nieves-Rodriguez and Barr because the examiner failed to adequately explain aggravation and failed to consider lay reports of in-service symptoms; remanded for a new specialist opinion that addresses causation, aggravation, and lay evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Entitlement to service connection for sleep apnea (direct/secondary) | Veteran: lay statements and in-service symptoms support nexus; knee disorders may have caused/led to weight gain precipitating/aggravating sleep apnea | VA: June 2016 examiner discussed weight gain and orthopedic conditions and concluded less likely as not related/causal | Remanded: VA must obtain an adequate specialist opinion addressing whether sleep apnea was caused by service or is related/secondary to service-connected knee disorders, and whether knee disorders aggravated sleep apnea; exam must fully address lay statements and provide reasoned rationale |
| Adequacy of VA medical opinions | Veteran: opinions inadequate for failing to analyze whether in-service subjective complaints are evidence of onset and for lacking rationale on aggravation | VA: examiner already discussed weight gain and orthopedic link (but provided minimal rationale on aggravation) | Held inadequate under Nieves-Rodriguez/Barr; additional exam/opinion required that explicitly considers lay testimony and explains causation vs aggravation distinctions |
Key Cases Cited
- Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir.) (lay statements may provide sufficient evidence to support nexus if examiner considers them)
- Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (Vet. App.) (VA examiners must provide a reasoned medical explanation connecting conclusions to supporting data)
- Barr v. Nicholson, 21 Vet. App. 303 (Vet. App.) (VA must ensure examinations/opinions it obtains are adequate)
- Kutscherousky v. West, 12 Vet. App. 369 (Vet. App.) (claimant may submit additional evidence after remand)