200504-81560
200504-81560
| Board of Vet. App. | Aug 31, 2021Background:
- Veteran served on active duty from December 1984 to December 1988.
- VA previously diagnosed the Veteran with obstructive sleep apnea (OSA) and granted service connection for PTSD in a December 2019 rating decision; Veteran appealed and selected the AMA direct-review lane (evidence locked to the April 2020 HLR decision).
- Service treatment records note insomnia at separation (October 1988) but contain no diagnosis or treatment for OSA.
- A September 2019 VA examination concluded PTSD is associated with insomnia but not causally related to OSA; examiner relied on medical literature finding no causal relationship.
- The Veteran submitted additional medical studies in April 2021 asserting links between OSA and PTSD/tinnitus, but under the direct-review AMA lane that evidence could not be considered; instructions were given to file a Supplemental Claim if he wished VA to consider it.
- The Board found the September 2019 exam adequate, found no in-service incurrence or nexus to service-connected conditions, denied service connection for OSA, and referred other non-adjudicated claims (left-hand arthritis, sinusitis) to the AOJ or dismissed as not before the Board.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Direct service connection for OSA (in-service incurrence) | Separation-record insomnia shows in-service sleep problems supporting OSA onset | STRs show only insomnia; no in-service diagnosis or treatment for OSA | Denied — no in-service incurrence for OSA |
| Secondary service connection (OSA secondary to PTSD or tinnitus) | OSA is caused or aggravated by service-connected PTSD and tinnitus; cites medical studies | Medical evidence and Sept 2019 exam find no causal nexus between PTSD/tinnitus and OSA | Denied — no medical nexus established; evidence locked to April 2020 HLR decision |
| Adequacy of the September 2019 VA examination | Examiner relied improperly on lack of in-service evidence; opinion inadequate | Examiner reviewed file, considered literature and veteran’s assertions, provided rationale | Held adequate and afforded high probative weight |
| Consideration of post-HLR evidence and other claims | April 2021 studies and assertions should be considered; asserted sinusitis and arthritis claims | Under direct-review AMA, new evidence submitted after HLR cannot be considered; other claims were not before the Board | April 2021 evidence not considered (may file Supplemental Claim); left-hand arthritis and sinusitis not before Board and referred/directed to AOJ |
Key Cases Cited
- Holton v. Shinseki, 557 F.3d 1363 (2009) (articulates standard elements for direct service connection)
- Allen v. Brown, 7 Vet. App. 439 (1995) (standard for secondary service connection)
- Wallin v. West, 11 Vet. App. 509 (1998) (requirement of medical nexus for secondary service connection)
- Doucette v. Shulkin, 28 Vet. App. 366 (2017) (Board need not address issues not raised by claimant or reasonably raised by the record)