Citation Nr: 21065251 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 17-12 599 DATE: October 25, 2021 ORDER Entitlement to service connection for obstructive sleep apnea (OSA), including as due to service-connected posttraumatic stress disorder (PTSD), is denied. FINDING OF FACT The record evidence shows that the Veteran's current OSA is not related to active service and was not caused or aggravated by his service-connected PTSD. CONCLUSION OF LAW The criteria for service connection for OSA, including as due to service-connected PTSD, have not been met. 38 U.S.C. §§ 1110, 1131, 1154, 5103, 5103, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.310 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from September 1980 to September 1983 and from October 2004 to January 2006, including in combat in Iraq in support of Operation Iraqi Freedom. This appeal comes before the Board of Veterans' Appeals (Board) on appeal from an August 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. A videoconference Board hearing was held in November 2019 before the undersigned Veterans Law Judge and a copy of the hearing transcript has been added to the record. In February 2020, the Board denied, in pertinent part, the currently appealed claim. The Veteran, through an attorney, and VA's Office of General Counsel appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court) by filing a Joint Motion for Partial Remand (Joint Motion). The Court granted the Joint Motion in December 2020, vacating and remanding that part of the Board's February 2020 decision which denied the currently appealed claim. In June 2021, the Board remanded the currently appealed claim to the Agency of Original Jurisdiction (AOJ) for additional development. A review of the claims file shows that there has been substantial compliance with the Board's remand directives. The Board directed that the AOJ obtain an opinion concerning the nature and etiology of the Veteran's OSA. This opinion occurred in July 2021. See Stegall v. West, 11 Vet. App. 268 (1998); see also Dyment v. West, 13 Vet. App. 141 (1999) (holding that another remand is not required under Stegall where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). The Board notes that the Veteran's representative questioned the probative value of the July 2021 VA medical opinion in a September 2021 appellate brief. In advancing an argument concerning the adequacy of this medical opinion, the Veteran appears to be raising a general challenge to the professional competence of the VA examiner who provided it. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that a Veteran is required to raise a specific challenge to the competency of a VA examiner before VA is required to respond with information about the qualifications of the examiner. See Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011), and Francway v. Wilkie, No. 2018-2136 (Fed. Cir. Oct. 15, 2019) (finding that a Veteran is required to challenge a VA examiner's competence in the first instance). Neither the Veteran nor his representative has raised a specific challenge to the professional medical competence or qualifications of the VA examiner who provided the July 2021 medical opinion. In other words, the appellant has not satisfied the requirement of raising a specific challenge to a VA examiner's competence in the first instance. As a result, VA is not required to support its decision in this appeal by presenting information about the examiner's qualifications. Id. Other Federal Circuit precedent also suggests that VA may rely upon the July 2021 medical opinion in adjudicating the currently appealed claim. In Bastien, an appellant challenged the qualifications of a VA physician to provide a medical expert opinion on the grounds that this physician lacked objectivity and/or independence because he was a VA employee. See Bastien, 599 F.3d at 1306-7. Citing Rizzo v. Shinseki, 580 F.3d 1288 (Fed. Cir. 2009), the Federal Circuit in Bastien rejected the appellant's challenge to the qualifications of a VA physician and held instead that the law and regulations provide that VA "is explicitly and implicitly authorized to use its own employees as experts." See Bastien, 599 F.3d at 1307 (citing 38 U.S.C. §§ 5103A(d), 7109(a); 38 C.F.R. § 20.901). The Federal Circuit also held in Bastien that an appellant challenging the expertise of a VA physician must "set forth the specific reasons...that the expert is not qualified to give an opinion." Id. That has not happened in this case. Neither the Veteran nor his representative has identified or submitted any evidence or argument that the July 2021 VA examiner was not competent or lacked the professional medical training necessary to review the claims file, including the Veteran's service treatment records and post-service VA and private treatment records, and provide a competent opinion concerning the contended etiological relationship between the Veteran's OSA and active service. The Federal Circuit noted in Rizzo that there was "no law or precedent suggesting that the Board must have first established [a VA examiner's] qualifications on the record before assigning his opinion probative value." See Rizzo, 580 F.3d at 1291 92. Instead, as the Federal Circuit held in Francway, although there is no longer a presumption of competence for VA examiners (as Rizzo previously was interpreted), a Veteran nevertheless is required to challenge a VA examiner's competence in the first instance before VA is required to present evidence of the examiner's professional qualifications in order to rebut this challenge. See Francway v. Wilkie, No. 2018-2136 (Fed. Cir. Oct. 15, 2019) (overruling, in relevant part, Rizzo v. Shinseki, 580 F.3d 1288 (Fed. Cir. 2009), and Bastien v. Shinseki, 599 F.3d 1301 (Fed. Cir. 2010) to the extent that those cases established a presumption of competence for VA examiners). It is presumed that VA follows a regular process that ordinarily results in the selection of a competent medical professional. Parks v. Shinseki, 716 F.3d 581, 585 (Fed. Cir. 2013) (citing Sickels v. Shinseki, 643 F.3d 1362, 1366 (Fed. Cir. 2011)). Accordingly, and as the Federal Circuit explained in Francway, if the Veteran does not meet the requirement to challenge a VA examiner's competence in the first instance, then VA is not required to prove any examiner's competence before relying on medical evidence obtained from the examiner in adjudicating this appeal. See Francway v. Wilkie, No. 2018-2136 (Fed. Cir. Oct. 15, 2019). There has been no showing or even an allegation that the July 2021 VA examiner was not competent or did not report accurately what she found in her review of the claims file. The Board also finds that the July 2021 medical opinion is adequate for evaluation purposes because it addressed fully all of the Veteran's contentions regarding his OSA. The Board finds that the preponderance of the evidence is against granting the Veteran's claim of service connection for OSA, including as due to service-connected PTSD. He essentially contends that he incurred OSA during active service and experienced continuous post-service disability. He alternatively contends that his service-connected PTSD caused or aggravated his OSA. The record evidence does not support finding an etiological link between OSA and active service. It shows instead that his current OSA is not related to active service and was not caused or aggravated by a service-connected disability. The available service treatment records show that, on a December 2005 post-deployment health assessment, the Veteran reported feeling tired after sleeping during his deployment to the southwest Asia theater of operations. The Board notes that the absence of contemporaneous records does not preclude granting service connection for a claimed disability. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (finding lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr v. Nicholson, 21 Vet. App. 303 (2007) ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms"). The post-service evidence also does not support granting service connection for obstructive sleep apnea, including as due to service-connected PTSD. It shows instead that, although the Veteran complained of and sought treatment for obstructive sleep apnea (OSA) since active service, it is not related to active service and was not caused or aggravated by his service-connected PTSD. The Board notes that the Court found that a July 2015 VA examination and August 2015 opinion were inadequate for VA adjudication purposes. This evidence was not reviewed or relied upon in adjudicating the currently appealed claim. The Veteran's voluminous post-service VA outpatient treatment records show ongoing complaints of and treatment for OSA since his service separation. These records also show that his OSA is treated with the use of a continuous positive airway pressure (CPAP) machine. In a July 2021 opinion, a VA clinician opined that it was less likely than not that the Veteran's OSA is related to active service, including as due to service-connected PTSD. The rationale was based on a review of the claims file. The rationale also was the Veteran only experienced subjective symptoms during active service and was not diagnosed as having OSA. The rationale further was that there was no evidence relating his post-service diagnosis of OSA to active service, including as due to service-connected PTSD. The VA clinician stated that, although she had reviewed the Veteran's lay statements, he "is not capable of diagnosing the medical condition related to those symptoms." This clinician also stated that the Veteran's OSA and service-connected PTSD were not "medically related." The rationale for this opinion was based on a review of relevant medical literature which did not show a causal relationship between OSA and PTSD. Contrary to the Veteran's lay assertions, the record evidence (July 2021 VA medical opinion) does not support granting service connection for OSA, including as due to service-connected PTSD. It is undisputed that the Veteran currently experiences OSA. It also is undisputed that service connection is in effect for PTSD. There is no medical evidence linking the Veteran's current OSA to active service or any incident of service, including as due to his service-connected PTSD, however. It shows instead that OSA is not related to active service and was not caused or aggravated by service-connected PTSD. The July 2021 VA clinician stated that she had reviewed the claims file and found that the Veteran's reported in-service symptoms, including feeling tired after sleep (which he reported in December 2005), were subjective only and did not meet the diagnostic criteria for a diagnosis of OSA. This clinician also opined that it was less likely than not that OSA is related to active service, including as due to service-connected PTSD. This opinion was fully supported. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (finding that a medical opinion "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). The Board already has found the representative's argument concerning the probative value of the July 2021 opinion to be without merit (as outlined in the Introduction). The Veteran otherwise has not identified or submitted any evidence demonstrating his entitlement to service connection for OSA, including as due to his service-connected PTSD. In summary, the Board finds that service connection for OSA, including as due to service-connected PTSD, is not warranted. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael T. Osborne, Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.