Citation Nr: 21025419 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 16-28 176 DATE: April 28, 2021 ORDER Entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to a service-connected psychiatric disorder is denied. Entitlement to service connection for a left shoulder disorder is denied. FINDINGS OF FACT 1. The Veteran’s OSA is not secondary to service-connected disorders and is not otherwise related to an in-service injury or disease. 2. The Veteran was scheduled for examinations in October 2019 in association with his reopened claim for service connection for a left should disorder. He did not report. 3. There is no probative evidence of record demonstrating that the Veteran’s left shoulder disorder is etiologically related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for OSA due to service or service-connected disorders have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 2. The criteria for service connection for a left shoulder disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1986 to July 1990 and from December 1990 to May 1991. The Board of Veterans’ Appeals (Board) reopened the claim for service connection for a left shoulder disorder and remanded both issues for further evidentiary development in October 2018. The case has returned to the Board for appellate review. The Board notes that the October 2018 Board remand included the issue of entitlement to service connection for posttraumatic stress disorder (PTSD). An April 2019 rating decision issued by the Agency of Original Jurisdiction (AOJ) granted entitlement to service connection for PTSD. Thus, that issue is fully granted and no longer on appeal. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). To establish entitlement to service-connected compensation benefits, a veteran must show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010). Service connection may be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Service connection may also be established on a secondary basis for disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310 (a). Secondary service connection may also be established for a disorder which is aggravated by a service-connected disability; compensation may be provided for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310 (b); Allen v. Brown, 8 Vet. App. 374 (1995). To prevail on the issue of secondary service connection, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); see also Allen, supra. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. The VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for OSA, to include as secondary to a service-connected psychiatric disorder The Veteran is seeking entitlement to service connection for OSA, to include as secondary to a service-connected psychiatric disorder. The June 2020 VA examiner confirmed the Veteran’s diagnosis of OSA. Thus, there is evidence of a current disability. Service connection has been established for PTSD. A 100 percent disability rating was assigned, effective February 18, 2014. Thus, there is evidence of a service-connected psychiatric disorder. The remaining question is whether there is a medical nexus or relationship between the Veteran’s currently diagnosed OSA and his service-connected psychiatric disorder or his military service. The Veteran was afforded a mental health VA examination in May 2016 that discussed the Veteran’s sleep disorder, which was claimed as insomnia at that time. As previously mentioned, the Board remanded this matter in October 2018 to afford the Veteran a new VA examination, finding the May 2016 VA examination and opinion to be inadequate for rating purposes. Specifically, the Board found the May 2016 opinion to be inadequate as it was unclear whether the Veteran had an OSA diagnosis. The examiner noted that further evaluation may be warranted to determine whether the Veteran has OSA. The Board additionally found that the evidence indicates the Veteran’s sleep disorder may be related to his service-connected PTSD. Pursuant to the October 2018 Board remand, the Veteran was afforded VA examinations in November 2019 and June 2020. The November 2019 VA examiner opined that the Veteran’s sleep disorder was less likely than not incurred in or caused by service. The examiner further opined that the Veteran’s sleep disorder is not proximately due to, the result of, or aggravated by the Veteran’s PTSD. The examiner provided the rationale that the Veteran reports having untreated OSA, assessment is deferred to medical evaluation/polysomnography. The examiner further provided that sleep disturbance is a symptom associated with his PTSD diagnosis as well and an additional diagnosis of insomnia disorder would not be warranted. The June 2020 examiner opined that the Veteran’s OSA is less likely than not incurred in or caused by his military service. The examiner provided the rationale that the Veteran’s April 1991 separation examination is silent for complaints of or a diagnosis of a sleeping condition and there is no evidence in the Veteran’s military records suggesting his newly diagnosed OSA is the result of his military service. The June 2020 examiner further provided that the Veteran’s OSA is less likely than not proximately due to or the result of the Veteran’s service-connected PTSD. The examiner provided the rationale that the Veteran’s OSA is caused by intermittent upper airway obstruction while sleeping. This anatomical phenomenon is mitigated by the use of positive airway pressure while using a continuous positive airway pressure (CPAP) nightly, improvement in apnea symptoms with the use of a CPAP underscores the underlying anatomical obstruction causing the condition, and there is no evidence in the Veteran’s records to suggest his OSA was caused by PTSD or any other psychological or emotional disturbance. The June 2020 examiner further addressed a medical study from the Journal of Clinical Sleep Medicine suggesting that disturbed sleep in combat can result from prolonged operations or lack of quality sleep is a potential precursor for PTSD and OSA and that sleep fragmentation and hyperarousal from nightmares contribute to the etiology of OSA. The article found that the greater the PTSD symptoms severity the higher the probability of positive screening for OSA. Addressing the article, the examiner provided that the study does not reveal causation or explain why this higher prevalence exists, there is no evidence in the observational study to indicate OSA is caused by PTSD, the study merely suggests both conditions were often found existing together in the study population. The Board acknowledges that the Veteran is competent to testify as to his beliefs that his OSA is related to service or to his service-connected psychiatric disorder. Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007). In order for lay evidence to be competent, the individual must have personal knowledge, derived from his/her own senses, of what is being attested; “[c]ompetent testimony is thus limited to that which the witness has actually observed, and is within the realm of his personal knowledge.” Layno v. Brown, 6 Vet. App. 465, 471 (1994). Here, the Veteran has submitted statements that he believes his OSA to be related to his military service or to his psychiatric disorders. Additionally, the Veteran’s brother has submitted statements regarding observing that the Veteran did not have difficulty sleeping prior to his military service. However, there is nothing in the record to suggest that either the Veteran or his brother have the appropriate training, experience, or expertise to render a medical opinion regarding the etiology of his OSA, especially in light of his psychiatric disorder and its associated sleep problems. See 38 C.F.R. § 3.159(a)(1) (setting forth that competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). While the Veteran is competent to report what he has experienced, he is not competent to ascertain the etiology of any current condition, as the causative factors for such are not readily subject to lay observation. See Layno v. Brown, 6 Vet. App. 465 (1994); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Accordingly, his and his brother’s assertions to that effect are of no probative value. The Board notes that the Veteran submitted a statement in July 2020 indicating that the June 2020 examination was inadequate as it did not adequately reflect his sleeping habits. The Board next notes that the Veteran has challenged the adequacy of the June 2020 VA examination obtained by the AOJ. See July 2020 Correspondence. In advancing an argument concerning the adequacy of the medical evidence obtained by the AOJ, the Veteran appears to be raising a general challenge to the professional competence of the VA examiners who provided the opinions or conducted the examinations during the pendency of this appeal. 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 examiners who provided the medical evidence obtained by the AOJ during the pendency of this appeal. In other words, the Veteran 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 medical evidence obtained by the AOJ during the pendency of this appeal in adjudicating the Veteran's currently appealed claims. 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 v. Shinseki, 599 F.3d 1301, 1306-7 (Fed. Cir. 2010). 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 VA examiners were 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 competent opinions concerning the contended etiological relationships between the Veteran's claimed disabilities 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 VA examiner who provided the medical evidence obtained by the AOJ was not competent or did not report accurately what he found in his review of the claims file. The Board also finds that the medical opinions obtained by VA during the pendency of this appeal are adequate for evaluation purposes because they addressed fully all of the Veteran's contentions regarding his claimed disabilities. It appears that sufficient investigation and testing was done and the Board finds the examination adequate for rating purposes. In light of the above, the Board determines that a preponderance of the evidence shows that the Veteran’s OSA was not incurred in or aggravated by service nor was it caused or aggravated by his service-connected disorders, to include a psychiatric disorder. The July 2020 examiner provided a comprehensive opinion after review of all the pertinent evidence. Reference was made to pertinent studies, statements, Board hearing testimony, and clinical history. This is, in the Board’s view, persuasive, especially with consideration given to the entire record. Further, there is no opinion to the contrary. For the above reasons, the Veteran’s claim is denied. In reaching this decision the Board has considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not for application. 38 U.S.C. § 5107. 2. Entitlement to service connection for a left shoulder disorder The Veteran is seeking entitlement to service connection for a left shoulder disorder. As previously mentioned, the Board reopened and remanded this matter in October 2018, finding remand necessary to afford the Veteran with a VA examination. Pursuant to the Board remand, the Veteran was scheduled for a VA examination in October 2019. However, he did not report to the scheduled examination. See November 2019 Exam Scheduling Request. The Board notes that the Veteran received correspondence for and reported to a VA examination for his OSA around the same time. The failure to report was noted in the July 2020 supplemental statement of the case (SSOC). Neither the Veteran nor his representative presented any argument as to why the Veteran failed to report to the examination. Where a claimant fails to appear, without good cause, for an examination that is scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. 38 C.F.R. § 3.655 (b). Thus, the Board has decided the claim based on the evidence of record. The Board notes that the evidence of record shows that the Veteran has sought treatment through the VA for left shoulder pain and reduced range of motion. Thus, there is an indication of a current shoulder disorder; however, it does not appear that a left shoulder disorder has been clinically diagnosed. The Veteran’s service treatment records (STRs) document that he received treatment for a left shoulder injury that resulted in acromioclavicular joint separation in October 1989 and a physical profile for acute bursitis of the left shoulder in December 1990. Thus, there is an indication of an in-service injury. The remaining question is whether any current left shoulder disorder is related to these in-service events or otherwise related to the Veteran’s military service. Pursuant to the October 2018 Board remand, the Veteran was scheduled for a VA examination in October 2019 to determine the likely etiology of the left shoulder complaints noted in the VA treatment records. Because the Veteran failed to report to that examination, there is no competent evidence of record addressing the question of nexus. To the extent the Veteran and his brother assert that the Veteran’s his left shoulder disorder is related to service, as lay people they are not competent to do so. The diagnosis and etiology of a left shoulder disorder is outside the realm of common knowledge of a lay person because it involves complex medical issues that go beyond a simple and immediately observable cause-and-effect relationship. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007).   In sum, the Board finds that the preponderance of the evidence now of record is against the claim for entitlement to service connection for a left shoulder disorder, and so there is no reasonable doubt to be resolved in the Veteran's favor. 38 U.S.C. § 5107 (b); Gilbert, 1 Vet. App. at 51. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Frazier, Associate Attorney 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.