Citation Nr: 22015740 Decision Date: 03/18/22 Archive Date: 03/18/22 DOCKET NO. 14-38 557A DATE: March 18, 2022 ORDER Entitlement to service connection for obstructive sleep apnea, including as due to a service-connected disability, is denied. Entitlement to service connection for a right shoulder disability, including as due to a service-connected disability, is denied. FINDING OF FACT The record evidence shows that the Veteran's current obstructive sleep apnea and right shoulder disability (diagnosed as right shoulder arthroplasty) are not related to active service and were not caused or aggravated by a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for obstructive sleep apnea, including as due to a service-connected disability, have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.310 (2020). 2. The criteria for service connection for a right shoulder disability, including as due to a service-connected disability, have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.310 (2020). REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran had active service in the U.S. Marine Corps from May 1983 to July 1987. This appeal has a long procedural history. It comes before the Board of Veterans' Appeals (Board) on appeal from a July 2013 rating decision. Most recently, in October 2021, the Board remanded the currently appealed claims 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 addendum opinions concerning the nature and etiology of the Veteran's right shoulder disability and obstructive sleep apnea. Multiple opinions were obtained in December 2021 and associated with the claims file in January 2022 ("January 2022 opinions"). 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). In a February 2022 submission, the Veteran, through his attorney, challenged the probative value of the January 2022 opinions. The attorney essentially argued that none of these opinions complied with the Board's remand directives. In advancing an argument concerning the adequacy of the January 2022 opinions, the Veteran appears to be raising a general challenge to the professional competence of the VA examiners who provided these opinions. 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 January 2022 opinions. 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 January 2022 opinions 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, 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 VA examiners who provided the January 2022 opinions 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 examiners who provided the January 2022 opinions were not competent or did not report accurately what they found in their review of the claims file. The Board also finds that the January 2022 opinions are adequate for evaluation purposes because they addressed fully all of the Veteran's contentions regarding his claimed disabilities. The remaining arguments presented by the Veteran's attorney in his February 2022 submission concerning the January 2022 opinions are addressed in more detail below. Because the Veteran currently lives within the jurisdiction of the RO in Atlanta, Georgia, that facility has jurisdiction in this appeal. Entitlement to service connection for obstructive sleep apnea and for a right shoulder disability, each including as due to a service-connected disability The Board is not persuaded that the evidence supports granting the Veteran's claims of service connection for obstructive sleep apnea and for a right shoulder disability, each including as due to a service-connected disability. The Veteran essentially contends that he incurred each of these disabilities during active service and experienced continuous post-service disability. He alternatively contends that a service-connected disability caused or aggravated his current obstructive sleep apnea and right shoulder disability. The record evidence does not support his assertions. It shows instead that, although he complained of and sought treatment for each of these disabilities in the decades since his service separation, neither of them is related to active service. The available service treatment records show that, at a pre-enlistment physical examination in October 1982, prior to his entry on to active service in May 1983, clinical evaluation was within normal limits. He denied all relevant pre-service medical history. On outpatient treatment in May 1984, the Veteran reported a history of right shoulder bursitis and a family history of arthritis. Range of motion testing was limited to slow steady movement with slight or no pain in the shoulder region. He was able to abduct his right arm slowly but "still has pain on fast movement" of the right arm and shoulder. Physical examination showed no tenderness to palpation. The diagnosis was right shoulder bursitis. On periodic physical examination in March 1986, clinical evaluation was within normal limits. In November 1986, the Veteran complained of bursitis. It was noted that there was "no progress in pain or [range of motion]." At his separation physical examination in July 1987, clinical evaluation was within normal limits. 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 and for a right shoulder disability, each including as due to a service-connected disability. Contrary to the Veteran's lay assertions, it shows instead that, although he complained of and was treated for each of these disabilities in the decades since his service separation, neither of them is related to active service. For example, on private outpatient treatment in July 2012, the Veteran's complaints included right shoulder rotator cuff tendonitis and "some pain in the right shoulder." Musculoskeletal examination showed a good range of motion in the right shoulder. The diagnoses included rotator cuff tendonitis of the right shoulder. The Veteran had right shoulder joint replacement surgery in December 2013. Because the Board essentially found that VA opinions dated in April 2019 and in February and September 2020 (for a right shoulder disability) and dated in July 2020 and in June 2021 (for obstructive sleep apnea) were inadequate for VA adjudication purposes, this evidence was not reviewed or relied upon in adjudicating the currently appealed claims. As noted elsewhere, additional opinions concerning the contended etiological relationship between the Veteran's obstructive sleep apnea, right shoulder disability, and active service, each including as due to a service-connected disability, were obtained in December 2021 and associated with the claims file in January 2022 (the "January 2022 opinions" discussed in the Introduction). Because the Veteran's attorney objected to the January 2022 opinions in a February 2022 submission, the Board will discuss the probative value of these opinions and respond to the attorney's objections below. The Veteran's attorney argued specifically in the February 2022 submission that the January 2022 opinions addressing obstructive sleep apnea used an incorrect standard and did not review relevant medical literature. A detailed review of the January 2022 opinions concerning the Veteran's obstructive sleep apnea shows that the attorney is wrong. In the first opinion concerning obstructive sleep apnea, the VA clinician found that there was insufficient medical evidence to determine a baseline of severity for the Veteran's obstructive sleep apnea. This clinician then opined that, regardless of any established baseline, the Veteran's obstructive sleep apnea (OSA) was not aggravated beyond its natural progression by a service-connected disability (which was identified in this opinion as PTSD, scleroderma, median and ulnar neuropathy of the left hand and fingers as well as the right upper extremity, hypertension, erectile dysfunction, bilateral hearing loss, and/or tinnitus). The rationale for this opinion was: The Veteran has been diagnosed with mild OSA. The treatment of choice for this condition is a [continuous positive airway pressure (CPAP) machine]. The Veteran has been prescribed a CPAP. Records document his intolerance to the use of this machine as well as his non-compliance with CPAP treatment. In a second opinion concerning the Veteran's obstructive sleep apnea, the VA clinician opined that it is less likely than not that obstructive sleep apnea (OSA) is related directly to active service. The rationale for this opinion was, "The Veteran was diagnosed with OSA many years after service. There is insufficient clinical evidence that his time in service contributed to his now diagnosed OSA. As such, it is less than likely than not that the claimed OSA was related to service." In a third opinion concerning the Veteran's obstructive sleep apnea, the VA clinician opined that it is less likely than not that obstructive sleep apnea is proximately due to or the result of a service-connected disability. The rationale was: An extensive review of the current medical literature was conducted, including Up To Date, Emedicine, and Google Scholar. There is no evidence linking PTSD as a cause of obstructive sleep apnea (OSA), scleroderma, median and ulnar neuropathy of the left hand and fingers as well as the right upper extremity, hypertension, erectile dysfunction, bilateral hearing loss, and/or tinnitus. This clinician next stated, "The journal article[s] submitted by the Veteran in consideration for his case were also review[ed]." This clinician then opined that there was "no causative link between" OSA and PTSD. She stated: However, associations, suggestions and elevated risks do not rise to the level of causation that is actually needed to link a certain medical condition to a specific exposure. With time and continued research, these causations might be established and would warrant further review. Thus, it is less than likely than not that the Veteran's claimed OSA is proximately due to the s/c PTSD, scleroderma, median and ulnar neuropathy of the left hand and fingers as well as the right upper extremity, hypertension, erectile dysfunction, bilateral hearing loss, and/or tinnitus. The Veteran's attorney argued in his February 2022 submission that the Veteran "only needs to show that his PTSD is a cause of his sleep apnea. He does not need to prove that it is the sole cause with absolute medical certainty." (Emphasis in original.) The January 2022 opinions concerning OSA do not reach the conclusion(s) concerning causation alleged in the argument by the Veteran's attorney in his February 2022 submission. In fact, as noted above, the VA clinician specifically stated, "There is no evidence linking PTSD as a cause of obstructive sleep apnea (OSA)" in the medical literature. (Emphasis added.) In other words, this clinician found in her review of relevant medical literature that PTSD was not a cause of OSA so the Veteran cannot rely on this theory as support for granting his service connection claim OSA. And, in discussing causation in the January 2022 opinions concerning OSA, it is clear that the VA clinician is referring to medical causation and not legal causation as the Veteran's attorney erroneously argues in his February 2022 submission. The attorney appears to conflate medical causation with legal causation when it is clear that the January 2022 opinions speak only to the former (which is permissible for a medical professional) and not the latter (which is not permissible for a medical professional). Finally, the Veteran's attorney argued in his February 2022 submission that the January 2022 opinions concerning OSA were invalid because they did not address the contended causal relationship between a service-connected disability, the Veteran's obesity, and his OSA. This is a novel argument, especially considering that service connection generally is prohibited for obesity. And it is not clear from a review of this part of the attorney's submission how the January 2022 opinions could have addressed this theory of entitlement since service connection is not in effect for the Veteran's apparent obesity. The essence of the attorney's February 2022 submission is mere disagreement with how the January 2022 opinions weighed the evidence and reached the medical conclusions concerning the contended etiological relationship between obstructive sleep apnea and active service, including as due to a service-connected disability. Such argument, while interesting, is not probative. For all of these reasons, the Board finds that the AOJ substantially complied with the October 2021 remand directives and the January 2022 opinions concerning obstructive sleep apnea are competent and probative evidence for VA adjudication purposes. With respect to the January 2022 opinions concerning a right shoulder disability, the Board notes that the Veteran's attorney argued in his February 2022 submission that these opinions did not address whether the Veteran's service-connected scleroderma caused or aggravated his right shoulder disability. The attorney also argued that the January 2022 opinions did not comply with the Board's October 2021 remand because they did not address a secondary service connection theory of entitlement. The attorney further argued that, because the January 2022 opinions did not address the Veteran's assertion that he took over-the-counter medication (Motrin) to relieve his right shoulder pain, they were not probative on the issue of whether a right shoulder disability is related to active service, including as due to a service-connected disability. In three separate January 2022 opinions concerning the Veteran's right shoulder disability, the VA clinician addressed the concerns subsequently raised by the Veteran's attorney in his February 2022 submission. More importantly, the VA clinician substantially complied with the October 2021 remand directives and provided opinions concerning a right shoulder disability which are competent and probative evidence for VA adjudication purposes. In the first opinion, the VA clinician opined that it is less likely than not that a right shoulder disability is related directly to active service. After citing Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), for the well-settled principle that "lay persons are competent to attest to matters within their own personal knowledge, to include symptoms experienced or observed (as appropriate), as well as to provide opinions on some medical issues, such as those perceived through the senses," this clinician provided the following rationale: The Veteran contends that his right shoulder is due to service. He was treated in service for a right shoulder bursitis. This is a self limiting condition. It would be less than likely than not have progressed to contribute to the degenerative changes of the right shoulder that developed later in life. If the bursitis would have caused the degenerative changes, one would have anticipated that the [degenerative joint disease] to have developed in the immediate years after service. When in fact they developed many years later [sic]. As such, it is less than likely than not that the claimed right shoulder disability was related to service. The rationale also was based on a review of relevant medical literature. In the second January 2022 opinion addressing a right shoulder disability, the VA clinician stated that she could not determine a baseline of severity for this disability because there was insufficient medical evidence to make this determination. This clinician then opined that, regardless of an established baseline, the Veteran's right shoulder disability was not aggravated beyond its natural progression by a service-connected disability. The rationale for this opinion was based on a review of medical literature. The rationale also was, "The Veteran has been diagnosed with a right shoulder arthroplasty. The need for this surgical intervention was due to his previous degenerative changes in the shoulder joint." The clinician then opined that degenerative joint disease (DJD) was not caused by any of the Veteran's service-connected disabilities although, as the Veteran's attorney pointed out in his February 2022 submission, scleroderma was not listed at this part of the opinion rationale. The rationale for this opinion was: The cause of DJD is mechanical in nature. It is due to overuse, falls, trauma etc. Any aggravation of the right shoulder condition would have to have been due to a mechanical nature, which the [service-connected] conditions due [sic] not include. As such, it is less than likely than not that the claimed right shoulder disability was aggravated beyond natural progression due to a service-connected disability, to include his service-connected post-traumatic stress disorder (PTSD), median and ulnar neuropathy of the left hand and fingers (claimed as left hand and finger numbness), bilateral hearing loss, tinnitus, hypertension, erectile dysfunction, [and] median and ulnar neuropathy right upper extremity. (Emphasis added.) The Board acknowledges that scleroderma was not listed specifically in this opinion as among the Veteran's service-connected disabilities which did not cause or aggravated his right shoulder disability. The Veteran's attorney essentially argues that this opinion is not probative based on this apparent oversight (not listing scleroderma as a service-connected disability) by the VA clinician. Yet the attorney himself overlooks the use of the phrase "to include" in this opinion which suggests persuasively to the Board that the service-connected disabilities listed following this phrase were not an exhaustive list of the Veteran's service-connected disabilities. The use of the phrase "to include" in this opinion also leads the Board to conclude that the omission of service-connected scleroderma from the list of service-connected disabilities which did not cause or aggravate the right shoulder disability was not harmful to the Veteran because it did not change the fundamental medical conclusion reached by the VA clinician here that "it is less than likely than not that the claimed right shoulder disability was aggravated beyond natural progression due to a service-connected disability." In the third January 2022 opinion concerning the Veteran's right shoulder disability, the VA clinician opined that it is less likely than not that the right shoulder disability is proximately due to or the result of a service-connected disability. The rationale for this opinion was based on a review of the claims file. The clinician again acknowledged Kahana and then stated that "the medical literature does not support this claim" that a service-connected disability caused the right shoulder disability. She stated that the Veteran's degenerative joint disease (DJD) (or degenerative changes) in the right shoulder were not caused by any of his service-connected disabilities because "DJD is mechanical in nature. It is due to overuse, falls, trauma, etc." Again, although this clinician did not list scleroderma as among the Veteran's service-connected disabilities, she also used the phrase "to include" when listing these disabilities in this opinion. The Board again finds that this apparent oversight in not listing scleroderma as a service-connected disability does not affect the probative value of this opinion because it does not impact the fundamental medical conclusion by the VA examiner that a service-connected disability did not cause or aggravate the Veteran's right shoulder disability. The Board finally notes that, in a fourth January 2022 opinion, the VA clinician stated, "The current diagnosis related to the right shoulder is right shoulder arthroplasty." No other opinion was provided in this fourth January 2022 opinion. The Veteran's attorney argues in his February 2022 submission that the VA clinician erred in somehow concluding that the Veteran's "right shoulder disability completely healed." This argument reflects a misreading of the January 2022 opinions concerning the Veteran's right shoulder disability. The VA clinician did not conclude that the Veteran's "right shoulder disability completely healed." Instead, she stated that the Veteran's "current diagnosis to the right shoulder is right shoulder arthroplasty." The Board notes in this regard that arthroplasty is defined as joint replacement. See DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 157 (30th ed. 2003). It is undisputed that the Veteran had right shoulder joint replacement surgery in December 2013. And the record evidence does not suggest that the Veteran experienced right shoulder pain (for which he allegedly took over-the-counter medication (Motrin)) following his right shoulder joint replacement surgery. In suggesting that the VA clinician's failure to address whether taking Motrin "to alleviate shoulder pain" vitiated the probative value of the January 2022 opinions concerning the right shoulder disability, the Veteran's attorney also appears to be arguing that perfect compliance, rather than substantial compliance, with the Board's remand orders is required. Given his extensive litigation experience before the Board and the Court, he should be well aware that only substantial compliance is required with remand orders. Here, the Board finds that the VA clinicians substantially complied with the terms of the October 2021 remand by providing the requested medical opinions. 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). Having reviewed the January 2022 opinions, the Board finds that all of these opinions were 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"). More importantly, the Board concludes that the January 2022 opinions are probative on the issues of whether the Veteran's obstructive sleep apnea and right shoulder disability are related to active service, each including as due to a service-connected disability. And none of this evidence supports finding an etiological relationship between obstructive sleep apnea or a right shoulder disability (diagnosed as right shoulder arthroplasty) and active service or any incident of service, including as due to a service-connected disability. He otherwise has not identified or submitted any evidence demonstrating his entitlement to service connection for obstructive sleep apnea or for a right shoulder disability, each including as due to a service-connected disability. In summary, the Board finds that service connection for obstructive sleep apnea and for a right shoulder disability, each including as due to a service-connected disability, 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.