Single Judge Application; Tadlock v. McDonough is potentially pertinent and significant authority. _ F.4th _, No. 2020-1762, 2021 WL 2964328 (Fed. Cir. July 15, 2021) (“Affirmance in the face of an error may be made by the Veterans Court only if the record already contains findings made previously by VA or the Board that support affirmance or the entire record makes evident that the Board could not have reached any other decision.”);

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 20-1483
THOMAS E. HOGLAND, APPELLANT,
V.
DENIS MCDONOUGH,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before MOORMAN, Senior Judge.1
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.
MOORMAN, Senior Judge: The appellant, Thomas E. Hogland, appeals a November 13, 2019, Board of Veterans’ Appeals (Board) decision that denied his claims for service connection for a left knee disorder, a respiratory disorder, and obstructive sleep apnea. Record (R.) at 5-9. On June 9, 2021, the Court issued a single-judge memorandum decision that affirmed that part of the Board’s decision denying service connection for obstructive sleep apnea, vacated that part of the decision denying service connection for knee and respiratory disorders, and remanded those matters for readjudication. Hogland v. McDonough, No. 20-1483, 2021 WL 2344868 (Vet.App. Jun. 9, 2021) (mem dec).
On June 28, 2021, the appellant filed a timely motion for reconsideration. The appellant argues that the Court exceeded the permissible scope of harmless error review in affirming the Board’s denial of service connection for obstructive sleep apnea. Motion at 2-10. He asserts that the Court impermissibly weighed evidence in the first instance in finding no harmless error in the Board’s decision. Motion at 8-10. On July 16, 2021, the appellant filed a notice of supplemental authorities stating that the U.S. Court of Appeals for the Federal Circuit’s (Federal Circuit’s)
1 Judge Moorman is a Senior Judge acting in recall status. In re Recall of Retired Judge, U.S. VET. APP. MISC. ORDER 02-21 (Jan. 4, 2021).
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decision in Tadlock v. McDonough is potentially pertinent and significant authority. _ F.4th _, No. 2020-1762, 2021 WL 2964328 (Fed. Cir. July 15, 2021) (“Affirmance in the face of an error may be made by the Veterans Court only if the record already contains findings made previously by VA or the Board that support affirmance or the entire record makes evident that the Board could not have reached any other decision.”). In light of the Federal Circuit’s decision, the Court will grant the appellant’s motion for reconsideration; withdraw the June 9, 2021, decision; and issue this decision in its stead.
This appeal is timely, and the Court has jurisdiction pursuant to 38 U.S.C. § 7252(a) to review the Board’s decision. Single-judge disposition is appropriate. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the following reasons, the Court will affirm in part and vacate in part the Board’s decision and will remand the vacated matters for readjudication.
I. BACKGROUND
Mr. Hogland served on active duty in the U.S. Air Force from May 1986 to June 1995 and in the U.S. Army from March to December 2007, including service in Iraq during Operation Iraqi Freedom. R. at 996, 1117, 1119. He served in the Army National Guard from December 1995 to August 2015. R. at 187, 1118. During service in 1992, Mr. Hogland reported difficulty falling asleep and sleeping through the night and was assessed with a sleep disorder. R. at 1050-51. On a January 1997 medical history report, Mr. Hogland denied frequent trouble sleeping. R. at 1220.
In May 2000, while on active duty for training, Mr. Hogland was treated for possible aspiration of jet fuel. R. 1266. He was examined in August 2000 and assessed with resolved aspiration pneumonia. R. 1181-82.
In April 2008, Mr. Hogland reported chest pain consistently with exercise. R. 1464. A May 1, 2008, treadmill stress test revealed an overall impression of “[p]ositive stress test suggestive of ischemia,” and further testing was recommended. R. at 579. During a May 2008 follow-up evaluation, the physician noted that Mr. Hogland had a “significant history” of toxin exposure and pneumonia. R. at 1138-39. The physician opined that Mr. Hogland’s exertional chest pain “could be cardiac but it could also be exercise[] induced asthma from his known lung injury.” R. at 1139. The physician explained: “Because [Mr. Hogland] is so young with really no cardiac factors I would say that he is more of an intermediate probability category for having coronary disease.” Id. He recommended a stress MRI and, if positive, a heart catheterization. Id. The physician further
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noted that if the stress test is negative, Mr. Hogland should be evaluated for exercise induced asthma. Id. A cardiac MRI later that month was normal and revealed no heart conditions. R. at 1618-20.
In September 2008, Mr. Hogland reported that his left knee began “clicking without trauma.” R. at 1458. He reported some aching and a sense of fullness or looseness in the knee. Id. The impression was “[l]eft knee crepitance with vague soreness, possible internal derangement.” Id. An MRI of his left knee revealed a lateral meniscus tear and minimal degenerative changes. R. at 1460. In March 2015, Mr. Hogland was diagnosed with obstructive sleep apnea. R. at 1398.
In July 2015, Mr. Hogland filed a claim for service connection for chronic shortness of breath; chronic left knee pain, torn meniscus; and sleep apnea. R. 1252-55. Mr. Hogland was provided a VA compensation and pension examination for respiratory conditions (other than tuberculosis and sleep apnea) in December 2015. R. at 284-86, 297-99. The examiner opined that Mr. Hogland did not currently suffer from, nor had he ever been diagnosed with, a respiratory condition. R. at 285. The examiner noted Mr. Hogland’s history of inhaling jet fumes in May 2000 and treatment for possible pneumonia. Id. Mr. Hogland had reported that since that time, he has experienced shortness of breath and having to rest after 15 minutes of activity. Id. The examiner explained that “‘chronic shortness of breath’ is a symptom not a diagnosis,” Mr. Hogland’s jet fuel inhalation “caused a pneumonitis which he recovered from with no lung residuals,” and the May 2008 evidence indicated that his shortness of breath had a cardiac etiology. R. at 284.
The regional office (RO) issued a decision in February 2016 that denied service connection for sleep apnea; chronic left knee pain, torn meniscus; and chronic shortness of breath. R. 247-54. In his May 2016 Notice of Disagreement (NOD), Mr. Hogland argued that his left knee condition was caused and aggravated by military fitness training and duty, and that he had not experienced any other injuries or issues that would have caused his knee condition. R. 209-10. He also stated that he believed that his breathing problem was caused when he inhaled jet fuel during active duty. Id. Regarding his sleep apnea, Mr. Hogland stated that he had been diagnosed with sleep apnea while he was still serving in the National Guard, and he attached a statement from his wife describing his ongoing sleep issues. Id. Mr. Hogland’s wife reported that she and Mr. Hogland had been a “couple” since 1999 and married since 2007. R. at 211. She stated that she had observed Mr. Hogland’s significant breathing issues while sleeping, to include severe snoring and frequent episodes of delayed or stopped breathing, since 1999. R. 214.
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Mr. Hogland testified at a hearing before the Board in June 2019. R. at 14-34. He reported that he had experienced sleep difficulties prior to his 2015 sleep apnea diagnosis, but he did not specify when his symptoms began. R. at 16. He also testified that he believed that his left knee condition occurred during physical fitness training during a period of active service in the Army National Guard in 2007. R. at 20. Regarding his shortness of breath claim, Mr. Hogland reported that his x-rays showed scarring on his lungs, and he submitted those medical records at the hearing. R. at 24-25. He stated that his doctors were not “willing to go on record” to make the connection between his lung scarring and the fuel inhalation during active service. R. at 25.
In the November 2019 decision here on appeal, the Board denied Mr. Hogland’s claims for service connection for a left knee disorder, a respiratory disorder, and sleep apnea. R. at 5-9. The Board found that although Mr. Hogland had a current diagnosis of a left knee meniscal tear, there was no evidence of in-service complaints or diagnoses of any left knee disorder. R. at 6-7. The Board found that Mr. Hogland did present evidence of a current respiratory disorder in that his x-rays revealed scarring of the lungs and that he experienced an in-service inhalation of jet fuel. R. at 7. However, the Board found that the medical evidence of record did not support a link between Mr. Hogland’s current respiratory condition and his in-service inhalation of jet fuel. Id. Regarding Mr. Hogland’s sleep apnea claim, the Board found that although a sleep disorder was noted in service, a diagnosis of sleep apnea was not made. R. at 8. Therefore, the Board found that the medical evidence did not support an in-service incurrence of sleep apnea, nor did the medical evidence establish a causal link between his current sleep apnea and service. Id. This appeal followed.
II. ANALYSIS
Establishing that a disability is service connected for purposes of entitlement to VA disability compensation generally requires medical or, in certain circumstances, lay evidence of (1) a current disability, (2) incurrence or aggravation of a disease or injury in service, and (3) a nexus between the claimed in-service injury or disease and the current disability. See 38 U.S.C. § 1110; Washington v. Nicholson, 19 Vet.App. 362, 367 (2005); see also Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (2021). When assessing a claim, the Board may not consider the absence of evidence as substantive negative evidence, see McLendon
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v. Nicholson, 20 Vet.App 79, 85 (2006), but may consider the lack of notation of an event where such notation would normally be expected, Buczynski v. Shinseki, 24 Vet.App. 221, 224 (2011).
Whether the record establishes entitlement to service connection is a finding of fact, which the Court reviews under the “clearly erroneous” standard of review. See Russo v. Brown, 9 Vet.App. 46, 50 (1996). A finding of fact is clearly erroneous when the Court, after reviewing the entire evidence, “is left with the definite and firm conviction that a mistake has been committed.” United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948); see Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990).
VA must “make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant’s claim for a benefit,” including “providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim.” 38 U.S.C. § 5103A(a)(1), (d)(1); see Loving v. Nicholson, 19 Vet.App. 96, 102 (2005). In McLendon v. Nicholson, the Court set forth a four-part test clarifying that an examination is warranted when there is
(1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran’s service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim.
20 Vet.App. 79, 81 (2006); see 38 C.F.R. § 3.159(c)(4) (2021). The third McLendon element “requires only that the evidence ‘indicates’ that there ‘may’ be a nexus between the [first] two [elements] . . . [and t]his is a low threshold.” McLendon, 20 Vet.App. at 83 (quoting 38 U.S.C. § 5103A(d)(2)(B)).
The Court may overturn the Board’s determination that a medical examination is not necessary only if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 38 U.S.C. § 7261(a)(3)(A); McLendon, 20 Vet.App. at 81. When the Board considers whether a medical examination is necessary under section 5103A(d) and § 3.159(c)(4), it must provide a written statement of the reasons or bases for its conclusion, pursuant to 38 U.S.C. § 7104(d)(1), and, absent a finding of nonprejudicial error, vacatur and remand are warranted when it fails to do so. Duenas v. Principi, 18 Vet.App. 512, 517-18 (2004) (per curiam) (citing Tucker
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v. West, 11 Vet.App. 369, 374 (1998)); see Allday v. Brown, 7 Vet.App. 517, 527 (1995); Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990).
“[O]nce the Secretary undertakes the effort to provide an examination [or opinion,] . . . he must provide an adequate one.” Barr v. Nicholson, 21 Vet.App. 303, 311 (2007). A medical examination or opinion is adequate “where it is based upon consideration of the veteran’s prior medical history and examinations,” Stefl v. Nicholson, 21 Vet.App. 120, 123 (2007), “describes the disability, if any, in sufficient detail so that the Board’s ‘evaluation of the claimed disability will be a fully informed one,'” id. (quoting Ardison v. Brown, 6 Vet.App. 405, 407 (1994)), and “sufficiently inform[s] the Board of a medical expert’s judgment on a medical question and the essential rationale for that opinion,” Monzingo v. Shinseki, 26 Vet.App. 97, 105 (2012) (per curiam). The law does not impose any reasons-or-bases requirements on medical examiners, and the adequacy of medical reports must be based upon a reading of the report as a whole. Id. at 105-06. “Whether a medical [examination or] opinion is adequate is a finding of fact, which the Court reviews under the ‘clearly erroneous’ standard.” D’Aries v. Peake, 22 Vet.App. 97, 104 (2008) (per curiam).
In every decision, the Board must analyze the credibility and probative value of the material evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for rejecting any material evidence favorable to the claimant. Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). Moreover, the Board must provide a statement of the reasons or bases for its determination “adequate to enable a claimant to understand the precise basis for the Board’s decision, as well as to facilitate review in this Court.” Allday, 7 Vet.App. at 527; see 38 U.S.C. § 7104(d)(1); Gilbert, 1 Vet.App. at 56-57.
The appellant argues that the Board clearly erred in finding that VA had satisfied its duty to assist regarding all three of his claims. He argues that VA failed to satisfy its duty to assist him in developing his left knee disorder and sleep apnea claims by failing to provide VA medical opinions. He argues that the VA medical examination provided in connection with his respiratory disorder was inadequate. Alternatively, the appellant argues that the Board failed to provide an adequate statement of its reasons or bases for its finding that VA satisfied its duty to assist. The appellant also argues that the Board erred in failing to address whether service connection for a respiratory disorder is warranted pursuant to 38 C.F.R. § 3.317 for undiagnosed illnesses occurring in Persian Gulf veterans.
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The Secretary concedes that a remand is required for the Board to provide an adequate statement of reasons or bases for denying service connection for a left knee disorder and a respiratory disorder. The Secretary maintains, however, that the Board’s decision denying service connection for sleep apnea should be affirmed. The Secretary argues that the Board was under no obligation to provide a VA examination for sleep apnea because there is no indication that the appellant’s currently diagnosed sleep apnea may be associated with his service.
A. Left Knee Disorder
Regarding the appellant’s left knee disorder, the Board found that the evidence did not support service connection because the appellant’s service treatment records do not contain any complaints or diagnoses of a left knee disorder. R. at 6-7. The parties concede, and the Court agrees, that the Board erred in relying on the absence of medical evidence to find that the left knee condition did not occur during service. See Fountain v. McDonald, 27 Vet.App. 258, 272 (2015) (holding that the absence of evidence cannot be substantive negative evidence without a proper foundation to demonstrate that such silence has a tendency to prove or disprove a relevant fact). Therefore, a remand is required.
The appellant urges the Court to find that VA failed to comply with its duty to assist, and to direct VA to provide a medical opinion for his left knee on remand. The Board did not expressly find that VA had satisfied its duty to assist, nor did it address whether a VA examination was required. Id. The appellant asks the Court to reverse the Board’s implied finding. Given the parties’ agreement that the Board’s finding of no in-service incurrence lacked sufficient reasons or bases, and the Board’s failure to address the less stringent McLendon standard, the Court cannot, in the first instance, make the factual determinations necessary to find that the criteria for a VA examination have been met in this matter. See Hensley v. West, 212 F.3d 1255, 1263 (Fed. Cir. 2000) (“[A]ppellate tribunals are not appropriate fora for initial fact finding.”); see also Duenas, 18 Vet.App. at 517-18. The appellant is, however, encouraged to pursue that matter on remand. See Kay v. Principi, 16 Vet.App. 529, 534 (2002) (stating that, on remand, the Board must consider additional evidence and argument in assessing entitlement to benefit sought); Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order).
B. Respiratory Disorder
The Secretary also concedes that a remand of the appellant’s respiratory disorder claim is required because the Board failed to address evidence favorable to the appellant. The Board,
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relying on the December 2015 VA examination that concluded that the evidence pointed toward a cardiac etiology for shortness of breath, found that the medical evidence did not support a nexus between the appellant’s shortness of breath and service. The Secretary concedes that the Board failed to address evidence in the record that suggested that his shortness of breath may be not be cardiac related. The Court agrees that a remand is required for the Board to provide an adequate statement of reasons or bases for its decision, properly addressing the favorable evidence of record. See Caluza, 7 Vet.App. at 506.
Although the appellant agrees that remand of his respiratory condition claim is warranted, he urges the Court to further find the December 2015 VA examination inadequate and direct VA to provide a new VA examination. The Board stated that the December 2015 VA examiner found that the appellant did not have a current respiratory disorder; however, relying on an April 2018 private medical opinion noting mild scarring of the lungs, the Board found that the appellant suffered from a current respiratory disability. R. at 7. Given the Board’s finding that the appellant currently suffers from a respiratory condition, the Court holds that the Board clearly erred in finding the December 2015 VA examination adequate and in relying on that examination to deny service connection. See D’Aries, 22 Vet.App. at 104. Accordingly, on remand, the Board should direct VA to provide an adequate VA examination for the appellant’s respiratory condition.
The appellant also argues that the Board erred in failing to address whether service connection for a respiratory condition is warranted on a presumptive basis pursuant to 38 C.F.R. § 3.317. The Board is required to consider all theories of entitlement to VA benefits that are either raised by the claimant or reasonably raised by the record, Robinson v. Peake, 21 Vet.App. 545, 553 (2008), aff’d sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009). The parties dispute whether entitlement pursuant § 3.317 was raised by the record. However, that issue has now been expressly raised by the appellant, and he is free to continue to pursue that theory on remand. See Kay, 16 Vet.App. at 534; Kutscherousky, 12 Vet.App. at 372-73.
C. Sleep Apnea
Regarding his sleep apnea claim, the appellant argues that VA failed to satisfy its duty to assist by not providing a VA sleep apnea examination, and that the Board erred by implicitly finding that VA had satisfied its duty to assist and a VA examination was not warranted. The Secretary maintains that the appellant has not demonstrated that VA was required to provide a
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sleep apnea examination because there is no evidence indicating that the appellant’s sleep apnea may be associated with his service.
The appellant argues that the evidence “indicated that [the a]ppellant’s symptoms of sleep difficulty, that he complained about in the 1992 [service treatment record], have continued since then.” Appellant’s Brief at 14. He asserts that his wife’s statement that she observed his sleep apnea symptoms since 1999 is “‘credible evidence of continuity of symptomatology'” that the Board failed to recognize. Id. at 15 (quoting McLendon, 20 Vet.App. at 83). He further attempts to support his claim by pointing to his March 2015 sleep apnea diagnosis and November 2013 report of symptoms. Id. However, the appellant does not point to any evidence suggesting that he experienced continued symptoms of sleep apnea between 1992 and through 1999. Id.
Although the standard for indicating a relationship between service and a current disability is a low threshold, the appellant has not identified any evidence that would trigger VA’s duty to provide an examination pursuant to McLendon. See McLendon, 20 Vet.App. at 83. In Waters v. Shinseki, the Federal Circuit held that the appellant’s theory—that a “conclusory generalized statement that [a veteran’s] service illness caused his present medical problems” was sufficient to trigger the Secretary’s duty to provide a VA examination—”would eliminate the carefully drafted statutory standards governing the provision of medical examinations and require the Secretary to provide such examinations as a matter of course in virtually every veteran’s disability case.” 601 F.3d 1274, 1278-79 (Fed. Cir. 2010).
The appellant argues that his complaint of sleep-related symptoms in service in 1992, evidence of similar symptoms 7 years later, and his current diagnosis of obstructive sleep apnea all elevate his lay statement—that he believes that his current illness is related to his in-service complaints—beyond “a ‘conclusory generalized statement’ which ‘all veterans could make.'” Reply Brief at 4 (quoting Waters, 601 F.3d at 1277-78). He argues that “his assertion that his [obstructive sleep apnea] is related to his in-service symptoms, diagnosed as a sleep disorder at the time, is not an assertion ‘that all veterans could make’ because all veterans with [obstructive sleep apnea] do not have consistent symptoms noted in their [service treatment records].” Reply Brief at 5. However, if the Court were to adopt the appellant’s argument, any veteran who provides sufficient evidence of the first two McLendon elements—an in service-event and a current disability—would automatically be entitled to a VA examination if they believe the two are related. This is exactly the situation the Federal Circuit cautioned against in Waters. 601 F.3d at 1278-79.
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Even assuming all the facts as the appellant presents them, the evidence in this matter establishes, at best, a 1992 in-service incident and a current disability with symptoms since 1999. Thus, the appellant’s allegation that the two are related is no more than a “conclusory generalized statement . . . all veterans could make” and that is legally insufficient to trigger VA’s duty to provide an examination. Waters, 601 F.3d at 1278.
The appellant argues that the Court lacks authority to decide that VA’s duty to provide an examination had not been triggered, and that a remand is required for the Board to make the requisite findings of fact in the first instance. Motion at 7-9; see also Tadlock, 2021 WL 2964328. The appellant is correct, and the Federal Circuit has made clear, that the Court is prohibited from engaging in initial factfinding, even in the context of a prejudicial-error analysis. However, in this matter, the Court is not assessing the weight to be afforded evidence presented, but holds that the appellant’s statement is legally insufficient to meet the statutory requirement.
Accordingly, the Board’s implicit finding that a VA examination was not required for the appellant’s sleep apnea claim was not “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” McLendon, 20 Vet.App. at 81. Although the Board did not expressly discuss the McLendon elements, because the appellant has failed to identify any evidence that could be construed as indicating a relationship between his in-service incident and his current disability, he has not demonstrated prejudicial error in the Board’s decision. See 38 U.S.C. § 7261(b)(2) (requiring the Court to “take due account of the rule of prejudicial error”); Shinseki v. Sanders, 556 U.S. 396, 409 (2009) (holding that the harmless-error analysis applies to the Court’s review of Board decisions and that the burden is on the appellant to show that he or she suffered prejudice as a result of VA error); Duenas, 18 Vet.App. at 517-18.
III. CONCLUSION
After consideration of the parties’ pleadings, including the appellant’s motion for reconsideration, and a review of the record on appeal, the appellant’s June 28, 2021, motion for reconsideration is granted; the Court’s June 9, 2021, memorandum decision is WITHDRAWN; and the Court issues this decision in its stead. The Board’s November 13, 2019, decision, to the extent it denied the appellant’s claim for service connection for obstructive sleep apnea, is AFFIRMED. The Board’s decision, to the extent it denied service connection for a left knee
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disorder and a respiratory disorder, is VACATED, and those matters are REMANDED for readjudication consistent with this decision.
DATED: July 29, 2021
Copies to:
Glenn R. Bergmann, Esq.
VA General Counsel (027)