Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 20-7124
DWIGHT E. REYNOLDS, APPELLANT,
V.
DENIS MCDONOUGH,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before PIETSCH, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
PIETSCH, Judge: Dwight E. Reynolds appeals through counsel a September 11, 2020,
Board of Veterans’ Appeals (Board) decision that denied VA benefits for sleep apnea, including
as secondary to tinnitus and deviated nasal septum. This appeal is timely, and the Court has
jurisdiction to review the Board’s decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). Singlejudge
disposition is appropriate as the issue is of “relative simplicity” and “the outcome is not
reasonably debatable.” Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the reasons that
follow, the Court will affirm the Board’s September 11, 2020, decision.
I. FACTS
Mr. Reynolds served on active duty in the U.S. Army from December 1964 to December
- Record (R.) at 5610.
In January 2015, Mr. Reynolds filed a claim for benefits for sleep apnea. R. at 5598-99. A
VA regional office (RO) denied his claim the following month, and Mr. Reynolds appealed that
decision. R. at 5581-84, 5568-69, 5216. Mr. Reynolds’s claim was remanded twice by the Board.
R. at 3871, 3273.
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In the first remand order, issued on September 10, 2018, the Board ordered VA to provide
Mr. Reynolds with a medical opinion as to whether his sleep apnea was at least as likely as not
related to service or otherwise proximately due to, the result of, or aggravated by his serviceconnected
tinnitus. R. at 3866-82. Mr. Reynolds underwent a medical examination in November
2018, at which the examiner found that his sleep apnea was less likely than not related to his
service or his service-connected tinnitus. R. at 653-58.
On July 31, 2019, the Board again remanded Mr. Reynolds’s claim for VA to obtain a
medical opinion to address whether his sleep apnea was at least as likely as not caused by, or
otherwise aggravated by, his newly service-connected deviated nasal septum. R. at 3262-79. In an
October 2019 VA medical opinion, a VA examiner opined that Mr. Reynold’s sleep apnea was less
likely than not caused or aggravated by his deviated nasal septum. R. at 665-67. The examiner,
instead, found that Mr. Reynolds’s condition was caused by his age and weight. R. at 666. The
examiner also found no evidence that his deviated septum aggravated his sleep apnea, noting that
he did not have problems with his sleep apnea treatment, including his use of a continuous positive
airway pressure (CPAP) machine and that nothing indicated that his condition had progressed more
intensely than it naturally would. R. at 667.
The Board issued the decision on appeal on September 11, 2020, denying benefits for sleep
apnea, to include as secondary to tinnitus and deviated nasal septum. R. at 1-15. The Board found
that VA had complied with its remand orders by obtaining the requested VA opinions. In
addressing the merits of Mr. Reynolds’s claim, the Board noted that he had a current diagnosis of
sleep apnea, but the Board found that the evidence did not show that his condition was related to
service or his service-connected disabilities.
Mr. Reynolds argues that the Board erred by relying on inadequate medical opinions to
decide his claim. Specifically, he argues that the medical opinion failed to address fully address
whether his sleep apnea was aggravated by his service-connected deviated nasal septum. Based on
the inadequacies in these examinations, Mr. Reynolds argues that the Board failed to ensure that
VA satisfied its duty to assist. He also argues that the Board’s reasons or bases were inadequate
where the Board adopted the medical opinion without discussing treatment records that noted that
his deviated septum prevented him from undergoing his preferred treatment for sleep apnea.
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In response, the Secretary argues that Mr. Reynolds has not shown that the Board erred by
relying on the November 2018 and October 2019 VA medical opinions, which were adequate. The
Secretary also disputes Mr. Reynolds’s arguments with respect to the Board’s reasons or bases and
states that most of his arguments constitute lay hypothesizing by his attorney.
II. ANALYSIS
Under 38 U.S.C. § 5103A, the Secretary has a duty to assist claimants that includes, in
certain circumstances, providing a medical examination or obtaining a medical opinion. See
38 C.F.R. § 3.159(c)(4) (2021). “Once the Secretary undertakes the effort to provide an
examination when developing a service-connection claim, . . . 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 Board’s determination of whether a medical opinion is adequate and whether the
Secretary has fulfilled the duty to assist are findings of fact that the Court reviews under the
“clearly erroneous” standard of review. 38 U.S.C. § 7261(a)(4); D’Aries v. Peake, 22 Vet.App. 97,
104 (2008) (per curiam); Van Valkenburg v. Shinseki, 23 Vet.App. 113, 120 (2009). 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); Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990).
In every decision, the Board must provide a statement of the reasons or bases for its
determination, adequate to enable an appellant to understand the precise basis for the Board’s
decision as well as to facilitate review in this Court. 38 U.S.C. § 7104(d)(1); Allday v. Brown,
7 Vet.App. 517, 527 (1995); Gilbert, 1 Vet.App. at 56-57. To comply with this requirement, the
Board must analyze the credibility and probative value of the evidence, account for the evidence
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it finds persuasive or unpersuasive, and provide the reasons for its rejection of 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).
Mr. Reynolds argues that the VA medical opinions ignore evidence that his deviated
septum interferes with his ability to use CPAP equipment and other therapy to treat his sleep apnea.
He argues that the November 2018 examiner’s indication that there were no other pertinent findings
related to his sleep apnea and the October 2019 examiner’s rationale that he had no complaints
with the use of his CPAP equipment were contradicted by the evidence. Mr. Reynolds is correct
that the evidence shows that, at one point, his deviated septum hampered his use of a CPAP
machine, noting a treatment record from July 2015 and a history of his condition described in
November 2015. However, he ignores evidence that, in November 2015, his treatment provider
found that medications he had been given to treat the problems with his deviated septum had
“improved significantly” his condition so that he was “tolerating a full-mask CPAP machine
without problems.” R. at 1787. The October 2019 medical opinion specifically addressed this
evidence, stating that Mr. Reynolds’s “most recent sleep (CPAP) note demonstrated no complaints
with the CPAP or the equipment related to the CPAP.” R. at 667.
VA examiners are not required to provide reasons or bases or to address every piece of
evidence in the record. See Monzingo, 26 Vet.App. at 107; Acevedo v. Shinseki, 25 Vet.App. 286,
293 (2012). As discussed by the Board, the evidence reflects that Mr. Reynolds did experience
problems using his CPAP equipment, but that, with treatment, those problems resolved. Mr.
Reynolds has failed to point to any evidence showing that the period that he did experience such
problems aggravated his condition. And, it is not clear to the Court why, in this case, an examiner’s
failure to discuss problems that were no longer relevant could render an opinion inadequate. Thus,
the Court finds that Mr. Reynolds has failed to demonstrate that the VA opinions were inadequate
based on the examiners’ failure to expressly address his earlier problems using his CPAP
equipment. See Hilkert v. West, 12 Vet.App. 145, 151 (1999) (en banc) (holding that the appellant
bears the burden of demonstrating error on appeal), aff’d per curiam, 232 F.3d 908 (Fed. Cir. 2000).
Mr. Reynolds also challenges the November 2018 examiner’s reference to an August 2016
notation that his oral cavity was crowded and that he had a Mallampati score of III. In discussing
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the August 2016 notation, the November 2018 VA examiner noted that “Mallampati classification
can be helpful in predicting whether a patient might have obstructive sleep apnea” and may
correlate with the severity of that condition. R. at 658. Mr. Reynolds, through his attorney, provides
a series of questions that he believes the examiner should have addressed, including the possible
significance of crowded oral cavity, issues related to air flow volume, as well as the effects of his
dentures. However, his questions are all speculative as to the potential relevance of any of this
information. See Hyder v. Derwinski, 1 Vet.App. 221, 225 (1991) (explaining that a counsel’s
“[l]ay hypothesizing, particularly in the absence of any supporting medical authority, serves no
constructive purpose and cannot be considered by this Court”). Contrary to Mr. Reynolds’s
argument, the examiner was not required to educate the Board or Mr. Reynolds on everything
related to sleep apnea but was instead required to provide an opinion as to the etiology of his sleep
apnea with sufficient rationale, which the examiners did in this case.
Mr. Reynolds further challenges the October 2019 examiner’s rationale that there was no
evidence that his deviated septum, diagnosed in 1965, aggravated his sleep apnea, diagnosed in - In discussing whether Mr. Reynolds’s deviated septum caused his sleep apnea, the examiner
noted the length of time between Mr. Reynolds’s diagnoses of deviated septum and sleep apnea,
stating that if his deviated septum had caused his sleep apnea, his sleep apnea would have been
diagnosed sooner. She then explained that his sleep apnea was caused by other factors, including
age and weight. Contrary to his argument, this discussion by the examiner was made in addressing
secondary service connection based on causation, not aggravation. Further, to the extent that he
revives his argument that his deviated septum aggravated his sleep apnea because his deviated
septum interfered with his use of CPAP equipment, including nasal pillows, he fails to explain
how not being able to use his preferred treatment actually worsened his condition, such that the
examiner was required to discuss it. See Monzingo, 26 Vet.App. at 107; see also Hilkert,
12 Vet.App. at 151.
As to the Board’s reasons or bases, Mr. Reynolds reiterates many of the same arguments
that were raised with respect to the VA opinions of record. Because the Court finds that the
opinions were adequate, the Court also finds that the Board did not err by relying on them or
finding that VA satisfied its duty to assist. The Court further finds that the Board did not err in
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failing to address each specific allegation regarding the examiners’ opinions raised by Mr.
Reynolds. The record of proceedings before the Court does not indicate that the adequacy of the
examinations was raised below, and such an analysis was not required where the opinions
described Mr. Reynolds’s disability in sufficient detail and provided a thorough rationale to support
the opinion. See Stefl, 21 Vet.App. at 123.
Mr. Reynolds also argues that the Board failed to properly analyze whether his sleep apnea
was aggravated by his deviated septum despite noting that his deviated septum altered the
treatment for his sleep apnea. He states that “the need to adjust treatment tactics was ‘favorable
evidence'” that the Board should have addressed in its analysis. As to the timing of his diagnoses,
he states that “the Court held in Frost v. Shulkin, 29 Vet. App. 131, 134 (2017), ‘for a veteran to
be service-connected on a secondary basis under a causation theory, the primary disability need
not be service-connected, or even diagnosed, at the time the secondary condition is incurred.'”
Appellant’s Brief at 16. He explains that, “[i]n this case, the primary disability is [sleep apnea],
while the deviated nasal septum is the secondary, aggravating condition,” clarifying that his
deviated septum “is an aggravating condition because it interferes with [his] treatment therapy for
[sleep apnea].”
Secondary service connection may be awarded when a disability “is proximately due to or the result of a service-connected disease or injury.” 38 C.F.R. § 3.310(a) (2021). “Additional disability resulting from the aggravation of a non-service-connected condition by a serviceconnected condition is also compensable under 38 C.F.R. § 3.310.” Allen v. Brown, 7 Vet.App. 439, 448 (1995) (en banc). The Court has recognized that “aggravation is just causation of an increase in disability—i.e., a discrete portion of disability—rather than of the whole disability itself.” Walsh v. Wilkie, 32 Vet.App. 300, 306 (2020). Thus, the Court held that “when aggravation of a veteran’s non-service-connected condition is proximately due to or the result of a serviceconnected
condition, such veteran shall be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation.” Allen, 7 Vet.App.
at 448.
In its decision, the Board recognized that Mr. Reynolds’s deviated septum affected his
treatment for sleep apnea. However, the Board found that his deviated septum did not cause or
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aggravate his condition. The Court finds that the Board did not err in finding that there was no
evidence of aggravation. Initially, the Court notes that Mr. Reynolds does not cite any evidence to
support his statements that his doctors had to “work around” his deviated septum or were unable
to treat his condition or altered their treatment as a result of his deviated septum. Although Mr.
Reynolds may have preferred using nasal pillows or not having to use a full mask CPAP machine,
nothing in the record suggests that his inability to use his preferred treatment method increased the
severity of his sleep apnea in any way. See Spicer v. McDonough, U.S. Vet. App. No. 18-4489,
_ Vet.App. _, (Sept. 14, 2021). Being annoyed or inconvenienced by a form of treatment for
one condition as a result of a separate service-connected condition is not sufficient to demonstrate
aggravation for purposes of establishing service connection on a secondary basis. See Allen,
7 Vet.App. at 448. Further, to the extent that Mr. Reynolds attempts to rely on Frost to support his
argument and states that his sleep apnea is his primary disability and his deviated septum is the
secondary condition, his arguments seem to be based on a misreading of the law. Establishing
service connection on a secondary basis requires a showing that a service-connected condition
worsened a non-service-connected disability. Id.
Mr. Reynolds also reiterates his arguments concerning his Mallampati score, oral cavity,
and dentures, and he provides other theories for how is sleep apnea is aggravated by his deviated
septum. But he does not cite any medical evidence to support his theories. Instead, they again
appear to be hypotheses put forth by his attorney. See Kern v. Brown, 4 Vet.App. 350, 353 (1993)
(explaining that “appellant’s attorney is not qualified to provide an explanation of the significance
of the clinical evidence”); Hyder, 1 Vet.App. at 225. Accordingly, the Court finds these arguments
with merit.
Mr. Reynolds also raises an argument concerning a VA examiner’s earlier findings
regarding the etiology of his deviated septum, specifically noting that the Board found the
examiner’s statements to be contradictory when granting benefits for that claim. However, the
Court finds he has failed to show that any concern by the Board with respect to his deviated septum
examination in conjunction with that claim is relevant to the matter on appeal or that the Board
should have otherwise addressed that examination. See Coker v. Nicholson, 19 Vet.App. 439, 442
(2006), rev’d on other grounds sub nom. Coker v. Peake, 310 F. App’x 371 (Fed. Cir. 2008) (“The
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Court requires that an appellant plead with some particularity the allegation of error so that the
Court is able to review and assess the validity of the appellant’s arguments.”); see also Locklear v.
Nicholson, 20 Vet.App. 410, 416 (2006) (holding that the Court will not entertain underdeveloped
arguments).
For these reasons, the Court finds that Mr. Reynolds has failed to demonstrate error in the
Board decision on appeal. The Court further finds that he has abandoned all other arguments not
raised on appeal. See Pederson v. McDonald, 27 Vet.App. 276, 285 (2015) (en banc) (holding that
claims not argued on appeal are deemed abandoned and dismissing the matters). The Court,
therefore, will affirm the decision denying Mr. Reynolds VA benefits for sleep apnea.
III. CONCLUSION
Upon consideration of the foregoing analysis, the record of proceedings before the Court,
and the parties’ pleadings, the September 11, 2020, Board decision is AFFIRMED.
DATED: November 30, 2021
Copies to:
David C. Wagner, Esq.
VA General Counsel (027)
Veteranclaims's Blog 
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