UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

No. 16-1515

JOSEPH HARVEY, JR., APPELLANT,

V.

DAVID J. SHULKIN, M.D.,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

On Appeal from the Board of Veterans' Appeals

(Argued August 29, 2017) (Decided February 7, 2018)

David Anaise, of Tucson, Arizona, was on the brief for the appellant.

Richard J. Hipolit, Acting General Counsel; Mary Ann Flynn, Chief Counsel; Thomas E. 

Sullivan, Deputy Chief Counsel; and Ronen Z. Morris, all of Washington, D.C., were on the brief 

for the appellee.

Before DAVIS, Chief Judge, and SCHOELEN and BARTLEY, Judges.

BARTLEY, Judge: Veteran Joseph Harvey, Jr., appeals through counsel a January 14, 

2016, Board of Veterans' Appeals (Board) decision denying entitlement to service connection for 

sleep apnea, as secondary to a service-connected psychiatric disability, and reopening a claim for 

service connection for tinnitus. Record (R.) at 2-45.

1 This appeal is timely and the Court has 

jurisdiction to review the Board decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). The

primary issue before the Court is whether part of a legal brief submitted to the Board by Mr. 

Harvey's attorney, who is also a medical doctor, constituted a medical opinion that the Board was 

 

1 The Board denied (1) reopening claims of entitlement to service connection for bilateral hearing loss and 

headaches; (2) entitlement to service connection for hypertension, including as secondary to a service-connected 

psychiatric disability; and (3) entitlement to an initial compensable disability rating for plantar hyperkeratosis, 

previously diagnosed as xerosis, of both feet, and psoriasis of the feet; and (4) dismissed a claim for entitlement to 

service connection for post-traumatic stress disorder (PTSD). R. at 44-45. Because Mr. Harvey has not challenged 

these portions of the Board decision, the appeal as to those matters will be dismissed. See Pederson v. McDonald, 27 

Vet.App. 276, 281-86 (2015) (en banc) (declining to review the merits of an issue not argued on appeal and dismissing 

that portion of the appeal); Cacciola v. Gibson, 27 Vet.App. 45, 48 (2014) (same). The Board also reopened and 

granted entitlement to service connection for nerve damage to bilateral upper and lower extremities as due to Gulf 

War illness and granted an increased evaluation for depressive disorder to 70%. R. at 44-45. As these findings are 

favorable to the veteran, the Court will not disturb them. See Medrano v. Nicholson, 21Vet.App. 165, 170 (2007) 

("The Court is not permitted to reverse findings of fact favorable to a claimant made by the Board pursuant to its 

statutory authority.").
2

required to address. For the reasons that follow, the Court will affirm the January 2016 Board 

decision.

I. FACTS

Mr. Harvey served on active duty in the U.S. Marine Corps from June 1988 to June 1992. 

R. at 4, 906.2 He was diagnosed with obstructive sleep apnea in October 2006. R. at 22, 24. In July 

2008 and January 2009, he filed claims for service connection for tinnitus, depressive disorder, 

and sleep apnea. R. at 8, 32. In February 2009, a VA regional office (RO) granted service 

connection for depressive disorder. R. at 32. In August 2009, a VA examiner opined that sleep 

apnea was not caused by or a result of service, noting that service treatment records (STRs) did 

not show that sleep apnea symptoms were reported in service. See R. at 24. In September 2009, 

the RO denied service connection for, inter alia, sleep apnea and tinnitus. See R. at 8. In April 

2011, the veteran sought to reopen these claims. See id. 

In April 2013, a VA audiologic examiner opined that Mr. Harvey's hearing loss and 

tinnitus, which the examiner found to be a symptom of hearing loss, were less likely due to military 

noise exposure and more likely due to civilian noise exposure, age, or another etiology. R. at 911, 

918, 920. The examiner explained that tinnitus was not reported on the veteran's service medical 

records (SMRs) and could not be claimed as secondary to acoustic trauma because there was no 

hearing loss at separation. R. at 918. 

In April 2013, a VA examiner opined that Mr. Harvey's sleep apnea was not directly related 

to service, noting that the October 2006 onset occurred many years after separation, and was not 

proximately due to his service-connected depressive disorder, citing a review of medical literature. 

See R. at 24. The examiner noted that a major cause of sleep apnea was weight gain and that the 

veteran weighed 155 pounds in service and 255 pounds in March 2013. See id. In April 2013, the 

RO reopened the sleep apnea claim, but denied service connection, and found no new and material 

evidence sufficient to reopen the tinnitus claim. See R. at 8-9. 

On December 4, 2014, Mr. Harvey's representative, Mr. David Anaise, submitted what he 

categorized as an "appeal brief" to the St. Petersburg RO and asserted that "we appeal the rating 

 

2 The Court notes that Mr. Harvey's opening brief failed to include a statement of "the facts relevant to the 

issues, with appropriate page references to the record before the agency" as required by the Rules of Practice and 

Procedure. U.S.VET.APP.Rule 28(a)(4)(i); see Appellant's Brief (Br.).
3

decision of April 17, 2013." R. at 82-89. Mr. Anaise is a licensed medical doctor, licensed attorney, 

and accredited VA representative. R. at 82. The letterhead of this submission stated "David Anaise, 

MD, JD," and included an email address for "anaisedavid.office," and he began the submission by 

identifying himself as an accredited attorney representing Mr. Harvey "in his claim for VA 

benefits." R. at 82. 3 The signature block of the submission identified "David Anaise, MD JD

Attorney at Law" as the author. R. at 89.

In this submission, Mr. Anaise presented argument for an increased evaluation to 70% for 

depressive disorder claimed as PTSD and depression. R. at 82. Mr. Anaise detailed favorable 

medical evidence from various examinations and evaluations of record, which he included as 

enumerated enclosures with the submission; cited this Court's caselaw and a Board decision

concerning another veteran to support his argument that a higher evaluation was warranted; 

identified symptoms that were indicative of a higher evaluation; and concluded that "we argue that 

a 70% disability rating for PTSD is most appropriate." R. at 82-85. 

The next page of Mr. Anaise's December 2014 submission is entitled "Obstructive Sleep 

Apnea” and the header stated "Appeal Brief" and "Page 5 of 8." R. at 86 (emphasis in original). 

Mr. Anaise commenced this section of the document as follows:

Veteran has been diagnosed with obstructive sleep apnea, treated by CPAP 

[Continuous Positive Airway Pressure]. The veteran's sleep apnea is more likely 

than not secondary to his service-connected MDD/PTSD. Scientists at the Madigan 

Army Medical Center have recently studied the incidence of sleep apnea in military 

personnel.[] In an article, Sleep Disorders and Associated Medical Comorbidities 

in Active Duty Military Personnel, Dr. Vincent Mysliwiec, et al, observed that sleep 

disturbances are increasing in frequency and are commonly diagnosed during 

deployment and when military personnel return from deployment (redeployment). []

[EXHIBIT 9] Recent evidence suggests the increased incidence of sleep 

disturbances in redeployed military personnel is potentially related to PTSD, 

depression, anxiety, or mTBI [Mild Traumatic Brain Injury].[]

Id. (exhibit citation in original). In footnotes in that paragraph, Mr. Anaise cited to several 

scholarly medical articles, including the Mysliwiec article discussed in the text. Id. Mr. Anaise 

next inserted a block quotation, composed of sentences from various medical texts regarding the 

 

3

"M.D." is an abbreviation for Doctor of Medicine, an advanced degree needed to work as a medical doctor, 

and "J.D." is an abbreviation for Juris Doctor, an advanced degree needed to work as a lawyer. Professional Studies,

U.S. Department of Education, https://web.archive.org/web/20071214142648/http://www.ed.gov/about/offices/

list/ous/international/usnei/us/edlite-professional-studies.html.
4

relationship between sleep apnea and PTSD, which cited additional scholarly medical articles, 

contained internal quotation marks, and was not clearly attributable to a single source. Id.

In the next paragraph, Mr. Anaise inserted another block quotation, this time quoting a 

Board decision that granted another veteran entitlement to service connection for obstructive sleep 

apnea as secondary to PTSD. R. at 87. Mr. Anaise concluded, "Veteran suffers from Obstructive 

Sleep Apnea, requiring treatment by CPAP, thus, entitling him to a 50% disability rating," and 

inserted the sleep apnea rating criteria from Diagnostic Code 6847. Id.

Mr. Anaise also included in his December 2014 submission excerpts from an Institute of 

Medicine report addressing the onset of tinnitus. R. at 87-88. He then concluded:

We ask for an increase in the veteran's rating for PTSD/Depressive Disorder to 

70%, which is appropriate for the severity of his symptoms and GAF scores of 42-

45. We also ask for service connection for Obstructive Sleep Apnea secondary to 

PTSD. The medical literature strongly supports a correlation between sleep apnea 

and MDD, PTSD. Finally, we ask for service connection for tinnitus as Veteran

was exposed to high decibel noise having served as a tank crewman and in combat.

R. at 89.

In the January 2016 decision on appeal, the Board, inter alia, reopened the sleep apnea 

claim but denied entitlement to direct service connection, presumptive service connection based 

on Gulf War service, and service connection secondary to depressive disorder for lack of medical 

nexus. R. at 24. The Board determined that the Mysliwiec article supported only correlation 

between psychiatric disorders and sleep apnea and not a causal relationship, and that it was 

therefore unpersuasive in determining whether Mr. Harvey'ssleep apnea was caused or aggravated 

by his service-connected psychiatric disability. R. at 26. Further, the Board found that "the weight 

of the competent evidence demonstrates that there is no relationship between the [v]eteran's 

claimed sleep apnea and either active service or a service-connected disability. There are no 

contrary opinions of record." R. at 25. The Board also distinguished Mr. Harvey's claim from a 

February 2014 Board decision concerning another veteran, which Mr. Harvey submitted as an 

exhibit with his December 2014 submission. The Board determined that Mr. Harvey's claim, unlike 

the other veteran's claim, lacked favorable medical opinions supporting a link between the serviceconnected psychiatric disability and sleep apnea. R. at 26. This timely appeal followed.
5

II. ANALYSIS

A. December 2014 Submission to the Board

Mr. Harvey argues that the Board provided inadequate reasons or bases for denying 

entitlement to service connection for sleep apnea as secondary to PTSD because it failed to address 

a medical nexus opinion submitted by his attorney-physician representative, Mr. Anaise. 

Appellant's Brief (Br.) at 5-11. Specifically, Mr. Harvey asserts that (1) Mr. Anaise is a boardcertified surgeon, (2) his December 2014 "brief clearly identified" Mr. Anaise as both a medical 

doctor and a lawyer, (3) in the December 2014 submission, Mr. Anaise "opined that there is a

medical nexus for sleep apnea," and (4) the Board has previously, in other cases, recognized Mr. 

Anaise's medical opinions as probative evidence. Appellant's Brief (Br.) at 5. The Secretary argues 

that the Board was not compelled to view certain assertions in Mr. Anaise's brief as a medical 

opinion rather than a statement made by legal counsel in the context of a legal brief; therefore, he 

argues, no medical opinion by Mr. Anaise as to sleep apnea was properly before the Board. 

Secretary's Br. at 6-8.

Establishing service connection generally requires medical or, in certain circumstances, lay 

evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; 

and (3) a link between the claimed in-service disease or injury and the present disability. 

Romanowsky v. Shinseki, 26 Vet.App. 289, 293 (2013). Secondary service connection will be 

granted if a disability is proximately due to or the result of a service-connected disease or injury 

or aggravated by a service-connected disease or injury. See Allen v. Brown, 7 Vet.App. 439, 448 

(1995) (en banc); 38 C.F.R. § 3.310(a)-(b) (2017). 

Every Board decision must include a written statement of reasons or bases for its findings 

and conclusions on all material issues of fact and law; this statement must be adequate to enable 

the claimant to understand the precise basis for the Board decision and to facilitate informed review 

by this Court. 38 U.S.C. § 7104(d)(1); Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990). The Board 

must analyze the credibility and probative value of evidence, account for the persuasiveness of 

evidence, and provide reasons for rejecting 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). The 

Board must also address all potentially favorable evidence. See Thompson v. Gober, 14 Vet.App. 

187, 188 (2000) (per curiam order).
6

This Court's caselaw is replete with standards to determine the adequacy of a medical 

opinion for VA benefits purposes. See, e.g., Monzingo v. Shinseki, 26 Vet.App. 97, 105 (2012) (an 

adequate medical opinion "sufficiently inform[s] the Board of a medical expert's judgment on a 

medical question and the essential rationale for that opinion"); Nieves-Rodriguez v. Peake, 

22 Vet.App. 295, 301 (2008) ("a medical examination report must contain not only clear 

conclusions with supporting data, but also a reasoned medical explanation connecting the two"); 

Stefl v. Nicholson, 21 Vet.App. 120, 123 (2007) (an adequate medical opinion "describes the 

disability in sufficient detail so that the Board's 'evaluation of the claimed disability is a fully 

informed one'") (quoting Ardison v. Brown, 6 Vet.App. 405, 407 (1994)). However, neither this 

Court nor VA statutes or regulations set forth requirements that would illuminate how an 

adjudicator is to determine whether a specific submission constitutes a medical opinion. Although 

the Court declines to prescribe absolute requirements necessary for a submission to be considered 

a medical opinion, the Court will discuss attributes that may be assessed in making such a 

determination. An assessment of whether a specific submission is a medical opinion is to be 

undertaken individually; although a particular submission may omit one or another of these

attributes, the Board may nevertheless be obligated to assess whether that submission is a medical 

opinion and consider it in adjudicating a claim.

An initial consideration in this matter is whether, in the December 2014 submission to the 

Board, Mr. Anaise identified that he was acting in the role of a medical professional in presenting 

the statements made therein. The Court finds that the December 2014 submission provided no such 

indication.

4

Instead, Mr. Anaise gave every indication that he provided the December 2014 

submission to the Board to present legal argument and advocate on behalf of his client in 

furtherance of his role as Mr. Harvey's appointed legal representative. Mr. Anaise commenced his 

submission by explicitly identifying himself as an accredited attorney who was representing the 

veteran "in his claims for VA benefits" and provided his accreditation number. R. at 82. Further 

evidence of legal advocacy in his submission includes his widespread use of phrases like "we 

argue." R. at 82; see, e.g., R. at 85 ("Thus, we argue that a 70% disability rating for PTSD is more 

appropriate."). In the December 2014 submission, Mr. Anaise also highlighted material evidence 

 

4 Although Mr. Anaise presented his credentials as a board-certified surgeon to the Court, Appellant's Br. at 

5, this evidence was not before the Board at the time of its decision. Thus, the Court is unable to consider these 

credentials. See Kyhn v. Shinseki, 716 F.3d 572, 577 (Fed. Cir. 2013) (noting that the Court is prohibited from 

considering evidence not in the records before the Board).
7

in the record that was favorable to Mr. Harvey's claims, including enumerated exhibits that he 

enclosed with the submission. See Supplemental R. at 92-97; R. at 84. Mr. Anaise further provided 

analytical legal discussion of Court precedent and citation to legal sources. R. at 85 (citing Bowling 

v. Principi, 15 Vet.App. 1 (2001), and a Board decision for another veteran). Also indicative of 

legal argument was Mr. Anaise's request for specific legal remedies for each of the veteran's 

pending claims. E.g. R. at 89 ("We also ask for service connection for Obstructive Sleep Apnea 

secondary to PTSD."). 

Second, the four corners of Mr. Anaise's December 2014 submission not only contained 

throughout numerous indications that he was acting as a legal representative, it lacked indicia that 

he provided the submission to the Board as the professional opinion of a medical expert. Mr. 

Anaise did not label the document itself with a letterhead, email address, title, heading, or other 

indication that demonstrated an affiliation with the medical profession. Instead, he provided a 

generic "office" email address, characterized his submission as an "appeal brief," and identified 

himself as an "attorney at law." R. at 82-89. Indeed, in the December 2014 submission the only 

indicator that Mr. Anaise was a medical professional was his use of "MD" in his letterhead and 

signature block, along with the use of "JD." R. at 82, 89. However, directly below that designation

in the signature block, "attorney at law" is listed exclusively, without mention of Mr. Anaise's

position as a medical professional. R. at 89.

Delving further into the text of the December 2014 submission, Mr. Anaise failed to use 

any identifying wording, e.g. "in my opinion," that would signal his intention to provide an expert 

medical opinion. Thus, the text contains no indication that a medical opinion was being provided. 

Not only that, Mr. Anaise's December 2014 submission lacks any identifiable medical judgment 

and contains no rationale for an opinion rendered.

Moreover, the language that Mr. Anaise asserts is reflective of his reasoned medical 

judgment is not independent of or clearly discernible from the legal arguments he presents in 

support of Mr. Harvey's claim. In the December 2014 submission, Mr. Anaise wrote "[t]he 

veteran's sleep apnea is more likely than not secondary to his service-connected MDD/PTSD" and 

proceeded to reference relevant medical literature to support his statement. R. at 86. Mr. Anaise 

insists that, as a medical expert, "I opined that there is a medical nexus for sleep apnea" by writing 

this single sentence. Appellant's Br. at 5. Although this sentence, in a context that included indicia 

of a medical opinion given by a medical expert, is the sort of language a medical examiner would 
8

use to provide a medical conclusion, the phrasing is also characteristic of legal advocacy. When 

viewed within the framework of his December 2014 submission, Mr. Anaise's language functions 

as legal argument. Indeed, Mr. Anaise inserted what he asserts is his medical opinion on "page 5 

of 8" of a submission titled "appeal brief," couched between arguments related to different claims, 

and immediately precedes, with no transitionary indicator, an analytical legal discussion 

comparing Mr. Harvey's sleep apnea claim to a previous Board decision from another veteran 

addressing a similar issue. R. at 86-87. Because, after considering all the above factors, the 

December 2014 submission failed to elucidate to the Board that Mr. Anaise provided the relevant

statement in the capacity of a medical expert, the sentence on page 5, and the accompanying 

language before and after that sentence, does not constitute a medical opinion.

In conclusion, after considering attributes relevant to such a determination, the Court 

concludes that Mr. Anaise's December 2014 submission did not contain a discernable medical 

opinion. This conclusion is based on the text of the submission and the indicators of legal advocacy 

and legal argument therein, as well as the absence of indicators that Mr. Anaise was acting in the 

role of a medical expert, including the lack of an identifiable medical opinion containing medical 

judgment and rationale, in the December 2014 submission. The Board would have needed to 

exercise extraordinary powers of clairvoyance to recognize that the December 2014 submission 

contained a medical linkage opinion on behalf of Mr. Harvey, as Mr. Anaise argues before this 

Court. The Court concludes that Mr. Anaise's inclusion of the designation "MD" on his letterhead 

and in his signature block, absent any markers within the submission that indicate that he was 

acting in a medical-expert role, along with the fact that his submission was identified as an "appeal 

brief" and contained legal argument to the exclusion of medical judgment and opinion, is 

insufficient to mark the December 2014 submission, or any part thereof, as the opinion of a medical 

expert. 

Therefore, the Court finds no clear error in the Board's determination that no medical 

opinion of record demonstrated a linkage between Mr. Harvey's sleep apnea and his serviceconnected psychiatric disability, and affirms the Board's conclusion that there was no evidence 

demonstrating a relationship between the veteran's sleep apnea and active service or a serviceconnected disability. See Thompson, 14 Vet.App. at 188; see also Hersey v. Derwinski, 2 Vet.App. 

91, 94 (1992) ("A factual finding 'is "clearly erroneous" when although there is evidence to support 

it, the reviewing court on the entire evidence is left with the definite and firm conviction that a 
9

mistake has been committed.'" (quoting United States v. Gypsum Co., 333 U.S. 364, 395 (1948))). 

The Court further holds that the Board provided adequate reasons or bases that enable the claimant 

to understand the precise basis for that determination and facilitate judicial review. See 38 U.S.C. 

§ 7104(d)(1); Gilbert, 1 Vet.App. at 52.

B. Model Rule of Professional Conduct 3.7

Based on arguments made in the Secretary's brief, the Court ordered oral argument and 

supplemental memoranda of law to address the appropriateness, in light of the Model Rules of 

Professional Conduct (MRPC) Rule 3.7, of an attorney serving as an expert witness in a case where 

he or she is also the legal representative of record. Specifically, the Court ordered the parties to 

address whether (1) Rule 3.7 applied to contexts other than a trial setting; (2) combining the role 

of advocate and witness could prejudice the Board; (3) a representative of record submitting a 

medical opinion on behalf of a client involves a conflict of interest between the lawyer and client; 

and (4) this case presented a situation in which the interest in protecting the integrity of the 

advocate's professional role, by eliminating the opportunity of mixing law and fact, warranted the 

application of Rule 3.7. 

The MRPC "provide a framework for the ethical practice of law," Ann. Model Rules of 

Prof'l Conduct Scope § 16 (Am. Bar Ass'n 2015) (hereinafter MRPC), and "should be interpreted 

with reference to the purposes of legal representation and of the law itself," MRPC Scope § 14. 

Both the Board and the Court have adopted the Rules as standards of conduct for attorney practice. 

38 C.F.R. § 14.632(d) (2017) ("[A]n attorney shall not, in providing representation to a claimant 

before VA, engage in behavior or activities prohibited by the rules of professional conduct of any 

jurisdiction in which the attorney is licensed to practice law."); Rules of Admission and Practice,

U.S. VET. APP.Rule 4(a) ("Unless otherwise provided by specific rule of the Court, the disciplinary 

standard for practice is the Model Rules of Professional Conduct adopted by the American Bar 

Association on August 2, 1983, as amended."). 

Clearly, the MRPC contemplate its application to "tribunals." MRPC r. 1.0(m) (defining 

"tribunal" as "a court" or "administrative agency" "acting in an adjudicative capacity"). The MRPC 

specifically contemplate application before "tribunals" acting in an adjudicative capacity where "a 

neutral official, after the presentation of evidence or legal argument by a party or parties, will 

render a binding legal judgment directly affecting a party's interests in a particular manner." Id.

Rule 3.7 provides that "[a] lawyer shall not act as advocate at a trial in which the lawyer is likely 
10

to be a necessary witness" except under limited circumstances. MRPC r. 3.7(a). The Comments to 

Rule 3.7 indubitably extend the advocate-witness prohibition beyond trial proceedings to include 

proceedings before tribunals. See MRPC r. 3.7 cmt. 3 ("To protect the tribunal, paragraph (a) 

prohibits a lawyer from simultaneously serving as advocate and necessary witness[.]"); see also 

Ethics 2000 Commission Model 3.7 Reporter's Explanation of Changes, American Bar Association 

Center for Professional Responsibility, https://www.americanbar.org/groups/professiona l_

responsibility/policy/ethics_2000_commission/e2k_rule37rem.html (revising the language of 

Comment 3 "to clarify that the prohibition in paragraph (a) is for the protection of the tribunal as 

well as parties"); MRPC Scope § 21 ("The Comment accompanying each Rule explains and 

illustrates the meaning and purpose of the Rule" and Comments are "intended as guides to 

interpretation.").

Rule 3.7 is intended to prevent the blurring of lines between argument and evidence in a 

way that may confuse or mislead a tribunal. See MRPC r. 3.7 cmt. 1 ("Combining the roles of 

advocate and witness can prejudice the tribunal[.]"); MRPC r. 3.7 cmt. 2 ("It may not be clear 

whether a statement by an advocate-witness should be taken as proof or as an analysis of the 

proof."). Rule 3.7 also protects the integrity of the lawyer's role as an advocate. See Culebras 

Enterprises Corp. v. Rivera-Rios, 846 F.2d 94, 100 (1st Cir. 1988) (evaluating the application of 

Rule 3.7 to non-trial proceedings prior to the incorporation of "tribunal" language in the Comments 

and concluding that "the most cogent rationale" for the rule is "the interest in protecting the 

integrity of the advocate's professional role by eliminating the opportunity of mixing law and 

fact"); see also MRPC Preamble § 2 ("As advocate, a lawyer zealously asserts the client's position 

under the rules of the adversary system.").

In this instance, because we find that Mr. Anaise did not submit a medical opinion in the 

text of his December 2014 "appeal brief," we can find no violation of Rule 3.7. However, based 

on the Board decision that evidenced no comprehension that Mr. Anaise intended to submit a 

medical opinion within his 2014 submission, and Mr. Anaise's arguments to this Court that he 

indeed intended such a course, there is no doubt that his December 2014 submission blurred the 

line between making a legal argument and providing a medical opinion to support service 

connection. See MRPC r. 3.7 cmt. 2. That Mr. Anaise would even attempt to submit his own 

medical opinion in the text of an "appeal brief" is emblematic of the confusion that the advocatewitness rule is intended to prevent. See MRPC r. 3.7 cmt. 1.
11

C. Other Arguments

1. Obstructive Sleep Apnea

Mr. Harvey contends that the Board clearly erred in its assessment of a medical article 

submitted as evidence. Appellant's Br. 7-8; Reply Br. at 3-5. Specifically, he argues that the Board 

improperly relied on its own medical judgment to determine that the article reflected a correlative 

rather than a causal relationship between PTSD and sleep apnea, therefore assigning little 

probative weight to the evidence. Id. He essentially argues that secondary service connection is 

supported because the article shows that sleep apnea is more prevalent in veterans suffering from 

PTSD and mood disorder. Appellant's Br. at 8-11.

VA will grant secondary service connection if a disability is proximately due to or the 

result of a service-connected disease or injury or aggravated by a service-connected disease or 

injury. 38 C.F.R. § 3.310(a)-(b) (2017) (emphasis added); see Allen, 7 Vet.App. at 448. The 

Board's determinations regarding the probative value of evidence and whether Mr. Harvey's sleep 

apnea was proximately due to or the result of his service-connected depressive disorder are 

findings of fact subject to the "clearly erroneous" standard of review set forth in 38 U.S.C. 

§ 7261(a)(4). See Smallwood v. Derwinski, 10 Vet.App. 93, 97 (1997). "A factual finding 'is 

"clearly erroneous" when, although there is evidence to support it, the reviewing court on the entire 

evidence is left with the definite and firm conviction that a mistake has been committed.'" Hersey, 

2 Vet.App. at 94 (quoting U.S. Gypsum Co., 333 U.S. at 395)).

In its decision on appeal, the Board addressed the article, Sleep Disorders and Associated 

Medical Comorbidities in Active Duty Military Personnel ("Mysliwiec article"), enclosed with the 

December 2014 document submitted by Mr. Harvey's representative. R. at 26. The Mysliwiec 

study itself consisted of a retrospective review of the electronic medical records of 761 military 

personnel referred for a sleep medicine evaluation at a major military medical treatment facility in 

the Pacific Northwest in 2010. R. at 98-105. The article noted that, although recent evidence 

"suggested the increased incidence of sleep disturbances in redeployed military personnel was 

potentially related to PTSD, depression, anxiety or [mild] TBI," "[t]o date, no large cohort studies 

of redeployed military personnel with a definitive sleep disorder diagnosis existed" and thus it 

"remained unclear whether their sleep complaints were solely an epiphenomenon of comorbid 

illness, persistent maladaptive sleep practices that occur during deployment, or an independent 

diagnosis." R. at 98. The Mysliwiec article indicated that "the preponderance of research on sleep 
12

disorders in military personnel was limited by the use of data from subjective assessment tools or 

examination of specific diagnoses." Id. The article cited to a study published in Medical 

Surveillance Monthly Report in 2010, that diagnosed 76.8% of the 69 participants, all redeployed 

soldiers diagnosed with PTSD, TBI, or other mental health disorders, with obstructive sleep apnea, 

but indicated that the study was limited in that obstructive sleep apnea was the only sleep diagnosis 

reported. R. at 98, 101. 

The Board determined that, although "the article supports a correlation between mental 

health disorders and sleep apnea (and other sleep disorders), it does not support a causal 

relationship, or, specifically, a finding that psychiatric disorders cause sleep apnea." R. at 26 

(emphasis in original). The Board further found that the article was not "persuasive in considering 

whether [Mr. Harvey's] current sleep apnea is caused or aggravated by his service-connected 

psychiatric disability." Id.

The Court concludes that Mr. Harvey's argument, that the Board's interpretation of the 

Mysliwiec article's findings amounts to the inappropriate rendering of a medical opinion, 

Appellant's Br. at 7-8, is unavailing. Interpretation of a medical treatise's meaning and assessment 

of its probative value as evidence in support of the claim being adjudicated are within the purview 

of the Board as factfinder. Caluza, 7 Vet.App. at 506 ("the Board's statement of reasons or bases 

must account for the evidence which it finds to be persuasive or unpersuasive, analyze the 

credibility and probative value of all material evidence submitted by and on behalf of a claimant, 

and provide the reasons for its rejection of any such evidence"). 

Here, the Board correctly applied the legal standard contained in the secondary-serviceconnection regulation, 38 C.F.R. § 3.310(a), and determined that the Mysliwiec article was 

unpersuasive for two reasons. R. at 26. First, the Board found that the article did not support a 

causal or aggravation relationship between sleep apnea and psychiatric disorder, as would be 

required for secondary service connection; second, the Board found that the Mysliwiec article 

indicated that sleep apnea may cause or aggravate psychiatric disorders, and not the other way 

around as the veteran argued. Id.

The Court cannot find clearly erroneous the Board's conclusion that the competent 

evidence does not establish a secondary service-connection relationship between Mr. Harvey's 

sleep apnea and his service-connected psychiatric disabilities. Moreover, despite Mr. Harvey's 
13

assertions that a correlation5 between a service-connected disability and a secondary condition is 

sufficient evidence to establish secondary service connection, the Board was correct in holding

that a causation or aggravation relationship is required. See 38 C.F.R. §§ 3.310(a), (b) (2017) 

(referring to a secondary disability that is "proximately due to or the result of" a service-connected 

disability, or "any increase in severity of a nonservice-connected [disability] that is proximately 

due to or the result of a service-connected [disability]"); see also Allen, 7 Vet.App. at 447-49 

(concluding that § 3.310 requires that the service-connected condition must cause or aggravate the 

secondary condition). A mutual relationship or some degree of correspondence that is not based 

on causation or aggravation is not sufficient to meet the requirements of § 3.310. Thus, the Board 

did not err as Mr. Harvey contends. And, as discussed above in section II.A., despite Mr. Harvey's 

contentions otherwise, Mr. Anaise's December 2014 appeal brief did not contain a medical opinion 

determining that the veteran's sleep apnea is proximately due to, a result of, or aggravated by a 

psychiatric disorder. See supra II.A; 38 C.F.R. § 3.310(a).

Therefore, the Court holds that the Board did not clearly err in determining the meaning 

and probative value of the Mysliwiec article as evidence in support of Mr. Harvey's claim, or its 

determination that the evidence does not show that the veteran's sleep apnea is not causally related 

to his service-connected psychiatric disorder for purposes of secondary service connection. See 

Smallwood, 10 Vet.App. at 97; Hersey, 2 Vet.App. at 94; see also Hilkert v. West, 12 Vet.App. 

145, 151 (1999) (en banc) (appellant bears the burden of demonstrating error on appeal), aff'd per 

curiam, 232 F.3d 908 (Fed. Cir. 2000) (table).

2. Tinnitus

Mr. Harvey also argues that the Board's reasons or bases for denying entitlement to service 

connection for tinnitus were inadequate because the Board failed to address medical evidence in 

the form of an Institute of Medicine (IOM) report regarding the potential of delayed onset of 

tinnitus. Appellant's Br. at 12. 

In the decision on appeal, the Board did not deny entitlement to service connection for 

tinnitus, as Mr. Harvey argues, but rather it denied reopening of a claim for service connection for 

tinnitus for lack of new and material evidence under 38 C.F.R. § 3.156(a). R. at 4, 43. The Board 

found that "[t]he evidence received subsequent to the February and September 2009 rating decision 

 

5 Correlation is defined as a "mutual relationship or connection" or as "the degree of relative correspondence, 

as between two sets of data." WEBSTER'S NEW WORLD DICTIONARY 312 (3d ed. 1988).
14

is not new and material to reopen" the claim for service connection for tinnitus. R. at 6. Even 

construed sympathetically, Mr. Harvey does not allege that the IOM report constituted sufficient 

evidence to reopen his previously denied tinnitus claim. See Robertson v. Shinseki, 26 Vet.App. 

169, 181 (2013) (new argument does not constitute new and material evidence). Even should the 

IOM report be construed as new and material evidence that the Board failed to address, Mr. Harvey 

has not raised a specific argument challenging the Board's denial of reopening of his claim. 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). Therefore, Mr. Harvey fails to demonstrate prejudicial error in 

the Board's determination. See Hilkert, 12 Vet.App. at 151.

III. CONCLUSION

Upon consideration of the foregoing, the Court will AFFIRM the portions of the January 

14, 2016, Board decision denying entitlement to service connection for sleep apnea, as secondary 

to a service-connected psychiatric disorder, and the reopening of a claim for service connection 

for tinnitus. The appeal as to the remainder of the Board decision is DISMISSED.