05-03 656
05-03 656
| Board of Vet. App. | Jan 31, 2017Background
- Veteran served on active duty 1985–1989 and in Army Reserve through 2001; appealed denial of service connection originally denied by RO in July 2003.
- Veteran sought entitlement to total disability based on individual unemployability (TDIU) and an initial compensable rating for hepatitis C; also has service-connected hemorrhoids and cervical/lumbar degenerative arthritis claims implicated in TDIU.
- Board previously remanded in January 2016 for up-to-date VA examinations for all claimed conditions and for a requested hearing; VA did not schedule or complete the examinations following that remand.
- Veteran submitted additional evidence and requested new examinations in October 2015 and further records in January 2017.
- Board ordered a new remand requiring: scheduling of the requested hearing; up-to-date C&P exams for hemorrhoids, hepatitis C, and cervical/lumbar spine with specified inquiries; adjudication of potential increased schedular ratings; review of VA Form 21-8940 and TDIU development; and issuance of a supplemental statement of the case if denials remain.
- Board emphasized Stegall compliance rights and ordered expeditious development per statutory deadlines.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Entitlement to TDIU | Veteran asserts service-connected conditions render him unemployable and requested TDIU consideration | RO/VA had not completed development (exams/hearing) to address current severity and TDIU eligibility | Remanded for full development, updated exams, review of VA Form 21-8940, and adjudication of TDIU after development |
| Compensable rating for hepatitis C | Veteran contends hepatitis C worsened and merits at least a compensable rating | RO had not provided a current C&P exam documenting frequency/severity of fatigue, incapacitating episodes, weight loss/hepatomegaly, or serologic evidence | Remanded for an up-to-date hepatitis C exam addressing specified elements |
| Increased ratings for hemorrhoids and spine | Veteran alleges worsening of hemorrhoids and cervical/lumbar arthritis supporting higher schedular ratings | RO lacked contemporaneous examinations documenting current severity, ROM, flare-ups, or incapacitating episodes | Remanded for detailed C&P exams for hemorrhoids and for cervical/lumbar spine with ROM, flare-up, and functional-loss assessment |
| Compliance with prior remand and hearing request | Veteran sought a Board hearing and compliance with January 2016 remand; contends VA failed to comply | VA did not schedule exams or the requested hearing after the January 2016 remand | Remanded: AOJ must schedule the hearing (or treat withdrawal/no-show accordingly) and otherwise comply with prior remand per Stegall; development must be completed expeditiously |
Key Cases Cited
- Stegall v. West, 11 Vet. App. 268 (holding that VA must comply with remand directives)
- Kutscherousky v. West, 12 Vet. App. 369 (noting veteran's right to submit additional evidence during remand)