05-10 317
05-10 317
| Board of Vet. App. | Jan 31, 2017Background
- Veteran: USAF active duty Jun 1966–Dec 1970, served in South Korea and Thailand (Don Muang RTAFB); represented by The American Legion.
- Procedural posture: Multiple RO and Board decisions with remands; matters on appeal: (1) service connection for cervical spondylosis (including secondary to service‑connected lumbosacral strain), (2) increased initial rating for service‑connected lumbosacral strain with spondylosis (appealing the 10% assigned effective Apr 8, 2003), and (3) service connection for diabetes mellitus claimed due to herbicide exposure.
- Relevant medical evidence: diagnoses of cervical spondylosis, lumbosacral strain with spondylosis (service‑connected), and diabetes mellitus; VA exams in 2006, 2009, 2010, and 2015 provided etiology and ROM findings.
- Key factual findings: service records show in‑service low back injury but no documented cervical complaints or treatment; Veteran reports a 1986 neck injury; service records and lay evidence support exposure to herbicides at Don Muang; VA examiners found no nexus between service or the service‑connected lumbar condition and the cervical disorder.
- Board actions: denied cervical service connection; granted service connection for diabetes mellitus (presumptive via herbicide exposure in Thailand on benefit‑of‑the‑doubt basis); granted a staged increased rating for the lumbar spine (20% from Sep 4, 2009–Apr 29, 2015; 10% thereafter within appeal period).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Service connection for cervical spondylosis (direct or secondary to service‑connected lumbar condition) | Veteran: neck pain began in/after service and is related to his service and/or caused/aggravated by service‑connected lumbosacral strain | VA: no in‑service cervical complaints, long latency (first reported 1986), and medical examiners opine no nexus to service or lumbar condition | Denied — preponderance against service connection; VA examiner opinions credited over lay assertions |
| Initial rating in excess of 10% for service‑connected lumbosacral strain with spondylosis | Veteran: functional impairment and pain warrant >10% for the appeal period | VA: ROM and exam findings show forward flexion and combined ROM consistent with 10% (except moderate limitation between Sep 4, 2009 and Apr 29, 2015) and no IVDS or neurological radiculopathy | Granted in part — staged rating: 20% from Sep 4, 2009 to Apr 29, 2015; 10% for remainder of appeal period |
| Service connection for diabetes mellitus as due to herbicide exposure | Veteran: served at Don Muang and handled mail/aircraft near base perimeter, exposed to Agent Orange/herbicides; developed diabetes | VA: JSRRC/AFHRA unable to fully verify unit exposure; but veteran’s credible lay statements plus VA guidance on Thailand exposure | Granted — Board finds herbicide exposure at Don Muang at least as likely as not and diabetes is presumptively associated with herbicide exposure; service connection awarded |
Key Cases Cited
- Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (limits on lay persons offering medical etiology opinions)
- Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (continuity of symptomatology requirement under §3.303(b))
- DeLuca v. Brown, 8 Vet. App. 202 (1995) (functional loss and consideration of pain in musculoskeletal ratings)
- Thun v. Peake, 22 Vet. App. 111 (2008) (three‑step extraschedular referral framework)
- Rice v. Shinseki, 22 Vet. App. 447 (2009) (TDIU claim is part and parcel of an increased‑rating claim when raised by the record)